Ceglia v. Zuckerberg et al

Filing 461

MEMORANDUM IN SUPPORT of Seventh MOTION to Compel by Facebook, Inc., Mark Elliot Zuckerberg.(Snyder, Orin) Modified on 7/12/2012 (DLC).

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 SUPPORT OF THEIR SEVENTH
MOTION TO COMPEL AND FOR OTHER RELIEF

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]
July 11, 2012

Orin Snyder
Alexander H. Southwell
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
[phone]

MEMORANDUM OF LAW
Ceglia is in blatant defiance of this Court’s June 28, 2012 order. He refuses to produce
the Kasowitz Letter, notwithstanding this Court’s explicit directive that “Plaintiff is ORDERED
to produce the Kasowitz Letter within ten (10) days of this Decision and Order” (i.e., by July 9,
2012). Doc. No. 457 at 43. Once again, Ceglia’s contumacious disregard for the rulings of this
Court has forced Defendants to move to compel. This Court should again direct Ceglia to
produce the Kasowitz letter—and should summarily impose sanctions for his inexcusable, bad
faith misconduct.
ARGUMENT
This is the seventh motion to compel necessitated by Ceglia’s refusal to comply with this
Court’s discovery orders. See Doc. Nos. 95, 129, 155, 245, 295, 382. This Court granted each
of Defendants’ six previous motions to compel. See Doc. Nos. 107, 117, 152, 208, 272, 317,
357, 457.
In their Sixth Motion to Compel, Defendants moved the Court to direct Ceglia to produce
the Kasowitz Letter, a letter from Ceglia’s then-lawyers at the New York-based law firm of
Kasowitz, Benson, Torres & Friedman LLP to their co-counsel at DLA Piper LLP and Lippes
Mathias Wexler Friedman LLP, in which Ceglia’s lawyers themselves state that Ceglia’s
documents at the heart of his Complaint are forged and that the lawyers who wrote the letter
were withdrawing from the case because it is a fraud. See Doc. No. 382. That letter is attached
to an April 13, 2011 e-mail contained in Item 379, a lengthy compilation of e-mails that this
Court earlier ordered to be produced in granting Defendants’ Fifth Motion to Compel. See Doc.
Nos. 357, 383-1 at 14.
Defendants learned of the existence of the Kasowitz Letter only because this Court
rejected Ceglia’s initial attempt to conceal it. When Item 379 was first identified by Defendants’
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expert Stroz Friedberg, Ceglia withheld it as privileged. In granting Defendants’ Fifth Motion to
Compel, the Court rejected Ceglia’s baseless privilege claim and ordered Ceglia to produce Item
379 in its entirety. See Doc. Nos. 317, 357, 361.
Upon review of Item 379, it became clear to Defendants that a critical document was
missing from Ceglia’s production: the Kasowitz Letter. Ceglia had produced the April 13, 2011
e-mail to which the Kasowitz Letter is attached; that e-mail is contained within Item 379 at page
14. See Southwell Decl. Ex. A (Doc. No. 383-1) at 14. He did not, however, produce the
Kasowitz Letter attachment, which is responsive to this Court’s expedited discovery orders and
demonstrates Ceglia’s own attorneys’ awareness of his fraud.
Thus, on May 24, 2012, Defendants filed their Sixth Motion to Compel, seeking the
production of the Kasowitz Letter. There was no ambiguity about what the “Kasowitz Letter”
was. On the very first page of their opening memorandum, Defendants defined the “Kasowitz
Letter” as a letter sent on April 13, 2011 by “Ceglia’s lawyers at the New York-based law firm
of Kasowitz, Benson, Torres & Friedman LLP [] to their co-counsel at DLA Piper LLP and
Lippes Mathias Wexler Friedman LLP.” Doc. No. 382 at 4; see also Doc. No. 382 at 6 (referring
to the “Kasowitz Letter” as “an attachment to an April 13, 2011 email from Kasowitz to Ceglia’s
then-counsel that was produced, and which was located at page 14 of Item 379”), 10 (noting that
“Two days later, on April 13, 2011 at 9:50 a.m., Marks emailed the Kasowitz Letter to DLA
Piper, Lippes Mathias, and Paul Argentieri along with the documents referenced in the letter”).
Defendants also filed the April 13, 2011 e-mail to which the Kasowitz Letter is attached. See
Southwell Decl. Ex. A (Doc. No. 383-1) at 14. And in their reply papers, Defendants continued
to describe the Kasowitz Letter as “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

