Ceglia v. Zuckerberg et al

Filing 310

RESPONSE in Opposition re 294 Fifth MOTION to Compel and For Other Relief filed by Paul D. Ceglia. (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)(Boland, Dean)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,
Civil Action No.: 1:10-cv-00569-RJA-LGF

Plaintiff,

RESPONSE IN OPPOSITION TO
DEFENDANTS’ FIFTH MOTION TO
COMPEL

v.
MARK ELLIOT ZUCKERBERG and
FACEBOOK, INC.,
Defendants.

INTRODUCTION
At 9:23 p.m. on Thursday, February 16, 2012, Defendants’ counsel emailed
Plaintiff’s counsel raising the purported discovery deficiencies that are the subject
of Defendants’ motion to compel. In that email, Defendants’ counsel demanded that
Plaintiff’s counsel cure the purported deficiencies two business days later -- by 5:00
p.m. on Monday, February 20, 2012, President’s Day.

Exhibit A at 2.

Mr.

Southwell characterized this demand as his “attempt to meet-and-confer about the
discovery disputes described herein.” Id. at 4.

Plaintiff’s counsel responded to Mr.

Southwell’s demand within an hour of receiving his email, at 10:09 PM on
Thursday, February 16, 2012, rejecting the claims of concealment. Exhibit B. It
was also noted that Mr. Southwell delayed for more than a week in his response to
Plaintiff’s counsel’s invitation to have Mr. Ceglia sign all necessary consent forms.
On Friday, February 17, 2012 at 1:28 pm, Plaintiff’s counsel offered to
provide the requested information to Defendant’s counsel and again refuted the
claims of concealment. Exhibit C.
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On Friday, February 17, 2012, at 10:19 p.m., Plaintiff’s counsel notified
Defendants’ counsel via email that the purported discovery deficiencies would be
addressed by “next week.” Exhibit D. It was also suggested that a follow-up call be
scheduled next week to more efficiently address any perceived lingering noncompliance issues.
I am working on a response to your complaints about our privilege
designations. I will modify those privilege claims as appropriate following
my review of those items and the applicable case law. I will have this
response to you next week. Following your receipt of that information, I
suggest a phone call to resolve any lingering matters more efficiently than
the back and forth emails. Id. Emphasis added.
All the revised privileged designations, demanded supplemental declarations,
etc. were, in fact, provided the following week. Nonetheless, Defendants filed their
Fifth Motion to Compel on February 21, 2012. Doc. No. 295.
Defendants’ Fifth Motion to Compel seeks various forms of relief, much of
which Defendants have already been provided, and some of which is unjustified:
First, Defendants seek an order directing Mr. Ceglia to submit a
supplemental declaration listing webmail accounts recently brought to Mr. Ceglia’s
attention via a privilege log from Stroz Friedberg. Mtn. at 1, 4-7. This declaration
was already timely provided to Defendants on February 22, 2012. Exhibits E and F.
Southwell requested of Plaintiff’s counsel consent to an order allowing
subpoenas to the webmail providers listed in Mr. Ceglia’s signed consent forms. See
Mtn. at 3. That consent was promptly given. Southwell did not seek consent to the
court’s in camera review of the disputed documents regarding privilege designation.

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Defendants seek an order compelling Mr. Ceglia to produce documents for
which the attorney-client privilege and/or work product doctrine have been
asserted. Mtn. at 1-2. Several of these items were de-designated as not privileged in
a revised designation timely provided to Defendants.

As to the remaining still-

designated documents, they are indeed privileged, for the reasons explained below,
but Plaintiff has no objection to the court reviewing the documents in camera for its
determination as to Plaintiff’s remaining privilege claims.
Third, Defendants seek a supplemental declaration “declaring all custodians
of the ‘Lawsuit Overview’ document, including the original author and explaining
his failure to disclose any custodians in his previous declarations.” Mtn at 2; see
also Mtn. at 10-15. This declaration was already timely provided to Defendants
February 22, 2012. Defendants’ claim of an as yet undisclosed possessor or author
of the Lawsuit Overview.pdf document is unfounded.
Finally, Defendants also seek an order directing Mr. Ceglia to produce “all
copies of the ‘Lawsuit Overview’ document, including the original document from its
author.”

