Ceglia v. Zuckerberg et al

Filing 416

DECLARATION signed by Larry Stewart re 348 Order on Motion to Stay, Scheduling Conference, Oral Argument,,,,,,,,,,,, 414 Declaration filed by Paul D. Ceglia Expert Report. (Attachments: # 1 Supplement 46-55, # 2 Supplement 56-66, # 3 Supplement 67-90, # 4 Exhibit p. 1-82, # 5 Exhibit p. 83-167, # 6 Exhibit p. 168-229, # 7 Exhibit p. 230-290)(Boland, Dean)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,
Civil Action No. : 1:10-cv-00569-RJA

Plaintiff,

DECLARATION
OF LARRY F. STEWART IN

v.

SUPPORT OF PLAINTIFF’S
FORTHCOMING RESPONSE TO

MARK ELLIOT ZUCKERBERG, Individually, and

DEFENDANTS’ MOTION TO
DISMISS FOR FRAUD

FACEBOOK, INC.
Defendants.

LARRY F. STEWART submits this declaration as an official forensic report of
findings and hereby declare under penalty of perjury and pursuant to 28 U.S.C.
1746 that the following is true and correct:
TABLE OF CONTENTS
Section Title

Page No.

Introduction and Background Information
Exhibits
Synopsis of Results
The Basis for My Results
The July 2011 Examinations of the Facebook
Contract by Plaintiff’s and Defendants’ Experts
My Examination of the Documents
Declaration of Larry F. Stewart

2
12
13
13
13
15
1

Response to Declarations from Defendants’ Experts
dated 11/28/11
Response to Defendants’ Motion to Dismiss and Reports
From the Defendants’ Experts dated 03/26/12
Use of “Preliminary Findings” in a Forensic Report
Staple Evidence
What Caused the Damage to the Ink and Paper of the
Facebook Contract?
Ink Analysis Results are, at Best, Inconclusive
Affect of Storage Conditions on the Facebook Contract
Defendants’ Two Printer Theory is Wrong
Defendants’s Page 1 Substitution Argument is Wrong
Defendants’ Expert’s Claim of Different Papers is Wrong
Paper Composition Analysis Shows Defendants are Wrong
Defendants’ Own Experts Disagree About the Ink
Laporte’s Personal Attacks Against the Plaintiff’s Experts
Laporte’s Use of an Unvalidated and Unsupported
Technique for the Analysis of the Ink is Wrong
Discussion Regarding Laporte’s Use of an Undeveloped
Approach for Ink Age Determination
Defendants’ Expert’s Nondisclosure of Findings
Peer or Technical Review of Work Conducted
by Plaintiff’s Forensic Experts
Conclusions

25
34
34
35
39
42
45
46
48
62
62
63
64
67
74
86
87
87

1. Introduction and Background Information:
2. I, Larry F. Stewart, make this declaration upon personal knowledge and
if called as a witness I could and would competently testify to the following:.
3. I am a retained expert for Paul D. Ceglia in the above captioned case.
4. I am presently Chief Forensic Scientist and President of Stewart
Forensic Consultants, LLC, San Luis Obispo, California and Washington,
DC.
5. During my 32 years as a forensic scientist, I have been requested to
conduct forensic examinations in many well-known cases to include; the
Declaration of Larry F. Stewart

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Unabomber, the John Wilkes Booth diary, numerous accused Nazi war
criminals, e.g. John Demjanjuk, a.k.a. Ivan the Terrible, the reinvestigation
of the Dr. Martin Luther King murder, the reinvestigation of the Kennedy
assassination/CIA conspiracy theory, the Quedlinburg Treasure, the 1933
Saint-Gaudens Double Eagle gold coin, the Jon Benet Ramsey murder
investigation, the 9/11 terrorist attacks, the DC Sniper investigation and the
2010 Brazilian presidential election scandal.
6. My education includes an Associate of Arts Degree from Florida
Technological University, Orlando, Florida in 1976, a Bachelor of Science in
Forensic Science Degree from the University of Central Florida, Orlando,
Florida in 1979, and a Master of Forensic Sciences Degree from Antioch
University, Yellow Springs, Ohio, received in June of 1983.
7. I have received numerous specialised training courses in the forensic
sciences from 1976 through the present from such facilities as Crane-Weston
Paper Mill, Bureau of Engraving and Printing, McCrone Research Institute,
Virginia Polytechnic Institute and State University, Central Intelligence
Agency, U.S. Air Force, U.S. Justice Department, Federal Bureau of
Investigations, FBI Training Academy (Quantico), U.S. Secret Service,
Perkin-Elmer Corporation, and others.
8. My work experience includes Forensic Chemist for the United States
Bureau of Alcohol, Tobacco and Firearms; Counterfeit Specialist,
Questioned Document Examiner, Senior Document Examiner and National
Expert on Matters Concerning Ink for the United States Secret Service;
Chief, Questioned Document Branch and Laboratory Director/Chief
Forensic Scientist for the United States Secret Service.

Subsequent to

federal government retirement (after a credited 27 year tenure) I began my
Declaration of Larry F. Stewart

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own independent forensic laboratory and consulting service known as
Stewart Forensic Consultants, LLC.
9. I have also been an instructor or guest speaker in forensic science for
numerous groups and agencies, to include; Bureau of Alcohol, Tobacco and
Firearms, U.S. Secret Service, Antioch School of Law, George Washington
University, Federal Law Enforcement Training Center, Rochester Institute of
Technology, UCLA, Catholic University, U.S. Department of State,
International Law Enforcement Academy, Naval Criminal Investigative
Service, U.S. Air Force, Cuesta College and California Polytechnic Institute.
10. I have testified as an expert forensic scientist witness in state, federal and
military courts of law, as well as testified or been deposed in foreign court
systems to include: Austria, Australia, Canada, Germany, Sri Lanka and
Thailand. I have testified in an International Tribunal held in Vienna,
Austria. I have also testified as a forensic scientist at The Hague in the
Netherlands and three times before the U.S. Congress.
11. I served the U.S. Government as a forensic scientist for over 26 years
and have been in private practice for over 6 years.
12. I have achieved many awards and honors in the field of forensic
science.

