Ceglia v. Zuckerberg et al

Filing 515

REPLY/RESPONSE to re 503 Memorandum/Brief filed by Paul D. Ceglia. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Certificate of Service)(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 ATTORNEYS
FEES DEMAND BY
DEFENDANTS RELATED TO
SEVENTH MOTION TO COMPEL

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

MEMORANDUM
Rule 37(a)(5)(A) governs the payment of costs and attorneys fees related to
motions to compel and accompanying orders.
“But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the
disclosure or discovery without court action;
(ii) the opposing party’s nondisclosure, response, or objection was substantially
justified; or
(iii) other circumstances make an award of expenses unjust.” Id.
Federal Civil Rule 37(B)(2)(c) reads as follows:
(C) Payment of Expenses. Instead of or in addition to the orders
above, the court must order the disobedient party, the attorney
advising that party, or both to pay the reasonable expenses,
including attorney’s fees, caused by the failure, unless the failure
was substantially justified or other circumstances make an award of
expenses unjust. Emphasis added.
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DEFENDANTS’ FAILURE TO ENGAGE IN GOOD FAITH ATTEMPT TO
RESOLVE THE MATTER WITHOUT OFFICIAL COURT ACTION
Following receipt and review of this court’s order on Defendant’s Sixth
Motion to Compel, Plaintiff’s counsel immediately sought to comply with that order.
Declaration of Dean Boland at ¶2.

To that end, Plaintiff’s counsel reviewed the

court’s order, Doc. No. 457, to determine the precise document, which the court
identified as the “Kasowitz Letter” that Plaintiff was being ordered to produce. Id.
As is clear from the record, there is more than one letter on Kasowitz letterhead
involved in this case as well as multiple emails sent to and received by lawyers form
the Kasowitz firm. Id. at ¶3. This court has not ordered that all Kasowitz emails or
letters be produced to Defendants.

Therefore, the description of the “Kasowitz

Letter” in the court’s order was critical to determining which letter was to be
produced to avoid inadvertently disclosing privileged material.
The Sixth Motion to Compel described the Kasowitz Letter as follows:
Defendants seek a court order compelling Plaintiff to produce a [1]
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”). [2] The Kasowitz Letter was an attachment to an
email, identified in Plaintiff’s privilege log as Item 379 (“Item 379"),
which the undersigned reviewed in camera and, upon determining
that any attorney-client privilege or work product doctrine
protection that may have attached to Item 379 had been waived by
Plaintiff’s disclosure of Item 379 to a third party, Holmberg....” Doc.
No. 457 at 8.
Plaintiff reviewed this description and directed Stroz Friedberg, consistent
with this court’s order in Doc. No. 85, to produce to Defendants all attachments to
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Item 379 to insure that the Kasowitz Letter, described above as “an attachment to
an email, identified in Plaintiff’s privilege log as Item 379…”1 would be produced.
That direction was communicated to Defendants’ counsel.

Exhibit A.

Defense

counsel responded that Plaintiff was not in compliance with the court’s order and
then selectively quoted only part of the above description, i.e. number 1 above.
Following receipt of Defendants’ counsel’s snarling email, Plaintiff approached the
court to efficiently and cost-effectively resolve the matter. Exhibit B. Defendants’
counsel immediately rejected that efficient and cost-effective resolution, one that
both parties had relied on successfully with this court in prior disagreements.
Exhibit C. Before the court had the opportunity to schedule that phone conference,
Defendants’ quickly filed their Seventh Motion to Compel intentionally designed to
divert the court from a phone conference. That email resulted in the court declining
to have a phone conference on the matter at all. Exhibit D.
Plaintiff’s attempt at a brief phone conference would have resulted in
Plaintiff describing an April 13, 2011 email and attached letter to the court to
insure the court intended Plaintiff to submit that specific letter to Defendants
despite:
1. The email to which the April 13, 2011 letter was attached was not disclosed to

