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)

GIBSON DUNN

Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166-0193
Tel 212.35l.4000
www.gibsondunn.com

Alexander H. Southwell
Direct: +1 212.351.3981
Fax: [phone]
[e-mail]
Client: 30993-00011

February 16,2012
VIA ELECTRONIC MAIL
Dean M. Boland, Esq.
Boland Legal, LLC
18123 Sloane Avenue
Lakewood, Ohio 44107
Re:

Ceglia v. Zuckerberg and Facebook, Inc., No.1: 10-cv-569 (RJA)

Dear Mr. Boland:
I write regarding your client's ongoing non-compliance with the Court's expedited discovery
orders. First, Defendants have recently learned that Ceglia concealed from the Court and
Defendants at least four of the webmail accounts that he has used since 2003, in violation of
the Court's August 18 and November 3,2011 Orders. Second, Ceglia has attempted to
withhold additional relevant documents by improperly designating them attorney-client
privileged communications. Third, Ceglia still has not complied with his obligations
regarding Mr. Holmberg and the "Lawsuit Overview. pdf' document-failures that we have
already raised with you twice.
As you know, in its August 18,2011 Order, following Defendants' motion to compel full
compliance with Court's initial expedited discovery order, the Court directed Ceglia to
"identify all email accounts accessible through web-based interfaces that Plaintiff has used
since 2003" and to "consent to the acquisition and inspection by Stroz Friedberg of the
contents of all such accounts." Order (Doc. No. 117) ~ 5 (emphasis added). Ceglia provided
a sworn declaration on August 29,2011, purporting to comply with the Court's order, in
which he identified only the [e-mail] and [e-mail] accounts, as
well as accounts at Adelphia and T-Mobjle without specific addresses. See Doc. No. 176-1.
Ceglia violated the Court's order requiring him to provide consents to the acquisition and
inspection of these accounts when he failed to provide timely consents.l Following
Defendants' motion to compel related to this issue, on November 3, the Court again ordered
Ceglia to provide consents for the inspection of "all email accounts accessible through web-

The Court subsequently granted Defendants' request for sanctions related to this
particular discovery violation. See Doc. Nos. 283, 292.
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GIBSON DUNN
Dean M. Boland, Esq.
February 16,2012
Page 2

based interfaces that [he] has used since 2003." Order (Doc. No. 208),-r 10 (emphasis
added). Ultimately, Ceglia provided executed consent forms for three webmail accounts:
[e-mail], [e-mail], and [e-mail].2
On February 1,2012, Stroz Friedberg produced to Ceglia's counsel electronic material that it
had identified as relevant in Ceglia's webmail accounts. That production was made in
accordance with the Electronic Asset Inspection Protocol (Doc. No. 85), in order to allow
Ceglia the opportunity to conduct a privilege review. Ceglia provided a privilege log
designating what in that production was claimed as privileged and, on February 9, 2012,
Stroz produced to Defendants the relevant electronic material that Ceglia had not designated
as privileged. Stroz did not produce to J?efendants the fifty-one (51) documents that Ceglia
withheld as privileged.
That production contains evidence that Ceglia concealed the existence of at least four
webmail accounts that he used since 2003: [e-mail], [e-mail],
[e-mail], and [e-mail]. Indeed, Ceglia appears to have
created at least one account, [e-mail], to use specifically in connection with this
fraudulent lawsuit. Ceglia's failure to identify these webmail accounts constituted yet
another apparently willful violation of the Court's expedited discovery orders. This ongoing
obstruction-in the face of repeated motions to compel-has prejudiced Defendants by
denying them access to time-sensitive electronic material the Court ordered disclosed over
six months ago.
You appear to recognize this fact. After learning that your client had failed to identify four
webmail accounts and had, yet again, violated the Court's orders, you wrote to offer his
consent to the inspection of two of those accounts: [e-mail] and
[e-mail]. However, you did not mention or offer Ceglia's consent to the inspection
of his [e-mail] account or [e-mail] account. Defendants
hereby demand that Ceglia provide executed consent forms for all of the webmail accounts
he has used since 2003, including but not limited to the four accounts mentioned above, by
5:00 p.m. ET on February 20, 2012. Copies of blank consent forms are enclosed herein. If
you do not provide the properly executed consent forms, we will be forced to raise this
additional discovery violation with the Court. Moreover, because obtaining access to these
webmail accounts will likely require a Court order and/or authorization to issue additional
subpoenas, Defendants plan to seek such from the Court. When you provide Ceglia's
executed consent forms, please indicate whether you will consent to this motion so we may
advise the Court. If you oppose it, please explain your position. Finally, please provide

