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)

government is sometimes on the opposing side. Whether Laporte works
those particular cases or not, as a partner/owner he and his firm most
certainly profits from them. In my opinion, he has placed himself and his
federal agency in a position of perpetual conflict of interest.
342.

Laporte’s Use of an Unvalidated and Unsupported Technique

for the Analysis of the Ink is Wrong:
343.

The 2-phenoxyethanol (PE) test itself is a source of much

controversy among peers.
344.

In 1985, I published a preliminary study of volatile ink

components and their use when determining how long ballpoint pen ink had
actually been on a piece of paper (Stewart, L.F., “Ballpoint Ink Age
Determination by Volatile Component Comparison-A Preliminary Study.” J.
Forensic Science, 1985; 30:405-411). (See Exhibit 19)
345.

This was the first study of its kind and the real beginnings of the

idea that if we could accurately measure volatile components in ink we could
possibly determine how long the ink had been on a piece of paper.
346.

Gas chromatography (GC) was used and with some inks, I noted

changes detectable for up to one and a half years after the ink was placed on
paper.
347.

One disadvantage of the approach that I developed was that it used

ratios of multiple components so it required at least two volatile components
within the ink.
348.

Nine years later, Aginsky was the first to modify the approach to a

method that allowed analysis when only one volatile component was present
(Aginsky, V.N., “Determination of the Age of Ballpoint Pen Ink by Gas and
Declaration of Larry F. Stewart

67

Densitometric Thin-Layer Chromatography,” J Chromatography, A, 1994;
678: 119-125). (See Exhibit 20)
349.

Aginsky began using PE as the volatile component he would seek

within an ink’s composition in order to determine its age.
350.

Before looking for the PE Aginsky would identify the ink by

comparing its’ formula against a library of known standards (Aginsky, V.N.,
“Some New Ideas for Dating Ballpoint Inks - A Feasibility Study,” J.
Forensic Science, 1993; 38: 1134-1150). (See Exhibit 21)
351.

This approach required a substantial amount of ink and thusly

caused more damage than would be typically desirable.
352.

In 1996, I warned “the need to routinely determine the age of a

document appears to have been a driving force in development of new ink
analysis techniques. This could be dangerous, in that the field may be driven
to advance faster than the stage of development of some of the techniques
should allow.” (“Distinguishing Between Relative Ink Age Determination
and the Accelerated Aging Technique,” L.F. Stewart and S.L. Fortunato,
International Journal of Forensic Document Examiners, January/March,
1996.) (See Exhibit 22)
353.

In 2004, Laporte, et al. also reported about detection of PE in inks

utilizing GC-MS. (Laporte, G.M., Wilson, J.D., Cantu, A.A., et. al., “The
Identification

of

2-Phenoxyethanol

in

Ballpoint

Inks

Using

Gas

Chromatography/Mass Spectrometry-Relevance to Ink Dating,” J. Forensic
Science, Jan. 2004, Vol. 49, No. 1) (See Exhibit 23)
354.

In that article, Laporte reports that there are known contamination

sources for PE to include “perfumes.” He concludes that future researchers
Declaration of Larry F. Stewart

68

should be able to concentrate “their efforts on the development and
implementation of a generally accepted procedure for a dynamic approach to
ink dating.” He fails to list the many other sources of contamination that
contain PE, to include insecticides.
355.

In 2007, the Canadian team of Brazeau and Gaudreau developed a

new approach that would avoid damaging the document, as no sample would
be removed. (Brazeau, L. and Gaudreau, M., “Ballpoint Pen Inks: The
Quantitative Analysis of Ink Solvents on Paper by Solid-Phase
Microextraction,” J. Forensic Science, 2007; 52: 209-215) (See Exhibit 24)
356.

This work represented the use of Gas Chromatography-Mass

Spectrometry (GC-MS) and targeted three different volatile components; PE,
benzyl alcohol and 1-methyl-2-pyrrolidineone. Through their work, they
reported being able to detect ink solvents up to 2 years after the ink was
placed on the paper.
357.

In 2009, Weyermann, et al. noted that the concept and use of

artificial aging techniques for the dating of ballpoint pen inks is “a very
difficult and controversial topic.”

(Weyermann, C., Williams, M., and

Margot, P., Commentary on Berger-Karin, et al. “Comparison of Natural and
Artificial Aging of Ballpoint Inks,” JFS, 2008) (See Exhibit 25)
358.

