Ceglia v. Zuckerberg et al

Filing 519

DECLARATION signed by Alexander H. Southwell re 517 MOTION for Attorney Fees And For Recovery Of Expenses filed by Mark Elliot Zuckerberg, Facebook, Inc. filed by Mark Elliot Zuckerberg, Facebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S)(Snyder, Orin)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
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:
PAUL D. CEGLIA,
:
:
Plaintiff,
:
:
v.
:
:
MARK ELLIOT ZUCKERBERG and
:
FACEBOOK, INC.,
:
:
Defendants.
------------------------------------ x

Civil Action No. 1:10-cv-00569-RJA
DECLARATION OF
ALEXANDER H. SOUTHWELL

I, ALEXANDER H. SOUTHWELL, hereby declare under penalty of perjury that the
following is true and correct:
1.

I am an attorney licensed to practice law in the State of New York and admitted to

practice before this Court. I am a partner in the New York office of the law firm of Gibson,
Dunn & Crutcher LLP (“Gibson Dunn”), counsel of record for Mark Elliot Zuckerberg and
Facebook, Inc. (“Facebook”) in the above-captioned matter. I make this Declaration in Support
of Defendants’ Application for Recovery of Expenses (“the Application”) for payment of fees
and costs incurred as a result of Ceglia’s failure to provide adequate notice of cancellation of the
depositions of Defendants’ experts. I have personal knowledge of the information set forth
herein based upon my direct involvement in the matters at issue and upon my review of the
documents referenced below.
2.

Attached hereto as Exhibit A is a true and correct copy of an email dated June 19,

2012 from Dean Boland to me, Paul Argentieri, Neil Broom, Jim Blanco, Larry Stewart, and
Jerry Grant, with the subject “Broom deposition and other witnesses” in which Boland proposes
coordinating schedules in order to allow each parties’ experts to attend the deposition of the

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opposing parties’ experts in the same field. In addition, Boland represents that he would not
need more than two hours with each of Defendants’ forensic document examiners.
3.

Attached hereto as Exhibit B is a true and correct copy of an email dated June 19,

2012 from Dean Boland to me, Orin Snyder, Paul Argentieri, with the subject “Phone call” in
which Boland proposes a conference call with Defendants’ counsel to coordinate schedules for
conducting expert depositions.
4.

On June 21, 2012, Plaintiff noticed the depositions of ten Defendants’ experts—

Eric Friedberg, Bryan Rose, Michael McGowan, Jason Novak, Gerald LaPorte, Peter Tytell,
Albert Lyter, Gerald McMenamin, Gus Lesnevich, and Frank Romano—for the last week of July
and the first week of August.
5.

That same day and shortly after Ceglia noticed Defendants’ experts’ depositions, I

had a meet-and-confer telephone call with Ceglia’s counsel Dean Boland. On that call, Boland
and I discussed alternative deposition dates for both parties’ experts. Boland represented that he
would require a full seven hours each to depose Mr. LaPorte and Mr. Lesnevich, but that the
remainder of Defendants’ experts could be scheduled as half-day depositions with two
depositions per day. In addition, on this call, Boland and I agreed that the deposing party would
pay the deposed expert’s appearance fees for the deposition on the day of the deposition, and
would also, within a reasonable time, reimburse each expert for reasonable travel and lodging
expenses that were incurred. Boland and I also agreed that the parties would not pay the deposed
expert’s travel time.
6.

Attached hereto as Exhibit C is a true and correct copy of a letter dated June 22,

2012 from me to Dean Boland confirming the parties’ agreement from the June 21, 2012 meet-

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and-confer telephone call regarding payment of fees and expenses incurred by each expert in
attending his deposition.
7.

Defendants have paid all fees and expenses associated with the deposition of

Ceglia’s experts. However, the fees and expenses associated with the deposition of Dr. Lyter
have still not been paid.
8.

Attached hereto as Exhibit D is a true and correct copy of a letter from me to

Dean Boland dated June 25, 2012 proposing a schedule for ten Defendants’ experts.
9.