2 Mr. Carmine Ceglia provided an executed consent for a fourth account,
[e-mail], for which he is the registrant.

GIBSON DUNN
Dean M. Boland, Esq.
February 16,2012
Page 3

forthwith a revised sworn declaration from Ceglia that fully complies with the Court's
expedited discovery orders, identifying all webmail accounts that he has used since 2003.
Defendants also object to Ceglia's improper privilege designations. First, Ceglia has
withheld as privileged communications with Jessica Ceglia and Jason Holmberg, third-party
non-attorneys beyond the scope of any relevant attorney-client relationship. Indeed, the
Court has already rejected Ceglia's assertion of privilege over documents sent by Ms. Ceglia.
See Doc. No. 208 ~ 15. Therefore, Ceglia's designation of Document #337 as attorney work
product is improper. Ceglia's assertion of privilege over emails sent to Mr. Holmberg is also
improper. Indeed, in an unrelated production, Mr. Argentieri provided to Defendants an
email sent from Mr. Holmberg to Ceglia:. Thus, Ceglia has waived any potential claim of
privilege over communications with Mr. Holmberg, which claims are improper in any event.
Ceglia's assertions of privilege over Documents #360 and 379 must therefore be withdrawn.
Second, Ceglia has asserted additional suspect privilege claims over communications
involving attorneys. For example, Ceglia withheld a February 15,2007 email sent by Jim
Kole while Mr. Kole was an Assistant Attorney General at the Illinois Attorney General's
Office, Consumer Fraud Bureau. See Ex. A (Document #348). Ceglia also withheld an
email sent to Mr. Argentieri that concerns "a hushmail account"-a subject that does not
appear to involve the provision of legal advice. See Ex. A. (Document #334). Finally,
Ceglia withheld five emails sent to Mr. David Grable, an attorney at Quinn Emanuel who is
not known to have provided legal services to Ceglia in connection with this matter. See Ex.
A (Documents # 373, 400, 401, 402, 403, and 405). Defendants hereby demand that Ceglia
(1) withdraw his improper assertions of privilege over Documents #337,360, and 379, and
(2) provide an evidentiary showing that his assertions of privilege over Documents #334,
348,373,400,401,402,403, and 405 are proper, by 5:00 p.m. on February 20, 2012.
Finally, Ceglia remains in non-compliance regarding the issues raised in our February 8,
2012 meet-and-confer letter. Specifically, Ceglia has not provided an accurate sworn
declaration identifying all custodians, induding Mr. Holmberg, and the responsive files and
materials that those custodians possess. 3 Ceglia has also yet to produce all copies of the

3 In a February 10,2012 email, you indicated that Ceglia could provide a declaration

regarding the files that Mr. Holmberg possesses only on "hearsay." See Ex. B. The
Court's August 18 Order requires Ceglia to identify, "by name and location," all
responsive files, computers, and electronic media in the possession of his attorneys,
experts, or agents. See Doc. No. 117 ~ 2. As we noted previously, Ceglia understood
this obligation when he produced his August 29,2011 Declaration containing the
requisite detail. Thus, in order to comply with the Court's orders, Ceglia must inform
himself, either personally or through counsel, of the responsive materials possessed by

GIBSON DUNN
Dean M. Boland, Esq.
February 16,2012
Page 4

"Lawsuit Overview.pdf' document, including but not limited to the original copy prepared
by the document's author. The deadline provided in our prior meet-and-confer letter has
lapsed.
This letter constitutes Defendants' attempt to meet-and-confer about the discovery disputes
described herein, pursuant to Local Rule 7(d)(4). We reserve all rights, including the right to
seek fees, costs, and appropriate sanctions for Plaintiffs ongoing non-compliance.
Very truly yours,

~~

r-lr1t.J

Alexander H. Southwell
Enclosures
cc: Paul Argentieri, Esq.

third-parties such as Mr. Holmberg-an individual Ceglia has described as his "agent."
See Ex. A. (Document #360).