Ceglia v. Zuckerberg et al

Filing 390

MEMORANDUM IN SUPPORT re 348 Order on Motion to Stay, Scheduling Conference, Oral Argument,,,,,,,,,,,, 389 First MOTION to Compel Defendants - NOTICE, 83 Order byPaul D. Ceglia. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 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,

FIRST MOTION TO COMPEL

v.
MARK ELLIOT ZUCKERBERG, Individually, and
FACEBOOK, INC.
Defendants.

MEMORANDUM
Plaintiff respectfully moves this Court for an order compelling Defendants to
provide information previously ordered by this court in Doc. No. 83. A list of that
information is included in Exhibit A, a letter sent to Defendants on May 7, 2012.
Defendants have refused to provide that information as of this writing.
This motion to compel involves two categories of information: One, the
information this court ordered Defendants to provide in Doc. No. 83. Second, the
information that Defendants‘ experts relied on in producing their reports. At the
April 4, 2012 hearing, the Defendants led this court to believe that all such
underlying information had been provided to Plaintiff. As is shown below, this is
not the case.
A. THE COURT’S ORDER
The operative order related to this motion to compel is Doc. No. 83. In that

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order, the court ordered Defendants to “complete the examination of the Hard-Copy
Documents and Electronic Assets [and thereafter] Defendants shall provide to the
Court and Plaintiff all reports documenting the findings of that
examination.”

Doc. No. 83 at 3.

Emphasis added.

The Defendants have not

provide “all reports” as will be detailed below.
B. THE DATA UNDERLYING DEFENDANTS’ EXPERTS’ REPORTS
At the most recent hearing in this matter, April 4, 2012, the court was asked
if Defendants would be required to provide the following:
[PLAINTIFF’S COUNSEL]: Do you also contemplate, your
Honor, the exchange of document discovery that typically is done
with expert discovery, like the documents that they based their
opinions on? Because deviating from that -THE COURT: That's already been revealed….
THE COURT: I thought it was fairly well understood that what
the basis of the defendants' experts opinions were. Basically it is
what it is as stated in this record, pretty definitively and under oath.
Don't you think? Transcript of April 4, 2012 hearing at 203.
The court held up the printed copies of the Defendants’ experts’ reports when
saying “[b]asically it is what is stated in this record...under oath.” Id. Emphasis
added. Defendants’ counsel, Snyder, remained silent as the court stated its belief
that everything the Defendants’ experts’ had relied on had “already been revealed.”
Id.
On April 4, 2012, Defendants knew their experts’ reports omitted information
relied upon by their experts. While Snyder remained silent to the court’s assertion
of facts he knew were inaccurate, Snyder added the following:
MR. SNYDER: Everything they relied on we got from their
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computers and -This statement by Mr. Snyder is false. Defendants’ experts, including their
computer experts, relied on much more than items they claimed to have obtained
from Plaintiff’s computers. Stroz Friedberg, of course, also remained wilfully blind
to data that was available to them. (e.g. backup tapes of the Harvard email server,
the so-called Parmet computers that were used by Zuckerberg for electronic
communications while at Harvard).

A full exploration of that apparently

intentional (or incompetent) ignoring of relevant data is forthcoming from Plaintiff’s
experts.
The court then inquired if Plaintiff “want[ed] [some] sort of like a safety
mechanism here just in case there was something that they relied on that they
didn't reveal?” Id.
Plaintiff’s counsel then respectfully deferred the issue until something arose
that the court needed to address to which the court responded favorably. It is now
indisputable that Defendants have withheld voluminous information, relied upon by
their experts, that they did not reveal to the court on April 4, 2012.
In contrast, responsive to subpoenas, Defendants received from Plaintiff all
native format images, scans etc from Plaintiff’s experts in October of 2011. This
request merely asks for the same quality and quantity of information Plaintiff has
already been ordered to provide to Facebook and Zuckerberg.
WHAT FACEBOOK AND ZUCKERBERG HAVE NOT PROVIDED AS
ORDERED

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Following the hearing on April 4, 2012, Plaintiff, his experts and counsel
began diligently examining the hundreds of pages of Facebook and Zuckerberg’s
expert reports.

Along with the number of pages being examined, the sheer

vagueness of some of the reporting formats further frustrated and slowed that
review process. (e.g. Stroz Friedberg does not identify any of their media by owner,
serial number or model number and consistently refers to media as “Ceglia media”
despite it being media that Plaintiff did not own and never used, e.g. his parents’
computers unplugged and unused for years by anyone before their analysis by
Stroz).
On May 7, 2012 Plaintiff attempted to resolve the failure of Facebook and
Zuckerberg to provide what the court’s order required. See Exhibit A. Plaintiff’s
counsel detailed to Defendants’ counsel, Orin Snyder, a list of items relied upon by
Defendants‘ experts, but not provided to Plaintiff in discovery. Id.
On May 14, 2012 Orin Snyder replied that Defendants were still
“considering” the matter. Exhibit B. As of this writing, it is nearly three weeks
since Plaintiff’s request for this information. Defendants have refused to provide
the information ordered by the court and have refused to further respond to this
issue requiring Plaintiff to seek court assistance.
In addition to the items detailed in Exhibit A, there are additional documents
and other data Facebook and Zuckerberg are withholding despite this court’s clear
orders:
Defendant’s witness Tytell and the other Facebook experts took hundreds of
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photographs, scans and other images (with various equipment, e.g. VSC 400
document imaging machine).  As required by the standards of experts in their field
they would have created case notes, produced emails and corresponded at length
regarding this case with each other and counsel. The court’s order in Doc. No. 83
includes verbal reports as well as written reports.
Specifically, Plaintiff has not received:
1.