Attached hereto as Exhibit E is a true and correct copy of an email dated July 15,

2012 from Dean Boland to Paul Argentieri and me with the subject “Depositions of the Stroz
Witnesses” in which Boland confirms that he intends to depose Mr. Novak on July 18 and Mr.
Friedberg on July 19.
10.

Attached hereto as Exhibit F is a true and correct copy of an email exchange dated

July 16, 2012 between Dean Boland, Paul Argentieri, and me with the subject “Stroz
depositions” in which Boland confirms what he orally told me during a break in the deposition of
Walter Rantanen: that he no longer intended to depose Mr. Friedberg and Mr. Novak. This
cancellation of Mr. Friedberg’s and Mr. Novak’s depositions was provided less than 48 hours
before the first deposition of a Stroz Friedberg expert was scheduled to begin.
11.

Attached hereto as Exhibit G is a true and correct copy of an email exchange

dated July 12, 2012 between Dean Boland, Matthew Benjamin, Amanda Aycock, Paul
Argentieri, and me with the subject “Rantanen Deposition on for Monday” in which Boland
confirms that he intends to depose Mr. Tytell and Dr. Lyter on July 25.
12.

On July 16, 2012, during a break in the deposition of Walter Rantanen, Boland

notified me of conflicts that required him to reschedule the depositions of Mr. Tytell, Dr. Lyter,

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and Mr. Lesnevich. Boland and I then agreed that Boland would depose Mr. Tytell and Dr.
Lyter on August 2 and Mr. Lesnevich on August 8.
13.

On July 19, 2012, during a break in the deposition of Mr. McGowan, Boland

confirmed that he intended to depose Mr. Tytell and Dr. Lyter on August 2 and Mr. Lesnevich on
August 8, 2012. In addition, Boland confirmed that he intended to depose Professor
McMenamin on August 3.
14.

Attached hereto as Exhibit H is a true and correct copy of an email dated August

1, 2012 from Dean Boland to Paul Argentieri and me with the subject “Deposition Cancellation”
in which Boland, citing a lack of availability of flights from Philadelphia to New York before
3:20 p.m. on August 2, cancels the depositions of Mr. Tytell and Dr. Lyter. In addition to
cancelling Mr. Tytell’s and Dr. Lyter’s depositions, Boland confirms that he will depose
Professor McMenamin on August 3. This email cancelling Mr. Tytell’s and Dr. Lyter’s
depositions was sent around 11:58 pm. on the night before the depositions were scheduled to
begin.
15.

Under my direction, on August 2, 2012, my colleague Amanda Aycock

determined that there were multiple available flights leaving Philadelphia on the morning of
August 2 and arriving in New York before 9:00 a.m. In addition, Ms. Aycock also determined
that there were multiple available trains leaving Philadelphia on the morning of August 2 and
arriving in New York before 9:00 a.m.
16.

Attached hereto as Exhibit I is a true and correct copy of an email exchange dated

August 2, 2012 between Dean Boland, Matthew Benjamin, Orin Snyder, Paul Argentieri, and me
with the subject “RE: Deposition Scheduling” in which Boland first reconfirms that he intends to
take the deposition of Professor McMenamin on August 3. Later in the exchange, Boland

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cancels the deposition of Professor McMenamin and reschedules the deposition of Mr. Tytell for
August 3 and Dr. Lyter for August 10. This email cancelling Professor McMenamin’s
deposition was sent around 8:30 p.m. on the night before the deposition was scheduled to begin.
17.

Attached hereto as Exhibit J is a true and correct copy of an email dated August 6,

2012 from Dean Boland to Paul Argentieri and me with the subject “Cancellation of Lesnevich
Deposition” in which Boland states that he no longer wishes to depose Mr. Lesnevich. This
email cancelling Mr. Lesnevich’s deposition was sent less than 48 hours before the deposition
was scheduled to begin.
18.

Attached hereto as Exhibit K is a true and correct copy of an email dated June 27,

2012 from Dean Boland to Paul Argentieri and me with the subject “Deposition dates” in which
Boland confirms that he will take the deposition of Professor Romano on August 14.
19.

