Ceglia v. Zuckerberg et al

Filing 475

MEMORANDUM IN SUPPORT re 474 MOTION for Protective Order byFacebook, Inc., Mark Elliot Zuckerberg. (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 SUPPORT OF
THEIR MOTION FOR PROTECTIVE ORDER

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]
August 10, 2012

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

TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1
BACKGROUND ............................................................................................................................ 2
ARGUMENT .................................................................................................................................. 4
I.

Requests for Production of Documents to Zuckerberg ............................................... 6

II.

Requests for Production of Documents to Facebook .................................................. 9

III. Interrogatories to Zuckerberg ................................................................................... 10
IV. Interrogatories to Facebook ...................................................................................... 18
CONCLUSION ............................................................................................................................. 23

PRELIMINARY STATEMENT
Ceglia has served Defendants with discovery requests that go well beyond the limited
discovery authorized by this Court. Incredibly, Ceglia is demanding documents and
interrogatory responses concerning a category of discovery that Ceglia himself declared was
“moot[ ]” (Doc. 377 at 8)—and as to which this Court stated that “no further discovery on this
issue is required.” Doc. No. 401 at 7-8 (emphasis added). Notwithstanding this Court’s
repeated reprimands and sanctions, Ceglia’s discovery requests demonstrate that he and his
lawyers are determined to follow the same abusive and harassing approach to litigation that has
characterized their conduct thus far. Indeed, when Defendants pointed out to Ceglia’s counsel
that he was seeking discovery into an area that was expressly precluded by court order, he
refused to withdraw or modify the requests in any way, leaving Defendants no choice but to seek
a protective order from this Court.
The Court initially granted Ceglia discovery limited to two specific categories: (1) the
rights purportedly created under the fake Work for Hire Document; and (2) how the formation of
Thefacebook LLC necessarily divested Ceglia of his rights and interests in his purported
partnership with Zuckerberg. Doc. No. 366 at 5. With regard to the first category, the Court
clarified that discovery is limited to matters that directly concern Ceglia’s alleged rights and
interests under the language of the Work for Hire Document. And with regard to the second
category, the Court prohibited discovery based on Ceglia’s representation that the issue had
become “moot[ ].” Doc. No. 377 at 8; Doc. No. 401 at 7-8.
Ceglia’s document requests and interrogatories are almost entirely directed toward the
second, moot category of discovery. And to the extent they are not, they are improper for many

other reasons. Among other things, they are vague, overbroad, burdensome, and not reasonably
calculated to lead to the discovery of admissible evidence.
For these reasons, Defendants respectfully request a protective order as to all of Ceglia’s
document requests and most of Ceglia’s interrogatories. Defendants do not seek a protective
order with respect to all of Ceglia’s interrogatories—indeed, they are concurrently serving
responses (prefaced by objections where necessary) to Interrogatory Nos. 2, 7, 8, 9, and 22 to
Zuckerberg, and Interrogatory Nos. 2 and 17 to Facebook. Defendants also ask that they be
awarded the reasonable costs and attorneys’ fees they incurred in preparing this motion.
BACKGROUND
On April 30, 2012, the Court granted in part Defendants’ motion to stay discovery
pending a ruling on Defendants’ dispositive motions (Doc. No. 322) and converted Defendants’
motion for judgment on the pleadings (Doc. No. 320) into a motion for partial summary
judgment. Doc. No. 366 at 5. The Court ruled that Ceglia could serve interrogatories and
document requests regarding two narrow categories of information:
(1) assuming, arguendo, the Work for Hire contract dated April 28, 2003 is
authentic, what intellectual property rights and other ownership interests were
created by the contract’s language providing that Plaintiff, in exchange for
helping fund Zuckerberg’s development of FaceBook, would give Plaintiff “a half
interest (50%) in the software, programming language and business interests
derived from the expansion of that service to a larger audience,” and (2) how the
formation of the LLC necessarily divested Plaintiff of any and all interest in the
partnership’s assets, including intellectual property rights.
Id.
On May 8, Defendants moved for clarification of the Court’s April 30 Order based on
their concern that, absent clarification, Ceglia would intentionally misinterpret that Order to