Mtn. at 2-3, 10-15. All copies of this document in Ceglia’s custody and

control were already provided to Defendants in previous productions pursuant to
this court’s orders long before they filed their Fifth Motion to Compel.
Defendants do not argue that the purported discovery deficiencies resulted in
any prejudice, nor can Defendants make such a showing, given that Plaintiff cured
the purported defects within one week of their discovery. As this point, Defendant’s
Fifth Motion to Compel is moot and their request for attorney’s fees should be
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denied. Plaintiff has met and conferred in good faith, timely provided all requested
information, and is compliant with his ongoing discovery obligations.
ARGUMENT
Mr. Ceglia Has Provided Consent Forms for All of His Email Accounts and a
Supplemental Declaration, and Does Not Oppose Defendants’ Request for
Subpoenas to Webmail Providers.
Stroz Friedberg recently provided a privilege log to Plaintiff’s counsel.

In

reviewing that log, Plaintiff’s counsel noticed additional email accounts not
previously disclosed to Defendants.

Mr. Ceglia had not recalled the existence of

these accounts at the time of his previous declarations.
On February 9, 2012, Plaintiff’s counsel sent the privilege log to Defendants’
counsel.

Exhibit G.

In that same communication, Plaintiff’s counsel promptly

notified Defendants’ counsel that the privilege log contained additional, newlydiscovered email accounts and offered to have Mr. Ceglia execute all necessary
consent forms enabling Defendants to obtain access to those accounts.

Id.

On

February 16, 2012, just two business days before filing their Fifth Motion to
Compel, Defendants finally sent consent forms providing for release of the email
account records to Plaintiff’s counsel. Mtn. at 6-7. Plaintiff returned the executed
consent forms Defendants within 24 hours. Mtn. at 7.
Mr. Ceglia has now disclosed nearly ten separate email accounts to
Defendants. As such, any purported discovery deficiency has been cured, and Mr.
Ceglia does not oppose Defendants’ request to issue subpoenas to the webmail
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providers.
A.

Mr. Ceglia Properly Asserted the Attorney-Client
Privilege and/or Work Product Doctrine Protections Over
the Documents Requested by Defendants, but Does Not
Object to this Court’s In Camera Review

Defendants seek a review of Plaintiff’s privilege designations of eleven
documents, Mtn. at 8-10, but these documents have either since been de-designated
and produced or are protected by the attorney-client privilege and/or work product
doctrine.
In an email to Southwell on February 24, 2012 (i.e. within the “next week”
that Plaintiff’s counsel promised to have these matters responded to) Plaintiff agree
to produce Document 337 and detailed bases for privilege claims as to all other
previously designated documents. Exhibit H. That communication also identified
the previous disclosure of an email exchange involving Mr. Holmberg as
inadvertent. That inadvertence has been verified by the person who, at the behest
of Mr. Argentieri, sent the email and attachment errantly. Declaration of Ed Flaitz.
Documents 373, 400, 401, 402, 403, and 405, are emails that were sent to or
received from David Grable, an attorney at Quinn Emanuel. Each of these
communications discusses matters related to this litigation, and occurred while Mr.
Ceglia was considering whether to formally retain Mr. Grable as counsel. The
documents discuss confidential facts relating to this case, case strategy, and legal
advice. Such communications are plainly protected by the attorney-client privilege.
See Newmarkets Partners, LLC v. Sal. Oppenheim Jr. & Cie. S.C.A., 258 F.R.D. 95,

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100 (S.D.N.Y. 2009) (“An attorney-client relationship can arise prior to formal
engagement. As a result, privilege may attach to a prospective client's ‘initial
statements’ to an attorney who is not ultimately hired. See United States v. Dennis,
843 F.2d 652, 656 (2d Cir.1988). ‘The key, of course, to whether an attorney/client
relationship existed is the intent of the client and whether he reasonably
understood the conference to be confidential.’ Id. at 657.”); see also Fierro v.
Gallucci,  No. 06-CV-5189 (JFB)(WDW), 2007 WL 4287707, at *6 (E.D.N.Y. Dec. 04,
2007) (“whether or not employment occurs, preliminary discussions between an
attorney and a prospective client are subject to the attorney client privilege”) (citing
cases). Because Mr. Grable was “approach[ed] in a professional capacity with the
intent to secure legal advice,” communications with him are protected. See
Diversified Group, Inc. v. Daugerdas, 304 F.Supp.2d 507, 513 (S.D.N.Y. 2003)
(citation omitted).
Document 334, which was previously described as concerning “a hushmail”
account, is protected by the attorney-client privilege. It is a communication between
Mr. Ceglia and his attorney, Mr. Argentieri; it was not addressed or disclosed to any
third party; and it involves the provision of legal advice and discusses case strategy.
Documents 360 and 379 are communications to which Jason Holmberg was a
party. Mr. Holmberg was retained as a consultant to Mr. Ceglia’s attorney, Paul
Argentieri, and he has served as Mr. Argentieri’s consultant and agent on matters

