Ceglia v. Zuckerberg et al

Filing 386

MEMORANDUM IN SUPPORT re 385 MOTION to Strike 318 MOTION to Dismiss, 326 Continuation of Exhibits, 319 Memorandum in Support of Motion NOTICE byPaul D. Ceglia. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Certificate of Service)(Boland, Dean)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,

Civil Action No. : 1:10-cv-00569-RJA

Plaintiff,
v.

MOTION TO STRIKE
DECLARATION/REPORT OF
GERALD LAPORTE FOR FRAUD

MARK ELLIOT ZUCKERBERG, Individually, and
FACEBOOK, INC.
Facebook and Zuckerberg.

MEMORANDUM
Plaintiff Paul Ceglia moves the court to strike Facebook and Zuckerberg
Motion to Dismiss, Doc. No. 319 as it contains perjured testimony from the
cornerstone expert in Facebook and Zuckerberg’s case, Gerald LaPorte.

Plaintiff

also asks the court to award Plaintiff his reasonable attorney and expert fees under
FRCP 37. The fraud also extends, unwittingly or not, to Facebook and Zuckerberg’s
arguments reliant on LaPorte’s report.
This motion raises a critical question about Gerald LaPorte’s continued role
as an expert witness for Facebook and Zuckerberg in this litigation. Facebook and
Zuckerberg cannot in good faith maintain their motion to dismiss containing fraud
in the form of Gerald LaPorte’s perjurious report.

The court has the authority

under Rule 37 to impose a wide range of sanctions including those sought in this
motion.

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“It is well settled that a federal trial court has the inherent power to sanction
litigation conduct taken in bad faith.” R.B. Ventures v. Shane, No. 91 Civ.5678
(CSH), 2000 WL 1010400, at *3 (S.D.N.Y. 2000); see also Scotch Game Call Co. v.
Lucky Strike Bait Works, Ltd., 148 F.R.D. 65, 68 (W.D.N.Y. 1993) (“[T]he court has
the inherent power to sanction bad-faith conduct of attorneys or their clients apart
from any of the statutory or rules provisions.”). “As the term 'inherent' reflects, the
court's power is not derived from any particular statute or rule.”

R.B. Ventures,

2000 WL 1010400, at *3. “Perjurious testimony is of course sanctionable ... under
the Court's inherent power.” Id. at *5 (S.D.N.Y. 2000); see also Martin v.
DaimlerChrysler Corp., 251 F.3d 691,694 (8th Cir. 2001) (affirming the district
court's use of its inherent power to dismiss the plaintiff’s claim because the plaintiff
gave perjurious deposition testimony, thus, failing to disclose important
information). Indeed, “[false testimony in a formal proceeding is intolerable.” ABF
Freight Sys., Inc. v. N.L.R.B., 510 U.S. 317,323 (1994). The Court “must neither
reward nor condone such a 'flagrant affront' to the truth-seeking function of
adversary proceedings.” Id.
LaPorte’s false statements in this case that PE testing is reliable when
compared to the content of his many previous sworn statements on PE testing
mandate his exclusion from this case. Plaintiff does not raise this issue lightly and
does so only because of unequivocal perjurious testimony that Plaintiff is obligated
to bring to the Court’s attention.
Facebook and Zuckerberg have offered LaPorte as an expert on ink dating
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using his self-designed version of the PE test. However, Facebook and Zuckerberg
and LaPorte failed to reveal to this court LaPorte’s previous sworn statements that
the PE test is not reliable. Even worse, Mr. LaPorte denied under oath that he had
ever said the PE test is unreliable despite testifying to its unreliability. LaPorte’s
perjurious testimony is an affront to the Court. Plaintiff respectfully submits that
the only appropriate remedy here is to exclude LaPorte from this litigation and
strike Facebook and Zuckerberg’s Motion to Dismiss for fraud which is itself built
upon fraud. As will be shown by Plaintiff’s other voluminous expert reports, that
fraud is overwhelming and goes far beyond merely the fraud perpetrated by LaPorte
here.
BACKGROUND
Facebook and Zuckerberg filed their two motions to dismiss on March 26,
2012. The Motion to Dismiss for fraud featured the report of an individual, Gerald
LaPorte, that Facebook and Zuckerberg claim is an expert. Doc. No. 326. He is the
centerpiece of the Facebook and Zuckerberg’s argument regarding fraud against
Plaintiff. LaPorte’s submission of an expert report featured his application of a test
that relied on the evaporation and other properties of an ink component known
chemically as 2-Phenoxyethanol. (PE). LaPorte’s PE test is a variation of a test
originally developed by Valery Aginsky in 1997. Aginsky’s version of the PE test
has never been admitted over a Daubert objection in any court in the United States.
Aginsky’s version of the PE test has never been used in casework by any
government agency. In short, Aginsky’s 1997 PE test scheme has never satisfied
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any court, much less the other experts in Aginsky’s field, of its validity or reliability.
Although Aginsky performed non-destructive testing on the document for Plaintiff
more than a year ago, he was never hired to perform any other testing by Plaintiff.
LaPorte’s own employer with the U.S. Government prohibits him from using
his variation of the PE test or any variation of the PE test in case work. It was not
permitted to be used by the Secret Service in casework, LaPorte’s previous
employer.