They concluded by emphasizing that “forensic scientists should

not attempt to examine actual criminal or civil cases until they (the methods
to include unvalidated PE methods, e.g. Laporte’s) have been tested.”
359.

In 2010, Giebink and Speckin discussed the use of GC-MS to

analyze the PE and described the techniques limitations and pitfalls.
(Giebink, P.J., Speckin, E.J. and Harner, J., “The Dating of Writing Inks
Declaration of Larry F. Stewart

69

Through 2-Phenoxyethanol Using Gas Chromatography-Mass Spectrometry,
Advantages, Interpretation, and Limitations,” 2010, AFDE) (See Exhibit 26)
360.

In that article, the writers determined that detection of 1.6 parts

per million (ppm) or more of PE in a ballpoint ink indicates that the ink is
not completely dry. This detection level is limited to use of their procedure,
solvents and equipment and is not universal for other labs. The writers
indicated that the samples should be run in “triplicate” in order to take into
account possible errors, anomalies in the testing process, and for a better
confidence in the results. They continue, “... no conclusions should be
drawn based on a single test run for a sample as to its age.”
361.

In the most recently reported study, Weyermann, et al. discusses

the currently utilized approaches for ink dating. (Weyermann, C., Almog, J.,
Bugler, J., and Cantu, A. A., “Minimum Requirements for Application of
Ink Dating Methods Based on Solvent Analysis in Casework,” Forensic
Science International, March 2011) (See Exhibit 27)
362.

When discussing the ink dating methods, they state, “…several

questions arose over the last few years among questioned document
examiners regarding the transparency and reproducibility of the proposed
techniques.”
363.

Other important quotes from this most recent article include:
“... ink aging pathways and rates are significantly influenced by a
number of factors that may slow down or accelerate the
phenomenon.”
“These parameters must therefore be extensively studied before a
conclusion can be drawn on the absolute age of an ink entry.”
Declaration of Larry F. Stewart

70

“The influence of substrate structure (paper type) on the drying
process should not be underestimated...”
“ In fact, to the present date, no two laboratories that do ink
dating via solvent analysis use the same method,...”
364.

Moreover, the time span that can be considered to date inks through

solvent analysis using GC/MS is seriously questioned in the forensic
community.
365.

Brunelle and Crawford stated that the ink dating technology, which is

based on GC/MS analysis cannot be used to date inks over six months old
and Bugler et al. recommended to analyze ink with a maximum age of 3–4
months. The feasibility of such dating techniques on ink older than that must
therefore be demonstrated.” (Brunelle R, Crawford K., Advances in the
Forensic Analysis and Dating of Writing Ink, Springfield (IL): Charles C.
Thomas, 2003)
366.

The U.S. Secret Service (USSS) did not allow the use of the Laporte

PE testing method in casework during the period that I was the Laboratory
Director and Chief Forensic Scientist.
367.

During that time, I was also the National Expert (the only one at the

agency) on matters concerning the forensic analysis of ink (Note: Laporte
has never been the National Expert on matters concerning the forensic
analysis of ink). The USSS produced and abided by Standard Operating
Procedures (SOP) for the various areas of forensic analysis to include “ink.”
368.

Laporte was allowed to perform research on new techniques, e.g. his

PE test, however new techniques were not allowed to be used in casework
until authorized by the Laboratory Director. The only issue preventing that
authorization was the proven unreliability of Laporte’s PE test.
Declaration of Larry F. Stewart

71

369.

Even as recently as October 8, 2009 (the last edition that I possess)

the Standard Operating Procedures for Ink Analysis at the U.S. Secret
Service clearly state that “Before “new” approaches are authorized for use in
USSS casework, appropriate reliability and validity studies must be
conducted, with the results reviewed by the Laboratory Director.” (See
Exhibit 28)
370.

The Standard Operating Procedures also indicate, “A listing of the

acceptable procedural approaches is referred to in the “Comments” section
of this guide.”

Reference to that section of the USSS SOP, shows no

mention of the PE procedures utilized by Laporte.
371.

Since Laporte left the agency in March of 2009 (the SOP date

postdates his departure by 7 months), it is clear that the Secret Service had
not adopted his ink age determination approach into their accepted casework
protocol.
372.

