Ceglia v. Zuckerberg et al

Filing 525

MOTION for Extension of Time to File Response/Reply in Support of Defendants' Motion to Dismiss (Doc. No. 318) 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’ NOTICE OF MOTION AND INCORPORATED
MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR EXTENSION OF TIME
PLEASE TAKE NOTICE that upon the annexed Declaration of Alexander H.
Southwell, Esq., Defendants hereby move this Court for an Order modifying the currentlyscheduled deadline to file Defendants’ Reply Brief in Support of their Motion to Dismiss.
Specifically, Defendants request a short extension of the currently-scheduled deadline for filing a
Reply set forth in the Court’s Order (Doc. No. 348), as amended by the Court’s Text Order (Doc.
No. 471). Good cause exists for the requested extension due, in part, to the pendency of
outstanding discovery obligations from Ceglia, the fact that the deposition of one of Ceglia’s
experts is not scheduled until later this month, and the fact that the volume of material that must
be reviewed in order to clearly present the issues to the Court demands a reasonable timeframe
that exceeds the five weeks thrust upon Defendants by Ceglia’s premature filing of his
Opposition. Defendants respectfully request an extension from September 20, 2012 to the later
of October 18, 2012, or two weeks after Plaintiff’s full compliance with the outstanding
discovery disputes described herein.

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Additionally, Defendants respectfully move for an expedited briefing schedule and
hearing on this narrow request given the current upcoming deadline for Defendants to file their
Reply of September 20, 2012. Defendants respectfully propose the following expedited briefing
schedule: Ceglia should file any opposition brief on or before Wednesday, September 12, 2012,
and Defendants should file any reply brief on or before Thursday, September 13, 2012. That
schedule allows the parties to fully present their views in time for the Court to address the
extension request sufficiently in advance of the deadline.
PLEASE TAKE FURTHER NOTICE that, pursuant to Local Civil Rule of Procedure
7 of this Court, Defendants state their intention to file and serve reply papers if needed, and
hereby request oral argument on this motion.
BACKGROUND
On April 4, 2012, this Court entered a calibrated scheduling order setting forth deadlines
for the completion of (i) limited expert discovery, and (ii) all remaining briefing related to
Defendants’ pending motion to dismiss (“the April 4 Order”). See Doc. No. 348. The April 4
Order was the culmination of briefing and a status conference at which all parties were given the
opportunity to state, on the record, the amount of time they required for completing expert
discovery and the outstanding briefs. The Court heard extensive arguments from both sides, and
determined that Plaintiff Paul Ceglia would have two months within which to file his expert
reports in response to the motion, after which both parties would get two months to depose each
other’s experts. Id.; see also Doc. No. 350 at 198:25-201:5 (Transcript of Apr. 4, 2012 hearing).
The Court added that “plaintiff shall file his opposition to defendants’ motion to dismiss” “[t]wo
months after the close of expert depositions.” Doc. No. 350 at 200:23-201:1. Defendants were
ordered to “file a reply within 30 days thereafter.” Id. at 201:1-2. Thus, it was within the

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contemplation of the parties—and the Court was willing to accept—that briefing on the motion
to dismiss would close on November 4, 2012.
Ceglia used his entire two-month window and produced expert reports on the last day
they were due: June 4, 2012.1 Declaration of Alexander H. Southwell, Esq. (“Southwell Decl.”),
¶ 2. Because the schedule set forth in the April 4 Order was calibrated, in the first instance, to
Ceglia’s submission of those reports, the upshot was that not a single expert deposition could
begin before June 5, 2012. Over the next two months, depositions of the parties’ experts took
place. A total of 25 depositions were noticed, 16 of which were sought by Ceglia. To
accommodate the sheer quantity of depositions and ensuing scheduling conflicts—and in
apparent recognition of the compressed schedule—the Court, on a joint request from the parties,
granted a brief 10-day extension of the discovery deadline (and corresponding briefing
deadlines) on August 6, 2012. See Doc. No. 471. Under the modified schedule, discovery was
extended to August 14, and the Court was prepared for all briefing on the motion to dismiss to be
complete on November 14, 2012. See id.
Even with the extended deadline, Ceglia was unable to make one of his experts, Erich
Speckin, available for a deposition within the mandated discovery period—notwithstanding that
Defendants had noticed Mr. Speckin’s deposition for a date prior to the original close of
discovery. Southwell Decl., ¶ 9. Plaintiff’s counsel refused to accept a notice of deposition for
his expert, which delayed Defendants’ efforts to schedule the deposition until a period when Mr.
Speckin was traveling outside the contiguous United States. Id. Because Mr. Speckin does not