This is indisputable because Plaintiff’s expert, Larry Stewart, was

LaPorte’s supervisor while LaPorte was at the Secret Service. It is not used by any
U.S. government agency.
The reasons why LaPorte’s PE test has never satisfied the Daubert criteria
are provided by LaPorte himself. LaPorte provides those reasons in testimony in
other cases which he and/or Facebook and Zuckerberg concealed from this court.
FACEBOOK NEEDS MORE INK TO CREATE A FAVORABLE RESULT
In July 2011 Gerald LaPorte took ink samples from both pages of the
Facebook Contract.

From that time to now, Facebook and Zuckerberg repeated

their claim of fraud claiming that the ink on page one was “less than two year old.”
Along with slandering Ceglia with baseless accusations sourced to
unidentified persons (See Henne Declaration Doc. No. 49) of being a career criminal,
Facebook and Zuckerberg’s claims of having dispositive proof have become their
mantra.
Facebook and Zuckerberg’s experts and their tests obviously had a problem
living up to their exaggerated claims of dispositive proof.
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After their July 2011

testing, they sought authorization to extract more ink samples. The Facebook and
Zuckerberg have yet to disclose the results of their initial ink testing.1

Both

Plaintiff and the Court interpreted Facebook and Zuckerberg’s request for a second
round of ink samples similarly:
THE COURT: Well, you should be actually heartened by the fact that they
are not conclusive….I think if they felt they had established that these
signatures and initialings are refabrications, they would be done. They
wouldn't be asking for additional samples. But the fact that they feel the
need for additional samples, somebody might infer that they are having
difficulty reaching the conclusion that the Facebook and Zuckerberg
would like them to reach. Transcript of August 17, 2011 hearing at 151.
FACEBOOK VOWS THEIR EXPERTS WILL NOT CHANGE THEIR
OPINION DESPITE WHAT EVIDENCE THEY UNCOVER
Facebook, through Orin Snyder, announced their lack of concern in verifying
their experts’ reports. No matter what Facebook’s experts were to find, Mr. Snyder
was bound to keep them on message and boldly declared to the court twice in the
June 2011 hearing as follows:
THE COURT: So is it possible that your experts -- your experts would
change direction and say, look -MR. SNYDER: No.
THE COURT: -- it is authentic.
MR. SNYDER: It's impossible that my experts will say that [the
Facebook Contract is] authentic Transcript of the June 2011 hearing at
33.
Minutes later the court tried to clarify this bold assertion.