They include: Participated as a "referee" in the 1980 Crime

Laboratory Proficiency Training Program Forensic Sciences Foundation,
Colorado Springs, Colorado; Testified in May of 1989 and 1990 before the
Subcommittee on Oversight and Investigations of the Committee on Energy
and Commerce, U.S. House of Representatives (These matters concerned the
investigation of fraud in science); Certified by the U.S. Secret Service as an
accredited Examiner of Questioned Documents, February 1, 1991; Recipient
of the Health and Human Services Inspector General's Integrity Award,
Declaration of Larry F. Stewart

4

1991; Appointed Chairman of A.S.T.M. task groups (1991) concerned with
developing standards for performing "Writing Ink Comparisons" and
"Writing Ink Identifications;" United States Delegate at the 14th European
Meeting on Currency Counterfeiting, The Hague, The Netherlands, October
9-11, 1991 and the First International Conference on Fraudulent Documents,
Ottawa, Canada, April 27- May 1, 1992; United States Delegate at the 6th
European Conference for Police and Government Experts, London, United
Kingdom, October 2-4, 1996 (Presented a paper on Ink Dating, Relative and
Absolute: New Approaches to Old Problems); Testified on July 22, 1999
before the House Judiciary Committee, Subcommittee on Immigration and
Claims, U.S. House of Representatives (This matter concerned detection and
prevention of counterfeit documents); Classified as an “Inspector” for the
American Society of Crime Laboratory Directors; Elected to the Board of
Directors for the American Society of Crime Laboratory Directors,
September 14, 2000; Elected to the Board of Directors for the Document
Security Alliance, December, 2003; Appointed as the forensic consultant for
the United Nations, tasked with developing and implementing a successful
forensic laboratory in Nigeria, Africa, 2007; Elected to the Board of
Directors for The Academy, June, 2007; Certified Forensic Consultant,
American College of Forensic Examiners Institute, October, 2007;
Appointed as a forensic consultant for the U.S. Department of State, Bureau
of International Narcotics and Law Enforcement Affairs in Yerevan,
Armenia, January, 2008 (ongoing assignment); Appointed as a forensic
consultant for the U.S. Department of State, Bureau of International
Narcotics and Law Enforcement Affairs in Tbilisi, Georgia, May, 2008;
Elected to the Board of Directors for the American Board of Forensic
Examiners, February, 2009; Accepted as a member of the Association for
Declaration of Larry F. Stewart

5

Intelligence

Officers

and

the

Business

Espionage

Controls

and

Countermeasures Association, 2011.
13. I have over thirty original publications or presentations of original
forensic works, to include two published books in the field of forensic
science, to include:
13.1.

"Detection of Volatile Accelerants in Fire Debris. 1. A

Comparative Evaluation... " R. Strobel, R. Tontarski, L.F. Stewart, P.
Wineman presented at the American Academy of Forensic Sciences, New
Orleans, Louisiana, February 1980, and the Mid-Atlantic Association of
Forensic Scientists, combined meeting, Louisville, Kentucky, May 1980;
13.2.

"Artificial Aging of Documents," L.F. Stewart. Published in the

Journal of Forensic Sciences, Vol. 27, No. 2, April 1982;
13.3.

"Ballpoint Ink Age Determination by Volatile Component

Comparison," L.F. Stewart, Presented at the American Academy of Forensic
Sciences meeting, Orlando, Florida, February 1982, and Mid-Atlantic
Association of Forensic Scientists/Northeastern Association of Forensic
Scientists joint meeting, Harrisburg, Pennsylvania, April 1982. Published in
the Journal of Forensic Sciences, April 1985;
13.4.

"The Role of the Secret Service in Counterfeit Deterrence," L.F.

Stewart. Presented at the Mid-Atlantic Association of Forensic Scientists
meeting, Baltimore, Maryland, April 1983;
13.5.

"The Forensic Analysis of Printing Inks," L.F. Stewart. Presented

at the American Society of Questioned Document Examiners, Lake Tahoe,
Nevada, September 1983;
13.6.

"Counterfeit Credit Card Deterrence," L.F. Stewart. Presented at
Declaration of Larry F. Stewart

6

the American Society of Questioned Document Examiners/Canadian Society
of Forensic Scientists annual meeting, Montreal, Quebec, Canada,
September 1985;
13.7.

"Detection of Counterfeit Currency," L.F. Stewart. Presented at

the International Association of Identification conference, Arlington,
Virginia, August 1987;
13.8.

"Identification of United States Currency Security Fibers by

Fourier Transform Infrared Spectroscopy," J.E. Brown and L.F. Stewart.
Presented at the Canadian Society of Forensic Scientists annual meeting,
Toronto, Ontario, Canada, October, 1988;
13.9.

"U.S. Secret Service Ink Identification System," J.W. Hargett,

J.E. Brown and L.F. Stewart. Presented at the Canadian Society of Forensic
Scientists annual meeting, Toronto, Ontario, Canada, October 1988;
13.10.

"Use of Enlargement Ratios of Negatives and/or Printing Plates to

Characterize Counterfeit Currency," L.F. Stewart, R.L. Outland and J.E.
Brown. Presented at the Canadian Society of Forensic Scientists annual
meeting, Toronto, Ontario, Canada, October 1988;
13.11.

"Current Status of Ink Age Determination," L.F. Stewart and S.L

Guertin. Presented at the Ninth INTERPOL Forensic Science Symposium,
INTERPOL Headquarters, Lyon, France, December 12, 1989. Published in
INTERPOL International Criminal Police Review, March-April, 1991;
13.12.

"A.S.T.M. Standard for Writing Ink Comparisons," L.F. Stewart

and J.L. Becker. Presented at the Mid-Atlantic Association of Forensic
Scientists 1991 meeting, Bethesda, Maryland, May 31, 1991;
13.13.

"Standard Guide For Test Methods For Forensic Writing Ink
Declaration of Larry F. Stewart

7

Comparisons," L.F. Stewart (Task Group Chairman).

Published in the

American Society For Testing and Materials (ASTM), Standard Designation
number E-1422-91, November 1991;
13.14.

"Counterfeit Documents Produced by Color Copier Systems,"

L.F. Stewart, Presented at INTERPOL Headquarters, Lyon, France,
December 11-19, 1991;
13.15.

"Sentence Insertions Detected Through Ink, ESDA and Line

Width Analysis," S.L. Fortunato and L.F. Stewart. Published in the Journal
of Forensic Sciences, November 1992;
13.16.

"Status of U.S.S.S. Ink Dating Program," J.W. Hargett and L.F.

Stewart. Presented at the Humboldt University, Berlin, Germany, April 2,
1993. Published in Kriminalistik und Forensische Wissenschaften, No. 82,
1994;
13.17.

"U.S.S.S. International Ink Library and Bulletin Board System,"

L.F. Stewart.

Presented at the Mid-Atlantic Association of Forensic

Scientists meeting, Baltimore, Maryland, May 20, 1993;
13.18.

"Standard Guide For Test Methods For Forensic Writing Ink

Identifications," L.F. Stewart (Task Group Chairman). Published in the
American Society For Testing and Materials (ASTM), Standard Designation
number E-1422-95, 1995;
13.19.

"The Government Response to Ink Age Determination," L.F.

Stewart, J.L. Becker.

Presented at the American Academy of Forensic

Sciences meeting, Seattle, Washington, February 17, 1995. Published in the
International Criminal Police Review - INTERPOL, Spring, 1996;
13.20.

“Distinguishing Between Relative Ink Age Determination and the
Declaration of Larry F. Stewart

8

Accelerated Aging Technique,” L.F. Stewart and S.L. Fortunato. Published
in

the

International

Journal

of

Forensic

Document

Examiners,

January/March, 1996;
13.21.

“Forensic Examination of Financial Crimes Documents,” L.F.

Stewart and J.W. Hargett. Presented at the 6th European Conference for
Police and Government Document Experts, London, United Kingdom,
October 2-4, 1996 and the GFS Conference, Luzerne, Switzerland,
September 9-12, 1997;
13.22.

