Ceglia v. Zuckerberg et al

Filing 518

MEMORANDUM in Support re 517 MOTION for Attorney Fees And For Recovery Of Expenses filed by Facebook, 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’ APPLICATION FOR RECOVERY OF EXPENSES

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]
September 6, 2012

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

APPLICATION
During the court-authorized period to conduct expert depositions, Plaintiff Paul Ceglia
and his attorneys Dean Boland and Paul Argentieri noticed ten depositions of Defendants’
experts. By the time expert discovery had ended, Ceglia’s lawyers had cancelled seven of them
— three with less than 48 hours’ notice and four with less than 24 hours’ notice.
Ceglia’s untimely deposition cancellations caused Defendants to incur significant
expenses in expert travel and lodging costs, expert appearance fees, expert preparation time, and
attorney time spent preparing each expert for deposition. These expenses could and should have
been avoided had Ceglia simply provided adequate notice, as required by the Federal Rules of
Civil Procedure, of his decision not to go through with the depositions he had noticed. This
Court should order Ceglia to reimburse Defendants for the reasonable fees and costs incurred as
a result of his repeated failure to provide adequate notice of cancellation, as well as for the fees
for time spent preparing this Application. See, e.g., Carlson v. Geneva City School Dist., No. 08CT-6202-CJS, 2011 WL 3957524, at *1, 4 (W.D.N.Y. Sept. 7, 2011) (affirming and adopting
Judge Payson’s imposition of costs and fees on party for cancelling deposition four days prior).
STATEMENT OF FACTS
On June 19, 2012, Ceglia’s counsel Dean Boland informed Defendants that he intended
to depose ten Defendants’ experts. Boland proposed coordinating the schedule so that the
parties’ experts in similar fields could attend each other’s depositions. See Southwell Decl., Ex.
A.
That same day, and in response to Defendants’ request to know specific dates and times
at which Ceglia wished to depose Defendants’ experts, Boland requested a call with Defendants’
counsel to “arrange depositions in the morning and afternoon on single days.” Southwell Decl.,
Ex. B. On June 21, prior to that call to coordinate each expert’s deposition, Ceglia noticed the
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depositions of ten Defendants’ experts—Eric Friedberg, Bryan Rose, Michael McGowan, Jason
Novak, Gerald LaPorte, Peter Tytell, Dr. Albert Lyter, Gerald McMenamin, Gus Lesnevich, and
Frank Romano—for the last week of July and the first week of August. See Southwell Decl.,
¶¶ 4-5.
During the June 21 meet-and-confer call, Defendants’ counsel and Boland discussed
alternative deposition dates for both parties’ experts. See Southwell Decl., ¶ 5. Additionally, the
parties agreed that the deposing party would pay the deposed expert’s fees for the deposition and
reimburse, within a reasonable time, reasonable travel and lodging expenses actually incurred.
See id. Defendants’ counsel confirmed this understanding in a letter sent to Boland the next day,
on June 22. See Southwell Decl., Ex. C.1 Four days later, on June 25, Defendants’ counsel
proposed a schedule for ten Defendants’ experts, based on their individual schedules and “taking
into account [Boland’s] concern with travel.” Southwell Decl., Ex. D. As further discussed
below, Boland ultimately confirmed all of the proposed dates, but then proceeded to cancel seven
of these depositions with less than 48 hours’ notice. He rescheduled only two of the cancelled
depositions. A summary of the scheduling and subsequent cancelling of each affected
Defendants’ expert follows.
Jason Novak and Eric Friedberg. On June 25, the parties set the deposition of the
members of the Stroz Friedberg LLC team, including Mr. Novak and Mr. Friedberg, for July 18
and 19. See Southwell Decl., Ex. D. On July 15, Boland confirmed those dates. See Southwell
Decl., Ex. E. On July 16, Boland without warning cancelled Mr. Novak’s and Mr. Friedberg’s
depositions—less than 48 hours before the first Stroz Friedberg deposition was scheduled to
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Defendants have paid all such fees associated with the depositions of Plaintiff’s experts. See Southwell
Decl., ¶ 7.

