Ceglia v. Zuckerberg et al

Filing 467

REPLY to Response to Motion re 462 Seventh MOTION to Compel and For Other Relief filed by Facebook, Inc., Mark Elliot Zuckerberg. (Attachments: # 1 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’ REPLY MEMORANDUM OF LAW
IN SUPPORT OF THEIR SEVENTH MOTION TO COMPEL
Ceglia’s outrageous, bad faith defiance of this Court’s orders has reached a new extreme.
Ceglia is now in contempt of two direct orders from this Court (Doc. Nos. 457, 464) to produce a
document that goes to the core of this case and confirms that Ceglia’s claims are fraudulent: the
Kasowitz Letter, i.e., “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.” Doc. No. 457 at 8. This Court should impose severe sanctions on
Ceglia and his counsel for their inexcusable refusal to comply with this Court’s direct, explicit,
and repeated orders to produce the Kasowitz Letter. Indeed, Ceglia and his counsel have made
clear that such sanctions are the only viable means of protecting this Court and its processes from
further abuse.
On June 28, 2012, the Court granted Defendants’ Sixth Motion to Compel and explicitly
directed that “Plaintiff is ORDERED to produce the Kasowitz Letter within ten (10) days of this
Decision and Order.” Doc. No. 457 at 43. Ceglia refused. He deliberately defied this Court’s
Order by taking the preposterous position that this Court had not ordered him to produce the

Kasowitz Letter. Defendants therefore filed their Seventh Motion to Compel (Doc. No. 461),
seeking yet another order requiring Ceglia to produce the Kasowitz Letter, as well as imposing
sanctions to compel Ceglia’s compliance. On July 11, this Court ordered Ceglia to respond to
Defendants’ motion by July 20, and clearly and expressly ordered Ceglia to include the Kasowitz
Letter as an exhibit to his response:
Plaintiff’s response to the motion shall be filed not later than July 20, 2012, and
shall include as an exhibit a copy of Privilege Log Item 379 and all attachments
that Plaintiff was ordered to produce to Defendants, including, as referenced on
page 12 of Item 379, as an attachment to an April 13, 2011 email from Aaron
Marks of the law firm of Kasowitz, Benson, Torres & Friedman LLP to
Plaintiff[’]s attorneys, “a letter responding to Mr. Vacco’s communication of
last evening and certain documents that are referenced in the letter,” and all
attachment[s] to such letter, i.e., the “certain documents that are referenced in
the letter.”
Doc. No. 464 (emphasis added).
Ceglia has again refused to comply. His response to Defendants’ motion does not
include the Kasowitz Letter or its attachments as an exhibit. Ceglia has thumbed his nose at this
Court by filing the same version of Item 379 that he has already produced—the version that
omits the Kasowitz Letter and its attachments, and that this Court has already ruled is
inadequate. There is no conceivable good faith argument that this response satisfies the Court’s
July 11 Order. Indeed, Ceglia offers nothing approaching a valid excuse for his refusal to satisfy
his unambiguous obligation, under two orders of this Court, to produce the Kasowitz Letter and
all attachments. He simply proceeds as if this Court’s orders do not exist, and indefensibly
attempts to reargue the merits of Defendants’ Sixth Motion to Compel by claiming that the
Kasowitz Letter is privileged—a claim that this Court already considered and rejected in