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permit far-reaching discovery into matters that have nothing to do with him or his claims. Doc.
No. 373 at 1. Defendants therefore requested that the Court make clear that the discovery
permitted under its April 30 Order is limited to (1) Ceglia’s alleged rights and interests under the
language of the Work for Hire Document, and (2) the effect that the formation of Thefacebook
LLC had on Ceglia’s alleged rights and interests. Id. at 1, 4-7.
In response, Ceglia agreed with Defendants that the first category of discovery in the
Court’s Order is limited to matters that directly concern his rights and interests under the
language of the Work for Hire Document. Doc. No. 377 at 5. Ceglia also took the position that,
with respect to the second category of discovery authorized in the Court’s Order, discovery was
no longer necessary. Id. at 8 (stating that, “[a]t least to item (2) of the court’s order,” Ceglia’s
acquisition of a document that he claims was filed in another case “moots discovery on that
issue”). In their reply, Defendants explained that Ceglia had agreed with Defendants regarding
the narrow scope of the first category of discovery in the Court’s Order, and that both parties
agreed that discovery in the second category is unnecessary. Doc. No. 380 at 2-4.
On May 30, the Court denied Defendants’ motion for clarification, ruling that
clarification was unnecessary in light of the positions taken by Ceglia in his response. Doc. No.
401 at 7-8. The Court found that Ceglia had adopted the same, narrow interpretation of the first
category in the Court’s April 30 Order as Defendants. Id. at 7 (“Plaintiff’s interpretation of the
scope of discovery permitted under the April 30, 2012 D&O is essentially the same as
Defendants’ interpretation.”).
The Court also ruled, based on Ceglia’s position that his acquisition of an alleged
pleading in another case “moots” the need for discovery in the second category, that “no further
discovery on this issue is required.” Id. at 7-8 (emphasis added).

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The Court also stated that, “[s]hould Defendants find any interrogatory Plaintiff serves to
be beyond that permitted in accordance with the Order, Defendants may promptly move for a
protective order.” Id. at 8.
On July 1, Ceglia served the attached requests for production of documents and
interrogatories on Defendants. See Southwell Decl., Ex. A (Ceglia’s Request for Production of
Documents to Defendant Zuckerberg); Southwell Decl., Ex. B (Ceglia’s Request for Production
of Documents to Defendant Facebook); Southwell Decl., Ex. C (Ceglia’s Interrogatories to
Defendant Zuckerberg); Southwell Decl., Ex. D (Ceglia’s Interrogatories to Defendant
Facebook).
On August 2, the parties stipulated to an extension of the deadline for Defendants’
responses and objections to those written discovery requests until August 10. Southwell Decl.
¶ 3.
On August 7, Defendants conferred in good faith with Ceglia in an effort to resolve this
dispute without action by the Court, yet Ceglia refused to withdraw or modify the discovery
requests in any way. See Southwell Decl. ¶¶ 4-5.
ARGUMENT
Under Rule 26, this Court has the authority to issue a protective order
“forbidding . . . discovery” when there is “good cause” for such an order, and when it would
protect a party from “annoyance,” “oppression,” and “undue burden [and] expense.” Fed. R.
Civ. P. 26(c)(1). Thus, “if a requested party believes any discovery request served upon it to be
irrelevant or unduly burdensome or oppressive, the requested party may seek a protective order
upon good cause shown.” Ortiz v. Twedt, No. 02-CV-132F, 2004 WL 941790, at *2 (W.D.N.Y.
Mar. 31, 2004) (Foschio, J.). And a protective order is warranted when a plaintiff’s discovery