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begin. See Southwell Decl., Ex. F. Defendants’ counsel prepared with Mr. Novak on July 6, 13,
and 16, incurring $12,695.00 in witness and attorney fees. Mr. Novak’s appearance fee is
$1,662.50. Because Mr. Novak is based in Chicago, Illinois, he incurred $649.51 in travel and
lodging expenses. See Southwell Decl., ¶ 26, Ex. S. Ceglia did not seek to reschedule Mr.
Novak’s deposition.
Defendants’ counsel prepared with Mr. Friedberg on July 6, 12, and 13, incurring
$12,593.75 in witness and attorney fees. Mr. Friedberg’s appearance fee is $3,412.50. Because
Mr. Friedberg lives in New York City, he did not incur travel expenses associated with his
cancelled deposition. See Southwell Decl., ¶ 26, Ex. S. Ceglia did not seek to reschedule Mr.
Friedberg’s deposition.
Peter Tytell. On July 12, Boland confirmed the date Defendants had proposed for the
deposition of their document examination expert Mr. Tytell: July 25. See Southwell Decl., Ex.
G. On July 16, Boland notified Defendants’ counsel of purported conflicts that required him to
reschedule the deposition of Mr. Tytell. See Southwell Decl., ¶ 12. The parties then set a new
date for the deposition of Mr. Tytell: August 2. On July 19, Boland confirmed that date. See
Southwell Decl., ¶ 13. On August 1 at 11:58 p.m., Boland cancelled Mr. Tytell’s deposition—
less than 12 hours before it was scheduled to begin (at 10:00 a.m. on August 2). See Southwell
Decl., Ex. H.2 The next day, Mr. Tytell’s deposition was rescheduled for August 3. See
Southwell Decl., Ex. I. Because Mr. Tytell’s deposition was so quickly rescheduled and because
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In his untimely cancellation notice sent around midnight the night before the deposition, Boland attributed
the postponement to weather-related cancellation of his flights, and stated that there were “[n]o flights from
[Philadelphia] to [New York] available until 3.20 pm tomorrow on any airline. Tomorrow’s depositions cannot go
forward.” Id. However, there were, in fact, multiple flights and trains with availability leaving early in the morning
out of Philadelphia, arriving in New York well before the scheduled 10:00 a.m. start time. See Southwell Decl.,
¶ 15. Moreover, Defendants notified Boland that Defendants would be amenable to a late start to accommodate
Boland’s travel difficulties. These overtures were refused and the depositions were postponed.

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Mr. Tytell lives in New York City, Defendants only seek Mr. Tytell’s cancellation fee of
$1,700.00 in connection with the cancellation of his deposition. See Southwell Decl., ¶ 26.
Boland has already paid Mr. Tytell’s appearance fee.
Dr. Albert Lyter. On July 12, Boland confirmed the date Defendants had proposed for
their document examination expert and ink chemist Dr. Lyter: July 25. See Southwell Decl., Ex.
G. On July 16, Boland notified Defendants’ counsel of purported conflicts that required him to
reschedule the deposition of Dr. Lyter. See Southwell Decl., ¶ 12. The parties then set a new
date for the deposition of Dr. Lyter: August 2. See id. On July 19, Boland confirmed that date.
See Southwell Decl., ¶ 13. On August 1 at 11:58 p.m., Boland cancelled Dr. Lyter’s
deposition—less than 24 hours before it was scheduled to begin (at 2:00 p.m. on August 2). See
Southwell Decl., Ex. H.3 The next day, Boland rescheduled Dr. Lyter’s deposition for August
10. See Southwell Decl., Ex. I. Because of this postponement of over a week, Dr. Lyter and
Defendants’ counsel spent significant additional time on August 9 refreshing, reviewing, and
conferring in preparation for Dr. Lyter’s deposition. See Southwell Decl. Ex. S. Defendants
therefore incurred an additional $7,700.00 in witness and attorney fees in connection with
preparing for Dr. Lyter’s rescheduled deposition. See id., ¶ 26. Despite the parties’ agreement to
cover appearance fees and traveling expenses for each deposed witness, Boland has still not paid
those costs associated with Dr. Lyter’s deposition. See Southwell Decl., ¶ 7. Because Dr. Lyter
had to travel from his home in Raleigh, North Carolina to New York City for his deposition, he
incurred $1,286.00 in travel and lodging expenses for the deposition that was cancelled. Dr.
Lyter’s appearance fee is $1,500.00. See Southwell Decl., ¶ 26.

