Ceglia v. Zuckerberg et al

Filing 361

DECISION and ORDER. Plaintiff's motion for clarification (Doc. No. 358), treated as a motion for reconsideration of the April 19, 2012 D&O, is DENIED. Signed by Hon. Leslie G. Foschio on 4/26/2012. (SDW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

PAUL D. CEGLIA,
Plaintiff,
v.
MARK ELLIOT ZUCKERBERG, and
FACEBOOK, INC.,

DECISION
and
ORDER
10-CV-00569A(F)

Defendants.

In a Decision and Order filed April 19, 2012 (Doc. No. 357) (“April 19, 2012
D&O”), the undersigned, having inspected in camera 10 documents which Plaintiff has
refused to produce to Defendants on the basis that the documents are protected by the
attorney-client privilege, directed Plaintiff to produce, inter alia, Privilege Log Item 379
(“Item 379"). April 19, 2012 D&O at 8-11, 20. In particular, although Item 379 contains
communications between Plaintiff and his attorneys seeking legal advice or services,
the attorney-client privilege has been waived because such communications have been
shared with one Jason Holmberg (“Holmberg”), who is not an attorney but, rather, had
been retained by Plaintiff’s attorney Paul A. Argentieri (“Argentieri”), to type and convert
into pdf format the Lawsuit Overview document which was presented to different
attorneys in seeking to obtain additional legal representation for Plaintiff with regard to
the instant litigation. Id. at 9-10. Because Plaintiff failed to provide any explanation as
to why Holmberg’s services were necessary, e.g., why Argentieri’s legal secretary could
not have performed this seemingly unsophisticated task, or why Holmberg had any
“need to know” the information contained in the emails comprising Item 379, so as to
maintain the attorney-client privilege, the privilege was waived as to Item 379. Id. at 10-

