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)

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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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