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requests seek information that is “irrelevant to any claim or defense before the court and not
likely to lead to information that is relevant to any such claim or defense.” Id. at *3.
Those standards are readily satisfied here. There is good cause for a protective order
because Ceglia’s document requests and interrogatories plainly exceed the narrow scope of
discovery authorized by this Court’s Orders, and a protective order is necessary to protect
Defendants from Ceglia’s vexatious litigation strategy of harassment and abuse. There is also
good cause for a protective order because Ceglia’s document requests and interrogatories are
overbroad and not reasonably calculated to lead to the discovery of admissible evidence. This
Court’s May 30 Order expressly invited Defendants to seek a protective order in these
circumstances, Doc. No. 401 at 8, and the Court should adhere to its prior Orders by prohibiting
the improper discovery that Ceglia seeks.
Defendants do not seek a protective order with respect to all of Ceglia’s discovery
requests. This Court has made clear that Ceglia may seek discovery in the first category in its
April 30 Order regarding the rights that he allegedly received under the language of the Work for
Hire Document, assuming that document is authentic. Although Defendants object to being
asked to construe the legal effect of a fraudulent document that they never signed, Defendants
have complied with this Court’s Orders by responding to Ceglia’s discovery requests that seek
information falling within that narrow category of discovery. In particular, Defendants have
responded to Interrogatory No. 2 to Zuckerberg and Interrogatory No. 2 to Facebook, which ask
what intellectual property rights the alleged Work for Hire Document conveyed to Ceglia. In
response, Defendants have explained that, even assuming that the Work for Hire Document is
authentic, it did not confer any intellectual property rights on Ceglia. Indeed, the alleged terms
of the Work for Hire Document could not convey any such rights because they are vague,

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confusing, self-contradictory, and unenforceable. Defendants also have provided responses to
Interrogatory Nos. 7, 8, 9, and 22 to Zuckerberg, and Interrogatory No. 17 to Facebook. Thus,
Defendants do not seek a protective order with respect to those interrogatories. However,
Defendants seek a protective order as to all of Ceglia’s document requests, Interrogatory Nos. 36, 10-21, and 23 to Zuckerberg, and Interrogatory Nos. 3-16 and 18 to Facebook, because they
seek information well outside the first—and only—category of discovery allowed under this
Court’s Orders.
I.

Requests for Production of Documents to Zuckerberg

Request No. 1: All documents executed by you or any representative or agent for you
involving the purported to transfer [sic] any software, programming language, business interests
or other intellectual property into Facebook before, during and after its incorporation in July
2004.
A protective order is warranted because the request does not seek information within
Category #1 of the Court’s April 30 Order, and because it purports to be based on the now-moot
Category #2. A protective order is further warranted because the request is overbroad and not
reasonably calculated to lead to the discovery of admissible evidence: it arguably purports to
seek all documents relating to Facebook’s software, programming language, business interests,
and intellectual property executed by Zuckerberg or any of his representatives or agents at any
time—i.e., “before, during, and after” the incorporation of Facebook.
Request No. 2: All documents reflecting Facebook’s your [sic] claimed ownership rights
in the software, programming language and business interests in the business before the
incorporation of Facebook.

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A protective order is warranted because the request does not seek information within
Category #1 of the Court’s April 30 Order, and because it purports to be based on the now-moot
Category #2. A protective order is further warranted because the request is overbroad, unduly
vague, and not reasonably calculated to lead to the discovery of admissible evidence: it arguably
purports to seek all documents of any kind reflecting Zuckerberg’s ownership rights in an
unspecified “business” before Facebook was incorporated.
Request No. 3: All agreements executed by you and any other person(s) or entities who
claimed ownership in the business before the incorporation of Facebook in 2004.
A protective order is warranted because the request does not seek information within
Category #1 of the Court’s April 30 Order, and because it purports to be based on the now-moot
Category #2. A protective order is further warranted because the request is overbroad, unduly
vague, and not reasonably calculated to lead to the discovery of admissible evidence: it arguably
purports to seek all agreements executed by Zuckerberg and any person who claimed an interest
in an unspecified “business” before the incorporation of Facebook, even if such agreements are
entirely unrelated to Facebook and have no relevance to this case. The request is also unduly
vague because it is unclear whether the phrase “before the incorporation of Facebook in 2004”
refers to when the agreements in question were executed, or when the persons who executed the
agreements in question claimed an interest in the “business.”
Request No. 4: All documents reflecting your ownership rights in the software,
programming language and business interests in the business after the incorporation of
Facebook.
A protective order is warranted because the request does not seek information within
Category #1 of the Court’s April 30 Order, and because it purports to be based on the now-moot