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pertaining to this litigation.1 Documents 360 and 379 are communications that were
prepared in the context of this position, at the behest of an attorney. Because they
were prepared in anticipation of the litigation and for a party by his representative,
they are protected by the attorney-client privilege and work product doctrine. N.Y.
C.P.L.R. § 4503(a)(1) (absent waiver, a client cannot be compelled to disclose any
“confidential communication made between the attorney or his or her employee and
the client in the course of professional employment…”); See United States v.
Adlman ( “Adlman I” ), 68 F.3d 1495, 1501 (2d Cir.1995) (noting that the work
product doctrine “shields from disclosure materials ‘prepared in anticipation of
litigation’ by a party or the party's representative, absent a showing of substantial
need.”) (quoting Fed. R. Civ. P. 26(b)(3)); see also GenOn Mid-Atlantic, LLC v. Stone
& Webster, Inc., No. 11-cv-1299, 2011 WL 5439046, at *3 (S.D.N.Y. Nov. 10, 2011)
(“because ‘attorneys often must rely on the assistance of investigators and other
agents in the compilation of materials in preparation for trial,’ the work product
rule extends to ‘material prepared by agents for the attorney as well as those
prepared by the attorney for himself.’ (quoting United States v. Nobles, 422 U.S.
225, 238, (1975)).

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Defendants apparently acknowledge this relationship, noting in their February 16, 2012, letter that
“Ceglia has waived any potential claim of privilege over communications with Mr. Holmberg,”
because “in an unrelated production, Mr. Argentieri provided to Defendants an email sent from Mr.
Holmberg to Ceglia.” 2/16/12 Ltr. at 3 (emphasis in original). However, the email that Defendants
were provided attached the “Lawsuit Overview.pdf” file, and it was provided pursuant to this Court’s
November 3, 2011, order requiring that Plaintiff produce all copies of that file. 11/3/11 Order at ¶ 14.
Plaintiff has subsequently requested on March 12, 2012 that Defendants retrieve and destroy all
copies of the errantly provided, privileged material. See Fed. R. Evid. 502.

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Document 348, is an email between James Kole, Paul Ceglia, and Amanda C.
Wornhoff. Although Mr. Kole was Senior Assistant Attorney General of Illinois at
the time of the email, he previously worked at Sidley Austin and, while in private
practice, served as Mr. Ceglia’s counsel in legal matters related to StreetFax and
Facebook. Ms. Worhoff is a staff member at Sidley Austin. [was this produced?]
With regard to Document 337 Plaintiff has produced this document.
However, notwithstanding Plaintiff’s valid privilege declarations, Mr. Ceglia
does not oppose this Court’s in camera review of these documents to evaluate such
designations.

B.

Mr. Ceglia Has Identified All Custodians and Produced All
Copies of the “Lawsuit Overview” Document

Defendants demand all copies of the “Lawsuit Overview” document and a
declaration regarding the authorship of that document. Mtn at 2-3, 10-15.

Mr.

Argentieri authored the Lawsuit Overview.pdf. See Declaration of Paul Argentieri.
CONCLUSION
For the foregoing reasons, Mr. Ceglia respectfully requests this court deny
Defendants’ Fifth Motion to Compel and any request for attorney’s fees.
Respectfully submitted,
/s/Dean Boland

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Paul A. Argentieri
188 Main Street
Hornell, NY 14843
607-324-3232 phone
607-324-6188
[e-mail]

Dean Boland
18123 Sloane Avenue
Lakewood, Ohio 44107
216-236-8080 phone
866-455-1267 fax
[e-mail]

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