During 2009, Laporte was preparing to testify in a case where I was

the expert for the opposing side. The case was U.S. v. Longshoremen’s
Local 1604. Laporte had issued his report in the matter on June 7, 2006
while working at the USSS.

It is my understanding the case resolved

without trial.
373.

That 2006 case represents the only time that I am aware of wherein

Laporte utilized his PE testing procedures in a Government case. Based on
para 327 above, the use of the Laporte PE technique may not have been
authorized by his agency, which he was representing (the US Secret
Service), at the time when he used it on the 2006 case.
374.

When preparing for the trial, Laporte and the USSS submitted

documents for review. Those included worksheets and results, notes, copies
of records and his report.
Declaration of Larry F. Stewart

72

375.

In that 2006 case, Laporte used his PE test to compare the “relative

age” of various entries. In other words, he compared the age results for
various entries on a page to see how they compared relative to each other. In
the documents he submitted for review he included a printed sheet outlining
the PE testing procedures, entitled “The Analysis of Inks Using GC/MS.”
(See Exhibit 29)
376.

Those procedures clearly indicate that the “Further research and

validation is needed, to state with any certainty, that a written entry was
created in a certain time interval.”
377.

Those procedures also describe that the approach can only be used to

“indicate that a written entry was created within one year from the time of
analysis.”
378.

Whether those procedures were supplied by Laporte or the USSS is

unclear, but based on the USSS SOP provided in 2009 (See para 371 above),
there was no allowance for the use of Laporte’s PE test in casework.
379.

In the Ceglia v. Facebook action, Laporte has doubled the amount of

time (to 2 years) that he believes the PE test works (Document 326, page 16
of 67, para 4). (Note: If Laporte had continued using his previously reported
one year “cut-off” number, then he accordingly could not have utilized the
technique in this case as the Facebook Contract document was known to
have existed for over one year at the point Laporte conducted his analysis.)
380.

The ethical choices made during the examination and reporting by

Facebook’s experts should be examined.
381.

“Brunelle and Cantu underlined earlier the ethical responsibilities of

forensic scientists performing ink dating examinations by stating that
‘Testimony involving ink dating that does not clearly state the significance
of results obtained and the limitations of what can be concluded from the
Declaration of Larry F. Stewart

73

results of examination would be unethical according to AAFS (American
Academy of Forensic Sciences) guidelines because it would be misleading.’”
(R.L.

Brunelle,

A.A.

Cantu,

Training

Requirements

and

Ethical

Responsibilities of Forensic Scientists Performing Ink Dating Examinations,
Journal of Forensic Sciences 32 (6) (1987) 1502–1508) (See Exhibit 30)
382.

Discussion Regarding Laporte’s Use of an Undeveloped

Approach For Ink Age Determination:
383.

Laporte uses a method he developed that has not been independently

evaluated and properly peer reviewed. His approach is not used in any state
or federal forensic laboratory. Likewise, his approach is not used in any
foreign laboratory.
384.

The only laboratory that I am aware of utilizing Laporte’s method is

the private sector laboratory, which he is an owner; Riley, Welch, Laporte &
Associates Forensic Laboratories.
385.

While I was Laboratory Director and Chief Forensic Scientist for the

Secret Service, Laporte was allowed to conduct research in alternative
methods, e.g. the PE test, however the PE test was not allowed to be used in
casework. When I left the agency in 2005, it is my understanding that
Laporte used his own method one time on a case (I happened to be the expert
on the opposing side). It is my understanding, that the case never went to
trial (See para 372 above).
386.

Since leaving that agency, Laporte has used his own method in his

private practice. There have been no independent verifications which meet
peer review standards on his approach, nor have there been any reliability
studies concerning his methodology.
387.

There is no proficiency test for ink age determination available from

any recognized group that has tested his reliability and accuracy.
Declaration of Larry F. Stewart

74

388.

Although there are two ASTM forensic standards for the analysis of

writing inks, there is none for ink age determination and certainly none for
Laporte’s singularly used method (ASTM Standard Guide for Test Methods
for Forensic Writing Ink Comparison, E1422-05 and ASTM Standard Guide
for Writing Ink Identification, E 1789-04). (See Exhibit 12)
389.

The most telling observation is that no other government or even

private forensic laboratory or expert appears to be using his method except
for Laporte, in his own private practice.
390.

