Ceglia v. Zuckerberg et al

Filing 534

MEMORANDUM in Opposition re 525 MOTION for Extension of Time to File Response/Reply in Support of Defendants' Motion to Dismiss (Doc. No. 318) filed by Paul D. Ceglia. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 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.

MEMORANDUM IN
OPPOSITION TO DEFENDANTS
REQUEST FOR DELAY

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

INTRODUCTORY STATEMENT
Defendants cite five reasons they claim justify delaying their reply on
Defendants’ motion to dismiss.  Doc. No. 318.  None of the reasons are compelling
enough to necessitate delaying the resolution of the motion to dismiss.   The court
has been consistent in requiring Plaintiff to adhere strictly to the schedule that was
developed at the April 2012 hearing and should remain consistent by denying
Defendants’ request.  
The court’s ruling on the 8th and 9th motions to compel will have no impact
on Defendants’ ability to reply to Plaintiff’s response.   The opinion expressed in
letters from an attorney at the Kasowitz law firm is merely the opinion of a lawyer
after learning of the existence of the Street Fax digital images. The filing of the two
Motions to Compel were done for the sole purpose of attempting to justify a delay in
replying to the motion to dismiss.

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Defendants argue that “[I]t would be premature to require the Defendants to
submit their Reply without giving Defendants an opportunity to depose Mr.
Speckin”, Doc. No. 525 at 9.  Mr. Speckin has not prepared or filed a report in this
case, nor has he done any scientific testing.  Argentieri Declaration at ¶19. He is
not covered by this court’s order, Doc. No. 348, in which the court permitted both
sides to depose experts who had submitted reports in the case.   Speckin is a
consulting expert who is not referenced in Plaintiff’s reply.   Id.

Defendants last

minute desire to freelance a deposition of a non-expert in this case is not a basis for
a delay of the court’s carefully crafted discovery orders.
Defendants argue that, “The sheer volume of material that must be reviewed
for purposes of drafting the Reply demands a reasonable time-frame that exceeds
the five weeks”, Doc. No. 525 at 10.  Defendants have multiple law firms engaged to
represent them with multiple partner level lawyers and countless associates
working full time on their defense.   Plaintiff’s request for an extension to file its
expert reports on this basis was denied.   The court should be consistent in
demanding adherence to its carefully crafted discovery schedule.
Defendants argue that, “[T]he Court deserves the fullest possible record on
which to base its determination.”   Doc. No. 525 at 11.   Because of one-sided
discovery, there will be no full record in this case at the time this court decides the
motion to dismiss.   The claim of a need for the full record also undermines any
claim of clear and convincing evidence.  This is an insufficient basis to disrupt this
court’s carefully crafted discovery schedule.  
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Defendants argue that Orin Snyder will not be able to “[C]ontribute to the
drafting of the reply” (Doc. No. 525 at 11) because of the current schedule because of
his engagement in another trial in state court during the requested extension
period.  The absence of Mr. Snyder does not deprive Defendants of legal competence. 
Defendants have not submitted a declaration indicating that any of the other ten
active lawyers representing Defendants are not available to fully commit to
preparing and submitting their reply.  
The Defendants are asking for a deadline that is two weeks after Plaintiff
becomes compliant with the two outstanding discovery disputes.   This is a ruse. 
More importantly, it is a mechanism to usurp the court’s power to control its own
deadlines.  By setting a reply date “when Plaintiff is in full compliance” Defendants
will simply deny his compliance endlessly to create a mobile deadline that can never
stop moving.   Meanwhile, the court will be left to await Defendants’ consent to
Plaintiff’s “full compliance” before expecting Defendants’ reply.
Defendants seek an open-ended deadline that hinges on a Defendantdetermined “compliance” that this court has seen first hand will never be satisfied.
FALSE CLAIM OF NO FACTUAL DISPUTES
Defendants now falsely claim that “[t]o be clear, the information is not
complicated in that it suggests factual disputes (of which there remain none of any
consequence)...” Doc. No. 525 at 10.

