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)

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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 (585) 613-4312 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

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