Ceglia v. Zuckerberg et al

Filing 330

CONTINUATION OF EXHIBITS by Facebook, Inc., Mark Elliot Zuckerberg. to 324 Declaration, Exhibit F to March 26, 2012 Southwell Declaration filed by Facebook, Inc., Mark Elliot Zuckerberg. (Snyder, Orin)

EXHIBIT F

116 FULTON STREET
SUITE 2W
NEW YORK, NY 10038–2712

PETER V. TYTELL
FORENSIC DOCUMENT EXAMINER

TEL: [phone]
FAX: [phone]
E-MAIL: [e-mail]

March 25, 2012

REPORT ON
EXAMINATION OF DOCUMENTS
IN THE MATTER OF

Ceglia v. Zuckerberg (10 CV 569 (RJA) WDNY)
I. S UMMARY
I have been retained as an expert in forensic document examination by Defendants in
the above captioned matter. On July 14 and 15, 2011, I participated in Defendants’
document inspection. At that time I conducted a forensic examination of a two-page
document headed “WORK FOR HIRE” CONTRACT, dated April 28, 2003 (the “Work for
Hire document”). A six-page document headed StreetFax Back-End Technical
Specification, dated April 28, 2003 (the “Specification document”) was also examined. This
report presents my findings and conclusions to date.
The examination included the analysis, comparison, and evaluation of the ink, paper,
and printed text of the Work for Hire document using non-destructive optical techniques.
The results of these examinations revealed significant anomalies within the Work for Hire
document.
First, many features of the document point to abnormal exposure of the front of the
pages to extreme environmental conditions while hung-up with clips or clothespins,
including: the faded appearance of the ink of the signatures, initials, and other handwritten
entries, as well as the overall yellowish cast of the front of both pages and their nonfluorescent reaction to ultraviolet illumination except for two small areas at the top of each
page. Second, an optical examination differentiated the ink used for the initials on page 1
from the ink used for all other writing on the Work for Hire document. Third, different type
styles, different line spacings, and different inter-paragraph spacings were used for each
page of the Work for Hire document, which is inconsistent with normal preparation of a
multi-page document at one time.

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II. Q UALIFICATIONS
I am a forensic document examiner practicing in New York City. For over 40 years I
have worked on document cases submitted by courts, prosecutors, public defenders, law
firms, government crime laboratories, private individuals, banks, and insurance companies
both within and outside the United States. I have studied, lectured, taught, and been
consulted as an expert in all areas of document examination, including, inter alia, the
authentication of genuine documents and the detection of falsely made or altered
documents, as well as methodological issues in forensic document examination. I am a
diplomate of the American Board of Forensic Document Examiners (US), a diplomate of the
Forensic Science Society (UK), holding the Society’s Diploma in Document Examination as
a qualified specialist in forensic document examination; and am a member of the American
Academy of Forensic Sciences (Questioned Document section), the American Society for
Testing and Materials (Committee on Forensic Sciences Membership Secretary, PastChairman of the Sub-Committee on Questioned Documents, and recipient of the ASTM
Forensic Sciences Award), the American Society of Questioned Document Examiners, the
Evidence Photographers International Council, and have participated in meetings of these
and other learned organizations in North America and Europe. I am also an active
participant in the work of the Scientific Working Group for Documents (SWGDOC) and was
a founding member of the editorial board of the International Journal of Forensic Document
Examiners. I have been recognized as an expert witness on numerous occasions in State
and Federal Courts in the United States as well as in courts of other countries.1

III. I TEMS M ADE A VAILABLE FOR E XAMINATION
Two original documents were made available for examination, as follows:


A two-page document headed “WORK FOR HIRE” CONTRACT, dated April 28,
2003 (the “Work for Hire document”).