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Despite having acquiesced to a two-month window for filing his expert reports in setting the
schedule, Ceglia moved at the last minute, on May 29, 2012, to extend the Court’s June 3
deadline and seek an additional 30 days for submitting his expert reports. See Doc. No. 392.
The Court denied that extension, finding “no grounds to warrant any modification of the
scheduled due date” because Ceglia had “had ample time to comply.” See Doc. No. 408.
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return from his travels until approximately mid-September 2012, Defendants agreed, as an
accommodation to his schedule, to conduct his deposition once he becomes available. Id. Mr.
Speckin’s deposition is currently scheduled for September 24, 2012, the first date his counsel
indicated he was available. Id.
By contrast, Defendants made available all of the 16 deponents who Ceglia noticed on
dates certain before the close of discovery. Southwell Decl., ¶ 7. But Ceglia elected to follow
through with only five of those 16 deposition notices. As for the remaining 11 scheduled
depositions—which Defendants had been diligently preparing for and stood ready to defend—
Ceglia abruptly canceled them late in the game, many on less than 48 hours’ notice. Id.2 All
told, of the 13 depositions that actually took place during the discovery period, eight were of
Ceglia’s experts. Id., ¶¶ 7-8.
The four-month period of limited discovery produced a large quantity of expert opinions
and information. Indeed, over 6,000 pages of testimony and opinions were generated, many of
which consist of technical and scientific analysis. Southwell Decl., ¶ 10. The obvious intention
of the April 4 Order was to give the parties sufficient time to digest and parse this material and
then present it in a clear fashion to the Court.
But on August 21, 2012, a mere week after expert depositions were completed, Ceglia
jumped the gun and filed his Opposition to the motion to dismiss—seven weeks before the
Court’s contemplated timeframe. See Doc. No. 481. Ceglia raced to the docket despite (or
perhaps because of) (1) numerous ongoing discovery disputes related to his repeated failure to
disclose material he is obligated to produce and to the uncompleted deposition of one of Ceglia’s

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Defendants are currently seeking costs for the untimely cancellation of those depositions.
See Doc. No. 518.
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key experts, Larry Stewart; and (2) the fact that one of his experts remains unavailable for a
deposition until September 24, 2012.
Under the calibrated schedule of the April 4 Order, Defendants’ Reply is now due on
September 20, 2012: almost two months before the contemplated end of the briefing schedule.
ARGUMENT
Ceglia’s filing of his Opposition seven weeks earlier than the Court’s anticipated deadline
is obviously premature and smacks of his abusive litigation modus operandi. It also undermines
the satisfactory resolution of this case. The 60- and 30-day timeframes ordered by the Court for
the submission of the Opposition and Reply briefs, respectively, reflect a recognition that the
volume of information generated during the period of expert discovery would require adequate
time to synthesize and present cogently to the Court. A sufficient opportunity to respond is all
the more important given that Defendants’ pending motion would dispose of this entire action.
Although Ceglia’s early filing might be technically in compliance with the terms of the April 4
Order, it flouts the spirit of the briefing schedule: to allow full and studied presentations to the
Court on this critical dispositive motion.
Defendants’ request for a short enlargement of the time within which to file their Reply is
reasonable. It is a limited, discrete extension that would keep this case substantially on track in
terms of the Court’s schedule. Indeed, Defendants’ proposed deadline for filing the Reply will,
assuming Ceglia’s timely compliance with his discovery obligations, be a date before the
ultimate deadline for the close of all briefing originally contemplated by the April 4 Order.3 Any

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Thus, this motion is fundamentally different from Ceglia’s motion to extend the time for
filing his expert reports, which Defendants opposed. Unlike Ceglia’s eleventh-hour motion
to extend the deadline there—which was made at the tail-end of a 60-day period he, himself,
requested from the Court—Defendants make this motion ten days before the scheduled Reply
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delay beyond that will be entirely attributable to Ceglia’s persistent obstructionism. Ceglia
cannot plausibly argue that the extension will prejudice his case in any way, particularly as his
attorneys first suggested the 60-day timeframe to the Court.
A.