“Unusual

Document

Examination

Approaches

and

Their

Relationship to the Daubert Challenge,” L.F. Stewart. Presented at the
American Board of Forensic Document Examiners meeting, Las Vegas, NV,
June 23, 2002 and the American Society of Questioned Document
Examiners meeting, San Diego, CA, August 14, 2002;
13.23.

“Forensic Science – Fake Fingerprints?,” L.F. Stewart, Published

in the Forensic Expert Witness Association, Fall, 2007;
13.24.

"Leveling The Playing Field," L.F. Stewart. Presented at the

California Association of Licensed Investigators, Central Coast meeting,
Pismo Beach, California, December 4, 2008;
13.25.

“Crime Scene Investigation,” L.F. Stewart, on-line course

developed for and published by the American College of Forensic
Examiners Institute, January 2009;
13.26.

“Identity Theft,” L.F. Stewart, A-Z Literary Book Publisher,

2009;
13.27.

“Document Examination,” L.F. Stewart, A-Z Literary Book

Publisher, 2009;
Declaration of Larry F. Stewart

9

13.28.

“Forensic Science – Fake Fingerprints?,” L.F. Stewart, Published

in the HG Experts Legal Experts Directory on-line publication, Spring,
2010;
13.29.

“Forensic Science - The Good and the Bad,” L.F. Stewart,

Published in the HG Experts Legal Experts Directory on-line publication,
Spring, 2010;
13.30.

“Forensic Science - Erroneous Handwriting Opinions,” L.F.

Stewart, Published in the HG Experts Legal Experts Directory on-line
publication, Spring, 2010;
13.31.

“Forensic Handwriting Examination - Selecting Your Expert,”

L.F. Stewart, Published in the HG Experts Legal Experts Directory on-line
publication, Winter, 2011;
14. I have numerous professional affiliations, to include:
American Academy of Forensic Sciences - Fellow;
Canadian Society of Forensic Scientists (past member);
American Society of Crime Laboratory Directors;
Document Security Alliance (past member);
Mid-Atlantic Association of Forensic Scientists (past
member);
California Association of Licensed Investigators;
Forensic Expert Witness Association;
American College of Forensic Examiners Institute;
American Chemical Society;

Declaration of Larry F. Stewart

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Association For Intelligence Officers;
Business Espionage Controls & Countermeasures Association
15. I have held the following professional affiliation offices:
Mid Atlantic Association of Forensic Scientists
Secretary/Treasurer
November 1981 to October 1984;

American Society of Crime Laboratory Directors
Board of Directors
September 14, 2000 to September 2003;

Document Security Alliance
Board of Directors
December 2003 to November 2004;

American Board of Forensic Examiners
Board of Directors
February 2009 to December 2009;

The Academy
Board of Directors

Declaration of Larry F. Stewart

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June 2007 to present
16. My current curriculum vitae and a listing of previous testimonies are
attached. (See Exhibit 1)
17. My role in this matter was to assist in developing an appropriate
forensic examination scheme and to oversee the forensic examinations on
the part of Plaintiff’s to ensure that all examinations were conducted
appropriately and followed accepted protocols.
18. Furthermore, I conducted my own, independent, forensic document
examinations on the questioned documents at issue in this matter.
19. This will serve as a forensic laboratory report in this matter outlining
my observations and findings regarding evidence presented to date for my
evaluation.
Exhibits:
Q1 – One, two-page original document bearing the title, ““WORK FOR
HIRE” CONTRACT.”

Page 1 of the document bears a handwritten

interlineation, indicating, “Providing web Design is Funded By May 24,
2003” along with two sets of witnessing initials. Page 2 of the document
contains two signatures and handwritten dates as follows: “Paul Ceglia
4/28/03” and “Mark Zuckerberg 04.28.03”
Q2 – One, six-page document bearing a FAX header and the title, “
StreetFax Back-End Technical Specification.” Page 6 of the document
contains two signatures and handwritten dates as follows: “Paul Ceglia
4/28/03” and “Mark Zuckerberg 04.28.03.”
Additional Items: Numerous known writings of Mr. Mark Elliot Zuckerberg,
and a two-page, non-original StreetFax document presented by Plaintiffs as
Declaration of Larry F. Stewart

12

the “Smoking Gun.”
20. Synopsis of Results:
21. After a thorough and exhaustive forensic testing of the Facebook
Contract (Work For Hire) (Exhibit Q1), there is no indication to suggest the
Contract is anything other than genuine. In addition, there is no evidence to
support that the Facebook Contract is altered.
22. Evidence supports that page 1 of the Facebook Contract was originally
executed together with page 2 of the Facebook Contract.
23. The StreetFax page 1 was not the original page 1 of the Facebook
Contract.
24. The Basis for My Results:
25. The July 2011 Examinations of the Facebook Contract by Plaintiff’s
and Defendants’ Experts:
26. I was present at the law offices of Harris Beach in Buffalo, NY starting
July 16, 2011 through July 19, 2011 observing the work of Facebook’s
document experts.
27. I was not allowed to examine the questioned documents during that
time.
28. I did, however, observe Facebook’s experts repeatedly exposing the
“Work For Hire” Facebook Contract to high intensity and ultraviolet (UV)
irradiation or lights.
29. At one point during the testing I commented directly to Plaintiff’s
counsel that the Defendants’ experts were unnecessarily repeating tests and
over-exposing the documents to intense lights and that their actions could
Declaration of Larry F. Stewart

13

cause damage.
30. It is widely known that optical brighteners in paper can fade through
exposure to UV light causing paper to yellow (Exhibit 2).
31. Furthermore, certain types of wood and paper compositions “yellow”
when exposed to ultraviolet light (Exhibit 3).
32. The first paragraph of the first page of the 1910 edition of Questioned
Documents – A Study of Questioned Documents With an Outline of
Methods By Which the Facts May Be Discovered and Shown, by Albert
Sherman Osborn, warns, “From the moment that the genuineness of a
document is questioned it should be handled and cared for in such a manor
as not to impair in the slightest degree its value as evidence”
33. On page 8 of the same treatise, Osborn wrote, “A questioned document
should not be exposed to moisture of any kind; should not be exposed long
to strong sunlight …”
34. As evidenced by Osborn, even early on in the history of document
examination, forensic questioned document experts knew of the potential
damage to a document from humidity and ultraviolet irradiation.
35. In the 1966 Second Impression with Supplement of
“Suspect Documents – Their Scientific Examination,” by Wilson R.
Harrison, the author writes on page 459, para 1, “It follows from this that the
exposure to strong sunlight of important documents should be restricted to
the absolute minimum, especially if the documents bear coloured ink or
typescript.” (See Exhibit 2)
36. Defendants’ experts chose not to heed the warnings and repeated their
tests unnecessarily. Now, the inks and paper that form the 2-page Facebook
Declaration of Larry F. Stewart

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Contract are noticeably damaged.
37. My Examination of the Documents:
38. On July 25, 2011, I was first allowed to examine the Facebook Contract.
39. On that date, I captured multiple images of the Facebook Contract and
immediately noticed an unusual yellowing on one side only of both pages.
40. The yellow discoloration/damage evident in the Facebook Contract is,
in my opinion, the result of repeated exposure of the document to high
intensity and/or UV lights.
41. Upon review of the videotapes made of the examinations by both
Defendants’ and Plaintiff’s experts, it is evident that the Facebook Contract
yellowed dramatically between the time when the document was provided to
the Defendants’ experts and when it was made available to the Plaintiff’s
experts.
42. In the Buffalo examination video the Facebook Contract can be clearly
seen as visibly white when compared to the much more yellowed six-page
Technical Specifications (See video at times 1:14-1:17). Here is a link to
the referenced video:
http://www.youtube.com/watch?v=qbc0t6cWEmA&feature=fvwrel

43. Those images were captured when the documents were first being
presented to the Defendants for testing.
44. Following is a still image captured from the video: (Note how the 2page Q1 Facebook Contract (shown at top of image) is visibly much whiter
in appearance than the Q2 Technical Specifications document (shown at
bottom of image).)