Laporte has attempted to prescribe a level of reliability to his

technique by discussing the reliability of the instrument he is using, i.e. GCMS.
391.

Although, forensic scientists agree that the GC-MS instrument is

reliable, its use here is what is in question.
392.

There are no peers that even use Laporte’s approach, in fact Cantu

who worked on some aspects of Laporte’s research with him, does not even
mention Laporte’s method as a viable method in his latest article on the
subject (Weyermann, C., Almog, J., Bugler, J., and Cantu, A. A., “Minimum
Requirements for Application of Ink Dating Methods Based on Solvent
Analysis in Casework,” Forensic Science International, March 2011). (See
Exhibit 27)
393.

To meet the Daubert standard, a proposed expert’s testimony must

pass through two separate tests or gates.
394.

The first deals with whether the underlying methodology is

scientifically reliable.
395.

The second requires the Court to determine whether the expert is

qualified to provide an opinion based on that methodology, and even more
Declaration of Larry F. Stewart

75

critically, that the proposed expert testimony applies the methodology to the
particular facts of the case on trial in a scientifically reliable manner.
396.

Neither of the tests or gates is passed in this case.

397.

Not only does Laporte use a non-peer reviewed, method, he performs

it without being proficiency tested and he utilizes an approach that no one
else uses.
398.

His approach is not used in any state, federal or foreign public

forensic laboratory. The method is only used by Laporte in his private
practice.
399.

Laporte is not a scientifically dispassionate and objective employee

of a federal law enforcement agency. Laporte is a questioned document
examiner who was formerly employed by the U.S. Secret Service
Laboratory. However, as of March 2009, Laporte became employed as a
Forensic Policy Manager in the National Institute of Justice, Investigative
and Forensic Services Department.
400.

Apparently, Laporte’s new federal government job allows him to

“moonlight” and offer his “ink dating” services for private profit to the
general public as a forensic document examiner and chemist.
401.

A website currently operated by Riley Welch Laporte & Associates

Forensic Laboratory, a private sector business based in Lansing, Michigan,
lists Laporte as a “staff” member and as a “forensic ink chemist & document
analyst.”

Laporte is touted by the Riley Welch Laporte & Associates

website as follows:
“Also employed full-time as "Chief Forensic Chemist" for a major
Federal Governement [sic] Laboratory.”
Declaration of Larry F. Stewart

76

402.

It is quite evident Laporte and Riley, Welch, Laporte & Associates

hope to commercially promote and profit from his PE methodology, the one
that only Laporte uses.
403.

For this reason, Laporte and his proposed testimony cannot and

should not be viewed by this Court as that of a scientifically objective and
dispassionate employee of a federal law enforcement laboratory.
404.

The federal agency Laporte currently works for is the National

Institute of Justice (NIJ). They do not perform any forensic science or
forensic laboratory functions at the agency. Instead, they act as a research,
development and evaluation arm of the U.S. Department of Justice.
405.

The main forensic laboratory for the U.S. Department of Justice is

the Federal Bureau of Investigations (FBI). The FBI does not use the
Laporte PE test. In fact, in the FBI’s Handbook of Forensic Services, they
specifically state, “Examinations cannot determine how long ink has been
on a document.” (See Exhibit 31)
406.

Research discloses no reported decision that an opinion concerning

the age of ballpoint ink writing on paper, purportedly based on the rate of
evaporation of a solvent used as a component of ballpoint ink (2phenoxyethanol), satisfies Daubert’s scientific reliability standards.
407.

To the contrary, there are reported decisions excluding, for failure to

satisfy Daubert standards, expert opinions purporting to date ballpoint ink
writing, using various techniques and in various circumstances. EEOC v.
Ethan Allen, Inc., 259 F. Supp. 2d 625 (N.D. Ohio 2003); Learning Curve
Toys, L.P. v. PlayWood Toys, Inc., 2000 U.S. Dist. LEXIS 5135 (N.D. Ill.
2000).

Declaration of Larry F. Stewart

77

408.

In the latter case, the court applied Daubert to the ink dating

technique proffered in that case as follows:
To determine whether expert testimony can be properly admitted
as an expert conclusion, a court considers whether the conclusion
(1) can be tested; (2) is based on methodology subject to peer
review and publication; (3) has been evaluated in light of a known
or potential rate of error and (4) has achieved general acceptance
in the relevant scientific community. Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 593-94, 125 L. Ed. 2d 469,
113 S. Ct. 2786 (1993).
409.