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Category #2. A protective order is further warranted because the request is overbroad, unduly
vague, and not reasonably calculated to lead to the discovery of admissible evidence: it arguably
purports to seek all documents of any kind reflecting Zuckerberg’s ownership rights in an
unspecified “business” after Facebook was incorporated.
Request No. 5: All documents supporting your claimed breach of the Facebook
Contract with Plaintiff.
A protective order is warranted because the request does not seek information within
Category #1 of the Court’s April 30 Order, and because it purports to be based on the now-moot
Category #2. Indeed, in requesting “[a]ll documents supporting your claimed breach of the
Facebook Contract with Plaintiff,” the request clearly purports to seek documents in Category #2
that relate to the formation of Thefacebook LLC. A protective order is further warranted because
the request is overbroad and not reasonably calculated to lead to the discovery of admissible
evidence.
Request No. 6: All documents executed by you in connection with the incorporation of
Facebook in July 2004.
A protective order is warranted because the request does not seek information within
Category #1 of the Court’s April 30 Order, and because it purports to be based on the now-moot
Category #2. A protective order is further warranted because the request is overbroad and not
reasonably calculated to lead to the discovery of admissible evidence: it arguably purports to
seek all documents executed by Zuckerberg that have any connection to the incorporation of
Facebook, and thus requests a vast array of documents that are irrelevant to this case.

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II.

Requests for Production of Documents to Facebook

Request No. 1 (materially identical to Request No. 1 to Zuckerberg): All documents
executed by Facebook or any representative or agent for Facebook involving the purported to
transfer [sic] any software, programming language, business interests or other intellectual
property into Facebook before, during and after its incorporation in July 2004.
A protective order is warranted for the same reasons explained above with respect to
Request No. 1 to Zuckerberg.
Request No. 2 (materially identical to Request No. 2 to Zuckerberg): All documents
reflecting Facebook’s ownership rights in the software, programming language and business
interests in the business just before the incorporation of Facebook.
A protective order is warranted for the same reasons explained above with respect to
Request No. 2 to Zuckerberg. This request is also unduly vague because it appears to seek
documents reflecting Facebook, Inc.’s ownership rights before it was incorporated.
Request No. 3 (materially identical to Request No. 3 to Zuckerberg): All agreements
executed by Facebook and any other person(s) or entities who claimed ownership in the business
before the incorporation of Facebook in 2004.
A protective order is warranted for the same reasons explained above with respect to
Request No. 3 to Zuckerberg. This request is also unduly vague because it appears to request
agreements executed by Facebook, Inc. before it was incorporated.
Request No. 4 (materially identical to Request No. 4 to Zuckerberg): All documents
reflecting the ownership rights in the software, programming language and business interests in
the business just after the incorporation of Facebook.

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A protective order is warranted for the same reasons explained above with respect to
Request No. 4 to Zuckerberg.
Request No. 5 (identical to Request No. 5 to Zuckerberg): All documents supporting
your claimed breach of the Facebook Contract with Plaintiff.
A protective order is warranted for the same reasons explained above with respect to
Request No. 5 to Zuckerberg.
Request No. 6: All documents executed by any persons involved with the incorporation
of Facebook in July 2004 who claimed ownership of any percentage of the software,
programming or business interests of the business being incorporated.
A protective order is warranted because the request does not seek information within
Category #1 of the Court’s April 30 Order, and because it purports to be based on the now-moot
Category #2. A protective order is further warranted because the request is overbroad, unduly
vague, and not reasonably calculated to lead to the discovery of admissible evidence: it seeks all
documents executed by any person “involved with” the incorporation of Facebook who claimed
ownership in the “business” being incorporated. That request arguably is not limited to
documents that have any connection to Facebook or relevance to this case, and instead purports
to request all documents ever executed, at any time, for any purpose, by anyone who was
involved with the incorporation of Facebook and who claimed ownership of the unspecified
“business.”
III.

