Ceglia v. Zuckerberg et al

Filing 317

DECISION AND ORDER re: Defendants' Fifth Motion to Compel 294 . Oral argument scheduled for 4/4/2012 is cancelled. Signed by Hon. Leslie G. Foschio on 3/22/2012. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,
Plaintiff,
v.
MARK ELLIOT ZUCKERBERG,
FACEBOOK, INC.,

DECISION
and
ORDER
10-CV-569A(F)

Defendants.

APPEARANCES:

PAUL A. ARGENTIERI, ESQ.
Attorney for Plaintiff
188 Main Street
Hornell, New York 14843
BOLAND LEGAL, LLC
Attorney for Plaintiff
DEAN M. BOLAND, of Counsel
18123 Sloane Avenue
Lakewood, Ohio 44107
GIBSON, DUNN & CRUTCHER, LLP
Attorneys for Defendants
ORIN S. SNYDER,
ALEXANDER H. SOUTHWELL,
THOMAS H. DUPREE, JR., of Counsel
200 Park Avenue, 47th Floor
New York, New York 10166-0193
HARRIS BEACH LLP
Attorneys for Defendants
TERRANCE P. FLYNN, of Counsel
Larkin at Exchange
726 Exchange Street, Suite 1000
Buffalo, New York 14210

By papers filed February 21, 2012, Defendants move for an order (1) directing
Plaintiff to file a further declaration identifying all webmail accounts used by Plaintiff
since 2003 and explaining why Plaintiff failed to disclose all such accounts in Plaintiff’s
prior declarations, as previously ordered by this court (Doc. No. 117 ¶ 5) (“the Order”);

(2) authorizing Defendants to issue subpoenas requiring Google, Inc. and other
webmail providers for such accounts to produce the contents of the accounts pursuant
to consents in a form required by such providers and executed by Plaintiff; (3) directing
Plaintiff to produce for in camera inspection 10 documents which Plaintiff asserts are
privileged attorney-client communications, specifically Document Nos. 360, 379, 334,
348, 373, 400, 401, 402, 403, and 405 as described in Plaintiff’s Privilege Log, Doc. No.
310 Exh. H; (4) finding that none of such documents are privileged and directing the
documents be produced; (5) directing Plaintiff to file an amended declaration identifying
all custodians for the document known as the “Lawsuit Overview,” which includes a
copy of the alleged contract at the heart of this case, making it subject to the Order,
including the original author of that document, as required by the Order, Doc. No. 117, ¶
2, and explaining his failure to disclose any custodians in his previous declarations filed
in compliance with the Order; and (6) directing Plaintiff to produce all copies of the
“Lawsuit Overview” document, including the original document in draft or final version
from the author of the document.
As Plaintiff has consented or complied with Defendants’ Requests Nos. (1), (2),
and (3), see, e.g., Doc. No. 310 at 2-3, to providing the required consents and
submitting the 10 documents Plaintiff asserts as privileged for in camera review,
Defendants’ motion to the extent directed to Requests (1), (2) and (3) is GRANTED.
Plaintiff shall comply with Defendants’ Requests (1) and (3) within five days of this
Decision and Order. As Plaintiff has explained, Doc. No. 310-6 ¶ ¶ 3-4, why a fuller
disclosure of Plaintiff’s webmail or email accounts had not been previously disclosed
based on a purported failure of recall when filing Plaintiff’s earlier declaration,
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Defendants’ Request No. (1) as to this issue is deemed moot.
As to Defendants’ Requests Nos. (5) and (6) requesting that Plaintiff file an
amended declaration identifying all custodians, including the original author, of the
Lawsuit Overview document with an explanation of why any such custodians were not
previously identified as required by the Order and that Plaintiff produce all copies of the
Lawsuit Overview, respectfully, Plaintiff contends that as Plaintiff has provided the
required supplemental declaration to Defendants on February 22, 2012 (Doc. No. 310
at 3), and that all copies of the Lawsuit Overview were provided to Defendants “in
previous productions,” id., Defendants’ requests for all copies of this document and a
definitive statement regarding its authorship are moot. Specifically, Plaintiff states that
Plaintiff’s attorney, Paul A. Argentieri, of Hornell, New York, (“Argentieri”) was the
author of the document’s “pdf,” Doc. No. 310 at 8, (citing Declaration of Paul A.
Argentieri, Esq., Doc. No. 311 ¶ 12 (“[Argentieri] told the court I [Argentieri] had
‘authored’ the document.”).
Defendants contest Plaintiff’s assertions arguing that regardless of Plaintiff’s
prior submissions Plaintiff has nevertheless not complied with Requests Nos. (5) and
(6). Specifically, Defendants point to the fact that Plaintiff’s recent declaration, Doc. No.
310-5, does not identify all custodians of the Lawsuit Overview, including one Jason
Holmberg who, according to Argentieri, assisted Argentieri in the preparation of the
Lawsuit Overview. Doc. No. 311 ¶ ¶ 17-18. Argentieri further averred that Holmberg
did “edit, proofread, and format[ted] [Argentieri’s] work into a pdf.” Id. ¶ 20. Further,
Defendants assert a material inconsistency between Plaintiff’s counsel’s statement
regarding Holmberg’s custody or possession of the document. Doc. No 313 at 9-10.
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Specifically, Defendants point to Mr. Boland, Plaintiff’s attorney’s, statement that
Holmberg retained a copy of the Lawsuit Overview document “after receiving it via
email,” id., (quoting Doc. No. 295 at 14) whereas Argentieri wrote parts of the document
“by hand and/or faxed documents to Mr. Holmberg as I [Argentieri] can’t type.”). Id. at
10-11 (quoting Doc. No. 311 ¶ 18). Such apparent inconsistency, i.e., receiving a
document in some unstated form via email versus receiving a handwritten document via
fax, implying a ‘typed’ version suitable for email transmission, creates manifest
uncertainty as to the actual original author or authors of the document who may have
transmitted the document in some form to Holmberg warranting Defendants’ demand
that Plaintiff fully identify such author(s), thereby removing the ambiguity created by
Plaintiff’s agents on this issue, as required by the Order which directed Plaintiff identify
by name and location all copies of the alleged contract in this case. Doc. No. 117 ¶ 2.
Plaintiff does dispute that the Lawsuit Overview contained a copy of the contract and
that the identification of all “custodians,” i.e., persons with possession of the contract
are within the scope of the Order. Plaintiff’s ambiguous averments in this regard are
thus not in substantial compliance with the explicit terms of the Order. Further,
Plaintiff’s contention that he lacks the requisite personal knowledge of such facts is
unavailing; Plaintiff is obliged to take reasonable steps to gain such knowledge to
enable Plaintiff to comply strictly with the terms of the Order. Accordingly, Plaintiff shall
within 10 days comply fully.
Based on the foregoing, oral argument on Defendants’ motion scheduled for
April 4, 2012 is cancelled. Oral argument on Defendants’ motion regarding Plaintiff’s
privilege claims shall be at the court’s discretion.
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SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: March 22, 2012
Buffalo, New York

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