Declaration of Larry F. Stewart

15

45. At the end of the Buffalo testing the documents were placed in
envelopes, sealed and then signed by both counsel across the seals.
46. The Chicago examination was subsequently conducted 6 days later
(July 25, 2011).
47. A still image taken from that video clearly shows that the Facebook
Contract has dramatically yellowed, to the point that it now appears even
more yellowed than the Technical Specifications document.
48. In the following still image from the July 25, 2011 examination, note
how the 2-page Facebook Contract (shown at top of image) is now visibly
much more yellow in appearance than the Technical Specifications
document (shown at bottom of image):

Declaration of Larry F. Stewart

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49. It is clear from the videos that the Facebook Contract dramatically
yellowed sometime between the beginning of the examination by
Facebook’s experts on the morning of July 14, 2011 and the subsequent July
25, 2011 examinations.
50. I am aware from documents filed in this case that the legal videographer
present at the July 2011 examinations also noted that the documents were
presented to Defendants’ experts as “white” documents.
51. Based on the videotape of the Chicago examination, the Facebook
Contract was presented while still in its sealed and signed condition (See
Video at time 0:13).
52. This sealed and signed envelope bears the date of “7/19/11,” the date of
Declaration of Larry F. Stewart

17

the conclusion of the forensic testing in Buffalo.
53. This leads to the logical conclusion that the discoloration and
deterioration of the Facebook Contract occurred as a result of the work
conducted in Buffalo by the Defendants’ experts.
54. My first physical examination of the Facebook Contract occurred in
Chicago on July 25, 2011.
55. Upon my physical examination of the Facebook Contract, I observed
that the two pages are both 8 ½” X 11”, non-watermarked, “bond-type”
paper.
56. I found that the two pages were consistent in coloration and surface
texture.
57. Both pages of the Facebook Contract were highly yellowed on the
obverse or face side, only.
58. This was quite noticeable and unusual. The reason it was unusual is
because typically single pages that are naturally aged exhibit consistent
coloring throughout both sides of the document.
59. Although quite yellow on the face side, both pages of the Facebook
Contract were white on the reverse or back side.
60. Another reason this observation is unusual is because the Facebook
Contract is a previously stapled two-page document. It would be expected
that if natural exposure caused yellowing of the Contract, then the page
surfaces that were exposed would gain the most damage.
61. In this case, with just the front side of each page exhibiting the
yellowing, it doesn’t follow that the stapled Contract would exhibit
Declaration of Larry F. Stewart

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yellowing on the face side of the top document and then the other exposure
is found on the face side of the second (covered) document.
62. There are several methods by which pieces of paper of this type can
become discoloured or damaged.
63. They include age, heat, humidity, contact with chemicals, or exposure to
intense or UV lights. In 1982, I noted in an article entitled “Artificial Aging
of Documents” many of the known causes. (See Exhibit 4)
64. Except for intense or UV light exposure, each of the remaining methods
that can cause discoloration necessarily would have yellowed both sides of
the pieces of paper comprising the Facebook Contract.
65. The fact that the yellowing on the two pages of the Facebook Contract
is only found on one (the face) side is notable and is consistent with
overexposure of the documents while lying on their backs during testing by
Facebook’s experts.
66. I observed Facebook’s experts repeating the same tests on the Facebook
Contract numerous times and performing far more testing than would
typically be needed to make proper scientific determinations about the
authenticity of the document.
67. A typical evaluation of documents in my field can involve the use of a
machine called a video spectral comparator (VSC).
68. One such model is known as the Foster Freeman VSC4.
69. Below is a reference image of a Foster Freeman VSC4:

Declaration of Larry F. Stewart

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Foster Freeman Video Spectral Comparator Model VSC-4

70. The Foster Freeman VSC4 is one of the pieces of equipment utilized by
the Defendants’ experts in Buffalo.
71. A video spectral comparator, e.g. the Foster Freeman VSC4, can aid an
examiner in determining the characteristics of a document by utilizing

Declaration of Larry F. Stewart

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intense illumination sources, e.g. ultraviolet (UV) along with filters.
72. The VSC allows the user to shine UV light onto a document after which
any reaction can be viewed utilizing a capture camera and filters.
73. Typically these examinations are done as quickly as possible to limit
over exposure of the document to these intense lights. (See Exhibit 2)
74. The amount of exposure time with which damage can occur varies and
can be based on ink and paper compositions.
75. Without the knowledge of the composition of the ink or paper, a prudent
forensic examiner would carefully consider the possibility of damage prior
to repeating tests or long exposures to ultraviolet or intense light sources.
76. Anyone who has seen a newspaper that has laid out in the sun for a day
or two has seen the effects of UV overexposure in ink and paper.
77. The videotape clearly shows that Facebook’s experts exposed the
Facebook Contract repeatedly for long periods of time to intense and UV
lights.
78. There are images in the video where the lighting was so intense the
lawyers and other experts would shield their eyes, or in the case of Tytell
wear protective goggles.
79. Below is one such image taken during the Defendants’ expert
examination on July 14, 2011:

Declaration of Larry F. Stewart

21

80. In that still image, Tytell is on the right, wearing protective goggles as
he conducts an examination using various types of lights. The lawyer on the
opposite side of the table appears to be shielding his eyes while looking
away from the source.
81. The Foster Freeman VSC4 instrument contains an ultraviolet light that is
above the document as the document is being viewed inside its closed
chamber.
82. This would explain why the two pages of the Facebook Contract are
yellowed on their face sides only.
83. The damage to the Facebook Contract does not appear to be due to heat
Declaration of Larry F. Stewart

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exposure, from an oven-like source, since logically if surrounding heat was
the cause one would expect consistent damage on both sides of the pages and
not just on the face of each page.
84. There is some heat exposure, from one side of the page only, expected
from the use of equipment, e.g. the VSC or else alternate light sources. The
Defendants’ experts used these extensively. Their overuse and the potential
damage to ink and paper documents e.g. the Facebook Contract should be
considered as a possible contributor to or cause of the damage.
85. One of the tests I conducted was a physical examination of the folds in
the pages and the staple holes found on the pages of the Facebook Contract.
86. After those examinations, I found no basis to support a conclusion that
page 1 of the Facebook Contract had been substituted for a now missing
page.
87. Another test I conducted on the documents was an analysis of the
printing method(s) used to produce the printing found on the two pages of
the Facebook Contract.
88. Physical analysis resulted in a determination that both pages 1 and 2 of
the Facebook Contract were printed with an office machine that utilized
toner, e.g. a laserjet printer.
89. Following, I conducted a chemical analysis of the toner found on both
pages of the Facebook Contract.
90. I followed accepted methodologies and protocols for the toner analysis.
The U.S. Secret Service utilized these same methodologies during my tenure
as Laboratory Director and Chief Forensic Scientist.
91. In the article, “A Sketch of Analytical Methods for Document Dating
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23

Part 1. The Static Approach: Determining Age Independent Analytical
Profiles, by Antonio A. Cantu (See Exhibit 5), the author describes in
Section IID Photocopier Toner,
“The type of photocopier and toner used to produce a photocopied
document can sometimes be determined and dated.