Interrogatories to Zuckerberg

Interrogatory No. 3: Assuming the Facebook Contract between the parties is authentic,
what are the ownership interests of all persons whom you claim owned any portion of the

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software, programming language and business interests defined in #1 above after execution of
the Facebook Contract on April 28, 2003?
A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order: it seeks information regarding the ownership
interests of persons other than Ceglia after the alleged execution of the fraudulent Work for Hire
Document. A protective order is further warranted because the interrogatory is overbroad,
unduly vague, and not reasonably calculated to lead to the discovery of admissible evidence: it
arguably purports to ask Zuckerberg to define the ownership rights of all persons in the software,
programming language, and business interests of an unspecified business after April 28, 2003.
Interrogatory No. 4: Assuming the Facebook Contract between the parties is authentic,
list all persons with an ownership interest in the software, programming language and business
interests as defined in #1 above at the time of the incorporation of thefacebook, Inc. (Facebook)
in July 2004 and their respective percentage of ownership of each of the three items (i.e.
software, programming language, business interests).
A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order, and because it purports to be based on the
now-moot Category #2. A protective order is further warranted because the interrogatory is
overbroad, unduly vague, and not reasonably calculated to lead to the discovery of admissible
evidence: it arguably purports to ask Zuckerberg to define the ownership rights of all persons in
the software, programming language, and business interests of an unspecified business in July
2004.
Interrogatory No. 5: Assuming the Facebook Contract between the parties is authentic,
list the percentages of each person's ownership interest in the software, programming language

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and business interests as defined in #1 that was [sic] transferred into Facebook on or after July
2004.
A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order, and because it purports to be based on the
now-moot Category #2. A protective order is further warranted because the interrogatory is
overbroad, unduly vague, and not reasonably calculated to lead to the discovery of admissible
evidence: it arguably purports to ask Zuckerberg to describe the transfer to Facebook of the
ownership rights of all persons in the software, programming language, and business interests of
an unspecified business in or after July 2004.
Interrogatory No. 6: Assuming the Facebook Contract between the parties is authentic,
list the consideration paid by Facebook to all persons whom you claim owned an interest in the
software, programming language and business interests as defined in #1 in exchange for the
transfer of that percentage ownership into Facebook on or after July 2004.
A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order, and because it purports to be based on the
now-moot Category #2. A protective order is further warranted because the interrogatory is
overbroad, unduly vague, and not reasonably calculated to lead to the discovery of admissible
evidence: it arguably purports to ask Zuckerberg to describe the consideration paid for the
transfer to Facebook of the ownership rights of all persons in the software, programming
language, and business interests of an unspecified business in or after July 2004.
Interrogatory No. 10: Assuming the Facebook Contract between the parties is
authentic, did the contract authorize you to use all, some or none of the StreetFax software for
purposes other than StreetFax?

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A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order. A protective order is further warranted
because the interrogatory is overbroad, unduly vague, and not reasonably calculated to lead to
the discovery of admissible evidence: it arguably purports to seek information regarding
Zuckerberg’s rights to use StreetFax software—an inquiry that has no relevance to this case.
Interrogatory No. 11: Assuming the Facebook Contract between the parties is
authentic, what were Plaintiff's intellectual property rights in the StreetFax software created by
the contract?
A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order. A protective order is further warranted
because the interrogatory is overbroad, unduly vague, and not reasonably calculated to lead to
the discovery of admissible evidence: it arguably purports to seek information regarding
Ceglia’s intellectual property rights in StreetFax software—an inquiry that has no relevance to
this case.
Interrogatory No. 12: Assuming the Facebook Contract between the parties is
authentic, what were your intellectual property rights in the StreetFax software created by the
contract?
A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order. A protective order is further warranted
because the interrogatory is overbroad, unduly vague, and not reasonably calculated to lead to
the discovery of admissible evidence: it arguably purports to seek information regarding
Zuckerberg’s intellectual property rights in StreetFax software—an inquiry that has no relevance
to this case.

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Interrogatory No. 13: Did you use any portion of the StreetFax software for any
purpose related to Facebook or any other non-StreetFax purpose and if so
(A) on what date did that use begin
(B) describe that use of the StreetFax software
(C) on what date did use of that StreetFax software terminate?
A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order. A protective order is further warranted
because the interrogatory is overbroad, unduly vague, and not reasonably calculated to lead to
the discovery of admissible evidence: it arguably purports to seek information regarding
Zuckerberg’s use of StreetFax software—an inquiry that has no relevance to this case.
Interrogatory No. 14: Assuming the Facebook Contract between the parties is
authentic, did you inform Facebook upon its incorporation that you did not own 100% of the
software, programming language and business interests of the business?
A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order, and because it purports to be based on the
now-moot Category #2. A protective order is further warranted because the interrogatory is
overbroad, unduly vague, and not reasonably calculated to lead to the discovery of admissible
evidence: it arguably purports to seek information regarding communications between
Zuckerberg and Facebook that are irrelevant to this case and that relate to Zuckerberg’s
ownership rights in an unspecified “business.”
Interrogatory No. 15: If your answer to the previous question is "no", what percentage
ownership in the software, programming language, and business interests did you tell Facebook
you owned upon its incorporation?