As a point of clarification, per this court’s order in Doc. No. 85, Defendants’s experts were ordered
to search Plaintiff’s electronic evidence, produce a log of presumed relevant materials and provide
that log to Plaintiff. Plaintiff then had five days to designate any items on that log provided by
Defendants’ experts as privileged and communicate those designations to Defendants’ experts and
Defendants’ counsel. See Doc. No. 85. Therefore, the numbering of this item as “Item 379” was
applied by Defendants’ experts, not Plaintiff. And, there was no “Plaintiff’s privilege log”
independent of a relevant materials log produced by Defendants’ experts per Doc. No. 85.
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Jason Holmberg or any third party; and
2. The April 13, 2011 letter itself was not disclosed to Jason Holmberg or any third
party; and
3. The April 13, 2011 letter was not an attachment to Item 379; and
4. The April 13, 2011 letter never appeared on a relevant materials log from Stroz
Friedberg enabling Plaintiff to designate it as privileged.
Had the court, during that phone conference, clarified its order and indicated
the April 13, 2011 letter attached to an email that was not disclosed to Jason
Holmberg and an email itself that never appeared on a relevant materials log from
Stroz Friedberg produced pursuant to this court’s order, Doc. No. 85, still must be
produced, it would have been emailed to Defendants immediately following that
phone conference.
Defendants rejection of a phone conference which would have easily resolved
the entire matter which was the subject of their Seventh Motion to Compel is not
operating in good faith. Federal Civil Rule 37(a)(5)(A)(i). That failure to operate in
good faith negates Defendants’ demand for costs and attorneys fees in connection
with the Seventh Motion to Compel.
Plaintiff’s attempted resolution via a brief phone conference and a motion to
compel would have resolved the matter.

Plaintiff sought the favored method of

informal resolution while Defendants sought to generate needless attorneys fees
and motion practice.
PLAINTIFF’S COUNSEL SEEKS TO PROTECT AGAINST INADVERTENT
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PRIVILEGE WAIVER
Compounding the problem for Plaintiff’s desire to protect any privilege that
had not been deemed waived, the court’s scheduling order following the Seventh
Motion to Compel directed Plaintiff to attach the “Kasowitz Letter” to his response.
Plaintiff’s counsel and Plaintiff were still reasonably uncertain as to what letter the
court was ordering be attached to his response. Id. at ¶8. Obviously, attaching the
wrong document, albeit a privileged correspondence between lawyers, would result
in Plaintiff’s privilege being waived on another front.
Plaintiff’s counsel then made the reasonable decision to submit to the court
an April 13, 2011 letter from the Kasowitz law firm to insure the court’s order was
describing that letter and was ordering disclosure of that letter. From the court’s
perspective, attaching the Kasowitz Letter seemed not to risk inadvertent privilege
waiver because it had already been ordered produced anyhow.

The court then

referred to the attachment of that letter as “beyond disrespect.”

However, from

Plaintiff’s perspective, as outlined above, precisely what was being ordered to be
produced was uncertain leaving the attachment of just any document to his
response perilous. The wisest course of action for Plaintiff at that juncture was to
somehow obtain confirmation of just what the court intended by its description of
the Kasowitz Letter in its order and whether that description fit with an April 13,
2011 letter Plaintiff was aware of.

This, of course, was the point of the phone

conference aborted by Defendants as a strategic maneuver.
PLAINTIFF’S RESPONSE WAS SUBSTANTIALLY JUSTIFIED
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The disclosure to the court of what Plaintiff had, an April 13, 2011 letter from
the Kasowitz law firm, was identical in substance to what would have occurred at
the requested phone conference.

At that phone conference, Plaintiff would have

described the April 13, 2011 letter and confirmed whether this letter was the one
the court meant in its Sixth Motion to Compel order. Merely attaching the April 13,
2011 letter, or any letter for that matter, when counsel and Plaintiff were unsure
whether it was the letter the court’s order required attached to Plaintiff’s response,
could have resulted in inadvertent privilege waiver as noted above. Had Plaintiff
blindly followed that course and waived some previously protected privileged
document, the court could likely have admonished Plaintiff to have approached the
court before submitting the letter to Defendants if Plaintiff was unsure of how to
comply with the court’s order. This is precisely what Plaintiff did.
The court requested an affidavit regarding the proper allocation of the
attorneys fees, if any are ordered, pursuant to the court’s Seventh Motion to Compel
Order.

A declaration from Plaintiff’s counsel is included with this response by

Plaintiff.
If the court finds that Defendants did operate in good faith and Plaintiff’s
failure to comply with the court’s order was not justified, any award of attorney fees
should be stayed until the pending objection to this court’s order on Defendants‘
Seventh Motion to Compel has been decided.

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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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