Ceglia v. Zuckerberg et al

Filing 448

RESPONSE to Motion re 445 MOTION to Strike 415 Declaration, NOTICE OF MOTION filed by Facebook, Inc., Mark Elliot Zuckerberg. (Attachments: # 1 Exhibit A, # 2 Certificate of Service)(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’ MEMORANDUM OF LAW
IN RESPONSE TO MOTION TO STRIKE DOC. NO. 415
On June 19, 2012, Ceglia moved this Court for an order authorizing the striking of the
Declaration of James A. Blanco (“Blanco Declaration”) (Doc. No. 415). The motion is premised
on Ceglia’s violation of the Protective Order (Doc. No. 86) in this case, specifically, his
improper disclosure of material Defendants had designated as Confidential Information in the
Blanco Declaration and certain of its exhibits. Defendants notified Ceglia and his expert of this
violation of the Protective Order by letter dated June 18, 2012, requesting that Ceglia
immediately:
1.
Move the Court to remove the Blanco Declaration from the docket, to be replaced
with a properly redacted version of the Blanco Declaration;
2.
Provide to the Court and Defendants, in writing, information regarding any other
dissemination of Confidential Information that was inconsistent with or in violation of the
Protective Order, including but not limited to: the names of all individuals or
organizations not authorized by the Protective Order that have received copies of any
Confidential Information including the Blanco Declaration, either in hard copy or
electronically; the dates on which such Confidential Information was disseminated; and
the specific identity of the Confidential Information disclosed; and
3.
Inform the Court and Defendants, in writing, the steps Ceglia has taken or intends
to take to retrieve all improperly disclosed Confidential Information.

In his motion, Ceglia requested an order authorizing the clerk to strike the Blanco
Declaration so that Ceglia may replace it with a redacted version. Doc. No. 446 at 2. Ceglia
further informed the Court that:
No other copies of these documents were provided to or are in the
possession of any other witnesses, expert or otherwise. No other
documents designated as confidential have been provided to any
other persons by Plaintiff. To the best of Plaintiff’s knowledge,
the filed documents, Doc. Nos. 415-2 and 415-3, were provided to
individuals who were able to access them via the court’s ECF
system.
Id.
Defendants do not object to Ceglia’s request for an order striking Doc. No. 415.
However, Defendants are concerned by Ceglia’s statements that no other copies of these
documents were provided to anyone—this statement is demonstrably false. The report of a
different Plaintiff’s expert, Larry Stewart, makes clear that he was provided and possessed the
Blanco Declaration and accompanying exhibits. Specifically, as part of a purported “peer or
technical review,” Stewart claimed to have “reviewed Mr. Blanco’s declaration along with
supporting Exhibits.” Doc. No. 416-3 at ¶ 447. Ceglia’s own filings therefore contradict
Ceglia’s representation to this Court yesterday that “No other copies of [the Blanco Declaration]
were provided to or are in the possession of any other witnesses, expert or otherwise.” Doc. No.
446 at 2.
Moreover, contrary to Ceglia’s representation to the Court that “No other documents
designated as confidential have been provided to any other persons by Plaintiff,” Dean Boland,
Ceglia’s lawyer, posted the Blanco Declaration on his firm Web site’s blog, thus making these
confidential materials available worldwide. See screen capture of the blog entry, which links to
the filed version of the Blanco Declaration, attached as Exhibit A.

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Given these misrepresentations to the Court, Defendants respectfully request that as part
of the Court’s order addressing Ceglia’s motion to strike Doc. No. 415, the Court order Ceglia to
produce to the Court and Defendants the copies of Exhibit A to the Protective Order executed by
Mr. Blanco and Mr. Stewart, and to file with the Court a declaration providing (A) information
regarding any other dissemination of Confidential Information that was inconsistent with or in
violation of the Protective Order, including but not limited to: the names of all individuals or
organizations not authorized by the Protective Order that have received copies of any
Confidential Information including the Blanco Declaration, either in hard copy or electronically;
the dates on which such Confidential Information was disseminated; and the specific identity of
the Confidential Information disclosed; and (B) the steps Ceglia has taken or intends to take to
retrieve all improperly disclosed Confidential Information.
Defendants reserve all other rights with respect to Ceglia’s violation of the Protective
Order.
Dated:

New York, New York
June 20, 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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