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See n.2, supra.

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Gerald McMenamin. On June 25, the parties set the deposition of Professor
McMenamin, Defendants’ expert in forensic linguistics, for August 3. See Southwell Decl., Ex.
D. On July 19, Boland confirmed that date. See Southwell Decl., ¶ 13. Boland then
reconfirmed Professor McMenamin’s deposition for August 3 on August 1 and again on August
2. See Southwell Decl., Exs. H, I. But, at 8:27 p.m. later that same day, Boland informed
Defendants’ counsel that he was cancelling Professor McMenamin’s deposition—about 13.5
hours before it was scheduled to begin. See Southwell Decl., Ex. I. Defendants’ counsel
prepared with Professor McMenamin on July 30, 31, and August 2, incurring $19,273.00 in
witness and attorney fees. Professor McMenamin’s appearance fee is $5,000.00. Because
Professor McMenamin is based in Clovis, California, he incurred $3,665.00 in travel and lodging
expenses. See Southwell Decl., ¶ 26, Ex. S. Ceglia did not seek to reschedule Professor
McMenamin’s deposition.
Gus Lesnevich. On June 25, the parties set the deposition of Mr. Lesnevich, Defendants’
document examiner and handwriting specialist, for August 2. See Southwell Decl., Ex. D. On
July 16, Boland notified Defendants’ counsel of purported conflicts that required him to
reschedule the deposition of Mr. Lesnevich. See Southwell Decl., ¶ 12. The parties then set a
new date for the deposition of Mr. Lesnevich: August 8. See id. On July 19, Boland confirmed
that date. See Southwell Decl., ¶ 13. But, at 2:43 p.m. on August 6, Boland informed
Defendant’s counsel that he was cancelling Mr. Lesnevich’s deposition—less than 48 hours
before it was scheduled to begin. See Southwell Decl., Ex. J. Defendants’ counsel prepared with
Mr. Lesnevich on August 6, prior to Boland’s cancellation, incurring $6,560.00 in witness and
attorney fees. Mr. Lesnevich’s appearance fee is $6,400.00. Because Mr. Lesnevich is based in
Martinsburg, Pennsylvania, he incurred $2,228.97 in travel and lodging expenses. See Southwell
Decl., ¶ 26, Ex. S. Ceglia did not seek to reschedule Mr. Lesnevich’s deposition.
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Frank Romano. On June 27, Boland confirmed that Ceglia would depose Defendants’
typography and print expert, Professor Romano, on August 14. See Southwell Decl., Ex. K. At
2:29 p.m. on August 13, Boland informed Defendants’ counsel that he was cancelling Professor
Romano’s deposition—less than 20 hours before it was scheduled to begin. See Southwell Decl.,
Ex. L. Defendants’ counsel prepared with Professor Romano on August 10 and 13, incurring
$9,840.00 in witness and attorney fees. Professor Romano’s appearance fee is $875.00. Because
Professor Romano lives in Boston, Massachusetts, he incurred $1,599.52 in travel and lodging
expenses. See Southwell Decl., ¶ 26, Ex. S. Ceglia did not seek to reschedule Professor
Romano’s deposition.
Following these untimely cancellations, Defendants’ counsel notified Boland and
Argentieri several times that Defendants intended to seek the reasonable fees and costs incurred
as a result of Ceglia’s untimely cancellations of these depositions. See, e.g., Southwell Decl.,
¶ 19, Exs. M, N, O.
On August 22, in an effort to meet and confer regarding Defendants’ request seeking
reimbursement for costs and fees resulting from Ceglia’s late deposition cancellations,
Defendants’ counsel sent Boland a letter detailing the fees and costs Defendants sought. See
Southwell Decl., Ex. M. Boland responded by demanding invoices for each expense incurred.
See Southwell Decl., Ex. P. On August 31, Defendants’ counsel provided particularized
information regarding the expenses incurred as a result of Ceglia’s belated cancellations,
requesting payment by September 4. See Southwell Decl., Ex. Q. Boland did not respond by
September 4, but did send a brief email on September 6, claiming a contingent willingness to
discuss Defendants’ request for reimbursement, only if Defendants made certain concessions
about the parties’ agreement concerning expert costs. See Southwell Decl., Ex. R.