  They repeat a similar notion in their

September 10, 2012 letter to the court requesting a page limit extension.   The
repetition of this false statement does not make it any less false. There are factual
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disputes at every turn in this case, and others that Defendants have failed to
counter from Plaintiff.   The main factual dispute that the Defendants seem to be
overlooking is that Plaintiff’s experts have objectively, indisputably, scientifically
determined that the Facebook contract is authentic.  Plaintiff and his experts have
also rebutted all claims of fraud relating to the emails exchanged between the
parties. The dispute over these facts remains unresolved and is the central issue of
the case as this court has repeatedly stated.
Defendants spuriously claim they need time to assimilate information while
simultaneously claiming there are no significant facts in dispute.  It is an illogical
position. It is impossible their assimilation is incomplete if they have concluded the
farcical notion of there being no disputed facts in this case.   Defendants speak to
this court hoping the obvious will be overlooked.
All of Defendants five cited reasons justifying a delay in this court’s carefully
crafted discovery schedule are meritless and should be rejected.
I. TWO RECENT MOTIONS TO COMPEL
8th Motion to Compel:
On September 5, 2012, Defendants filed their 8th motion to compel (Doc. No.
512) in an attempt to gain access to three privileged documents.   This request
emanates from Defendants false descriptions, adopted by this court, of Item 379, its
contents and the lie that any email with a Kasowitz letter attached was ever
disclosed to Jason Holmberg or any third party.   In Plaintiff’s objection to this
court’s order following Defendants’ Seventh Motion to Compel, he openly challenged
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Defendants to supply a declaration from their expert disputing Plaintiff’s charge
that Defendants falsely described Item 379 and items within it.   Defendants
response to that objection was filed on September 11, 2012 and was without any
declaration from any expert disputing Plaintiff and Plaintiff’s experts’ statements
calling Defendants’ description a lie.

  That omission is proof of Defendants’