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A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order, and because it purports to be based on the
now-moot Category #2. A protective order is further warranted because the interrogatory is
overbroad, unduly vague, and not reasonably calculated to lead to the discovery of admissible
evidence: it arguably purports to seek information regarding communications between
Zuckerberg and Facebook that are irrelevant to this case and that relate to Zuckerberg’s
ownership rights in an unspecified business.
Interrogatory No. 16: List and describe all documents, including the year executed and
all parties signing those documents reflecting the transfer into Facebook of any software,
programming language and business interests as defined in #1 above.
A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order, and because it purports to be based on the
now-moot Category #2. A protective order is further warranted because the interrogatory is
overbroad, unduly vague, and not reasonably calculated to lead to the discovery of admissible
evidence: it arguably purports to ask Zuckerberg to “list and describe” all documents, executed
by anyone, anywhere, at any time, reflecting the transfer of business interests into Facebook.
Interrogatory No. 17: Provide the date when your ownership interest in Facebook fell
below 50%.
A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order, and because it purports to be based on the
now-moot Category #2. A protective order is further warranted because the interrogatory is
overbroad and not reasonably calculated to lead to the discovery of admissible evidence: it

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purports to ask Zuckerberg to identify “the date when [his] ownership interest in Facebook fell
below 50%”—an inquiry that has no relevance to this case.
Interrogatory No. 18: Assuming the Facebook Contract between the parties is
authentic, what percentage ownership in the software, programming language and business
interests of the business did Plaintiff own at the time of the incorporation of Facebook in
Delaware?
A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order, and because it purports to be based on the
now-moot Category #2. Indeed, in purporting to ask Zuckerberg to define the “percentage
ownership in the software, programming language and business interests of the business [Ceglia]
own[ed] at the time of the incorporation of Facebook in Delaware,” the interrogatory clearly
purports to seek information in Category #2 that relates to Ceglia’s alleged interests after the
formation of Thefacebook LLC. A protective order is further warranted because the
interrogatory is overbroad and not reasonably calculated to lead to the discovery of admissible
evidence. A protective order is also warranted because the interrogatory is unduly vague: it
arguably purports to ask Zuckerberg to define Ceglia’s ownership in an unspecified “business.”
Interrogatory No. 19: Assuming the Facebook Contract between the parties is
authentic, was Plaintiff's interest in the software, programming language and business interests
of the business transferred into Facebook and if so, what was the date of that transfer?
A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order, and because it purports to be based on the
now-moot Category #2. Indeed, in purporting to ask Zuckerberg whether and when Ceglia’s
“interest in the software, programming language and business interests of the business

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transferred into Facebook,” the interrogatory clearly purports to seek information in Category #2
that relates to Ceglia’s alleged interests after the formation of Thefacebook LLC. A protective
order is further warranted because the interrogatory is overbroad and not reasonably calculated to
lead to the discovery of admissible evidence. A protective order is also warranted because the
interrogatory is unduly vague: it arguably purports to seek information regarding Ceglia’s
ownership in an unspecified “business.”
Interrogatory No. 20: Assuming the Facebook Contract between the parties is authentic
and Plaintiff's interest in the software, programming language and business interests of the
business was transferred into Facebook when was the fact of that transfer first publicly
disclosed?
A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order, and because it purports to be based on the
now-moot Category #2. Indeed, in purporting to ask Zuckerberg when the alleged transfer of
Ceglia’s supposed interests to Facebook was “first publicly disclosed,” the interrogatory clearly
purports to seek information in Category #2 that relates to Ceglia’s alleged interests after the
formation of Thefacebook LLC. A protective order is further warranted because the
interrogatory is overbroad and not reasonably calculated to lead to the discovery of admissible
evidence. A protective order is also warranted because the interrogatory is unduly vague: it
arguably purports to seek information regarding Ceglia’s ownership in an unspecified
“business.”
Interrogatory No. 21: Assuming the Facebook Contract between the parties is
authentic, list and describe all acts and their dates of occurrence that you claim constitute your
breach of the contract.