A six-page document headed StreetFax Back-End Technical Specification, dated
April 28, 2003 (the “Specification document”)

I have also reviewed a number of copies2 of the Work for Hire document, including
those that are part of filings in this matter, as well as others which I have been informed
were received from Plaintiff as part of document production, including images supplied by
Plaintiff’s experts and Dr. Valery N. Aginsky and Messrs. James A. Blanco, John Paul
Osborn, Eric Speckin, and Larry F. Stewart; as well as Plaintiff’s attorneys Messrs. Paul
Argentieri and Kevin Cross.
I have also reviewed the video made of the examinations conducted on July 14 and 15,
2011, as well as portions of the video made of examinations conducted on July 16, July 19,
July 25, and August 27, 2011 (the “Video”).

1 A copy of my full professional resume, including a list of matters where I have appeared as an
expert witness, is attached as Exhibit A to my declaration of November 28, 2011 (Doc. No. 238-1).

As used here the term “copy” can include copies made with a variety of processes on “office
copier” type machines, as well as telefacsimiles (i.e., faxes), microfilm blowbacks, digital images, etc.
2

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IV. N ATURE OF THE E XAMINATION
I conducted an initial document review using a copy of the image of the Work for Hire
document attached to the Complaint (Doc. No. 1-4, filed 06/30/10) and to the Amended
Complaint (Doc. No. 39-1, filed 04/11/11). I subsequently also reviewed the statements
about the Work for Hire document and the attached images in the declarations of John
Paul Osborn, dated 6/16/11 (Doc. No. 62, filed 6/17/11) and Valery N. Aginsky, Ph.D., dated
6/16/11 (Doc. No. 66, filed 6/17/11). Based on these reviews, I prepared for an examination
of the original Work for Hire document to take place at the offices of Harris Beach in
Buffalo, New York, in mid-July 2011, brought the potentially relevant equipment for a field
examination from my laboratory, and arranged for additional document examination
equipment to be provided by Foster + Freeman, one of the leading manufacturers of
specialized equipment for forensic document examination.
The nature of my examination was non-destructive. I studied the documents at various
degrees of magnification with the aid of hand magnifiers and a stereoscopic microscope,
utilizing transmitted, incident, and oblique illumination as appropriate. I also used various
light sources for side-light illumination grazing the surface; hand-held ultraviolet lamps;
lighting for use with specialized viewing filters; as well as a specialized closed circuit
television system sensitive to the near infrared region of the spectrum for viewing reflected
infrared and infrared luminescence (Visual Spectrum Analyzer, VSC 400). Specially ruled
overlay plates and other precision measuring devices were also employed as appropriate.
I acquired images of the original Work for Hire document and Specification document
with a flat-bed scanner, a digital camera, and the digital image capture capabilities of the
VSC 400. The images were acquired for several purposes, including: (1) to document the
originals and their condition upon receipt, prior to any examination3 and at various points
during the examination process; (2) to document observations; and (3) to visualize features
that might not be readily perceptible to the unaided eye. 4
During each phase of the initial review and the examinations of the originals, the
reliable principles and methods of forensic document examination were applied in
accordance with the standard practices and procedures of the field. During the evaluation
of the features observed in the examination, I gave full consideration to the relative merits
of each plausible alternative explanation for the findings, evaluating the support for each
provided by the observations (singly and in combination). Any limitations of the documents
examined were evaluated and where appropriate are reflected in the strength of the
reported opinion. To the extent that findings and conclusions are the results of the
examination of copies, re-examination may be appropriate upon submission of the originals
(or copies with more detail).