Good Cause Exists to Extend the Reply Deadline.
In these present circumstances, there is ample good cause to extend the deadline for filing

Defendants’ Reply. Generally, a “district court has wide discretion to grant an enlargement of
time . . . if the request is made within the expiration period or as extended by previous order.”
Choi v. Chem. Bank, 939 F. Supp. 304, 309 (S.D.N.Y. 1996). That discretion is grounded in
Federal Rule of Civil Procedure 6(b)(1)(A), which “provides that the Court may, for good cause
shown, extend the time in which an act may or must be done where a party’s request is made
before the original time or any previously granted extension expires.” Cold Spring Const. Co. v.
Spikes, No. 11-CV-700S, 2012 WL 41967, at *1 (W.D.N.Y. Jan. 9, 2012); see also Ramashwar
v. City of New York, 231 F. App’x 26, 27-28 (2d Cir. 2007) (“Federal Rule of Civil Procedure
‘6(b)(1) gives the court wide discretion to grant a request for additional time . . . .’” (quoting 4B
Wright & Miller, Federal Practice and Procedure: Civil 3d § 1165 (2002))). “[A]n application
for the enlargement of time under Rule 6(b)(1) normally will be granted in the absence of bad
faith on the part of the party seeking relief or prejudice to the adverse party.” Kernisant v. City
of New York, 225 F.R.D. 422, 431 (E.D.N.Y. 2005) (internal quotation marks omitted). In this
context, the “good cause” showing requires only that the requesting “party demonstrate some
justification for the issuance of the enlargement order.” Id.4

deadline, and more than seven weeks before the contemplated deadline for the close of all
briefing.
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This motion is governed by the standard set forth in Federal Rule of Civil Procedure 6(b)(1).
Although the April 4 status conference was captioned a “Rule 16(b) conference” on the
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At least five reasons provide ample justification for a short extension of time within
which to file Defendants’ Reply.
First, there remain at least two live disputes over documents that are responsive to the
Court’s expedited discovery orders and that Ceglia has repeatedly refused to produce. Most, if
not all, of these materials should have been disclosed months ago. The missing documents—and
Ceglia’s recalcitrance—are detailed in Defendants’ separate motions before the Court, and are
summarized below:
(1) Communications described in the April 13 Kasowitz Letter. The April 13
Kasowitz Letter, itself damning evidence of Ceglia’s fraud, reveals the existence of at
least three other communications that fall squarely within the scope of this Court’s
discovery orders and are subject to production. See Doc. No. 512 at 6-7. Yet Ceglia has
not produced any of those documents to Defendants, forcing Defendants to file an eighth
motion to compel, which is pending before the Court. See generally, id.
(2) Hard-copy documents described in Paul Argentieri’s Declaration. Less than
three weeks ago, in an August 21, 2012 declaration submitted to the Court with Plaintiff’s
Opposition brief, Ceglia’s attorney Paul Argentieri swore to the existence of at least four
hard-copies of the Work for Hire document that were created on or before June 30, 2010.
See Doc. No. 484; Doc. No. 522 at 2. Those documents are covered by the Court’s
directive, issued more than fourteen months ago, that Ceglia produce “all copies of the
docket, the Court made clear that it did not view it as such. See Doc. No. 350 at 80:6-81:4.
As the Court explained, the only reason the hearing was labeled a “Rule 16(b) conference” is
because that was the most judicious and fair way to bring the parties together for purposes of
setting a briefing schedule on the motion to dismiss. Id. Thus, the April 4 Order was not a
Rule 16(b) Scheduling Order. In any event, the standard for modifying a Rule 16(b)
Scheduling Order tracks the standard applicable under Rule 6(b) in that both require “good
cause” for an extension. See Blasi v. N.Y. City Bd. of Educ., No. CV 00-5320, 2008 WL
2705373, at *1 (E.D.N.Y. July 3, 2008).
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purported contract in hard-copy form, created on or before June 30, 2010.” See Doc. No.
83 at 1. But the hard-copies described in Argentieri’s declaration have never been
produced to Defendants; indeed, the first time Defendants heard about these four hardcopies of the Work for Hire document was on August 21, 2012, when Ceglia filed the
Argentieri declaration. See Doc. No. 522 at 3. These documents are the subject of
Defendants’ ninth motion to compel, which is pending before the Court. See generally,
id.5
It would be premature to require Defendants to file their Reply without resolving these
discovery issues. All of the missing materials described above go to the heart of what is at issue
in Defendants’ motion to dismiss: whether the Work for Hire document on which this lawsuit is
based is a forgery and, consequently, whether this entire case is a fraud on the Court. The
documents most critical to that determination—the communications revealed in the April 13
Kasowitz Letter and the additional hard-copies of the Work for Hire document—are the subjects
of Defendants’ eighth and ninth motions to compel. See Doc. Nos. 512, 522. It would be unfair
to require Defendants to file their Reply without those materials, which Ceglia continues to
improperly withhold. Nor would the Court have a complete record on which to base its ruling.
The existence of these documents, standing alone, justifies an extension because that extra time
will give Defendants an opportunity to inspect the missing materials (assuming their motions to