This, as

mentioned, depends on the existence of a data base of standard
samples, their profiles, and their dates of introduction.”

(See

Exhibit 6).
92. Test results indicate that the toner found on page 1 matches that found
on page 2.
93. Exhaustive chemical and physical testing failed to detect any differences
between the toner samples. The testing methods included microscopy and
thin layer chromatography.
94. Laporte reported a “difference” between the toner from the two pages of
the Facebook Contract (Document 326, page 13 of 67, paras 5 and 6).
95. Based on his image that he provided, it appears the Laporte may have
“overloaded” his TLC plate in some instances and then repeated his transfers
of extracted toner onto the same application point multiple times. This is an
error common to novice examiners.
96. Examination of his actual data, images and plates would allow me to
confirm whether this was the mistake he made.
97. For my examination, the laserjet printer toner was compared against my
library of standards and was found to be a black toner consistent with toner
from a Hewlett Packard (HP) 1100/3200 series printer. (See Exhibit 6)
98. The toner was not found to be consistent with any other toner from my
Declaration of Larry F. Stewart

24

library of standards.
99. My library of standard toners was created by obtaining samples from the
manufacturer or distributors, compiling them, analysing them based on their
compositions and then utilizing them for comparison against unknown
samples.
100.

To my knowledge, none of Facebook’s experts have a library of

standards for toner and, hence, have no basis to dispute my conclusion in this
regard.
101.

The HP 1100 series printer was first introduced to the public in

2001 and they were discontinued in May of 2005.
102.

The HP 3200 series printer was first introduced to the public in

2000 and they were discontinued in March of 2002.
103.

Considering that the Facebook Contract bears the date “4/28/03,”

it is logical to expect that if the document were legitimate it would have been
created with a printing system that existed on the date of the document.
104.

The HP 1100/3200 series printers were commercially sold

between 2000 and 2005.
105.

Response to Declarations From Defendants’ Experts dated

11/28/11:
106.

According to Defendants’ Expert Tytell (Document 238, page 7

of 11), on July 14, Facebook’s experts were using a video spectral
comparator model VSC40. On July 15th the model changed to a VSC400
(Tytell Document 238, page 7 of 11 and Laporte Document 326, pages 6 and
12 of 67).

Declaration of Larry F. Stewart

25

107.

That change to a different instrument was not explained by any of

Facebook’s experts. Since the two machines have similar capabilities and
perform the same function in document examination, the only reasonable
explanation for replacing one machine for the other is that there was some
malfunction of the original machine.
108.

It is unknown, but should be determined, whether the problem

with the instrument is linked to Facebook’s experts’ excessive UV exposure
of the document, causing it to yellow.
109.

In his report, Tytell states,
“The problem with relying upon the video clip embedded in the
Plaintiff's Memo (at p. 7) to evaluate the appearance of the
documents is again made apparent just a few minutes later when
page 2 of the Work for Hire document is moved across the table to
the right side of the frame. As the page is moved, its appearance
darkens and yellows, and when it comes to rest next to the
Specification document one can see that this page of the Facebook
Contract appears darker and more yellowed than the Specification
document next to it.” (Document 238, page 10 of 11)

110.

Tytell’s use of video to bolster his claims is misleading.

111.

When Plaintiff’s experts used video we made certain that the

identified clips involved similar angles from the camera to the page(s).
112.

In Tytell’s still he has chosen to use an image where one

document is close to the camera and at a different angle than the other.
113.

His choice of still image is misleading to the viewer, and it

naturally caused perceived, but not actual, differences in lighting and
Declaration of Larry F. Stewart

26

coloration.
114.

In Laporte’s Exhibit A (Document 240-1.pdf) he includes an

image of both pages 1 and 2 of the Facebook Contract.
115.

In Laporte’s two images, (presumably taken around the same time

at the same scanner settings) the two pages of the Facebook Contract have
noticeably different yellowing characteristics.
116.

Without the opportunity to examine all of the Facebook expert’s

images, along with their metadata and case notes, it is unknown when
Laporte, Lesnevich, Lyter, Romano or Tytell first experienced a yellowed
image and faded or damaged inks which resulted from over-exposure to UV
light, heat (one-sided) and/or humidity, during their examinations.
117.

Plaintiff’s experts were required to produce Discovery to

Defendants in late October 2011.
118.

To date, Plaintiff’s have not received Discovery items from the

Defendants.
119.

Even without the Discovery items, Plaintiff’s experts can respond

to information discussed in the expert reports of the Defendants.
120.

For example, it is possible using Defendants’ experts’ images to

show that pages 1 and 2 were changing as far as their coloration during their
examination.
121.

Assuming that Defendants’ experts’ images are not manipulated

and they accurately reflect the documents, then it is clear that the damage to
pages 1 and 2 of the Facebook Contract occurred during their analysis.
122.

Following is a cropped image clearly showing the differences
Declaration of Larry F. Stewart

27

visible between pages 1 and 2 from the Facebook Contract (Laporte’s
Exhibit A image):

123.

In his para 11, Lesnevich stated he immediately saw the

documents were discolored at 0900a on 7/15/11. He stated that he made
“high-resolution” scans of the pages.
124.

I noticed that the versions of those images provided in the

Lesnevich report appear substantially more yellowed than the images Tytell
provided from his examination on the previous day.
125.

This demonstrates, assuming that the images are not manipulated
Declaration of Larry F. Stewart

28

and were scanned similarly, that there was a degradation that occurred
during the examination on 7/14/11.
126.

Following is a comparison of the 7/14/11 (Tytell Exhibit B or Doc

238-2) and 7/15/11 (Lesnevich Exhibit A or Doc 239-1) images:

Declaration of Larry F. Stewart

29

127.

The images of the contract taken by Lesnevich and Tytell appear

to prove that Facebook’s experts caused the “yellowing” on the Facebook
Contract.
128.

In his para 12 of his Decl, Defendants’ expert Gerald Laporte

states the following:
“In the course of Defendants' examination, I and other experts used
a Foster & Freeman VSC-400.