Facebook and

Zuckerberg indicated that Facebook had purchased advocacy rather than unbiased
expert testimony.
Plaintiff has requested this and other materials that Facebook and Zuckerberg claimed to have
provide us directly, or in expert reports, yet they have not done so.
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MR. SNYDER: So there's no chance that any of our experts will
change their view….
THE COURT: There's no chance?
MR. SNYDER: No chance. Id. at 34.
Facebook refused to accept the results of their expert’s initial testing.
Instead, they appeared to have purchased a declaration that would permit them to
continue their slander of Plaintiff and denial of the truth.
THE PE TEST UNRELIABILITY CHRONOLOGY
LaPorte published a paper suggesting the experimental potential of PE
testing in 2004. Doc. No. 326 at footnote 12. LaPorte knew that PE testing was
purely experimental then, i.e. not yielding reliable, repeatable and testable results
as traditional science and this court require.
Since 2004, LaPorte knew that the PE test was not generally accepted by any
of his peers for use. What LaPorte and Facebook and Zuckerberg concealed from
this court was that LaPorte himself acknowledged three years later, in 2007, that
his PE test was unreliable.
LAPORTE ADMITS HIS PE TEST IS UNRELIABLE IN 2007
[Q.]Now, can you tell from your results exactly when ink was put to
paper on this document?
[LaPorte]. No, we can't.
Q. Are you aware of any scientifically reliable way to make such a
determination looking only at the ink for a document like this?
[LaPorte]. There is no scientifically reliable methodology that could
be used to determine the age of the ink or to determine when exactly they
were placed on that piece of paper. Exhibit A at 54. Testimony of Gerald
LaPorte on July 12, 2007 in U.S. v. Padilla, et al, 04-60001-CR-Cooke, Southern
District of Florida, Miami Division.
LaPorte continues and specifically denies that PE is a reliable test.
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Q. Now, if I understand this correctly, there is a test that can be done
to determine the time in which ink was placed on a document, right?
[LaPorte]. No, there is no scientifically reliable test to determine
exactly when an ink was put down on a piece of paper.
Q. Have you ever run a phenoxyethanol test?
[LaPorte]. Yes, it's called phenoxyethanol. Id. at p. 65.
This demonstrates that LaPorte was not suffering from some temporary
amnesia during this 2007 testimony. Within moments of asserting no reliable test
for ink dating exists, he mentions PE testing as one of the unreliable methods.
LaPorte admits performing the PE test in past work, but quickly concedes that he
has never obtained a “positive result.”
Q. In fact, in other cases, haven't you performed that test and
testified about that test?
[LaPorte]. I have never testified about using that particular -- like,
then I found a positive result. I have testified about the procedure itself,
yes. Id. at 66.
LaPorte admits that his PE test is not scientifically reliable unless the
questioned ink is written on the same paper, stored under the same known
environmental conditions using the specifically identified ballpoint ink. Exhibit A
at 66.
LaPorte repeats this admission in 2009. “[T]here are a lot of uncertainties
when a document is prepared as to how it’s stored, the type of ink that’s being used.
And then there’s variables within inks….I would say it would be very safe to – if you
were going to utilize [PE methodology] to issue a qualifying statement.” Exhibit B,
Testimony of Gerald LaPorte in Georgio, et al v. Rosenblum, Docket No. MONL-2652-06, August 26, 2009 at *21. Yet, he issued no qualifying statement in his
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report here.
LaPorte also testified that “when I was at the Secret Service, if we were given
a document with a single signature and a date and somebody said was that
signature created on that purported date, that would not be a situation that I
would recommend PE be used because there is nothing to compare it against.”
Id. at *22-*23. Emphasis added. The ink formulations on pages one and two of the
Facebook Contract are unknown.

Doc. No. 326 at 26, ¶8.

There is “nothing to

compare” his analysis of the ink on page one to in this case either. This is another
fact he concealed from this court.
“[B]ecause there are different inks that are being used on the document, that
may not render itself to -- you know, to doing the appropriate testing and coming up
with a reliable conclusion.” Id. at *66. In this case, LaPorte admits having no idea
whether there are different inks used in the document.

Doc. No. 326 at 26, ¶8.

And, in fact, his claim in his own report is that the ink from page two and page one
are different inks. Id. This conclusion underlines the unreliability of PE testing in
this case specifically, yet he also concealed this fact from the court when issuing his
report.
He notes that the different levels of PE in the ink samples from page one and
page two indicate these writings were made at different times. Doc. No. 326 at 26,
¶5(d).