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There also exists a third dispute over missing documents related to Plaintiff’s expert Mr.
Larry Stewart, who was deposed on July 12, 2012. Southwell Decl., ¶ 11. During that
deposition, Mr. Stewart repeatedly referred to documents that Defendants had not been
previously provided, in violation of the parties’ mutual agreement that all documents
underlying his testimony would be produced prior to his deposition. Id. Defendants have
engaged in substantial back-and-forth discussions with Ceglia’s counsel regarding the
documents that Mr. Stewart should have produced, but has wrongly withheld. Id.
Defendants explicitly kept Mr. Stewart’s deposition open pending production of these
missing documents, id., and may be compelled to seek judicial intervention in this matter too.
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compel are granted) and present a full record to the Court. Cf. Brick v. CSX Transp., Inc., No.
06CV622, 2007 WL 2580483, at *5 (W.D.N.Y. Sept. 4, 2007) (granting extension of time
because party’s ability to render complete expert reports was “dependent upon” his obtaining
additional facts after the previously scheduled deadline).
Second, notwithstanding that the deadline for expert discovery was extended to August
14, 2012, Plaintiff’s expert, Erich Speckin, remains to be deposed and will not be available until
late-September. The reason for Mr. Speckin’s out-of-time deposition—authorized by the Court’s
August 6, 2012 Order granting the parties’ joint request for an extension, see Doc. Nos. 469,
471—is that he is traveling out of the contiguous United States until mid-September 2012.6 As
an accommodation to Mr. Speckin, Defendants agreed to postpone his deposition until he was
available, and have now scheduled that deposition for September 24, 2012, the earliest date his
counsel proposed. Southwell Decl., ¶ 9. Mr. Speckin is a potentially important expert witness
because he participated in the Court-ordered Hard-Copy Document Inspection and extracted ink
samples from the Hard-Copy Documents (although he did not submit an expert report for
Plaintiff). Just as with the pending discovery disputes, supra p. 7-8, it would be premature to
require the Defendants to submit their Reply without giving Defendants an opportunity to depose
Mr. Speckin and analyze his testimony, particularly as the point of the limited discovery is to
fully air expert opinions about the authenticity of the Work for Hire document.
Third, the Court-sanctioned expert discovery generated a significant amount of
information that must be processed and analyzed for purposes of the Reply. Over 6,000 pages of

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Ceglia’s counsel precipitated this delay by refusing to accept service of a deposition notice
for Mr. Speckin—notwithstanding that Mr. Speckin is one of Ceglia’s expert witnesses—and
declining to consent to his deposition. Southwell Decl., ¶ 9. Thus, Defendants were forced
to subpoena Mr. Speckin and, by that time, he was no longer available because he was
already traveling outside the contiguous United States. Id.
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deposition testimony and expert opinion were produced in four months. Southwell Decl., ¶ 10.
The sheer volume of material that must be reviewed for purposes of drafting the Reply demands
a reasonable timeframe that exceeds the five weeks thrust upon Defendants by Ceglia’s
premature filing of his Opposition. Furthermore, the quantity of information generated by the
period of limited expert discovery was not only immense, but also complicated. To be clear, the
information is not complicated in that it suggests factual disputes (of which there remain none of
any consequence) or in any way undercuts the conclusion that Ceglia is attempting to perpetrate
a fraud; rather, the technical details and facts testified to were complex and require careful,
measured attention (and, hence, additional time) in order to clearly present the issues to the
Court.7
It is no answer that Ceglia was faced with the same volume of information upon which to
base his Opposition. Ceglia’s strategy for processing and analyzing a vast quantity of
information is apparently to ignore much of it or distort it beyond recognition: his brief is rife
with misrepresentations, half-truths, and outright lies, not to mention recycled arguments that
have already been rejected by the Court. Such departures from reality do not demand much in
the way of time to draft, although they do require time to respond to.
It also bears mentioning that Ceglia, without notice or explanation, abruptly canceled 11
depositions of Defendants’ witnesses that had been scheduled to take place before August 14,
2012. Southwell Decl., ¶ 7. Defendants expended a great deal of time preparing for those
depositions, and stood ready to defend them until they were canceled at the eleventh-hour. Id.