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granting Defendants’ motion. See Doc. No. 457 at 11 (finding it “clear that Plaintiff has failed to
preserve any privilege that attached to the Kasowitz Letter”).
There is no reason whatsoever for this Court to revisit that decision and entertain what is,
in substance, a baseless motion for reconsideration from Ceglia. This Court has already made
clear in this same context—when denying Ceglia’s attempt to seek reconsideration of the Court’s
denial of his frivolous privilege claim with respect to Item 379—that “[t]he standard for granting
a motion for reconsideration . . . is strict,” and that the Court should not afford “a ‘second bite at
the apple’ for a party dissatisfied with the court’s ruling by ‘relitigating old issues, presenting the
case under new theories, [or] securing a rehearing on the merits . . . .’” Doc. No. 361 at 2-3
(quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)). That is exactly what
Ceglia seeks to do here. He argues that the Kasowitz Letter is privileged because it was not
disclosed to Jason Holmberg, a non-attorney, and that even if the Kasowitz Letter was disclosed
to Holmberg, that was insufficient to waive the privilege. Doc. No. 466 at 5-6; see also Doc. No.
432 at 2-3. But this Court has already rejected those arguments and ruled that disclosure to
Holmberg of the subject matter of Item 379 was sufficient to waive any claim of privilege, and
that this waiver applied to Item 379 in its entirety. That is why the Court required Ceglia to
produce all emails in Item 379 and the Kasowitz Letter—regardless whether they were sent to
Holmberg. See Doc. No. 361 at 4-5; Doc. No. 457 at 10-11. Ceglia offers no justification for
reconsidering that ruling, and instead merely repeats the arguments that this Court has already
denied.
Ceglia also argues that he has not waived his privilege claim with respect to the Kasowitz
Letter because he was not required to include it on any privilege log. Doc. No. 466 at 4-5.
Again, this Court rejected that argument in its June 28 Order when it ruled that Ceglia was
required to include the Kasowitz Letter in his privilege log, and that he therefore waived his
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privilege claim by attempting to conceal the letter and excluding it from his log. See Doc. No.
457 at 10-11. That ruling was plainly correct: As the Court recognized, Ceglia “does not dispute
that the Kasowitz Letter contains relevant information.” Id. at 11. Indeed, Defendants explained
in their Sixth Motion to Compel that the Kasowitz Letter was responsive to this Court’s
expedited discovery orders because it contained responsive materials including, as attachments,
copies of emails that this Court ordered Ceglia to produce in its August 18, 2011 Order. See
Doc. No. 382 at 5-8. Moreover, in February 2012, Ceglia himself acknowledged that the
Kasowitz Letter was responsive to this Court’s expedited discovery orders when his former
counsel at Lake APC produced, in response to those orders, emails that were attached to the
Kasowitz Letter and that contained handwritten notations, presumably from a Kasowitz attorney,
calling attention to evidence of Ceglia’s fraud. See id. at 5-6. Thus, Ceglia was also required
either to produce the responsive Kasowitz Letter itself or include it on his privilege log. Because
he did neither, he waived any privilege claim with respect to the letter. See id. at 9-10.
Ceglia nevertheless argues that he was not required to include the Kasowitz Letter on his
privilege log because he was obligated only to log documents that Stroz Friedberg discovered on
Ceglia’s electronic media and advised Ceglia that it intended to produce. Doc. No. 466 at 4-5.
That argument is ridiculous. Under this Court’s expedited discovery orders (Doc. Nos. 83, 117),
Ceglia had an independent obligation to produce or log responsive hard-copy and electronic
documents, regardless of what Stroz Friedberg located or identified as presumptively relevant
under the Court’s Electronic Assets Inspection Protocol (Doc. No. 85). Ceglia’s contrary
argument amounts to a claim that, so long as he concealed a responsive document from
Defendants and Stroz Friedberg, Ceglia was entitled to omit that document from his privilege
log without waiving his privilege claim. Of course, Ceglia cites nothing in support of this
argument, which is so absurd that it could not conceivably have been made in good faith. This
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argument is also directly rebutted by Ceglia’s own August 29, 2011 production, in which Ceglia
produced electronic documents and a privilege log, even though the documents produced and
included in the log had not been identified as responsive by Stroz Friedberg. See Doc. No. 1562. Because neither his August 29 privilege log nor any other privilege log included the Kasowitz
Letter, the Court correctly concluded that Ceglia had waived any claim of privilege with respect
to that document. And because Ceglia himself recognized, in creating that August 29 log, that he
had an independent obligation to produce or log responsive documents, he cannot credibly argue
now that he was only required to log documents identified by Stroz Friedberg. Indeed, the fact
that Ceglia makes that argument at all raises a serious question as to whether additional
responsive documents exist that he has omitted from his privilege log.
In any event, even putting aside Ceglia’s specious argument regarding his privilege log,
Ceglia fails to recognize that this Court has ruled that he has also waived his privilege claim on
additional grounds—including his assertion in his response to Defendants’ Sixth Motion to
Compel that he had already made the Kasowitz Letter available to Defendants and their experts.
See Doc. No. 457 at 11. As Defendants explained, and this Court accepted, Ceglia has no
legitimate objection to producing a letter that he claims he already made available to Defendants.
See id.; Doc. No. 434 at 3. Because this Court has already ruled that Ceglia has waived his
privilege claim on numerous grounds, Ceglia has no good faith basis for continuing to claim that
the Kasowitz Letter is privileged and refusing to produce it.
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Ceglia’s blatant defiance of two explicit orders from this Court to produce the Kasowitz
Letter is reprehensible—particularly because the Court has already ordered Ceglia and his
counsel to show cause why they should not be sanctioned for filing a series of bad faith motions
that were intended to harass Defendants and disrupt the expert discovery process ordered by the
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Court. See Doc. No. 457 at 42-43. Ceglia and his counsel plainly have not learned their lesson,
and their ongoing display of contempt for this Court’s orders establishes that they have no
intention of abandoning their campaign of bad faith delay and obstruction absent intervention by
the Court. This Court must impose severe sanctions to bring them in line.
CONCLUSION
This Court should direct Ceglia to produce the Kasowitz Letter immediately, and should
summarily impose sanctions on Ceglia and his attorneys for their bad faith defiance of two clear
orders of this Court.

Dated:

New York, New York
July 24, 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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