3 These scans of the Work for Hire document were made on July 14, 2011, at 9:18 AM (page 1)
and 9:22 AM (page 2).

Where appropriate, I employed commercial computer software in accordance with standard
forensic practices and procedures to improve the visualization or clarity of detail of significant
features.
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V. F INDINGS
A. Condition of the Writing Inks on the Work for Hire Document
Upon my initial review of the Work for Hire document it was immediately apparent
that the ink of all the handwritten material was a faded brown or light tan, almost
transparent in some places. This deteriorated condition of the ink was not consistent with
what I expected based on the images previously reviewed or the description previously
provided, or indeed what would be expected of any eight-year old document kept under
normal storage conditions. Because Dr. Aginsky stated in his June 16, 2011 Declaration
that the writing ink on both page 1 and page 2 of the Work for Hire document was “black
ballpoint ink” (Aginsky decl. at ¶6),5 and because of the appearance of the writing in
Plaintiff's previously-filed images of the document, I had anticipated seeing black ballpoint
ink of normal density. The ink that I saw on the Work for Hire document on the morning of
July 14 was neither black nor of normal density.
The deteriorated condition of the ink on both pages of the Work for Hire document is
apparent in the images acquired in the scans that were made as routine documentation of
the condition of the submitted items prior to any examination. These scans of the fronts of
the pages of the Work for Hire document were made on July 14, 2011, at 9:18 AM (page 1)
and 9:22 AM (page 2). Reduced-size images of these scans appear below.

Fig. 1: Scan of Page 1 (7/14/11, 9:18 AM)

Fig. 2: Scan of Page 2 (7/14/11, 9:22 AM)

It should be noted that Dr. Aginsky only mentioned the signatures and dates on page 2 and
the interlineations on page 1; his Declaration does not include any mention of the initials on page 1
in either his description of the Work for Hire document or in the results of his ink examination
(Aginsky decl. at 6 and 9). While Mr. Osborn’s declaration did include the initials in his description
of the Work for Hire document (Osborn decl. at 5–10) he did not perform any ink examination.
5

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Full-size images of the scans are attached hereto as Exhibit A (front and reverse of
page 1) and Exhibit B (front and reverse of page 2).
Relevant portions from page 1 and page 2 of the Work for Hire document appear at lifesize in the illustration below to better show the faded brown appearance of the ink.

Fig. 3: Ink on Page 1 (7/14/11, 9:18 AM)

Fig. 4: Ink on Page 2 (7/14/11, 9:22 AM)

Since my examination of the original Work for Hire document on July 14 and 15, 2011,
I have reviewed digital files of scans made by Plaintiff’s experts Dr. Aginsky and Mr.
Osborn in January of 2011.6 A comparison of the scanned images I made first thing in the
morning of July 14, 2011, with the images made six months earlier by Plaintiff’s experts
show a significant difference in the appearance of the ink. In contrast to the original
document produced by Mr. Argentieri on the morning of July 14, 2011, these January 2011
scans show the ink as dark and of normal density, that is, having the appearance typical of
black ballpoint ink. The illustrations below compare an image of the interlineations and
initials on page 1 of the Work for Hire document (figures 5 and 6) and an image of the
signatures and dates on page 2 of the Work for Hire document (figures 7 and 8), each taken
from the scanned images made by Dr. Aginsky (files dated January 13, 2011, 9:53 AM and
10:05 AM, respectively) with the similar portions of the scanned images of the Work for
Hire document I made before examination began on July 14, 2011 (files dated July 14,
2011, 9:18 AM and 9:22 AM, respectively).

The images from Mr. Osborn are dated January 5, 2011. The images from Dr. Aginsky are
dated January 13, 2011, and are used for illustration herein as they are closer in date to the July 14,
2011, presentation of the Work for Hire document to Defendants’ experts in Buffalo.
6

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Fig. 5: Aginsky scan (1/13/11, 9:53 AM)

Fig. 7: Aginsky scan (1/13/11, 10:05 AM)

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Fig. 6: Tytell scan (7/14/11, 9:18 AM)

Fig. 8: Tytell scan (7/14/11, 9:22 AM)

These images show that significant changes in the appearance of the writing ink
occurred sometime after the scanning of the documents by Plaintiff’s expert on January 13,
2011, and sometime prior to the examination on the morning of July 14, 2011.

