Ceglia v. Zuckerberg et al

Filing 432

MEMORANDUM in Opposition re 381 Sixth MOTION to Compel And For Other Relief filed by Paul D. Ceglia. (Attachments: # 1 Certificate of Service, # 2 Exhibit A)(Boland, Dean)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,

Civil Action No. : 1:10-cv-00569-RJA

Plaintiff,
v.

RESPONSE IN OPPOSITION TO
SIXTH MOTION TO COMPEL

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

MEMORANDUM
Defendants raise the alarm about information that this court did not order be
produced and that their expert had full access to. Defendants’ motion to compel is
more correctly a motion for additional discovery.
First, this motion spent pages and pages trying to mislead the court.
Plaintiff is in full compliance with this court’s orders. Item 379 was produced to
Defendants including all attached files. Therefore, no attachments of any kind
related to anything this court has ordered be produced are being withheld or
concealed.

Defendants‘ claim of concealment is false.

It took Defendants’ eight

pages to say that within the body of an email, item 379 that Plaintiff produced in
total with all attachments, is a reference to another email that had attached to it,
another letter that now, they have decided they would like to see.
Plaintiff is in compliance with this court’s orders and the court has so ruled.

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Doc. No. 348.
Defendants’ expert provided a privilege log including item 379 which was
eventually produced, including all five attachments to that email message. That
production requirement is currently before the District Court Judge on a timely
objection filed by Plaintiff.
This court permitted Defendants, reliant upon their now groundless motion
to dismiss for fraud on the court citing intrinsic fraud, to have full access to
Plaintiff’s email accounts within which they claim this communication still resides.
Their expert’s incompetence at being able to retrieve an email that they now claim
exists in that email account does not equate to concealment. It equates to them
seeking a motion to compel us to chase after information that their experts were
unable to find despite it being within an account to which they had full access.1
Defendants sought Plaintiff’s counsel’s assistance in obtaining a document
this court had never ordered be produced. Plaintiff responded with correspondence
outlining Plaintiff’s position on the document. See Exhibit A.
The email and attorney to attorney correspondence attached to it are
protected from disclosure by the attorney client privilege because it is a confidential
communication regarding the litigation sent by Plaintiffs former counsel, Mr.
Marks, to another former counsel, Dennis C. Vacco, and copying certain other
This is not the first time that Stroz has handled data and the result has been damage. They
caused, still unexplained by them, formatting differences and changes in Harvard email evidence
from “technical issues” that they refuse to take accountability for or explain. This calls into question
the validity of their conclusions in any declarations and reports they have submitted in this case. It
is the undersigned’s experience that qualified, competent forensic experts do not ordinarily rely on
non-experts to plug holes in their shoddy work.
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former and curent counsel, specifically, Paul Argentieri, Robert W. Brownlie,
Gerard A. Trippitelli and Kevin J. Cross.
Moreover, this court ordered and Plaintiff complied with that order by
disclosing in an August 29, 2011 declaration the electronic copies of the contract in
the possession of various former lawyers including the Kasowitz firm.

The

declaration included listing various consultants, including the Kasowitz firm and its
computer forensics consultant, Capsicum Group LLC ("Capsicum"). See
Supplemental Declaration of Paul D. Ceglia iiii 11-12,32-34, 74-76, 88-90, 115-117,
120-122.

Doc No. 339. The forensic images obtained by the Kasowitz firm and

Capsicum were transferred to Project Leadership Associates ("PLA") and made
available to Defendants’ experts at Stroz Friedberg, who visited PLA's Chicago
office on July 19, 2011.
Stroz Friedberg obtained all of Ceglia’s email record pursuant to court orders.
Stroz obtained access to all electronic versions of the contract within the possession
of Kasowitz.

It is axiomatic that Ceglia concealed nothing when Defendants’

experts were in his email account with the precise access Ceglia has to that account.
Plaintiff identified item 379 as privileged, including the attachments to that
email. This court overruled that designation and Plaintiff produced item 379 and
all attachments to it. Now, Defendants claim an email within the email that is item
379 was also supposed to be produced.
As Defendants make plain, this communication was between lawyers
involved in Plaintiff’s matter.

No third parties were copied on this email.
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This

email involved, as Defendants reveal, analysis and discussion of evidence in the
case, attorneys’ personal views of that evidence and conclusions between what is
obviously competing views of that evidence.
No part of this email, even were it not privileged, lends any credibility to
Defendants now spiralling claims that the contract in this matter is anything other
than genuine as Plaintiff’s experts have confirmed. Likewise, there is no longer any
question that the emails Zuckerberg and Plaintiff exchanged are genuine and
represent the damning evidence Zuckerberg has so delicately avoided in this case.
CONCLUSION
For the foregoing reasons, Mr. Ceglia respectfully requests this court deny
Defendants’ motion to compel and also deny the substance of their motion which is
a motion for additional discovery. When Plaintiff detected emails within emails of
Defendants’ Harvard production (something they had and continue to have
complete control over) they responded defiantly that they had done all they could.
Now, with their experts having had two opportunities to review the supposedly
discoverable attorney to attorney communication they seek, they claim concealment
to paper over obvious ineptitude.
Respectfully submitted,
/s/Dean Boland

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Paul A. Argentieri
188 Main Street
Hornell, NY 14843
607-324-3232 phone
607-324-6188
[e-mail]

Dean Boland
1475 Warren Road
Unit 770724
Lakewood, Ohio 44107
216-236-8080 phone
866-455-1267 fax
[e-mail]

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