Attached hereto as Exhibit L is a true and correct copy of an email dated August

13, 2012 from Dean Boland to Paul Argentieri and me with the subject “Cancellation of
Deposition” in which Boland states that he will not depose Professor Romano. I received the
email while Ceglia’s expert John Paul Osborn was being deposed and promptly informed
Ceglia’s counsel Paul Argentieri, who was in attendance, that Defendants would be seeking
reimbursement for costs and fees associated with the untimely cancellation of Professor
Romano’s deposition and the depositions of others of Defendants’ experts. This email cancelling
Professor Romano’s deposition was sent around 2:30 p.m. on the afternoon before the deposition
was scheduled to begin.
20.

Attached hereto as Exhibit M is a true and correct copy of a letter dated August

22, 2012 from me to Dean Boland requesting that Ceglia reimburse Defendants for costs and fees
incurred as a result of preparing for depositions which Ceglia untimely cancelled.

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21.

Attached hereto as Exhibit N is a true and correct copy of an email dated August

3, 2012 from Amanda Aycock to Dean Boland, copying Matthew Benjamin and me in which
Defendants’ request reimbursement for the untimely cancellation of Mr. Tytell’s deposition.
22.

Attached hereto as Exhibit O is a true and correct copy of an email exchange

dated August 6, 2012 between Dean Boland, Paul Argentieri, and me in which I confirm receipt
of Boland’s email cancelling Mr. Lesnevich’s deposition and notify Ceglia’s counsel of
Defendants’ intention to seek reimbursement for costs and fees incurred as a result of the
untimely cancellation of the deposition.
23.

Attached hereto as Exhibit P is a true and correct copy of an email dated August

23, 2012 from Dean Boland to Paul Argentieri and me with the subject “Expert Deposition
costs/expenses” in which Boland demands invoice-level detail for the reimbursements sought by
Defendants.
24.

Attached hereto as Exhibit Q is a true and correct copy of an email dated August

31, 2012 from me to Dean Boland, copying Paul Argentieri, Matthew Benjamin, and Amanda
Aycock in which I provide a summary of costs and fees incurred as a result of Ceglia’s untimely
cancellation of Defendants’ experts’ depositions, itemization for the attorneys’ and witness fees
resulting from preparation time expended in anticipation of the depositions Ceglia untimely
cancelled, and invoices for the experts from whom Defendants have received final invoices.
25.

Attached hereto as Exhibit R is a true and correct copy of an email dated

September 6, 2012 from Dean Boland to Paul Argentieri and me in which Boland claims a
willingness to discuss Defendants’ request for reimbursement, but requires that Defendants make
certain concessions about the parties’ agreement concerning expert costs.

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26.

Below is a chart summarizing the costs incurred as a result of the untimely

cancellation of depositions. These costs have been split into four categories: travel and lodging,
expert appearance fees, costs incurred as a result of the time expended by each expert in
preparation for his cancelled deposition, and costs incurred as a result of the time expended by
Defendants’ counsel in preparing each expert for his cancelled deposition. Travel and lodging
expenses were calculated based on invoices submitted by each expert. The expert appearance
fees represent the fees each party agreed to pay the experts the party planned on deposing. The
costs incurred as a result of the time expended by each expert were calculated based on each
expert’s hourly rate and the expert’s invoiced time entries.

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

27.

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

Attached hereto as Exhibit S is a true and correct copy of the narrative

descriptions of legal services rendered by Gibson Dunn attorneys, reflecting time expended by
them in connection with preparing Defendants’ experts in anticipation for their depositions,
which were untimely cancelled by Ceglia. On some days, attorneys rendered services that were
related to both the preparation work as well as other work relating to the matter. To the extent
that a particular time entry pertained to both the preparation work and other work, the attached
compilation reflects only time entries pertaining to the time expended in preparing Defendants’
experts. These entries reflect conservative allocations of time, ensuring that the total time
claimed for the time expended in preparing Defendants’ experts is less than the actual time

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