Ceglia v. Zuckerberg et al

Filing 522

MEMORANDUM in Support re 521 Ninth MOTION to Compel And For Other Relief 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’ MEMORANDUM OF LAW IN SUPPORT OF THEIR
NINTH MOTION TO COMPEL AND FOR OTHER RELIEF

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]

MEMORANDUM OF LAW
More than fourteen months ago, this Court first ordered Plaintiff Paul Ceglia to produce
to Defendants “all copies of the purported contract in hard-copy form, created on or before June
30, 2010.” Doc. No. 83 at 1. He still has not done so. Indeed, Ceglia’s latest violation of this
Court’s orders is incontrovertible: in an August 21, 2012 declaration submitted to this Court, his
own lawyer Paul Argentieri swore, under penalty of perjury, to the existence of several hardcopies of the Work for Hire document that were created on or before June 30, 2010. Doc. No.
484. Those documents were never produced for Defendants’ inspection.
Defendants respectfully request that this Court grant their Ninth Motion to Compel, and
order Ceglia to produce the hard-copy documents described in the August 21 Argentieri
declaration and to provide a sworn declaration attesting to their production or the circumstances
of their destruction.
ARGUMENT
This is the ninth Motion to Compel necessitated by Ceglia’s refusal to comply with this
Court’s discovery orders. See Doc. Nos. 95, 129, 155, 245, 295, 382, 461, 512. This Court
granted seven of Defendants’ previous Motions to Compel, see Doc. Nos. 107, 117, 152, 208,
272, 317, 357, 457, 478, and has not yet ruled on Defendants’ Eighth Motion to Compel.
On July 1, 2011, this Court granted Defendants’ Motion for Expedited Discovery and
ordered Ceglia to produce several hard-copy documents for Defendants’ inspection. See Doc.
No. 83 at 1. Those documents included “all copies of the purported contract in hard-copy form,
created on or before June 30, 2010.”1 Id. The Hard-Copy Document Inspection Protocol,

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The Court ordered Ceglia to produce only those hard-copies of the Work for Hire document that existed as of
the date he filed his state-court complaint, June 30, 2010.

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entered by the Court that same day, required Ceglia to produce all hard-copy documents “no later
than” July 15, 2011. See Doc. No. 85, ¶ 1.
On August 21, 2012—more than one year after the Court ordered Ceglia to produce these
hard-copy documents—Ceglia filed his opposition to Defendants’ Motion to Dismiss. Doc. No.
481. Ceglia’s lawyer Paul Argentieri submitted a sworn declaration, under penalty of perjury, in
support of Ceglia’s opposition. Doc. No. 484. In that declaration, Argentieri attested to the
purported circumstances surrounding the creation of several hard-copy documents.
First, Argentieri swore that in June 2010, Ceglia “took the original Facebook Contract
that was examined in July 2011 by Defendants [sic] experts, and copied it on a grocery store
copier near his home in Wellsville, New York.” Id. ¶ 14. Second, Argentieri attested that Ceglia
“took that photocopy from the grocery store copier”; that Ceglia scanned and “convert[ed] it to
an electronic file”; that Ceglia sent that electronic file to Argentieri in a June 27, 2010 email; and
that Argentieri then printed that electronic file “on an office printer.” Id. ¶¶ 3-7, 15. Third,
Argentieri attested that he then made “multiple copies of that printout,” using an “inexpensive”
copy machine with settings changed to make the copies “as dark as possible.” Id., ¶¶ 8-11
(emphasis added). Thus, in his sworn declaration, Argentieri confirmed the creation, on or
before June 30, 2010, of at least four “copies of the purported contract in hard-copy form”: the
June 2010 copy created by Ceglia on the “grocery store copier”; the late June 2010 copy created
by Argentieri of the electronic file “on an office printer”; and the late June 2010 darkened
“multiple copies of the printout” created by Argentieri on his “inexpensive” copy machine. All
of these copies (collectively, the “Argentieri Hard-Copies”) were created before June 30, 2010.
All of the Argentieri Hard-Copies fall squarely within the Court’s orders. Ceglia’s own
attorney swears that they existed before June 30, 2010. As such, Ceglia should have produced

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all of them to Defendants no later than July 15, 2011. See Doc. Nos. 83 at 1, 84, ¶ 1. He did not.
He did not produce the Argentieri Hard-Copies in response to Defendants’ recent specific
request, characterizing that request as “spurious” and a “wishful thinking sighing expedition.”
See Southwell Decl., ¶¶ 3-4, Exs. A, B. He has never produced the Argentieri Hard-Copies to
Defendants. By failing to do so, Ceglia has violated, yet again, the Court’s expedited discovery
orders.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that this Court grant their
Ninth Motion to Compel, and order Ceglia to produce the Argentieri Hard-Copies for inspection
at a mutually-agreeable location within ten days and to provide a sworn declaration attesting to
their production or the circumstances of their destruction at least two days prior to the inspection.
This Court should also award Defendants their attorneys’ fees and costs, and all other relief to
which they may be entitled.

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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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