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)
4é~:~'t. MIL BERG
NEW YORK
.~:.¡~. LLP
LOS ANGELES
TAMPA
DETROIT
Sanford P. Dumain
sdumain(jilberg.com
May 7, 2012
SENT VIA EMAIL
Orin Snyder
Gibson Dun
200 Park Avenue
New York, NY 10162
osnyder(fgibsondun.com
Re: Ceglia v. Zuckerberg, No. 10-00569 (W.D.N.Y.) (RJA) (LGF)
Dear Orin:
At the April 4, 2012 hearing, Defendants' counsel stated that Plaintiff is in possession of
everything that Defendants' experts relied upon in ariving at their opinions. See e.g., Transc.
202:25 - 203:30 ("MR. SNYDER: Everything they relied on we got from their computers and -THE COURT: I thought it was fairly well understood that what the basis of the defendants'
experts were. Basically it is what it is as stated in this record, pretty definitively and under oath. .
. ."). However, our review of those reports indicates that Defendants' experts relied upon
materials that have never been provided to Plaintiff. We request that you produce these items,
which are set forth below.
. All native format images, fies, or other sources of any and all contracts or
alleged contracts in this matter. See, e.g., Declaration of Gerald LaPorte (Ex. B. to
3/26/12 Southwell Decl.), ECF No. 326, at 4 ("I took high-resolution color digital
photographs and scans"); Declaration of Fran Romano (Ex. C to 3/26/12 Southwell
Decl.), ECF No. 327, at 3 (relying on "two high-resolution scans taken by Mr. Tytell");
Declaration of Gus Lesnevish (Ex. E. to 3/26/12 Southwell Decl.), ECF No. 329, at 2
(relying on "image of
Tytell"); Declaration of
the Work for Hire document taken by Defendants' expert Peter V.
Peter Tytell (Ex. F. to 3/26/12 Southwell Decl.), ECF No. 330, at
3 ("I acquired images of the original Work for Hire document and Specification
document with a flat-bed scaner, a digital camera, and the digital image capture
capabilities of the VSC 400"); Declaration of Albert Lyter (Ex. D. to 3/26/12 Southwell
Decl.), ECF No. 328, ("I also used a MiScope digital microscope. . . which allowed me
to capture digital images at these magnifications.");
· All native format fies received from the law firm of Sidley Austin and/or Jim
Kole. See, e.g., 3/26/12 Report of Stroz Friedberg, LLC (Ex. A. to 3/26/12 Southwell
One Pennsylvania Plaza. New York, New York 10119 . T 212.594.5300 . F 212.868.1229 . milberg.com
May 7, 2012
Page
2
Decl.) ("Stroz Decl."), ECF No. 325, pp. 18-22 (citing scaned image fies and emails
that were obtained from Sidley Austin);
. A forensically-sound, native copy of Mr. Zuckerberg's email records from
Harvard. See 3/26/12 Declaration of
Bryan J. Rose in Support of
Defendants' Motion to
Dismiss ("Rose Decl."), ECF No. 333, at 1 (citing "four separate copies of Mr.
the email account as it
existed on April 15, 2011, October 1, 2010, November 3, 2003, and February 9, 2012);
See also Stroz Decl. at 23-31 (disputing the authenticity of Plaintiff s emails with
Defendant Zuckerberg's Harard email address);
Zuckerberg's email account from Harard"), at 2 (citing copies of
. The underlying data, images, findings, and/or results from the various tests and
experiments performed and relied upon by Defendants' experts in connection with
their reports. See, e.g., LaPorte Dec!. at 12-13, 15-16 (citing various chemical
analyses), 18 ("I performed an experiment on November 23,2011 . . ."); Lyter Dec!. at 5-
8 (citing chemical examination performed on microplug samples taken from areas of
writing);
· Results or findings of all examinations of the signatures on page two of the
contract, e.g., those analyzing the signatures to determine if they are genuine
signatures of
Paul Ceglia and Mark Zuckerberg. See, e.g., LaPorte Dec!. at 14-16;
. Results or findings (and images) of all Electrostatic Detection Apparatus
("ESDA") testing of the Facebook contract by each expert who performed the test
and for every performance of that test. See, e.g., LaPorte Decl. at 6, 17-18;
. Results or findings of the computer forensic analysis of the forensic copies of
relevant computers currently in the possession of Parmet and Associates, to the
extent your experts relied on, analyzed, or otherwise considered such documents or
data;
· Results or findings of the computer forensic analysis of the "originals" of the
forensic copies of relevant computers currently in the possession of Parmet and
Associates or Defendants, to the extent your experts relied on, analyzed, or
otherwise considered such documents or data; and
· Information or data sufficient to identify with particularity the location within
the document from which your experts took samples, e.g., microplugs, for testing
and/or analysis. See, e.g., Lyter Dec!. at 5-8 (citing chemical examination performed on
microplug samples taken from areas of writing); LaPorte Decl. at 4, 15-17 (citing "ink
plugs" removed from the document).
Please produce the foregoing materials by Monday, May 14, 2012. Any failure to
produce these materials may serve as a basis for a motion to strike or other appropriate relief.
May 7, 2012
Page 3
We are available to meet and confer with you on this request. Please contact Jennifer Young or
me with any questions.
Sincerely,
~~, PUIQ.vv i
. ltYVLSanford . Dumam
cc: Alexander Southwell
Dean
Boland
Paul A. Argentieri
Robert Calihan
Peter Skivington
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