So far, to the best of my knowledge, there have been no unreported

federal decisions that ruled on a Daubert challenge to Laporte’s supposed
method of estimating the age or date of ballpoint ink writing.
410.

The scientific literature includes substantial evidence that the dating

method based on the rate of evaporation of 2-phenoxyethanol fails to satisfy
all four Daubert criteria cited in Learning Curve Toys and Monteiro.
411.

There are several significant reasons for this failure including, but

not limited to, the following:
There has been a failure to validate the Laporte PE ink dating
methodology to determine its reliability so as to exclude factors
other than the passage of time and to ascertain an actual and
potential rate of error.
412.

The National Research Council of the National Academy of Science

published in August 2009, a book entitled Strengthening Forensic Science in
the United States: A Path Forward. (See Exhibit 32)
Declaration of Larry F. Stewart

78

413.

The book’s study of forensic science was supported by a contract

between the National Academy of Science and the National Institute of
Justice, which employs Laporte.
414.

The report in Chapter Three entitled “The Admission of Forensic

Science Evidence in Litigation” includes an extensive review of postDaubert developments.
415.

For present purposes, the most important portion is Chapter Four

entitled, “The Principles of Science and Interpreting Scientific Data.”
416.

In the pertinent part, that chapter reads as follows on pg 112:

417.

At page 113, the National Research Council of the National

Academy of Science book states:
Declaration of Larry F. Stewart

79

418.

In this case, there is no scientific evidence that the supposed rate of

evaporation of a solvent component of ink placed on paper is independently
and exclusively attributable to the passage of determinable periods of time to
the exclusion of other factors and variables including, but not limited to:
1. the characteristics of the paper(s) on which the ink is placed;
2. the storage and environmental conditions to which the ink on
paper was subjected prior to the extraction of the sample being tested;
3.

variations in the composition of the ink; and

4.

the thickness and amount of ink, including its solvent component

that was placed on the paper before evaporation commences.
419.

The National Academy’s book at page 116 also states under the

heading, “Uncertainty and Error,” the following:

Declaration of Larry F. Stewart

80

420.

There is no scientific evidence that has determined the rate of error or

confidence interval that purportedly relates the rate of evaporation of the 2phenoxyethanol component of ink written on paper and the passage of period
of time after the ink is place on paper.
421.

The National Academy has included in the exclusion of alternative

explanations for results other than the tested hypothesis and establishing a
rate of error or confidence interval as essential to implement Daubert
reliability standards.
422.

In this case, Laporte discounts the views of his own employing

agency when moonlighting as an expert.
423.

As applied in this case, the Daubert standards have not been met at

least in the following respects:
1. There has been a failure to publish the details of the technique in
the scientific literature to enable the scientific community to
independently validate or invalidate it by attempting to replicate
Declaration of Larry F. Stewart

81

results.
2. The hypothesis has not been properly tested.
3. No rate of error has been determined.
4. External factors known to affect ink-aging rates, e.g. storage
temperature and humidity have not been properly addressed.

424.

On page 112, the National Academy of Science states:

425.

On the Riley, Welch, Laporte and Associates website, the ink dating

method used by Laporte is described as having been developed by Valery
Aginsky.
426.

The only book length literature on this subject, Brunelle and

Crawford, Advances in the Forensic Analysis and Dating of Writing Ink,
(Charles Thomas Publishers, Springfield, Ill. 2003) describes Aginsky’s
techniques that rely on measurement of the solvent component in inks and
Declaration of Larry F. Stewart

82

includes the following statement:
“It is also important to mention that researchers in the United States
have not been able to reproduce Aginsky’s techniques, primarily
because Aginsky’s published works do not contain all the parameters
needed to apply his techniques.”
427.

The scientific literature indicates that the methods and techniques

relied upon by Aginsky and Laporte have not been subjected to independent
testing with the results of that independent testing published in the peerreviewed literature.
428.