However, in prior testimony, he has stated that if “three documents [are

purported to have been created] over a [three different] period[s] of time...all have
the same high levels of PE, is that definitive that those documents were created
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contemporaneously? No.” Georgio Testimony at *24.
Therefore, the opposite must also be true. Two samples with different levels
of PE cannot be definitive proof that they were created at different times.
Obviously, this assumption was also concealed from the court.
LAPORTE FALSELY DENIES EVER TESTIFYING THAT PE TESTING IS
UNRELIABLE
In LaPorte’s 2009 testimony on PE testing he said the following:
Q My question is, did you ever testify in your career that ink dating
involving 2-phenoxyethanol was not scientifically reliable?
[LaPorte] No, I have not…
Q My question was, have you ever testified in your career that using
2-phenoxyethanol was not a scientifically reliable method to date ink?
[LaPorte]: No, I have not testified that it's not reliable. Exhibit B at p.
12, LaPorte testimony in Giorgio, et al. v. Rosenblum Docket No. MON-L-2652-06,
Superior Court of New Jersey, Monmouth County, Law Division.
This 2009 statement is an obvious false statement compared to his 2007
testimony about PE testing’s unreliability.
Q. Are you aware of any scientifically reliable way to make such a
determination looking only at the ink for a document like this?
[LaPorte]. There is no scientifically reliable methodology that could
be used to determine the age of the ink.… Exhibit A at 54.
LaPorte obviously wants to run from this testimony in this case. We know
that because in blatant violation of the Federal Rules he omitted any reference to
his testimony in Giorgio in his CV. This is an intentional act designed to conceal
his fraud.
AN ADMITTED UNQUALIFIED EXPERT
In 2009 LaPorte testified that he had never conducted his PE test and

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obtained a conclusive result. As a reminder, this testimony was given just 22
months before his testing of the document in this case using his bogus PE test.
Q So again, is it your testimony that since working at Riley
Welch & LaPorte, you have not conducted ink-dating analysis using
the PE method?
[LaPorte] No, I never said that. I said I've never testified to
that. But yeah, I've conducted -- I've done it in a couple cases, yes.
Q When you say "a couple," could you give me an exact number.
[LaPorte] Two, three? I'm not exactly sure. I'd have to go to all
my records.
Q And did any of those situations end up in a deposition or a
courtroom?
[LaPorte] No, no, I have not testified with regards to PE
analysis with a Riley Welch LaPorte case.
Q Did you ever write a report in any of the situations?
[LaPorte] Yes, I have.
Q And what were your conclusions about PE testing in those
reports?
[LaPorte] I believe that the reports that I've issued have been
inconclusive. I can't [*45] -- I can tell you for certain that I have not
issued a report making a conclusion that an entry or entries were
backdated or not produced on their purported date based on PE
testing. They have been inconclusive reports. Exhibit B at 25-26.
22 months before his testing in this case, LaPorte had never obtained a PE
test result other than inconclusive. And, he had only conducted the PE test “in a
couple of cases” in his moonlighting work with his private firm. As his declaration
demonstrates, there is no science of any kind between his testimony in 2009 and his
PE testing of the document in this case in August 2011 supporting this dramatic
and sudden change in the supposed validity of his test.

In short, LaPorte has

changed his entire testimony about the PE test to fit the needs of the Facebook and
Zuckerberg in this case.

The appropriate action for Facebook and Zuckerberg to

take, in light of the exposure of obvious fraud by LaPorte, is to withdraw their
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Motion to Dismiss for fraud, his report and LaPorte as a witness. The government,
LaPorte’s own employer, has already done that in a previous case.
LAPORTE AND FACEBOOK AND ZUCKERBERG CONCEAL
GOVERNMENT WITHDRAWAL OF PE TEST TESTIMONY IN CRIMINAL
CASE
Along with the lack of general acceptance of LaPorte’s unreliable PE testing
in the scientific community, he and Facebook and Zuckerberg also concealed from
this court LaPorte’s withdrawal as a witness in a government case because of his
invalid PE testing.

This concealment is intentional and obvious as the case

referenced below, Rago, was also omitted from LaPorte’s CV submitted to this court
in this case.
The government, LaPorte’s employer, offered LaPorte and his junk science
PE test as potential evidence in the U.S. v. Rago, Criminal Action 08 CR 10268
WGY, District of Massachusetts.
and Louis Desisto.

The case involved two defendants, Frank Rago

Rago’s attorneys filed a motion requesting a hearing to

demonstrate that LaPorte’s PE test fails to satisfy the requirements for expert
testimony as outlined in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579.
The defense requested the court deny the use of LaPorte’s PE test as a fraud
on the court. Rago, Doc. No. 60, attached as Exhibit C at p.3. Following briefing on
the issue of a Daubert examination of LaPorte and his PE test, the government
withdrew LaPorte as a witness. Following his withdrawal, one of the defendants,
Desisto, whose entire case was predicated on LaPorte and PE, was found not guilty.
FACEBOOK AND ZUCKERBERG’S BLATANT RELIANCE ON LAPORTE
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AND ATTEMPTS TO MISLEAD THIS COURT ARE EGREGIOUS
At the November 2011 hearing, Facebook’s lawyer, Orin Snyder, stated “our
expert thankfully was able to extract enough to prove definitively the highest order
of proof experts can reach that the ink was still wet.”