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For the convenience of the Court, below is a chart summarizing the costs incurred as a
result of the untimely cancellations of depositions:

Friedberg, E.
Lesnevich, G.
Lyter, A.
McMenamin, G.
Novak, J.
Romano, F.
Tytell, P.
TOTALS

Travel and
Lodging
n/a
$2,228.97
$1,286.00
$3,665.00
$649.51
$1,599.52
n/a
$9,429.00

Appearance
Witness
Attorney
Fee
Prep Time
Prep Time
$3,412.50
$6,093.75
$6,500.00
$6,400.00
$4,000.00
$2,560.00
$1,500.00
$4,200.00
$3,500.00
$5,000.00
$8,188.00
$11,085.00
$1,662.50
$6,925.00
$5,770.00
$875.00
$2,500.00
$7,340.00
$1,700.00 n/a
n/a
$20,550.00
$31,906.75
$36,755.00

TOTALS
$16,006.25
$15,188.97
$10,486.00
$27,938.00
$15,007.01
$12,314.52
$1,700.00
$98,640.75

See Southwell Decl., ¶ 26.

ARGUMENT
Defendants’ request for reimbursement of expenses incurred as a result of Ceglia’s
untimely and unjustifiable cancellation of seven of the ten depositions he noticed is reasonable
and well-supported. Federal courts in the Second Circuit routinely award reasonable expenses
pursuant to Federal Rule of Civil Procedure 30(g) where the cancelling party fails to provide
timely notice of cancellation to the opposing party. The Rule is grounded in the understanding
that untimely cancelation of a noticed deposition needlessly multiples the costs of preparation on
the opposing party. See, e.g., Edmonds v. Seavey, No. 08 Civ. 5646(HB)(JCF), 2009 U.S. Dist.
LEXIS 42714, at *10 (May 5, 2009), aff’d, 379 Fed. Appx. 62 (2d Cir. 2010) (awarding both
costs and attorney’s fees where opposing counsel canceled a deposition the night before, noting
“[a] party that cancels on the eve of a deposition multiplies the costs of preparation even if the
adversary does not incur the expenses of travel.”). Indeed, cancellations with less than 48 hours’
notice have repeatedly been found by courts in the Second Circuit to be untimely, justifying an
award of costs for the time and expense that should have been avoided with adequate notice.