In this case, Laporte’s opinion also fails to satisfy several Daubert

criteria in the following respects:
1. Failure to exclude the effect of factors other than the passage of
time on the rate and results of evaporation of 2-Phenoxyethanol after
ink has been written onto paper.
2. Failure to exclude the effect of the differences in paper on which
the ballpoint ink is written on the evaporation rate, and the amount
remaining, of 2-Phenoxyethanol.
3. Failure to exclude the conditions under which the questioned
documents were stored as a factor that affects the evaporation rate,
and amount remaining of 2- Phenoxyethanol.
4. Failure to exclude the variable composition of ballpoint ink.
429.

In Learning Curve Toys, the age of the questioned handwriting was

all written on a single piece of paper.

Nonetheless, one of the reasons the

court excluded the ink age opinion proffered in that case was the failure to
account for the effect of the particular kind of paper as a factor in aging the
Declaration of Larry F. Stewart

83

ink writings on it.
430.

The scientific literature confirms that the paper’s characteristics can

substantially affect the ability of any technique to determine reliably the age
of ballpoint ink writing.
431.

Paper weight, thickness, porosity, fibers alignment, and coating all

play a significant role in the aging processes, which are complicated by
paper/ink matrix interactions.
432.

None of these variances were addressed in Laporte’s findings, when

any one of them may have proven critical. (See Weyermann and Spengler,
“The Potential of Artificial Aging For Modeling of Natural Aging Processes
of Ballpoint Ink,” 180 Forensic Science International 23 (2008) (See Exhibit
33)
433.

Laporte has no information concerning the environmental conditions

under which the Facebook Contract was written and stored before its
production to the court in 2007.

Laporte failed to learn about the storage

conditions of the document that should have proven critical to any reported
finding.
434.

There is no scientific literature that demonstrates that storage

conditions do not affect the rate of evaporation of solvents in ink or the
amount of solvent remaining no matter what the storage conditions have
been.
435.

To the contrary, the scientific literature confirms the common

experience that how quickly and completely ink dries on paper depends on
how much light, heat, humidity, air circulation, etc. the writing was exposed
to at, and at various times after, the ink is placed on the paper. (See Exhibits
Declaration of Larry F. Stewart

84

19, 21, 22, 27 and 33)
436.

Weyermann, et al. wrote,
“Finally, ink and paper aging are most strongly influenced by
storage conditions. Aging follows different pathways if it is
provoked by light or heat. The kinetics will also depend on the
amount of light or the temperature to which the documents are
exposed. In fact, storage conditions are different from case to
case, and even within a case. It is very difficult to reconstruct the
amount of light and the temperatures to which documents were
exposed, because they generally vary quite much along the days or
years (sunny or cloudy, warm or cold weather duration, number of
hours a lamp is turned on per day, position of the document in the
office, adjacent documents, amount of ink on the paper,
movement of the document, etc.).”

(See Weyermann and

Spengler, “The Potential of Artificial Aging For Modeling of
Natural Aging Processes of Ballpoint Ink,” 180 Forensic Science
International 23 (2008)). (See Exhibit 33)
437.

Laporte appears to rely on an evaporation rate of 2-phenoxyethanol

in a one-size-fits-all ballpoint ink fashion, as if the evaporation rate is not
affected by the composition of the particular ballpoint ink of which PE may
be an ingredient.
438.

There is no scientific literature that establishes that the variable of

ink composition does not significantly influence how much of the PE solvent
will evaporate over a given period of time or how much will remain after a
period of time.

Declaration of Larry F. Stewart

85

439.

Weyermann, et al. wrote,
“Firstly, aging is strongly influenced by ink composition. Each
solvent or dye will age at a different pace. Likewise, diffusion
and evaporation of solvents are dependent on their mixture. (See
Miner Dec., Exhibit 4, Weyermann and Spengler, “The Potential
of Artificial Aging For Modeling of Natural Aging Processes of
Ballpoint Ink,” 180 Forensic Science International 23 (2008)).
(See Exhibit 33)

440.

Any finding based on Laporte’s PE testing should be excluded as the

science nor methodology are proven.
441.

Defendants’ Experts Nondisclosure of Findings:

442.

If Defendants’ experts performed a complete forensic analysis of

the document, then they undoubtedly would have performed a handwriting
analysis to determine whether the writing on the contract belongs to Messrs.
Ceglia and/or Zuckerberg.
443.

In addition, Defendants’ experts should have conducted a paper

analysis on the two pages, especially if they were trying to make a claim for
a page 1 substitution that occurred at some later date.
444.