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Confirming that point, page limits for the Motion to Dismiss and Opposition were, by leave
of Court, increased nearly threefold: from 25 pages to 65 pages. Doc. Nos. 337, 510. That
substantially increased length reflects a recognition of the complexity of the arguments and
sheer volume of detail necessary to resolve these claims.
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Defendants’ wasted preparation for those depositions significantly cut into the time that could
have been devoted to analyzing the new expert discovery.
Fourth, the briefing schedule at issue here is for a case-ending dispositive motion. Given
that Defendants’ arguments—if accepted— would result in a complete dismissal of this lawsuit,
the Court deserves the fullest possible record on which to base its determination. As it stands,
the record is incomplete because of numerous pending discovery disputes and the remaining
deposition of Ceglia’s expert. See supra pp. 7-9. Defendants should be granted the opportunity
to conclude their briefing based on the full record—which will require the short extension of
time requested herein—because that will give the Court the chance to bring to an end the fraud
that is this entire case.
Fifth, Defendants’ lead counsel, Orin Snyder, is also lead counsel in a significant case in
New York Supreme Court that is scheduled to begin trial on September 19, 2012: VOOM HD
Holdings LLC v. EchoStar Satellite L.L.C., Index No. 600292/08 (Hon. Richard B. Lowe III).
The trial is expected to last at least four weeks. Mr. Snyder will be involved with substantial trial
preparation for that other matter up until the date the Reply is currently due, which will greatly
hamper his ability to read the deposition transcripts and new discovery, and contribute to the
drafting of the Reply.

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B.

Defendants Have Acted in Good Faith and Ceglia Will Not Be Prejudiced By An
Extension of the Reply Deadline.
It being apparent that ample cause exists for extending the Reply deadline, the only

remaining inquiries are whether (i) Defendants have acted in bad faith, and (ii) whether Ceglia
will be prejudiced by the extension. See Kernisant, 225 F.R.D. at 431. Both can be disposed of
summarily.
As for whether Defendants have acted in bad faith by requesting an extension, nothing
could be further from the truth. Throughout this case, Defendants have litigated swiftly and in
full compliance with the Federal Rules and the Court’s direction. There can be no serious
argument that Defendants have not pursued their defenses diligently and in prompt fashion
(despite umpteen spurious filings by Plaintiff, each of which has required a written response). In
terms of expert discovery, in particular, Defendants scheduled all 16 of their expert witnesses
before the Court’s deadline for the close of discovery, and worked hard to ensure that they stood
ready to defend each of those depositions. See Southwell Decl., ¶ 7.
Moreover, Ceglia cannot plausibly argue that he would be prejudiced by the short
extension sought here. At the April 4 scheduling conference, it was the settled expectation of all
parties that briefing on the Motion to Dismiss could extend as far as November 4, 2012. See
supra pp. 2-3. Indeed, the Court selected the two-month window for Plaintiff’s Opposition (after
the close of expert discovery) based upon a representation from Ceglia’s counsel that a 60-day
timeframe was necessary. See Doc. No. 350 at 183:21-184:3, 200:7-16. Unless he was always
planning to file his Opposition early, and his 60-day representation to the Court was a lie, Ceglia
cannot profess to be harmed by the possibility that briefing will extend into October.

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CONCLUSION
For the foregoing reasons, Defendants respectfully request a short extension of time
within which to file their Reply brief, until the later of October 18, 2012, or two weeks after
Plaintiff’s full compliance with the outstanding discovery disputes described herein. Defendants
also respectfully request that this motion be heard on an expedited basis, with Ceglia ordered to
file any brief opposing this motion on or before September 12, 2012 and Defendants ordered to
file any reply brief on or before September 13, 2012.
Dated:

New York, New York
September 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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