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See, e.g., Carlson v. Geneva City School Dist., No. 08-CT-6202-CJS, 2011 WL 3957524, at *1, 4
(W.D.N.Y. Sept. 7, 2011) (affirming and adopting Judge Payson’s imposition of costs and fees
on party for cancelling deposition four days prior); Star Direct Telecom v. Global Crossing
Bandwidth, No. 05-CV-6734T, 2010 WL 3420730 (W.D.N.Y. Aug. 23, 2010) (affirming and
adopting Judge Payson’s order that reasonable costs and expenditures be reimbursed to opposing
party where deposition was cancelled two days prior); Root Bros. Farms v. Mak, No. 05 Civ.
10863(LBS)(HBP), 2007 WL 2789481, at *8 (S.D.N.Y. Sept. 25, 2007) (awarding expenses and
attorney’s fees under Rule 30(g) against party who cancelled deposition two days prior).
Ceglia’s noticing and reconfirming multiple expert depositions required the expenditure of
substantial preparation time for both experts and counsel, as well as travel costs for the experts.
Ceglia’s cancellations of seven expert depositions—all with less than 48 hours’ notice and
several with less than 24 hours’—were clearly untimely and warrant an award of the expenses
incurred including attorney’s fees.
Moreover, recoverable “reasonable expenses” include a broad array of fees and costs,
covering out-of-pocket travel and preparation costs incurred by witnesses and attorneys as well
as various attorney’s fees. First, courts routinely reimburse aggrieved parties for the out-ofpocket costs incurred in connection with traveling to, and appearing for, the canceled deposition.
See, e.g., Miller v. Dyadic Int’l, Inc., No. 07-80948-CIV, 2008 WL 2116590, at *3 (S.D. Fla.
May 20, 2008) (awarding reimbursement for hotel costs, airfare, and meal expenses incurred by
attorney traveling to Florida for untimely-canceled deposition); Root Bros., 2007 WL 2789481,
at *8 (awarding out-of-pocket travel expenses of witness and attorneys for travel to and from
canceled deposition); Avirgan v. Hull, 705 F. Supp. 1544, 1548 n.2 (S.D. Fla. 1989) (awarding
reimbursement under Rule 30(g) of various travel-related expenses including hotel costs, taxes,
airfare, taxi fees and meals).
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In addition, attorney’s fees incurred as part of preparing and appearing for the deposition
are readily recoverable, as are attorney’s fees incurred preparing the Rule 30(g) motion itself.
See, e.g., Carlson, 2011 WL 3957524, at *4 (affirming and adopting Judge Payson’s award of
attorney’s fees incurred in connection with the canceled deposition and for time spent drafting
the sanctions motion); Miller v. Dyadic Int’l, Inc., 2008 WL 2116590, at *2 (awarding
reimbursement of attorney time spent preparing for deposition, traveling to and from deposition,
and preparing the Rule 30(g) motion); Root Bros., 2007 WL 2789481, at *8 (awarding attorney’s
fees for time spent appearing for the deposition and for preparing the sanctions motion); Avirgan
v. Hull, 705 F. Supp. at 1548 n.2 (awarding attorney’s fees for deposition preparation, travel
time, preparation of sanctions motion and a “wasted day.”)
Finally, in situations involving expert witnesses, the courts may award fees incurred by
the party in preparing for the canceled deposition, such as expert fees. See, e.g., Barrett v. Brian
Bemis Auto World, 230 F.R.D. 535, 537 (N.D. Ill. 2005) (awarding plaintiff, inter alia,
reimbursement of expert fees incurred in association with an untimely-canceled deposition). As
detailed in the attached Declaration of Alexander H. Southwell and supporting exhibits, the
reasonable expenses entailed by Ceglia’s untimely cancellations include: (1) expert appearance
fees for seven experts in the amount of $20,550.00; (2) expert travel and lodging costs in the
amount of $9.429.00; (3) time spent by seven experts to prepare for their depositions in the
amount of $31,906.75; and (4) time spent by Defendants’ attorneys to prepare for the depositions
in the amount of $36,755.00. See Southwell Decl., ¶ 26, Ex. S. Defendants have sought
reimbursement only for expenses reasonably incurred. And Defendants only claim
reimbursement for the time expended by one associate attorney, with a partner’s oversight, for
each expert’s preparation. The category of expert appearance fees includes only those fees for
the actual day of the noticed deposition, as charged by the experts. And the category of expert
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lodging and travel costs includes the fees incurred as a result of travelling to the location of the
deposition, which were incurred and which both parties’ counsel agreed would be borne by the
other party.
CONCLUSION
For the foregoing reasons, Defendants respectfully ask this Court to order Ceglia to
reimburse Defendants for the reasonable expenses incurred as a result of Ceglia’s untimely
cancellation of seven of the ten depositions he noticed. Those expenses, for which Defendants
have submitted supporting invoices and documentation, total $98,640.75, and should be
reimbursed within 14 days of this Court’s order.
Defendants also request reimbursement for the reasonable time spent preparing this
Motion, which could not yet be detailed, including fees incurred in connection with any reply
memorandum, oral argument, or enforcement of a cost award. Information concerning those
additional fees will be fully submitted once briefing and argument (at this Court’s discretion)
occur.

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Dated:

New York, New York
September 6, 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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