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A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order, and because it purports to be based on the
now-moot Category #2. Indeed, in asking Zuckerberg to “list and describe all acts and their
dates of occurrence that you claim constitute your breach of the contract,” the interrogatory
clearly purports to seek information in Category #2 that relates to the formation of Thefacebook
LLC. A protective order is further warranted because the interrogatory is overbroad and not
reasonably calculated to lead to the discovery of admissible evidence.
Interrogatory No. 23: List all dates when you or Defendant Facebook breached the
Facebook Contract with Plaintiff and
(a) the act(s) which you claim breached the agreement; and
(b) whether that act(s) was ever repeated at any later point in time; and
(c) when that act(s) was communicated to Plaintiff, if ever; and
(d) when that act(s) was publicly disclosed, if ever.
A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order, and because it purports to be based on the
now-moot Category #2. Indeed, in asking Zuckerberg to provide information regarding his
alleged breach of the Work for Hire Document, the interrogatory clearly purports to seek
information in Category #2 that relates to the formation of Thefacebook LLC. A protective order
is further warranted because the interrogatory is duplicative of Interrogatory No. 21, and because
it is overbroad and not reasonably calculated to lead to the discovery of admissible evidence.
IV.

Interrogatories to Facebook

Interrogatory No. 3 (identical to Interrogatory No. 3 to Zuckerberg): Assuming the
Facebook Contract between the parties is authentic, what are the ownership interests of all

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persons whom you claim owned any portion of the software, programming language and
business interests defined in #1 above after execution of the Facebook Contract on April 28,
2003?
A protective order is warranted for the same reasons explained above with respect to
Interrogatory No. 3 to Zuckerberg.
Interrogatory No. 4 (materially identical to Interrogatory No. 4 to Zuckerberg):
Assuming the Facebook Contract between the parties is authentic, list all persons with an
ownership interest in the software, programming language and business interests as defined by
Defendant Zuckerberg at the time of the incorporation of thefacebook, Inc. (Facebook) in July
2004 and their respective percentage of ownership of each of the three items (i.e. software,
programming language, business interests).
A protective order is warranted for the same reasons explained above with respect to
Interrogatory No. 4 to Zuckerberg.
Interrogatory No. 5 (identical to Interrogatory No. 5 to Zuckerberg): Assuming the
Facebook Contract between the parties is authentic, list the percentages of each person's
ownership interest in the software, programming language and business interests as defined in
#1 that was [sic] transferred into Facebook on or after July 2004.
A protective order is warranted for the same reasons explained above with respect to
Interrogatory No. 5 to Zuckerberg.
Interrogatory No. 6 (materially identical to Interrogatory No. 6 to Zuckerberg):
Assuming the Facebook Contract between the parties is authentic, list the consideration paid by
Facebook to all persons whom Defendant Zuckerbeg [sic] claimed owned an interest in the

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software, programming language and business interests as defined by Defendant Zuckerberg in
exchange for the transfer of that percentage ownership into Facebook on or after July 2004.
A protective order is warranted for the same reasons explained above with respect to
Interrogatory No. 6 to Zuckerberg.
Interrogatory No. 7 (materially identical to Interrogatory No. 13 to Zuckerberg):
Did Defendant Zuckerberg use any portion of the StreetFax software for any purpose related to
Facebook and if so:
(A) on what date did that use begin
(B) how was the StreetFax software or any portion of it used for any purpose related to
Facebook
(C) on what date did use of that StreetFax software terminate?
A protective order is warranted for the same reasons explained above with respect to
Interrogatory No. 13 to Zuckerberg.
Interrogatory No. 8 (materially identical to Interrogatory No. 14 to Zuckerberg):
Assuming the Facebook Contract between the parties is authentic, did Defendant Zuckerberg
inform Facebook upon its incorporation that he did not own 100% of the software, programming
language and business interests of the business?
A protective order is warranted for the same reasons explained above with respect to
Interrogatory No. 14 to Zuckerberg.
Interrogatory No. 9 (materially identical to Interrogatory No. 15 to Zuckerberg): If
your answer to the previous question is "no", what percentage ownership in the software,
programming language, and business interests did Defendant Zuckerberg tell Facebook he
owned upon its incorporation?