Any of the defendant's experts' laboratory notes (handwritten or otherwise);
or

2.

Electronic scans of any document they examined; or

3.

Digital Images captured with a digital camera; or

4.

Images stored using laboratory instrumentation; or

5.

Instrument printouts; or

6.

Instrument calibration information (which affects the quality, color and
clarity of scans among other things); or

7.

Maintenance records for the devices they used to generate images; or

8.

All metadata pertaining to any of the electronic data pursuant to this
matter.
All of these matters, consistent with this court’s prior orders binding

Plaintiff, should be produced in native format for Plaintiff’s experts’ examination.
This information was relied upon by Defendants’ experts and was previously
ordered by this court to be provided. Doc. No. 83. Defendants have persisted in
their defiance of the court’s order by permitting the court to believe something it
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knew was not true - that all information relied upon by Defendants’ experts had
been provided to Plaintiff.
The list of information Defendants refuse to produce cited above provide a
window into the deep and troubling issues with Defendants’ experts’ reports and
conclusions.

The failure initially, and the refusal currently, of Defendants to

provide this information is designed to further obscure their experts’ spurious
claims and conclusions. They are hiding results of tests we know they performed
based upon the video evidence from Defendants’ experts’ July 2011 evaluation of the
authentic Facebook Contract. They are declining to reveal the results of tests their
experts should have performed if they were competent (e.g. handwriting analysis).
The one-time avalanche has melted into nothing and Defendants do not want that
known.
FACEBOOK AND ZUCKERBERG’S MANIPULATION OF THE SPIRIT OF
THE COURT’S ORDER
The court’s order, Doc. No. 83, was clear.

The order did not permit

Defendants to withhold findings of examinations or reports that were unfavorable
to their clients. There is no conclusion to draw from Defendants failure to provide
the “all reports” of the results of their examinations or findings except to shield
unfavorable information. This shielding is expected as any testing of the authentic
Facebook Contract by Defendants’ experts was bound to yield unfavorable results
for them.

Doc. No. 83 also did not say that Facebook and Zuckerberg only had to

release final versions of their expert reports. Defendants obtained the order in Doc.

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No. 83 promising they could overwhelmingly prove a fraud by agreement of both
party’s experts. They have failed to fulfill that promise already. But, that promise
and the gravity of the pursuit of a dismissal at this stage, mandates that they
provide “all reports” as the court ordered instead of merely the seemingly favorable 1
reports they chose to submit.
As Exhibit A reveals, there were numerous examinations conducted by
Defendants’ experts for which no findings were provided by Defendants.

For

example, the video of Defendants’ examination of the hard copy documents reveals
several ESDA tests being repeatedly performed by Defendants’ experts. An ESDA
test detects indentations in paper for matching to writing that may have occurred
while the examined piece of paper was underneath the paper being written on.
ESDA is an objective test resulting from the operation of a machine. It does not call
for any subjective analysis. None of Defendants “findings of that examination” were
provided. No images of that testing were provided. Discovery at any stage, but
particularly at a stage where a potentially case-ending motion is pending, should
not be a game of Catch Me If You Can.
At least two of Defendants’ experts are qualified to examine handwriting to
detect authentic or forged writing.

Page one of the Facebook Contract has

handwriting and the initials of both parties. Plaintiff and Zuckerberg’s signatures

Plaintiff’s document examination and computer forensics experts have generated an overwhelming
amount of information completely refuting all the conclusions in Defendants’ experts’ reports. Those
reports are forthcoming to the court and Defendants consistent with this Court’s order in response to
this motion.
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appear on page two of the Facebook Contract.
Defendants have either conducted handwriting analysis testing on the two
pages of the document or they have not. If they have performed such tests, they
have failed to provide the “findings of that examination” as ordered by this Court.
See Doc. No. 83.

If they have not performed such tests, that borders on wilful

blindness to evidence that is obviously harmful to Facebook and Zuckerberg’s
defense. The court can easily infer that these tests and results from Defendants’
experts were concealed for a reason.
CONCLUSION
The discovery related relief Plaintiff seeks here is clearly within the court’s
order.

It is within the court’s understanding of what Defendants had already

provided. Plaintiff seeks merely the same information that Defendants sought and
received via court order from Plaintiff’s experts. As Exhibit A also notes, Plaintiff is
seeking access to everything this court ordered in Doc. No. 83 - “all reports
documenting the findings of [Defendants’ experts’] examination[s].”
No. 83. Emphasis added.
Respectfully submitted,
/s/Dean Boland

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Doc.

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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