A Video Spectral Comparator

(VSC) is standard digital imaging equipment used in forensic
document examinations. A VSC includes visible, ultraviolet and
infrared light sources, among others, the use of which is standard
practice in the field of document examination. A VSC is common
laboratory equipment that has been used for decades by thousands
of examiners worldwide. I am not aware of any reports or
documented findings that suggest that this type of lab equipment
would result in deterioration of inks or paper during the course of
an examination. I have examined thousands of documents using
standard laboratory equipment such as the VSC and other UV and
IR sources. I have never witnessed any damage caused by this
equipment, let alone damage similar to the deterioration in the ink
and paper that I immediately observed in the Work for Hire
document.”

129.

To give perspective to the statement by Laporte, no expert for

Plaintiffs has argued that the proper use of these laboratory instruments will
cause yellowing to a document. What Facebook’s experts fail to rebut is
Declaration of Larry F. Stewart

30

Plaintiff’s experts’ assertion, backed up by peer reviewed studies and
primers on document handling, that their excessive, repeated exposure of the
document to UV light, humidity and/or one-sided heat did cause the
document paper to yellow and the inks to fade.
130.

The problem here is that the Defendants’ experts chose to

repeatedly expose the documents to intensive lights and humidity over the
first two days of analysis. This was done for many hours and repeated many
times, unnecessarily. This type of repeated exposure was redundant and
appears to be the source of the damage to the contract.
131.

Defendants’ experts’ repeated exposure and redundant testing

could have all been avoided had they worked from a planned analysis
scheme.
132.

Laporte stated that he has “never witnessed damage to a document

similar to” what was found with the ink and paper in the Facebook Contract
(Document 326, page 10 of 67, para 5).
133.

It doesn’t surprise me that Laporte hasn’t “witnessed” damage like

this before.

He is the junior examiner here and has much less time

performing document examinations than Blanco, Lesnovich, Lyter, Tytell,
and myself.
134.

Before being hired by me at the Secret Service in 2001, Laporte

was a drug analyst at a state agency. His time and experience examining
documents did not begin until I hired him.
135.

Regrettably, the agency decided to give him a hurried (shortened)

training program to become a questioned document examiner. That decision
was based on an understaffed situation and in the long run has proven short
Declaration of Larry F. Stewart

31

sighted.
136.

Current standards for the training of a forensic document examiner

require a minimum of a 2-year apprenticeship along side a principal trainer
(fully qualified document examiner mentor).

(See ASTM Standard Guide

for Minimum Training Requirements for Forensic Document Examiners
E2388-05) (See Exhibit 7)
137.

Under my direction at the U.S. Secret Service, Laporte would

never have been allowed to expose a document for the hours that the
Defendants’ experts did and the examinations would not have been repeated
over and over by separate examiners.
138.

This prohibition was in place at the U.S. Secret Service forensic

laboratory, which I directed in order to avoid the type of document damage
apparently caused by Facebook’s experts in this case.
139.

At the U.S. Secret Service, if there was concern about a forensic

examination, it may have been repeated once but nothing like what was done
by Defendants’ experts in this case.
140.

Laporte commented on the “degradation due to photochemical

reaction” evident in the ink and paper in the Facebook Contract (Document
326, page 10 of 67). On one hand he describes degradation of the ink and
paper, but then he chooses to test the ink for components that evaporate over
time or with heat or UV light exposure. Here, his lack of experience is
evident.
141.

Laporte’s comments regarding document degradation and then his

follow-up analysis of the degraded document are deeply troubling to me as it
projects his inadequate training and lack of experience.
Declaration of Larry F. Stewart

I am troubled
32

because I first hired him for federal government service and was overall
responsible for his initial document examiner training.
142.

I am further troubled by his improper analysis scheme, which led

to his incorrect observations since he currently advertises that he holds a
full-time federal government position, in Washington, DC. There he is the
Forensic Policy Program Manager and Acting Associate Director of the
Office of Investigative and Forensic Sciences for the Department of Justice.
143.

Simultaneously, he works forensic cases, part-time as one of the

partners and owners of Riley, Welch, Laporte & Associates Forensic
Laboratories in Lansing, Michigan.
144.

One would hope, that in a leading forensic research position

within the federal government that Laporte would be knowledgeable of and
attentive to the possibilities of damage from misuse of forensic equipment.
145.

In this case, both Blanco and I provided Defendants’ experts with

citations discussing the possible side effects of too much UV exposure to a
document. A simple web search could gain Laporte many more citations.
His claim to be “unaware” of such studies documenting the damage to
documents from excessive UV exposure is self-serving, and not credible.
146.

Laporte stated that he has “never witnessed any damage caused by

this equipment.” As noted above the damage to the document was not
caused by the equipment, but instead the misuse of the equipment and the
potential malfunction of the initial machine, which was replaced during the
four-day examination.
147.

Based on his demonstrated performance in this case, if I were still

in the position of being Laporte’s mentor or employer, I would undoubtedly
Declaration of Larry F. Stewart

33

take action to retrain him or else remove him from active casework.
148.

Response to Defendants’ Motion to Dismiss and Reports From

the Defendants’ Experts dated 03/26/12:
149.
03/26/12.

I received a copy of the Defendants’ Motion to Dismiss, filed
In that document there are approximately 320 pages of

Defendants’ expert reports.
150.

Defendants’ experts took nearly nine months to prepare their

reports in this matter.
151.

Since receiving the filed Motion, on or about March 26, 2012, I

have worked on addressing the numerous points within their reports.
152.

It is my opinion that all of the seemingly salient points made by

Defendants’ experts in their reports have been refuted by the evidence at
hand and the work conducted by Plaintiff’s experts in this matter.
153.

Use of “Preliminary Findings” in a Forensic Report:

154.

Tytell indicates in his first paragraph of his report (Document 330,

page 20 of 24) that “This report presents my findings and conclusions to
date.” He leaves the door open for additional reports.
155.

In Laporte’s report (Document 326, page 20 of 67, para 4), he

wrote, “Mr. Blanco states that his Declaration contains his “preliminary
findings,” and “reporting one’s “preliminary findings” during a judicial
proceeding is highly unusual and can often mislead the trier of fact.”
156.

Tytell presents preliminary findings in his report while Laporte

(from the same Facebook’s team of experts) indicates it is unusual and
misleading to the Court.

Declaration of Larry F. Stewart

34

157.

Defendants’ experts can’t have it both ways. Even Facebook’s

own experts disagree on whether preliminary findings can be appropriate.
158.

Staple Evidence:

159.

Laporte reported, “There is no evidence to refute the possibility

that another page, other than page 1 of the Work for Hire document, was
originally stapled to page 2 and removed at a later time.” (Document 326,
page 4 of 67, para 5).
160.

Laporte is incorrect for various reasons.

The 2 pages of the

Facebook Contract show evidence of being stapled together only one time.
They don’t bear any evidence of either a second staple or else either page
being separately stapled to another, now missing document.
161.

Furthermore, Laporte’s use of the term “possibility” is

inappropriate and not consistent with proper forensic practice. The reason is
because Laporte uses “possibility” as opposed to discussing the
“probability.”
162.

Forensic Document Examiners would provide very little

assistance to the trier of fact if they reported and discussed “possibilities” as
opposed to probabilities. Acknowledging possibilities is useless in scientific
opinions as anything is “possible,” and that is of little help to the Court.
163.