B. Condition of the Paper of the Work for Hire Document
As part of my routine7 initial examination of the Work for Hire document, I examined
both pages with long-wave ultraviolet illumination. This first ultraviolet examination
lasted for a total of 63 seconds.8 I immediately noticed that under ultraviolet illumination
the reverse of the pages of the Work for Hire document generally fluoresced (glowed)
brightly (as is common in paper generally used in photocopiers and computer printers);
however, the front of the pages was almost entirely dark or non-fluorescent. 9 Basically, the
two sides of the same sheet of paper had opposite reactions to the ultraviolet illumination;
such dramatically different reactions are extremely unusual and indicate that the fronts of
the pages were treated in a way that the backs were not. These features were
photographically documented at a later stage in the examination.
The abnormal dull, non-fluorescent, appearance of only the front of the pages was
observed to be generally uniform overall. There was, however, a very notable exception of
two small areas at the top of each page that fluoresced as brightly as the reverse. These
anomalous brightly fluorescing areas (“tabs”) were all roughly rectangular in shape,
although no two were exactly the same size; furthermore, the two tabs on each page were
not evenly placed relative to the center or edges of the paper, and the tabs were in different

Examination with ultraviolet illumination is considered a standard non-destructive practice
by forensic document examiners (Tytell Decl., at ¶ 26).
7

8 Two hand held long-wave ultraviolet lamps were used in the initial examination: a UVP UVL21 lamp was on for about 28 seconds and a Foster + Freemen Crime-lite 82S was on for about 35
seconds .

A review of the Video showed that during this initial ultraviolet examination there was no
overall fluorescent reaction from the front of the pages. After 19 seconds a page of the Work for Hire
document is turned over and a flash of the bright fluorescence from the reverse of the page can be
glimpsed in the Video.
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locations on the two different pages. Under normal ambient lighting these tab areas were
observed to be as white at the reverse of the page, in contrast to the yellowish cast of the
rest of the front. Examination with side lighting under the stereoscopic microscope
revealed an indentation or embossed deformation of the paper in these tab areas.
The reverse of the two pages of the Work for Hire document were also generally
uniform in their brightly fluorescent reaction to ultraviolet illumination, with the exception
of a corner of page 1. Where the top of page 1 had been folded, the crease forms a triangle
in the corner.10 When the reverse of page 1 is viewed under ultraviolet illumination, that
triangle in the corner is dull, non-fluorescent (similar to the front of the page) while the rest
of the reverse of the page fluoresces brightly.
Figures 9 through 11 below illustrate these anomalous features of the Work for Hire
document that were visualized using ultraviolet illumination. Figure 9 shows the irregular
sizes and uneven spacing of the fluorescing tab areas on the front of both pages. Figures 10
and 11 show a comparison of the fluorescing tab areas on the front of each page with the
fluorescing reverse of the other page.

Fig. 9: Ultraviolet illumination — page 1 front below, page 2 front above

This refers to the top left corner when viewed from the front, the top right corner when
viewing the reverse of the page.
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Fig. 10: Ultraviolet illumination — page 1 front below, page 2 reverse above

Fig. 11: Ultraviolet illumination — page 2 front below, page 1 reverse above

In accordance with forensic best practices, I considered (and rejected) potential
‘innocent’ explanations for the presence of these tab areas. Paper making and packaging
processes and the paper transport mechanism of printers (or other office machines) can
sometimes leave marks on paper. I considered, and rejected, these sources as potential
explanations due to the inconsistent sizes and asymmetrical locations of the tabs along the
edge of the sheet. I also considered, and rejected, paper fasteners (such as a paper clip) as a
potential explanation due to the shape of the tabs and their inconsistent location from page
to page. After consideration of alternative explanations, I concluded that the best
explanation that accounts for these observations is that the tabs are from clips (such as
clothespins) that suspended the pages when they were exposed to abnormally extreme