If Defendants’ experts performed these necessary examinations,

then where are their results?
445.

For undisclosed reasons, they chose not to report on them in their

examination reports.

Declaration of Larry F. Stewart

86

446.

Peer or Technical Review of Work Conducted by Plaintiff’s

Forensic Experts:
447.

As a result of my original tasking on this case, I reviewed technically

the work conducted by James Blanco. I reviewed Mr. Blanco’s declaration
along with the supporting Exhibits.
448.

Such a review process by a different expert in the field is common

practice in federal or state government forensic laboratories if a body
certifies the laboratory, e.g. the American Society of Crime Laboratory
Directors (ASCLD).
449.

I am a member of ASCLD as well as classified as an “Inspector” by

them.
450.

In my previous federal government position of Laboratory Director

and Chief Forensic Scientist for the U.S. Secret Service, I was in charge of
laboratory reviews, both administrative and technical as well as in charge of
ensuring the facility remained accredited by following the guidelines and
requirements of ASCLD.
451.

As a result of my technical review, I am in agreement with Mr.

Blanco’s reported methodologies, and his resultant conclusions.
452.

Conclusions:

453.

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.
454.

Based on the forensic analysis of the Facebook Contract, there is no

justification or support for the Defendants’ theory of a page 1 substitution,
Declaration of Larry F. Stewart

87

forgery or fraud.
455.

Plaintiff’s forensic experts conducted our examinations of the

evidence with a pre-thought plan designed to maximize results with minimal
overlapping of tests. With our method we ensured that duplicate unnecessary
tests were avoided in an effort to protect the Contract from unnecessary
damage.
456.

Defendants’ experts displayed no concern over the Facebook

Contract and did not treat it as an evidentiary document.
457.

Defendants’ experts repeated tests many times and exposed the

Facebook Contract to many more potentially damaging intense lights than
would be typically necessary in order to reach conclusions.
458.

Defendants’ experts also repeated indentation analysis with an

Electrostatic Detection Apparatus (ESDA) many times, which repeatedly
exposed the documents to humidity.
459.

The yellow discoloration/damage now evident in the 2 pages of the

Facebook Contract is, in my opinion, the result of repeated exposure of the
document to high intensity and/or ultraviolet light as well as changes in
humidity.
460.

Defendants’ Expert Peter Tytell did NOT immediately notice the

yellowing during his, the first series of forensic tests conducted in Buffalo.
461.

It is evident from Defendants’ experts’ own photographs and scans

that they probably caused the damage.
462.

This would explain why Tytell did not immediately notice the now

very evident yellowing on one side only of each page of the Facebook
Contract.
Declaration of Larry F. Stewart

88

463.

Through Plaintiff’s experts’ forensic examinations, it can be

concluded that the 2 pages of the Facebook Contract were both printed with
the same type of computer printer, using matching toner on paper that is
consistent with coming from the same mill and production run.
464.

The probable printer is one that was commercially available between

2000 and May of 2005. The Facebook Contract bears a date of “4/28/03.”
465.

Forensic evidence demonstrates that the Facebook Contract was

stapled only one time.
466.

It is not possible to perform “Ink age” determination on the Facebook

Contract. This is due to the degradation of the ink and paper, the lack of
knowledge of the storage conditions and their potential affect on aging
characteristics and the failure to identify the formula of inks so as to have
basic knowledge of the original compositions.
467.

Both Plaintiff’s and Defendants’ ink experts chose not to perform

“ink age” tests on the Facebook Contract with the exception of Gerald
Laporte, the most junior and least experienced examiner on either side.
468.

Laporte chose to perform ink age tests. He did the testing with no

regard to storage conditions of the document or the damaged state of the ink
and paper. Furthermore he used an approach that only he uses in his private
practice.
469.

No state or federal laboratory in America uses the Laporte technique.

470.

I, myself, choose not to use the Laporte technique as it has not been

properly tested and does not have peer support.

Declaration of Larry F. Stewart

89

In accordance with 28 IJ.S.C. 1746 I declare under penalty of perjury
under the laws of the tlnited States of Amefisathat the foregoing is true
and coffect.

Executed on: June 4, Lz

Larry Stewart
Declarant

Declaration of Larry F. Stewart

90