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)

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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.     1 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. 2 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 .            3 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 4 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 5 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 6 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 paul.argentieri@gmail.com Dean Boland 1475 Warren Road Unit 770724 Lakewood, Ohio 44107 216-236-8080 phone 866-455-1267 fax dean@bolandlegal.com 7

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