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environmental conditions that discolored (yellowed) the paper not covered by the clips and
faded the ink.11
Neither Mr. Blanco nor Mr. Stewart mentions the anomalous brightly fluorescent tabs
on the front of both pages or the anomalous dark triangle on the reverse of page 1 in their
respective declarations. Both Messrs. Blanco and Stewart had the opportunity to conduct a
proper ultraviolet examination that would have made these features readily apparent.
Their failure to consider (or perhaps failure to notice) these anomalous features is a very
serious omission, as these features contradict their conclusions.12 None of the scenarios
suggested in Plaintiff’s arguments can account for the presence of these anomalous
features.13
These anomalous tab areas and the anomalous triangle were still present when
Plaintiff’s experts examined the Work for Hire document in Chicago: Plaintiff’s expert Eric
Speckin captured images of these anomalous features at that time with a VSC.14 It is
apparent that the cumulative exposure to ultraviolet and all other illumination sources
used in the examinations of both Plaintiff’s and Defendant’s experts from July 14 through
July 25 did nothing to dull the bright fluorescence of these tab areas on the front of both
pages of the Work for Hire document.

11 Plaintiff asserts that the cause of the deteriorated condition of the paper and ink is due to
cumulative ultraviolet exposure during the examinations by Defendants’ experts. This is
demonstrably false.

The fading of the ink and deteriorated condition of the paper occurred before 9:11 AM on July
14, 2011. They were obvious that morning and were thoroughly documented throughout that day, as
shown and described in detail above.
Among the multiple significant abnormalities that were documented on July 14, 2011, were the
two small tabs at the top edge of each page that are brightly fluorescent in contrast to the lack of
fluorescence of the rest of the front of the page and white in contrast to the overall yellow cast of the
front of the pages, as well as the yellowish non-fluorescing on the reverse of page 1. Plaintiff does
not provide any explanation of the existence of these anomalous features; indeed, their very
existence refutes each and every scenario Plaintiff has proposed.
For instance their presence both contradicts Mr. Stewart’s observations and refutes his
theories about causation (Stewart decl. at ¶¶ 32–49).
12

13 In support of the assertion that Defendants’ experts caused the deterioration to the Work for
Hire document, Plaintiff has submitted a largely inaccurate partial “timeline” of the video of the
Defendants’ inspection (Doc. No. 263-7). This “timeline” begins at “14:55ish”, skipping almost 6
hours from 9:11 AM. The “timeline” skips over the entire day of examination, only 63 seconds of
which involved ultraviolet illumination to that point. Photographic documentation of the features
visible under UV illumination (including the tabs and the brightly fluorescing reverse of the pages)
began at approximately 4:30 PM.

Four VSC images of the Work for Hire document taken by Mr. Speckin on July 25, 2011 (after
Defendants’ inspection and sampling) are attached hereto as Exhibit C.
14

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C. Differentiation of the Writing Inks
on the Work for Hire Document
Even in the apparently deteriorated condition of the ink, non-destructive optical
examination of the Work for Hire document revealed at least two distinguishable inks.
The non-destructive optical techniques used in this examination were able to
differentiate the ink of the interlineation from
the ink of the initials, as can be seen in the
illustration at the left showing images taken
with the VSC 400 in infrared luminescence
mode. The ink of the interlineation is
luminescent and appears white; the ink of the
initials is not luminescent and appears dark.

Fig. 12: Image from VSC 400 examination,
infrared luminescence mode (Tytell, July 15, 2011)

The ink of the other handwritten entries on
the Work for Hire document could not be
differentiated with the optical tests used in this
examination, but additional optical and chemical
techniques might be able to differentiate the ink
of the writings.

The optical examination of the ink of the Work for Hire document that I conducted
revealed two groups of ink: one that included the interlineation on page 1 and the
signatures and dates on page 2; the other that included just the initials on page 1. Given
the deteriorated condition of the ink on the Work for Hire document, the possibility must be
considered that the element(s) of the ink that might enable optical differentiation were lost
along with the color and density.

REDACTED

The execution of the Work for Hire document does not follow
this pattern of pen use.

D. Differentiation of Typestyles and Formatting
of the Work for Hire Document
I observed significant differences between pages 1 and 2 of the Work for Hire document
in the typeface and line spacing of the printed text.15 Such differences are not normally
seen in a two-page document prepared in a single, continuous process.