malfeasance.
Plaintiff’s seek these additional Kasowitz letters claiming “there has been a
general subject-matter waiver on the subject of the Kasowitz firm’s withdrawal.”
See Doc. Nos. 361 at 4-5, 480 at 4-5.”, Doc. No. 512 at 12.   This argument
presupposes Defendants’ know their contents which they do not.
The court’s ruling on the 8th motion to compel will not impact Defendants’
ability to challenge the authenticity of the Facebook Contract or related emails. 
Even if each of these three privileged letters were deemed not privileged by this
court, the speculation of non-expert lawyers about the authenticity of the street fax
digital images is irrelevant and inadmissible as expert or lay opinion.   Plaintiffs’
experts have thoroughly refuted the validity of the minute and illegible Street Fax
digital images with expert testimony from Defendants’ experts and Plaintiffs, both
of which were unavailable to any Kasowitz lawyer.   He has done so with his own
declaration and with that of eminently qualified experts.  Finally, Paul Argentieri
confirms in his declaration that the content of the three privileged documents does
not contain any expert reports or discussion about expert’s opinions.   Argentieri
Decl. at ¶20-21.
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9th Motion to Compel:
In Defendants Ninth Motion to Compel (Doc. No. 522), filed September 7,
2012, Defendants seek an order requiring “Ceglia to produce the Argentieri HardCopies 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 motion was filed in
bad faith.  
Defendants communicated with Plaintiff about their wishful thinking that
there were still some undisclosed copies of the Facebook Contract that were in
Plaintiff or his counsel’s possession, custody or control.  In response to that inquiry,
Plaintiff clearly informed Defendants by email on September 6, 2012 that no such
copies were in Plaintiff or Plaintiff’s counsel’s possession, custody or control. 
Exhibit A.
Plaintiff and Paul Argentieri have submitted declarations confirming their
responses previously communicated to Defendants by email, thereby satisfying
Defendants’ inquiry, for a second time, without the need for a court order.   See
Declaration of Paul Ceglia and Paul Argentieri at ¶14-15. There are no open issues. 
The filing of the 9th Motion to Compel was done for the sole purpose of attempting
to justify a delay in replying to the motion to dismiss.
Defendants’ bad faith in this request alone reveals their flurry of motions is
designed to delay this court’s ruling on their motion to dismiss.   It is not truly to
review information needed for their reply.  If the court is somehow persuaded that
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the information sought in this motion is critical to Defendants’ reply, this
acknowledges that Defendants cannot and do not meet the “clear and convincing”
standard necessary to obtain the dismissal they seek.
II.  DEPOSITION OF ERICH SPECKIN
Defendants argue that “it would be premature to require the Defendants to
submit their Reply without giving Defendants an opportunity to depose Mr.
Speckin”, Doc. No. 525 at 9.  Speckin has not prepared or filed a report in this case.
Argentieri Decl. at ¶19. He is not covered by this court’s order, Doc. No. 348, in
which the court permitted both sides to depose experts who had submitted reports
in the case.  Speckin is a consulting expert who is not referenced in Plaintiff’s reply. 
Somehow Defendants want the court to believe that Mr. Speckin may influence
their ability to reply to Plaintiff’s response to Defendant’s motion to dismiss, even
though Mr. Speckin has never submitted a report in the case, has never produced
an expert report and has never conducted even one scientific test on the contract.
Defendants did not even identify Mr. Speckin as someone they wished to depose
until well into the deposition period. Given all of the above, the Defendants last
minute desire to freelance a deposition of a non-expert in this case is not a basis for
a delay of the court’s carefully crafted discovery orders.
III.  A LARGE VOLUME OF WORK
Defendants argue that, “[t]he sheer volume of material that must be reviewed
for purposes of drafting the Reply demands a reasonable time-frame that exceeds
the five weeks”, Doc. No. 525 at 10.   Defendants obviously now assert that this
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court’s carefully crafted discovery schedule, providing them 30 days to reply to
Plaintiff’s response, was an unreasonable time frame.   However, they knew about
this “unreasonable” time frame as of this court’s order following the April 4, 2012
hearing.   They knew about it when they twice opposed Plaintiff’s requests for
extensions of the time period to submit his expert reports and obtain discovery. 
They waited nearly four months to now insincerely object to this court’s
“unreasonable” time frame.  This claim is meritless and should be rejected.
Defendants claim that the data they must evaluate “was not only immense,
but also complicated” (Id.) and feign an inability to complete their work timely. 
Here again, if the data is so immense and complicated, it is not possible it presents
a “clear and convincing” case for fraud as Plaintiff has objectively, scientifically and
conclusively shown already.   Defendants offer no reason to believe they did not
anticipate that this volume of work was present in the court’s carefully crafted
discovery schedule.
Plaintiff and his two sole practitioner lawyers had sufficient time to
assimilate the facts necessary to conclusively demonstrate that Defendants lack the
ability to satisfy the “clear and convincing” standard.  Certainly the army of lawyers
representing Defendants can parcel out the work left to assimilate whatever it is
they think will erase from the court’s memory the obvious lack of “clear and
convincing” evidence.   Defendants had fifteen weeks to review Plaintiff’s expert
reports.  
Defendants have multiple prestigious law firms engaged to represent them
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with multiple partner level lawyers and countless associates working full time on
their defense.  Plaintiff has two sole practitioners representing him.  When Plaintiff
asked the court for a seven day extension to file his expert reports, the Defendants
vehemently opposed that extension even though Defendants were well aware of the
enormous amount of work that had to be completed by Plaintiff’s limited legal
resources.   They were well aware of how important those expert reports were to
rebutting each of Defendants’ now decimated claims.

  The court should be

consistent in demanding adherence to its carefully crafted discovery schedule.  
Defendants’ claims that more time is needed to rebut Plaintiff’s “half truths”
acknowledges there are significant facts in dispute.   If there were no significant
facts in dispute, Defendants would not even need to file a reply, much less need
more time to file that reply.
IV.  FULL RECORD
Defendants argue that, “the Court deserves the fullest possible record on
which to base its determination.”  Doc. No. 525 at 11.  This statement is distorted
reality.  Defendants themselves have argued against providing a full record to this
court.   The court has acknowledged that we are engaged in one-sided discovery,
Hearing Transcript, 12-13-11 at 86, which necessarily means that something other
than a full record is currently available to this court.  No matter what page limit or
delay is argued by Defendants there cannot possibly be a full record presented at
this stage.   There is a wealth of relevant information that has not been examined
including depositions of the parties, examination of Defendants’ computers and
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other devices and so forth.
The expedited discovery is not a full record.   It was intended to specifically
address a narrow point of whether the Defendants could dispute by “clear and
convincing” evidence the authenticity of the Facebook contract.   Plaintiff has not
been granted full discovery to present the full record of the truth.  Defendants have
not provided requested testing results and instructed their experts to hide their
testing notes in their hotel rooms during depositions.   “I was instructed by the
Gibson, Dunn attorneys that there was an ongoing dispute and to leave my notes
back at my hotel.”  Doc. No. 497 at 145, deposition of Gerald LaPorte.
The facetious claim of a need for the “full record” also undermines any claim
of clear and convincing evidence.  This is an insufficient basis to disrupt this court’s
carefully crafted discovery schedule.  
V.  ORIN SNYDER’S SCHEDULE
This represents the second time Defendants’ counsel Orin Snyder has asked
everyone involved in this case to adjust their personal and professional schedules to
accommodate him.

