Ceglia v. Zuckerberg et al

Filing 434

REPLY to Response to Motion re 381 Sixth MOTION to Compel And For Other Relief filed by Facebook, Inc., Mark Elliot Zuckerberg. (Snyder, Orin)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
-----------------------------------PAUL D. CEGLIA,
Plaintiff,
v.
MARK ELLIOT ZUCKERBERG and
FACEBOOK, INC.,
Defendants.
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Civil Action No. 1:10-cv-00569RJA

DEFENDANTS’ REPLY MEMORANDUM OF LAW
IN SUPPORT OF THEIR SIXTH MOTION TO COMPEL
The Court should grant Defendants’ Sixth Motion to Compel because Ceglia fails to
present any remotely legitimate basis for opposing it. Defendants request an order compelling
Ceglia to produce an April 13, 2011 letter from Ceglia’s then-lawyers at Kasowitz, Benson,
Torres & Friedman LLP to their co-counsel at DLA Piper LLP and Lippes Mathias Wexler
Friedman LLP (the Kasowitz Letter). The Kasowitz Letter, which Ceglia has been concealing
for months, confirms that Ceglia is committing a fraud on the Court. It is an attachment to an
email contained in Item 379, a compilation of emails that this Court ordered Ceglia to produce
after it rejected his baseless assertion of attorney-client privilege. Doc. No. 357. Although
Ceglia produced Item 379, he omitted the Kasowitz Letter from his production. It is clear that
the letter should be produced—indeed, Ceglia’s opposition papers do not even appear to object
to producing it. Instead, Ceglia claims that he already produced the Kasowitz Letter to
Defendants, but their experts were not able to find it. Ceglia is mistaken, but the larger point is
that given his claim that he has already produced the document, he can have no legitimate

objection to an order directing its production. Accordingly, Defendants’ Motion should be
granted.
Defendants explained in their Memorandum of Law that this Court’s orders require
Ceglia to produce the Kasowitz Letter on at least two independent grounds: (1) it is an
attachment to an email that the Court ordered Ceglia to produce, and (2) the letter itself is
responsive to the Court’s discovery orders because the letter contains emails that are responsive
to those orders. Doc. No. 382 at 4-8. Defendants also explained that the Kasowitz Letter is not
privileged for at least three independent reasons: (1) the Court has already ruled that the
communications in Item 379 are not privileged, (2) Ceglia did not disclose the Kasowitz Letter
on any privilege log, and (3) any conceivable claim of privilege has been waived because the
information that is the subject matter of the letter has been disclosed to Jason Holmberg, a nonattorney. Id. at 8-11.
Ceglia does not respond to any of these conclusive arguments. Although he weakly
states in his Response that this Court has not ordered the Kasowitz Letter to be produced, Doc.
No. 432 at 1, Ceglia does not even address—much less rebut—Defendants’ explanation of the
multiple independent reasons that this Court’s existing orders require production of the letter.
Ceglia also asserts that the Kasowitz Letter is “protected from disclosure by the attorney client
privilege” because it is a “communication . . . between lawyers” and contains “analysis and
discussion of evidence in the case.” Id. at 2-4. But Ceglia fails even to address, much less
overcome, Defendants’ explanation of the multiple independent reasons that the letter is not
privileged even though it is a communication between lawyers analyzing the evidence in this
case. Because Defendants have established that Ceglia should be required to produce the

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Kasowitz Letter, and because Ceglia has done nothing to rebut that showing, the Court should
grant Defendants’ Motion.
Rather than respond to the points presented in Defendants’ Memorandum, Ceglia
suggests that he has already produced the Kasowitz Letter, and that Defendants simply have been
unable to find it in his production. He states that “Item 379 was produced to Defendants
including all attached files,” and that Defendants’ digital forensic experts at Stroz Friedberg “had
full access to” the letter because they had access to Ceglia’s email accounts. Doc. No. 432 at 1
(emphasis altered). Ceglia asserts that Defendants have not been able to locate the Kasowitz
Letter, however, due to the purported “incompetence” and “ineptitude” of their experts, who
Ceglia says were “unable to find [the letter] despite it being within an account to which they had
full access.” Id. at 2, 4.
These assertions are false. See Declaration of Alexander H. Southwell dated June 15,
2012, ¶¶ 6-7. But the key point for present purposes is that Ceglia can have no legitimate
objection to an order directing him to produce a letter he claims he has already made available to
Defendants. Nor can he have any legitimate privilege objection with respect to a letter he claims
he has already made available to Defendants. Given Ceglia’s failure to respond to the many
reasons why the Kasowitz Letter falls within the scope of this Court’s prior discovery orders and
is not privileged, and in light of his claim that he has already made the Kasowitz Letter available
to Defendants, this Court should grant Defendants’ Motion to Compel.

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CONCLUSION
For the foregoing reasons, this Court should enter an order requiring Ceglia to produce
the Kasowitz Letter to Defendants, along with all attachments and/or embedded images. This
Court should also award Defendants their attorneys’ fees and costs, and all other relief to which
they may be entitled.

Dated:

New York, New York
June 15, 2012
Respectfully submitted,
/s/ Orin Snyder
Orin Snyder
Alexander H. Southwell
Matthew J. Benjamin
Amanda M. Aycock
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
[phone]

Thomas H. Dupree, Jr.
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
[phone]
Terrance P. Flynn
HARRIS BEACH PLLC
726 Exchange Street
Suite 1000
Buffalo, NY 14210
[phone]

Attorneys for Defendants Mark Zuckerberg and Facebook, Inc.

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