Transcript of Hearing,

November 3, 2011 at 30.
Historically Facebook and Zuckerberg have repeated their unfounded
assertions and assured the court that all experts would agree that Facebook
Contract was a fraud.
THE COURT: What is your point? You're saying to me that, Judge,
not to worry, when we get through with this document and they get
through with the document, all the experts are going to be in
agreement it's a fraud.
MR. SNYDER: That is our expectation. And in the event that we are
able to establish that based on this testing, we believe at that time
this Court would not only -THE COURT: In the event that you are able to establish it?
MR. SNYDER: Yes.
THE COURT: No. You say you will establish it. Transcript of the June
30, 2011 Hearing at 32.
LaPorte’s fraud here shows that Facebook and Zuckerberg cannot even
establish agreement within their own expert.

Dueling experts are everywhere.

Facebook and Zuckerberg’s Motion To Dismiss for fraud conflicts with their own
expert’s testimony and their lawyer’s repeated now false claim that all experts will
agree. Despite dueling experts, Facebook and Zuckerberg persist in their frivolous
motion to dismiss for fraud forcing Plaintiff to have to combat bogus experts and
motions propped up by their fraudulent expert reports.
FACEBOOK AND ZUCKERBERG’S INTENTIONAL RULE 26(A)(2)(B)(v)
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VIOLATION
As incriminating as these acts in his testimony are, LaPorte’s further
concealment from this court of his very participation in the above cited cases.
The FRCP 26(a)(2)(B)(v) requires an expert report to contain: “a list of all
other cases in which, during the previous 4 years, the witness testified as an expert
at trial or by deposition.”  Notably absent from LaPorte’s CV (Doc 326 at 35) are two
of the cases noted above: Georgio and Rago. The omission of these particular cases
is no accident. It evidences LaPorte’s intention to suppress evidence from the court.
As the court will recall, Rago is the case where his own employer, the U.S.
Government, withdrew him and his bogus PE test as a witness resulting in a not
guilty for a defendant in that case.

Georgio is the case noted above where he

obviously perjured himself.
FRCP 37(c)(1) is clear that Facebook and Zuckerberg’s concealment of such
information required by Rule 26(a), prohibits the use of LaPorte’s report or LaPorte
as a witness supporting any motion, hearing or at a trial.
Rule 37(c)(1) invites the court to consider the appropriate sanction for
Facebook and Zuckerberg’s submission of such false information:
a) may order payment of reasonable expenses, including attorney’s fees, caused by
the failure;
b) may inform the jury of the party’s failure; and
c) may impose other appropriate sanctions, including any of the orders listed in
Rule 37(b)(2)(A)(i)-(vi). FRCP 37.
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PLAINTIFF IS ENTITLED TO AN ATTORNEY FEE AWARD AND OTHER
REASONABLE RELIEF
This motion for sanctions is necessary to combat Facebook and Zuckerberg’s
pattern of deceiving this court with known half truths and outright false
statements. This blatant attempt to improperly influence the court should not be
permitted. This will be the first of such motions Plaintiff will file as our experts
wade through the web of false statements Facebook and Zuckerberg have created
over their nine months of obfuscation.
CONCLUSION
Facebook and Zuckerberg knew or should have known that the report by
LaPorte that they were offering was fabricated. Their entire Motion to Dismiss sits
atop that illicit foundation.

For all of these reasons, this Court should strike

Facebook and Zuckerberg’s Motion to Dismiss for Fraud and award Plaintiff his
reasonable attorneys’ fees in evaluating that motion, reviewing the expert reports
and composing the response to LaPorte’s perjurious report and any associated costs
under Rule 37.
Respectfully submitted,
/s/Dean Boland
Paul A. Argentieri
188 Main Street
Hornell, NY 14843
607-324-3232 phone
607-324-6188
[e-mail]

Dean Boland
1475 Warren Road
Unit 770724
Lakewood, Ohio 44107
216-236-8080 phone
866-455-1267 fax
[e-mail]

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