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Mathias Wexler Friedman LLP,” and noted that the Kasowitz Letter is “an attachment to an
email contained in Item 379.” Doc. No. 434 at 1; see Southwell Decl. (Doc. No. 435) ¶¶ 2-3.
On June 28, 2012, this Court granted Defendants’ Sixth Motion to Compel. Doc. No.
457. The Court was clear and explicit as to the document it was ordering Ceglia to produce. At
page 8 of its Order, the Court’s discussion of Defendants’ motion begins: “In their Sixth Motion
to Compel, Defendants seek a court order compelling Plaintiff to produce a copy of a letter dated
April 13, 2011, from attorneys at the New York law firm of Kasowitz, Benson, Torres &
Friedman LLP to co-counsel at DLA Piper LLP and Lippes Mathias Wexler Friedman LLP (“the
Kasowitz Letter’).” Doc. No. 457 at 8; see also Doc. No. 457 at 5 (noting that “Within Item 379
is a reference to an attachment consisting of a letter from Kasowitz to DLA Piper and Lippes,
advising of Kasowitz’s decision to withdraw as Plaintiff’s co-counsel in this action (‘the
Kasowitz Letter’).”). The Court ordered Ceglia “to produce the Kasowitz Letter within ten (10)
days,” by July 9, 2012. Doc. No. 457 at 43.
Ceglia failed to do so. His lawyer, Dean Boland, has taken the absurd position that this
Court did not in fact direct Ceglia to produce the Kasowitz Letter. But cf. Doc. No. 457 at 43
(“Plaintiff is ORDERED to produce the Kasowitz Letter ….”). Defendants wrote to Boland on
July 9 and again on July 10, warning Boland that he was obligated to produce the Kasowitz letter
and that Defendants would seek sanctions if he refused to do so.
As of July 11, Boland continues to take the position that this Court’s order does not
require him to produce the Kasowitz letter. This is yet another “gross misrepresentation which
would be detected by even the marginally literate.” Doc. No. 457 at 15. Because the strong
language in this Court’s prior orders has proven insufficient to compel Boland’s respect for court
orders, this Court should impose sanctions in an amount sufficient to get his attention.

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CONCLUSION
Ceglia continues to play fast and loose with this Court and its processes, once again
violating this Court’s clear directives. Ceglia, and his attorneys, are in contempt of this Court’s
orders. This latest episode of discovery misconduct is indefensible:
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Ceglia withheld Item 379 without justification. Defendants moved to compel
production of Item 379, the Court granted that motion, and Ceglia ultimately
produced Item 379. See Doc. Nos. 295, 296-1, 317, 357, 361.

•

Once Defendants received Item 379, they learned that Ceglia had not produced the
Kasowitz Letter, an attachment to an April 13, 2011 e-mail contained within Item
379. See Doc. No. 383-1.

•

Defendants moved to compel production of the Kasowitz Letter, and the Court
granted that motion and ordered Ceglia to produce the Kasowitz Letter by July 9. See
Doc. Nos. 382, 457.

•

As of July 11, Ceglia still has not produced the Kasowitz Letter.

For the foregoing reasons, the Court should direct Ceglia to produce the Kasowitz Letter
immediately or, in the alternative, simply authorize Stroz Friedberg to produce the Kasowitz
Letter directly to Defendants. The Court should also summarily impose sanctions on Ceglia and
his attorneys for their latest contumacious act of defiance—refusing to comply with a clear and
explicit order of this Court.

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Dated:

New York, New York
July 11, 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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