Ceglia v. Zuckerberg et al

Filing 466

MEMORANDUM in Opposition re 462 Seventh MOTION to Compel and For Other Relief filed by Paul D. Ceglia. (Attachments: # 1 Certificate of Service, # 2 Exhibit REDACTED)(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 TO SEVENTH
MOTION TO COMPEL
REGARDING SO-CALLED
KASOWITZ LETTER

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

MEMORANDUM
Defendants 6th and 7th motions to compel regarding the so called Kasowitz
letter were based on four false premises:
1. The

at issue to which the Kasowitz letter

was shared

with a non-lawyer, third party, to wit:  Jason Holmberg; and
2. The

at issue appeared on a privilege log produced by Defendants

experts and was not designated as privileged by Plaintiff on that log; and
3. The

at issue was disclosed to a non-lawyer, third

party, to wit: Jason Holmberg; and
4. The

at issue was disclosed to a non-lawyer,

third party, to wit: Jason Holmberg.
  That is an
important distinction.  

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item 379 have been produced to
Defendants over Plaintiff’s privilege related objection. None of those attachments
are the so-called Kasowitz letter.
item 379

themselves, nor their attachments, metadata or headers are contained
In short,

are not duplicates or

copies of

, but

and, above all, clearly not

native format versions
that are exclusively exchanged between
lawyers would never have been recovered from Jason Holmberg’s email account
because he never received them directly or as a person being copied on those emails.  

are
which are highlighted in yellow for ease of locating them.  Therefore,
there are referenced
One category is

. 
and subject to work product

privilege.   The other category

and a non-

lawyer, third party, Jason Holmberg. The court will note that
are copies, sometimes triplicate copies of individual emails.

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Defendants’ Sixth and Seventh Motion to Compel, was not copied to Jason
Holmberg.  A review of the

make clear he

was only copied on emails between lawyers involving planning the meeting and
. 

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PRIVILEGE LOG CLAIM
Per the court’s order in this case, Stroz Friedberg periodically provided
Plaintiff’s counsel with a spreadsheet of what it believed were relevant documents
discovered in its analysis of Plaintiff’s media that it intended to produce.  In those
communications, Stroz Friedberg regularly advised Plaintiff that it would wait five
days before producing those documents to provide Plaintiff’s counsel time to review
those documents and designate any of them as privileged per the court’s orders.
At no time did Stroz Friedberg produce any such relevant documents log
containing
not have failed to designate

at issue in this case.  Therefore, Plaintiff could
as privileged as Stroz Friedberg never listed

it on any relevant documents log and never produced it to Defendants in native
format.   At no time did Stroz Friedberg produce any such relevant documents log
containing

at issue in this case - the so

called Kasowitz letter.   Therefore, Plaintiff could not have failed to designate
as Stroz Friedberg never listed it on any
relevant documents log and never produced
Defendants concede

was never produced to them as their motion is

their attempt to get a copy of
court no evidence that

to Defendants.  

 And, Defendants have provided this
did appear on a relevant documents log as an

item that Plaintiff failed to designate as privileged.
Pursuant to the court’s electronic asset protocol, Plaintiff had no obligation to
produce any relevant materials log, or privilege log other than designating
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documents that Stroz Friedberg intended to produce as privileged if that
designation was appropriate.  Defendants have not argued nor has this court held
that Plaintiff has or had any obligation to produce a privilege log of some kind
outside of designating as privileged items listed on the relevant materials logs that
have been exchanged between Stroz Friedberg and Plaintiff’s counsel throughout
the case thus far.
As a result of the facts noted above, the Kasowitz letter was never an
  The subject matter discussed in the Kasowitz letter was
never disclosed to any non-lawyer, third party including Jason Holmberg.  
Defendants request for a copy of this email and its attachment is, should
therefore be denied as the email, its subject matter and the accompanying
attachment are subject to the work product privilege.
THE KASOWITZ LETTER IS PRIVILEGED
Emails between lawyers

are protected from

discovery by the work product privilege.  To invoke this privilege, a party generally
must show that the documents were prepared principally or exclusively to assist in
anticipated or ongoing litigation. See Fed.R.Civ.P. 26(b)(3); Bowne of New York City,
Inc. v. AmBase Corp., 150 F.R.D. 465, 471 (S.D.N.Y.1993).   It is clear that at the
time this

was sent this litigation was ongoing.  
involved in representing or potentially representing Plaintiff were

generated to assist in that ongoing litigation.  
is also protected from disclosure by the work-product privilege.  The court’s in
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camera review

Despite the evidence above regarding the non-disclosure
, even disclosure of work-product communication and materials
does not automatically waive this privilege.   Constr. Indus. Services Corp. v.
Hanover Ins. Co., 206 F.R.D. 43, 49 (E.D.N.Y. 2001).  “Moreover, disclosure of [work
product] documents to third parties does not, in and of itself, constitute a waiver of
the privilege.” Id.
The work product doctrine aims not only to preserve confidentiality, but also
to protect the integrity of the adversary system.   As such, the privilege “is not
automatically waived by any disclosure to a third party.”   Magee v. Paul Revere Life
Ins. Co., 172 F.R.D. 627, 641 (E.D.N.Y.1997).  
Instead, “[p]rotection is waived only if such disclosure ‘substantially increases
the opportunity for potential adversaries to obtain the information.’” Id. (citing In re
Grand Jury Subpoenas Dated December 18, 1981 and January 4, 1982, 561 F.Supp.
1247, 1257 (E.D.N.Y.1982).  Thus, even if this court determines that
the Kasowitz letter, were disclosed to a non-lawyer,
third party, that disclosure did not substantially increase such opportunity for
potential adversaries to obtain that information and the privilege was not waived in
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that way in any event.
CONCLUSION
For the foregoing reasons, Mr. Ceglia respectfully requests this court deny
Defendants’ seventh motion to compel.
Respectfully submitted,
/s/Dean Boland
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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