11 (citing Robbins & Meyers, Inc. v. J.M. Huber Corp., 274 F.R.D. 63, 93-94 (W.D.N.Y.
2011)).
On April 23, 2012, Plaintiff filed a motion (Doc. No. 358) (“Plaintiff’s motion”),
seeking clarification of the April 19, 2012 D&O regarding Item 379 which Plaintiff, for
the first time, describes as “a composite of numerous emails, many of which are
duplicates and are not in date order, that was forwarded by Aaron Marks, an attorney at
Kasowitz, Benson, Torres & Friedman LLP whom Plaintiff approached for
representation, to attorneys at DLA Piper LLP, Plaintiff’s prior counsel.” Plaintiff’s
motion at 1-2. According to Plaintiff, although Holmberg was included on some of the
emails contained within Item 379, “a significant number of the emails contained in
Privilege Log Item 379 did not include Mr. Holmberg.” Id. at 2 (italics in original). As
such, Plaintiff seeks clarification permitting Plaintiff to redact from Item 379 those
emails that were not provided to Holmberg. Id. Despite being granted an opportunity to
respond, April 24, 2012 Text Order (Doc. No. 359), Defendants elected to file nothing in
opposition to Plaintiff’s motion. Oral argument was deemed unnecessary.
Preliminarily, the court construes Plaintiff’s motion as seeking reconsideration of
the April 19, 2012 D&O insofar as Plaintiff was ordered to produce Item 379 in its
entirety. The standard for granting a motion for reconsideration, however, is strict.
Shrader v. CSX Transporation, Inc., 70 F.3d 255, 257 (2d Cir. 1995). A motion for
reconsideration “will generally be denied unless the moving party can point to
controlling decisions or important facts that the court overlooked – matters, in other
words, that might reasonably be expected to alter the conclusion reached by the court.”
Id. Nor is a motion for reconsideration intended to be a “second bite at the apple” for a
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party dissatisfied with the court’s ruling by “relitigating old issues, presenting the case
under new theories, [or] securing a rehearing on the merits . . . .” Sequa Corp. v. GBJ
Corp., 156 F.3d 136, 144 (2d Cir. 1998). Generally, reconsideration is justified only
where there exists “an intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.” Virgin
Atlantic Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)
(citing 18 C. Wright, A. Miller & E. Cooper, FEDERAL PRACTICE & PROCEDURE § 4478 at
790). Here, reconsideration is not justified based on any “intervening change of
controlling law, [or] the availability of new evidence,” Virgin Atlantic Airways, Ltd., 956
F.2d at 1255, nor is reconsideration necessary “to correct a clear error or prevent
manifest injustice.” Id.
Plaintiff’s argument in support of the motion describes Item 379 as “a composite
of numerous emails, many of which are duplicates and are not in date order,” that was
exchanged from one law firm, who never appeared as counsel to Plaintiff in this action,
to DLA Piper, LLP, who represented Plaintiff for a period of 2 ½ months, “as a means of
transferring his electronic correspondence regarding the case to the attorneys then
representing Plaintiff.” Plaintiff’s motion at 1-2. In contrast, this court’s review of the
papers before the court when conducting in camera review of Item 179 established that
Plaintiff himself initially referred to Item 379 as a “communication[ ] to which Jason
Holmberg was a party.” Response in Opposition to Defendant’s Fifth Motion to Compel
(Doc. No. 310) (“Plaintiff’s Response”) at 6 (italics added). This characterization is
consistent with Argentieri’s own assertion that he hired Holmberg “to perform executive
secretarial duties.” Declaration of Paul A. Argentieri, Esq. (Doc. No. 311) (“Argentieri
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Declaration”), ¶ 17. Argentieri maintains that although Argentieri wrote most of the
Lawsuit Overview document, because Argentieri cannot type, and neither Argentieri nor
his secretary possessed the computer skills necessary to convert the Lawsuit Overview
document into pdf format, it was necessary to hire Holmberg to type, edit, proof read
and convert the Lawsuit Overview into pdf format. Id. ¶¶ 19-20. Argentieri does not
explain why his secretary was unable to type, edit and proof read the Lawsuit Overview,
nor what training or skills of Holmberg Argentieri perceived as so special that
persuaded Argentieri to retain Holmberg’s services in connection with the instant
litigation.
Plaintiff’s initial characterization of Item 379 as a “communication[ ] to which
Jason Holmberg was a party,” Plaintiff’s Response at 6, is consistent with the court’s in
camera review of Item 379 which established that Holmberg was a recipient of many of
the numerous emails contained within the “composite.” As Plaintiff asserts, Plaintiff’s
motion at 1, many of the emails within the “composite” are duplicates and are not in
chronological order according to either the dates the emails were initially sent or later
forwarded as attachments. Although not specifically articulated in the April 19, 2012
D&O, the in camera review Item 379 established that Holmberg had access to the
majority of the emails contained within the document, having received the emails either
as the intended recipient to whom the email was addressed, or indirectly, with the email
having been forwarded to Holmberg from another email account. Further, the context
of the emails strongly implies that even if Holmberg was neither a direct nor indirect
recipient of any specific email, Holmberg was nevertheless privy to the information
contained therein, given that the emails pertain to Plaintiff’s attempts to retain legal
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counsel with litigation experience similar to the instant action, a task with which
Holmberg assisted not only in preparing the Lawsuit Overview, but by arranging and
attending meetings with several attorneys whose services Plaintiff contemplated
retaining, and that such participation continued until Plaintiff retained DLA Piper LLP as
counsel. Significantly, Plaintiff has failed to provide any affidavit from Holmberg
establishing either that Holmberg was not privy to the discussions referenced in the
emails which, absent the disclosure of such information to Holmberg, would be
protected by the attorney-client privilege, or that Holmberg did not receive any of the
particular emails comprising Item 379.
On this record, Plaintiff has failed to meet his burden of establishing
reconsideration is needed “to correct clear error or prevent manifest injustice.” Virgin
Atlantic Airways, Ltd., 956 F.2d at 1255. Plaintiff’s motion for clarification (Doc. No.
358), treated as a motion for reconsideration of the April 19, 2012 D&O, is DENIED.

SO ORDERED.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

April 26, 2012
Buffalo, New York

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