Our function here, as in any case, should be to provide logical

conclusions based solely on the evidence at hand.

Laporte’s use of

“possibilities” in his formal opinion statements represents an openly biased,
unscientific and unreliable comment.
164.

In fact, the American Society for Testing and Materials

International

(ASTM)

has

created

a

standard

Declaration of Larry F. Stewart

entitled,

“Standard
35

Terminology

for

Expressing

Conclusions

of

Forensic

Document

Examiners.” In that peer developed and reviewed standard, they clearly
warn that experts should not opine concerning mere “possibilities.” (See
Exhibit 8)
165.

The Facebook Contract is a 2-page contract that was previously

stapled. Defendants’ experts argued that the contract is a “forgery” and the
result of a “substituted” page 1. Plaintiff’s experts refute their argument.
166.

In Defendants’ expert Albert Lyter’s report (Document 328, page

6 of 13, para 4), he states:
“In my experience, a single set of staple holes does not mean that
a document was stapled only once or even necessarily together. It
is quite possible to create a set of staple holes that appear to match
on two pieces of paper when in fact stapling the documents more
than one time. I have personally created staple holes that appear
to align through multiple staplings, and witnessed others do so, for
demonstration and training purposes.”
167.

The evidence here should be presented in a manner where the

individual forensic findings build until a conclusion regarding authenticity or
fraudulence can be reached. Instead, the Facebook experts appear biased
and to be taking “pot shots” at a wall of evidence when that evidence does
not support their position.
168.

Examples abound. For Lyter to state that it is “possible to create a

set of staple holes that appear to match” is quite telling. Again the misuse of
the term “possible.”
169.

And for Lyter to state that the staple holes “appear to match” is
Declaration of Larry F. Stewart

36

also very misleading. There is a major difference between staple holes that
“appear” to coincide at an arm’s length glance versus after examination by
an expert using a microscope and proper lighting.
170.

For Lyter to have “witnessed” the creation of such matching holes

is unclear in that the demonstration and training he indicates he was given
may have been provided by someone with exceptional ability, e.g. a C.I.A.
or F.B.I. expert.
171.

It is illogical to suggest that a layperson could easily uncouple two

stapled pages, substitute one of the pages with a new one and then somehow
put a new staple through the existing holes on one of the pages while
puncturing new holes on the previously unstapled page, all this without
detection by a forensic document examiner with a microscope.
172.

There is no scientific research, surveys or studies indicating even a

trained expert in document examination can successfully complete this feat,
much less a non-expert.
173.

In fact, when describing the examination of staple holes and

matching staples to them to create a fraudulent document, Wilson R.
Harrison wrote in his book entitled “Suspect Documents – Their Scientific
Examination (page 48),”
“The odds against these coinciding with the holes … are
exceedingly great.” (See Exhibit 9)
174.

In his book, Harrison describes the odds of fraudulently creating a

document by removing staples from one document, adding or removing
pages, then reinserting a new staple through the same holes and doing this in
a way that the resultant staple holes coincide as “exceedingly great.” In so
Declaration of Larry F. Stewart

37

doing, he correctly uses probabilities as opposed to possibilities.
175.
together.

In this case, the 2 pages of the Facebook Contract were stapled
A common examination that forensic document examiners

undertake when opining about the legitimacy of a document is a staple hole
comparison.
176.

There is only one set of staple holes and corresponding detent

markings found on the Facebook Contract. Rather than commenting on this
finding that clearly doesn’t support Facebook’s experts’ opinions regarding a
page 1 substitution, Tytell chose to leave it out of his report. He took dozens
if not hundreds of photographs and scans of the documents, and certainly
examined the staple and staple holes, as evidenced in his report (Document
330, pages 12-13 of 24).
177.

Rather than discussing the importance of a single set of staple

holes and no evidence of a reinserted staple, Tytell instead chose to discuss
“curvature” of the staple bar and went so far as to suggest that this “might
well be an indication that this staple had been removed and reinserted.” That
represents a ludicrous and completely unfounded statement. Use of the term
“might well be” is tantamount to use of the term, “possibility.”
178.

Any expert with integrity who has ever examined a stapled

document under a microscope will certainly attest to the bending, curving
and often misshaped staple bar which can be due to numerous non-criminal
reasons.
179.

One such example of a perfectly innocent explanation would be

that the document was pressed or pushed up against some surface that was
harder than the material used for the thin wire staple.

Declaration of Larry F. Stewart

38

180.

Another example would be a faulty stapler.

181.

A combination of examining the resultant holes from the

previously stapled Facebook Contract along with the detent markings found
on the back or reverse side of each page yield the only logical conclusion
that the Facebook Contract was only stapled one time.
182.

What Caused the Damage to the Ink and Paper of the

Facebook Contract?:
183.

Many of the Defendants’ experts reported that the Facebook

Contract (so-called Work For Hire (WFH) contract) now bears the evidence
of exposure to extreme environmental conditions.
184.

Tytell goes as far as to state that the damage happened while the

document was “hung-up with clips or clothespins…” (Document 330, page 2
of 24, para 3). This assertion is without any evidentiary support and is
illogical on its face.
185.

If a document was hung-up with clips or clothespins and exposed

to extreme conditions, then both sides of the document would be affected.
186.

In this case, the front sides of the pages of the Facebook Contract

are remarkably yellowed while the reverse sides are consistently white. It is
unreasonable and illogical to state that the document was hung-up with clips
or clothespins and then aged with artificial and extreme conditions.
187.

In Tytell’s report (Document 330, page 10 of 24, para 1), he

indicates that there are “brightly fluorescent tab” areas found on both pages
of the Facebook Contract. They are found as described by numerous experts
along the top of the two pages and are in stark contrast to the fluorescence
readings from the yellowed areas of the front sides of the two contract pages.
Declaration of Larry F. Stewart

39

188.

Tytell’s observation here confirms the Facebook Contract was

yellowed on one side only (the side that bears the printing).

This

corresponds to the Facebook Contract being examined, almost exclusively
on one side only, using the VSC 40/400 instruments.
189.

As noted above, one of the VSC instruments probably

malfunctioned during the Defendants’ examination causing them to replace
it mid-examination.
190.

In the VSC, an ultraviolet light is above the document and thusly

is shone down onto the document when being viewed. The back or reverse
side of the document would not be exposed to the ultraviolet illumination.
191.

Facebook’s experts concealed from the Court in their expert

reports that the VSC equipment comes with small weights used to hold down
documents that are inside the machine being examined.
192.

Likewise, Facebook’s experts did not disclose if and when they

used other items as paperweights during their document examination and
processing. That action would have had a “shielding” effect over a portion
of the document, which would in turn block out some of the Defendants’
expert’s ultraviolet and intense lights.
193.

A

thorough

examination

of

all

of

Facebook’s

experts’

photographs, scanned images, notes, etc. will further confirm when the
damage occurred to the Facebook Contract.
194.

Tytell (Document 330, page 10 of 24, para 2) wrote
“Neither Mr. Blanco nor (sic) Mr. Stewart mentions the
anomalous brightly fluorescent tabs on the front of both pages or
the anomalous dark triangle on the reverse of page 1 in their
Declaration of Larry F. Stewart

40

respective declarations.” He continues, “Their failure to consider
(or perhaps failure to notice) these anomalous features is a very
serious omission, as these features contradict their conclusions.”
195.

