Ceglia v. Zuckerberg et al

Filing 296

DECLARATION signed by Alexander H. Southwell re 294 Fifth MOTION to Compel and For Other Relief filed by Mark Elliot Zuckerberg, Facebook, Inc. filed by Mark Elliot Zuckerberg, Facebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(Snyder, Orin)

EXHIBIT F

1
1

UNITED STATES DISTRICT COURT

2

WESTERN DISTRICT OF NEW YORK

3
4
5
6
7
8
9
10
11

- - - - - - - - - - - - - - X
PAUL D. CEGLIA
)
Plaintiff
)
vs.

10CV569

Buffalo, New York
MARK ELLIOT ZUCKERBERG, and )
November 3, 2011
FACEBOOK, INC. Defendant.
2:00 p.m.
- - - - - - - - - - - - - - X
ORAL ARGUMENT OF MOTIONS
Transcribed from Electronic Recording Device
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE LESLIE G. FOSCIO
UNITED STATES MAGISTRATE JUDGE

12
DEAN M. BOLAND, ESQ.
Boland Legal LLC
18123 Sloane Avenue
Lakewood, Ohio 44107

13
14
15

PAUL A. ARGENTIERI, ESQ.
188 Main Street
Hornell, NY 14843

16
17

ORIN SNYDER, ESQ.
Gibson, Dunn & Crutcher LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193

18
19

TERRANCE P. FLYNN, ESQ.
Harris Beach LLP
Larkin at Exchange
726 Exchange Street, Suite 1000
Buffalo, NY 14210

20
21
22
23
24
25

COURT REPORTER:

Karen J. Bush, Official Court Reporter
[phone]
100 State Street
Rochester, New York 14614

9
1
2

P CEGLIA VS. M. ZUCKERBERG, ET AL.
you not?

3

MR. BOLAND:

Yes, your Honor.

4

MAGISTRATE JUDGE FOSCIO:

So, I'm not trying to

5

put words in your mouth, and I'm not trying to twist any arms

6

here, but would it be fair to say that given the fact that the

7

case is now at issue, both sides have had a fair opportunity to

8

brief and prepare on the point, that in the absence of an

9

affidavit indicating that the so-called lawsuit overview was

10

prepared either by a client, presumably Mr. Ceglia, in

11

connection with seeking legal advice from an attorney or by an

12

attorney communicating confidentially back to the client legal

13

advice, that the Plaintiff has failed to meet its burden as to

14

an attorney/client privilege attaching to this particular

15

document.

16
17
18

Would that not be a fair conclusion on my part?
MR. BOLAND:

Yes, your Honor, without an affidavit

attached; that is correct.
MAGISTRATE JUDGE FOSCIO:

Then the Court must

19

necessarily conclude that the document is not privileged and

20

that the defendant's motion with respect to this document as

21

delineated in the privilege log should be granted.

22

MR. BOLAND:

I can just represent to you as an add

23

on that Mr. Argentier is here today and he would be prepared

24

to, as an officer of the court, that he authored that document

25

and analyzed Mr. Ceglia's case and that analysis is reflected

10
1

P CEGLIA VS. M. ZUCKERBERG, ET AL.

2

in the document.

3

then we will respect the Court's order.

4

I'll offer that.

If that is insufficient,

MAGISTRATE JUDGE FOSCIO:

Well, I hear that.

And

5

I suppose it is true that there is, like, for example, one

6

paragraph detailing the statute of limitations issue which does

7

require, you know, legal research and analysis, but other than

8

that, isn't all of the information a matter of public record,

9

all of the other information?

10
11
12

MR. BOLAND:

Well, just to be clear, your Honor,

we had only -MAGISTRATE JUDGE FOSCIO:

I mean in the sense that

13

they state facts which are either in the public record or, if

14

they're not in the public record, they're fact and, therefore,

15

as we all know, facts are not included, all that are included

16

are confidential communications asking for legal advice,

17

confidential communications going back providing such advice.

18

Other than arguably a short paragraph dealing with statute of

19

limitations considerations, it's hard to see much of anything

20

within the four corners of this instrument that qualify under

21

either of those two prongs.

22

trying to give you the benefit of the doubt here.

23

words, even if Mr. Argentier were to represent such to the

24

Court, that he prepared it and he -- I don't know what he would

25

say, that he sent it back to Mr. Ceglia as a form of legal

With all respect, I mean, I'm
So, in other

11
1

P CEGLIA VS. M. ZUCKERBERG, ET AL.

2

advice, is that what he would be representing?

3

likely, as I suspect it is, that it was prepared to facilitate

4

communications between Mr. Argentier and potential future

5

counsel with regard to coming into the case in which case it

6

simply represents a case history, which is all a matter of

7

public record, as far as I know.

8
9

MR. BOLAND:

Or is it more

What am I missing here?

I think Mr. Argentier indicated that

that is accurate, that is the assessment that was made.

10

MAGISTRATE JUDGE FOSCIO:

Well, thank you for

11

that.

So, as to this document, so-called lawsuit overview, the

12

assertion of privilege is overviewed, the defendant's motion is

13

granted, the plaintiff will provide same within -- since it

14

doesn't look like this is going to be contested -- within five

15

days.

16

MR. BOLAND:

Fine.

17

MAGISTRATE JUDGE FOSCIO:

All right.

Next, the

18

issue is this one-page document, again No. 329, on page two of

19

the privilege log, which seems to be -- and I'm having

20

difficulty discerning exactly what the relevant dates are --

21

but it looks to be like one communication from Mr. Ceglia to

22

Mr. Cole and Mr. Cole to Mr. Ceglia, and then Ceglia to Cole.

23

And the reason I'm struggling is, as you know, counsel, there

24

is a date at the top of March 5th, and yet the first document

25

seems to be generated on March 4th because the response is