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A protective order is warranted for the same reasons explained above with respect to
Interrogatory No. 15 to Zuckerberg.
Interrogatory No. 10 (identical to Interrogatory No. 16 to Zuckerberg): List and
describe all documents, including the year executed and all parties signing those documents
reflecting the transfer into Facebook of any software, programming language and business
interests as defined in #1 above.
A protective order is warranted for the same reasons explained above with respect to
Interrogatory No. 16 to Zuckerberg.
Interrogatory No. 11 (materially identical to Interrogatory No. 17 to Zuckerberg):
Provide the date when Defendant Zuckerberg's ownership interest in Facebook fell below 50%.
A protective order is warranted for the same reasons explained above with respect to
Interrogatory No. 17 to Zuckerberg.
Interrogatory No. 12: Please identify the current owner(s) of the software, programing
language and business interests as defined by Zuckerberg relating to the Facebook Contract and
those owners' respective percentages of ownership of each of those three items.
A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order, and because it purports to be based on the
now-moot Category #2. A protective order is further warranted because the interrogatory is
overbroad, unduly vague, and not reasonably calculated to lead to the discovery of admissible
evidence: it arguably purports to ask Facebook to identify all of its current owners and their
respective percentages of ownership.

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Interrogatory No. 13: Was the business operated by Facebook just after incorporation
in July 2004 the same business being operated by Defendant Zuckerberg just before
incorporation?
A protective order is warranted because the interrogatory does not seek information
within Category #1 of the Court’s April 30 Order, and because it purports to be based on the
now-moot Category #2. A protective order is further warranted because the interrogatory is
unduly vague: it asks whether “the business operated by Facebook just after incorporation in
July 2004 [was] the same business being operated by Defendant Zuckerberg just before
incorporation,” but fails to specify what is meant by “the same business.”
Interrogatory No. 14 (materially identical to Interrogatory No. 18 to Zuckerberg):
Assuming the Facebook Contract between the parties is authentic, what percentage ownership in
the software, programming language and business interests of the business did Plaintiff own at
the time of the incorporation of Facebook?
A protective order is warranted for the same reasons explained above with respect to
Interrogatory No. 18 to Zuckerberg.
Interrogatory No. 15 (identical to Interrogatory No. 19 to Zuckerberg): Assuming
the Facebook Contract between the parties is authentic, was Plaintiff's interest in the software,
programming language and business interests of the business transferred into Facebook and if
so, what was the date of that transfer?
A protective order is warranted for the same reasons explained above with respect to
Interrogatory No. 19 to Zuckerberg.
Interrogatory No. 16 (identical to Interrogatory No. 20 to Zuckerberg): Assuming
the Facebook Contract between the parties is authentic and Plaintiff's interest in the software,

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programming language and business interests of the business was transferred into Facebook
when was the fact of that transfer first publicly disclosed?
A protective order is warranted for the same reasons explained above with respect to
Interrogatory No. 20 to Zuckerberg.
Interrogatory No. 18 (materially identical to Interrogatory No. 23 to Zuckerberg):
List all dates when you or Defendant Zuckerberg breached the Facebook Contract with Plaintiff
and
(a) the act(s) which you claim breached the agreement; and
(b) whether that act(s) was ever repeated at any later point in time; and
(c) when that act(s) was communicated to Plaintiff, if ever; and
(d) when that act(s) was publicly disclosed, if ever.
A protective order is warranted for the same reasons explained above with respect to
Interrogatory No. 23 to Zuckerberg.
CONCLUSION
The Court should issue a protective order as to all of Ceglia’s document requests; as to
Interrogatory Nos. 3-6, 10-21, and 23 to Zuckerberg; and as to Interrogatory Nos. 3-16 and 18 to
Facebook.

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Dated:

New York, New York
August 10, 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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