Tytell is wrong in that I did consider the markings and came to

the realization that Tytell and the other Defendants’ experts probably created
them from the repeated exposure to intense and ultraviolet light sources.
Tytell knows that I noticed and considered the markings as he saw reference
to it in the case file notes, which I turned over in Discovery (late October,
2011).
196.

If the small paperweights in the VSC equipment (See 185 above)

were used then they would block or mask the UV exposure in that area, thus
causing a difference in exposure.

This could explain the resultant

observation.
197.

Tytell (Document 330, page 10 of 24, para 3) sarcastically writes

“It is apparent that the cumulative exposure to ultraviolet and all other
illumination sources used in the examinations… did nothing to dull the
bright fluorescence of these tab areas …”
198.

What Tytell fails to consider is that what he is noting as “bright

fluorescence” is actually similar fluorescence to what is present on the pages
in the “non-yellowed” or non-damaged areas.
199.

If areas on the Facebook Contract pages were covered by the VSC

weights or some other paperweights during Defendants’ experts’ excessive
testing, then those paperweights would in turn block out areas of the
document, causing those areas to not be as damaged.
200.

Tytell describes the deteriorated condition of the ink and paper as
Declaration of Larry F. Stewart

41

being “obvious” and “thoroughly documented” on the morning of the
testing, July 14, 2011 (Document 330, page 10 of 24, para 4). This is
different from his earlier declaration where he stated,
“…later in my examinations, I noted that not only was the ink
discolored, but also the paper of the face of each page was
discolored” (Decl dated 11/28/11, para 23).
201.

This presents yet another justification of the need to review case

notes, photographs and native format scanned images, along with the
associated metadata in order to determine exactly when the yellowing of the
Facebook Contract paper and the fading of the inks occurred.
202.

Ink Analysis Results are, at Best, Inconclusive:

203.

Many of the Defendants’ experts reported about the “deteriorated”

condition of the inks and paper in the Facebook Contract.
204.

Tytell stated that “Given the deteriorated condition of the ink on

the Work For Hire document, the possibility must be considered that the
element(s) of the ink that might enable optical differentiation were lost along
with color and density” (Document 330, page 11 of 24, para 4).
205.

Lyter wrote the document had been “intentionally deteriorated

from its original color by excessive exposure to chemical or environmental
conditions” (Document 328, page 4 of 13, para 3).
206.

Lyter continues, “Because of the deterioration of the ink, the TLC

results were not useable and I could not perform Ink Identification, TLC
Densitometry or Relative Aging” (Document 328, page 9 of 13, para 1).
207.

In direct contradiction to this, Facebook’s expert Laporte, the least

qualified ink expert of all involved in this case, claims he could accurately
Declaration of Larry F. Stewart

42

date the ink on page one. He does this using a test that clearly does not meet
the Daubert standard.
208.

Furthermore, Laporte chose to use a technique that Facebook’s

more experienced ink expert, Lyter, chose NOT to use.
209.

As noted in Court filings, Laporte has testified in the past that his

ink dating method is unreliable and has never generated results other than
“inconclusive.”
210.

These are at the core of the reasons I prohibited him from using

this test in casework when I supervised him at the U.S. Secret Service.
211.

The Defendants’ second ink expert, Lyter has decades more

experience in ink analysis than Laporte. Lyter chose not to perform the ink
identification or age analysis on the contract due to the “deterioration of the
ink” (Document 328, page 9 of 13, para 4).
212.

Likewise, I chose not to perform any of the “ink age”

determination approaches, because the minimum criteria for performing the
tests was not met in this case.
213.

Here the ink and paper are clearly damaged, the storage conditions

of the document could have affected the rate of “aging” and the inks
themselves were not identified.
214.

By not identifying the ink formulas or recipes, there is no

knowledge as to how much, if any, 2-phenoxyethanol was present in the
writing inks when they were fresh.
215.

On the other hand, Laporte not only performed his own version of

“ink age” tests (non-peer reviewed and not accepted), he goes as far as to
indicate he found “extremely high” levels of the evaporating solvent known
Declaration of Larry F. Stewart

43

as “PE” (Southwell Pg 9, Section a-iii).
216.

The mere presence of the evaporating solvent (PE) in a document

theorized to have been irreversibly damaged by “extreme” heat and/or
ultraviolet radiation should be treated as highly suspicious.
217.

This coupled with the unproven nature of Laporte’s PE test,

should cast a huge doubt on the reliability of his finding.
218.

How would Laporte know what an “extremely high” level of PE

was if he didn’t identify the formula of ink?
219.

By not knowing the original recipe of ink, he has no way of

knowing if there was any PE in the original formula much less an extremely
high level.
220.

Laporte does not include in his report the “heated” sample results

(Laporte Exhibit L). His concealment of these heated sample results makes
the basis of his opinion even more questionable.
221.

It should be noted that the PE component Laporte claims to have

found, is known to be widely used in skin creams, sunscreen, fragrances and
cosmetics, as well as in insect repellants.
222.

In fact, Laporte refers to PE as “ a common volatile organic

compound (“The Identification of 2-Phenoxyethanol in Ballpoint Inks Using
Gas Chromatography/Mass Spectrometry-Relevance to Ink Dating,”
Laporte, et al, Technical Note, JFS, January, 2004.) (See Exhibit 10)
223.

Laporte indicates (Document 326, page 16 of 67, para 2), that the

amount of PE he found in the Facebook Contract was in an “abundance” and
“more than double the usual threshold for conducting PE testing.” This
clearly shows that the surprisingly high levels of PE most probably came
Declaration of Larry F. Stewart

44

from some other contamination source or else were from an improperly
conducted experiment or conclusion reached by Laporte.
224.

Laporte acknowledges in his report the effect that environmental

factors may have on the validity of his results (Document 326, page 9 of 67,
para 1).
225.

Laporte even goes as far as stating, “Typically, prolonged

exposure to sunlight or another intense energy source will cause significant
deterioration to both inks and paper” (Document 326, page 10 of 67, para 5).
226.

That said, why then would Laporte choose to attempt an

unproven, unaccepted technique that, if it worked, was based on evaporation
of volatile components found within some inks?
227.

Laporte’s decision to use the technique here was improper and

should be considered unacceptable.
228.

Affect of Storage Conditions on the Facebook Contract:

229.

Laporte conceals describing (or was ignorant of) what the

environmental storage conditions of the Facebook Contract were and
whether they could have affected the “aging” rate of the ink. It has been
widely reported that storage conditions do affect the aging characteristics of
ink and paper. (See Exhibit 11)
230.

Laporte himself has previously testified that storage conditions are

a critical factor in ink dating techniques, including his own unvalidated
method. (See Motion to Strike Declaration/Report of Gerald Laporte for
Fraud, previously filed in this case)
231.

Not only does Laporte fail to describe the storage conditions of

the Facebook Contract, there is no evidence that he even inquired as to what
Declaration of Larry F. Stewart

45