Defendants argue that Orin Snyder will not be able to

“contribute to the drafting of the reply” (Doc. No. 525 at 11) because of a conflict
with a trial set in a New York state case. VOOM HD Holdings LLC v. EchoStar
Satellite L.L.C., Index No. 600292/08 (Hon. Richard B. Lowe III).
Snyder was informed on May 15, 2012 by the state court in the Voom case
that this trial date would fall within the reply period in this court’s carefully crafted
discovery order. Argentieri Decl. at ¶17-18. Defendants had months to make this
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motion, but waited until the eleventh hour to demand a delay on this basis. Id.
There are plenty of defense attorneys sufficient to draft Defendants’ reply.

Alex Southwell is the partner at Gibson Dunn who has been leading the case. 
Thomas Dupree, Jr. is also a partner at Gibson Dunn involved in the case. 
Terrance Flynn is a partner at Harris Beach, PLLC working on the case.  Matthew
Benjamin is an attorney at Gibson Dunn actively involved in every deposition and
every oral argument in the case for the past year. Amanda Aycock is an attorney at
Gibson Dunn involved in every oral argument for more than a year in the case and
was present at every deposition.

The Orrick law firm also represents the

Defendants.
Mr. Snyder has not been leading the defense.  Mr. Snyder was present for one
half of one deposition.   Alex Southwell, Matthew Benjamin and Amanda Aycock
were present for all of the depositions.   Alex Southwell conducted the majority of
the depositions with Matt Benjamin and Amanda Aycock conducting the rest.
The absence of Mr. Snyder does not deprive Defendants of legal competence
sufficient to submit a reply.

  Defendants have not submitted a declaration

indicating that any of the other ten active lawyers representing Defendants are not
available to fully commit to timely preparing and submitting their reply.  Proof of
this fact is that in the last few days, Plaintiff has received emails from at least three
different lawyers on behalf of Defendants showing they are actively working on this
matter.
UNLIMITED TIME REQUESTED
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The Defendants are asking for a floating deadline that is two weeks after
Plaintiff becomes compliant with the two outstanding discovery disputes.  This is a
ruse.  More importantly, it is a mechanism to usurp the court’s power to control its
own deadlines.   By setting a reply date “when Plaintiff is in full compliance”
Defendants will simply deny his compliance creating an endlessly mobile deadline. 
Meanwhile, the court will be left to await Defendants’ consent to Plaintiff’s “full
compliance” before expecting Defendants’ reply.
Defendants have never agreed that Plaintiff was in compliance with this
court’s expedited discovery order.   Yet, this court has found that Plaintiff is in
compliance.   “I find that the plaintiff is substantially in compliance with its
obligation under the August 18th order.”  Hearing Transcript, April 4, 2012 at 211.
As another example, Plaintiff has specifically sought Defendants confirmation that
Plaintiff is in compliance with this court’s order following Defendants seventh
motion to compel.

Exhibit B.   Defendants refuse to this day to acknowledge

plaintiff’s compliance with that order.  Defendants will never acknowledge Plaintiff
is in compliance with any of the court’s orders and drag this matter out into 2013
and beyond.
CONCLUSION
The reply in this case is optional.   Defendants are not required by rule to
even file a reply before having their motion to dismiss heard.  If their expert reports
contained indisputable and “clear and convincing” evidence, no reply would be
necessary.   The reply is not available for Defendants as a platform to raise new
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issues before the court outside of Plaintiff’s ability to respond.  The thirty day period
in the court’s carefully crafted discovery schedule, ordered months ago, provides
Defendants ten lawyers ample time to reply.   This Court should deny Defendants
request for extension.

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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