Both pages of the Work for Hire document were produced using toner technology. This technology
is commonly used in photocopy machines and computer laser printers.
15

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Two different styles of type were used for the preparation of the Work for Hire
document, one type style for page 1 and another type style for page 2. The differences in
the print on pages 1 and 2 are illustrated below in a comparison of the name “Paul Ceglia”
taken from the scans made July 14, 2011 at 9:18 AM and 9:22 AM respectively (the faded
ink from the signature can be seen in the image from page 2).

Fig. 13: Work for Hire document, page 1

Fig. 14: Work for Hire document, page 2

Among the more obvious differences visible in the few letters of the name are the
joining of the bowl of the capital P, closed in the image on the left from page 1, but open at
the bottom in the image on the right from page 2. Both the upper and lower terminals of
the capital C also show distinctive differences: the C on the left from page 1 has a spur
projecting upward at the top and a smooth tapered lower terminal; the C on the right from
page 2 has no spur at the upper terminal, but instead a teardrop lobe, and a differently
shaped lobe at the lower terminal. There are still more differences in just these two capital
letters, and many more in the other six letters of the name, as well as in each of the other
characters in the text.
The line spacing of the text on page 2 of the Work for Hire document measured 3.175
mm, or 9 points.16 The line spacing of the text on page 1 of the Work for Hire document
measured 3.245 mm, or just under 9.2 points, within paragraphs. There is extra space
between paragraphs on page 1; however, this formatting feature is not present on page 2.

E. Stapling
As noted above, the six-page Specification document was stapled when Plaintiff’s
counsel Mr. Argentieri presented it for examination on July 14, 2011. This staple was
removed to facilitate scanning; the removal was documented with scans and photographs
and the removed staple was retained in a separate envelope that was kept with the pages of
the Specification document to be available for subsequent examination.
In contrast, the two-page Work for Hire document was not stapled when made
available for examination on July 14, 2011. Previous images of the Work for Hire document
and the empty staple holes in the pages of the Work for Hire document are consistent with
at least one previous stapling, but no staple or documentation regarding the unstapling has
been made available; at this time I am not aware if it has even been indicated when or by
whom the Work for Hire document was unstapled or under what circumstances. Even after
removal, a staple can be a useful forensic artifact; analysis of a staple can provide
information about the document’s genuineness, and might help determine whether the
staple was removed and reinserted. The best practice in forensic document examination is
to document the removal of the staple from a document and retain the staple for further
examination, as was done with the Specifications document.

16

A Desk Top Publishing point (DTP point) is equal to 1/72".

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Although the staple(s) was not available, I was able to examine
images of the Work for Hire document that include a staple. In
these images, the bar of the staple appears to be bent rather than
straight as would be expected. The curvature of the image of the
staple bar in the Work for Hire document can be seen in the image to
the right, which I have been informed was supplied by
Mr. Argentieri. This curvature of the staple bar might well be an
indication that this staple had been removed and reinserted.

Fig. 15: Work for Hire
document — version
emailed June 27, 2010
from Ceglia to Argentieri,
produced by Argentieri

VI. C ONCLUSIONS
The two-page Work for Hire document is not consistent with the normal preparation of
a two-page document. Rather the use of multiple type styles and the pattern of ink usage
indicate preparation of the two pages at different times.
The deteriorated condition of the ink and paper on the Work for Hire document when
Mr. Argentieri produced it at 9:11 AM on July 14, 2011 are classic indicia of an attempt to
artificially accelerate the aging of a document, an attempt that took place prior to the
production of the Work for Hire document on July 14, 2011. This conclusion is based on: (1)
comparison of earlier images of the Work for Hire document with the faded brown or light
tan ink of the document as produced; and (2) examination of the Work for Hire document,
which revealed anomalous features consistent with exceptional exposure of the front of the
pages, but not the reverse, to abnormally extreme environmental conditions while hung-up
with clips or clothespins.
I declare under penalty of perjury that the foregoing is true and correct.

Peter V. Tytell

EXHIBIT A

EXHIBIT B

EXHIBIT C