Ceglia v. Zuckerberg et al

Filing 540

RESPONSE in Opposition re 511 Eighth MOTION to Compel and For Other Relief filed by Paul D. Ceglia. (Attachments: # 1 Exhibit, # 2 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’
EIGHTH MOTION TO COMPEL

MARK ELLIOT ZUCKERBERG, Individually, and
FACEBOOK, INC.
Defendants.
SUMMARY
The documents sought by the Eighth Motion to Compel are privileged.  They
are not documents ordered by this court to be produced in any prior order.   They
stem from Defendants’ false and now indisputably inaccurate description of Item
379 and the so-called Kasowitz Letter.   Despite being ordered to produce the
Kasowitz Letter, the designation of it as confidential is entirely appropriate. 
Defendants have been provided that letter and have described its contents in detail
in unredacted pleadings provided to this court.   There is no justification for
removing the confidential designation except to enable Defendants to make that
letter a centerpiece of their public relations campaign against Plaintiff.
THERE HAS BEEN NO COURT ORDER ORDERING PLAINTIFF TO
PROVIDE THESE THREE PRIVILEGED DOCUMENTS
Not Responsive to 7th Motion to Compel:
Defendants spend the first six pages of their eighth motion to compel, Doc.

1

No. 512, giving the background of the seventh motion to compel in a blatant
attempt to falsely imply that the three privileged documents they are now unjustly
seeking were somehow responsive to the seventh motion to compel or that Plaintiff
was somehow delinquent in producing the three privileged documents.   The three
privileged documents sought in this motion were not attached to Item 379, were not
disclosed to any third party including Jason Holmberg and were never listed on a
relevant materials log produced under this court’s order, Doc. No. 85, and therefore
remain privileged.    
No Order Has Required Plaintiff to Produce These Three Privileged
Documents:
The Defendants argue that these three privileged documents were ordered to
be turned over by deceptively quoting portions of the Court’s August 18, 2011 order.  
The Court’s August 18, 2011 Order directed Ceglia to identify and
produce “all electronic copies or images of the purported contract,”
“all electronic versions or purported versions of any contract,” and
“all electronic versions of any emails or purported emails” among
the relevant parties. See Doc. No. 117 ¶¶ 2-3. Doc. No. 512 at 8.  
Plaintiff has fully complied with the Court’s August 18, 2011 order, which
required Plaintiff to turn over “(C) all electronic versions of any emails or purported
emails by and among Defendant Zuckerberg, Plaintiff and/or other persons
associated with StreetFax ("Emails");”, Doc. No. 117 at 2, and, of course, said
nothing about turning over privileged documents or emails between Plaintiff’s
lawyers.  Defendants are again misleading the court hoping their false description
of what was ordered will be adopted by this court leading to more privileged
documents being ordered produced.
2

The Three Privileged Documents Were Produced For Defendants Review:  
The items sought in this motion to compel are to be found, if anywhere, on
Plaintiff’s electronic assets.  Pursuant to this court’s order, Doc. No. 85, Defendants’
experts, Stroz Friedberg were entitled to make a complete copy of those electronic
assets.   Thereafter, Defendants’ experts Stroz Friedberg were entitled to search
those assets and any copies of items from those electronic assets for all items it
deemed responsive to this court’s expedited discovery order.  If Stroz felt a located
item was relevant, it was to place that item on a relevant materials log and present
that log to plaintiff to enable him to designate appropriate items as privileged.  Doc.
No. 85. If Stroz did not feel a located item was relevant, it was not required to list
that item on a relevant materials log.  Pursuant to this court’s order, Doc. No. 85, if
an item was not listed on Stroz’s relevant materials log, it is impossible that
Plaintiff could have a. designated it as privileged or, b. failed to designate is a
privileged.  
REGULAR DISCOVERY HAS NOT BEGUN
The Court clarified in its January 10, 2012 Decision and Order that we are
not in regular discovery where Rule 26 requirements apply to either party.  
Here, the July 1, 2011 Order specifically limited discovery in this
action to the categories listed therein, none of which are broad
enough to include the five computers. Moreover, because no
scheduling conference pursuant to Rule 16(b) has yet been
scheduled, Defendants have also been exempted from participating
in any discovery conference under Rule 16(f). Thus, even assuming
Defendants could have been expected to reference the five
3

computers in complying with Rule 26(a)(1)(A)(ii), including
disclosure of ‘electronically stored information,and tangible things’
potentially supportive of the disclosing party’s defense, such
disclosure obligations have not yet attached to Defendants (or
Plaintiff) in this case.  Doc. No. 284 at 14.  
Plaintiff has not yet been ordered in discovery to produce potentially relevant
documents, other than those within the expedited discovery order, because of the
unusual posture of this case, 27 months old at this point with regular discovery still
aspirational.
PRIVILEGE HAS NOT BEEN WAIVED
The three documents sought in Defendants Eighth Motion to Compel are
privileged.   They have not been disclosed to any third parties, including Jason
Holmberg.  Holmberg confirmed in his declaration,  Doc. No. 508 at 2, that he has
not seen any Kasowitz correspondence after March 29, 2011.

Plaintiff’s expert

Jerry Grant has clarified for the Court that neither the Kasowitz letter nor any of
the three privileged documents described in the 8th motion to compel were ever
attached to Item 379.  Doc. No. 507 at 2.
SUBJECT MATTER WAIVER
Defendants argue that “there has been a general subject-matter waiver on
the subject of the Kasowitz firm’s withdrawal.”  Doc. No. 512 at 12.  They argue that
as a result of that subject-matter waiver, the three privileged documents in question
should be produced to Defendants immediately.  
This court has not ruled on whether a subject-matter waiver has occurred.

Defendants argued as their last point in their sixth motion to compel, that “[t]hird,
4

even assuming that at some point the Kasowitz Letter was protected by the
attorney-client privilege and the work product doctrine, the protection has been
waived by the disclosure of the subject matter of the information to Holmberg, a
third-party non-lawyer.”  Doc. No. 382 at 13.  This quote deliberately repeats the lie
that the Kasowitz Letter was disclosed to Holmberg.   This simply ignores reality. 
No expert has made this claim for Defendants.   In fact, Defendants’ experts
produced a relevant materials log that completely refutes this claim.   Exhibit A. 
Jerry Grant, Plaintiff’s expert, has produced a declaration completely refuting this
claim.   Finally, and most importantly, Jason Holmberg himself has produced a
declaration completely refuting this claim.   There is no support for Defendants’
claim that the Kasowitz Letter was disclosed to Jason Holmberg.   Any conclusion
otherwise ignores reality.
More to the point, Jason Holmberg has declared under oath that at no time
was he present for meetings at which the subject matter of the reason for Kasowitz
declining to represent Plaintiff was discussed.   Declaration of Jason Holmberg at
¶1-5.   Therefore, his exclusion from the subject matter of the reasons for the
Kasowitz law firm declining to represent Plaintiff is total.   No correspondence on
the topic of Kasowitz declining to represent Plaintiff was disclosed to him, which is
undisputed.  No meetings or conversations on that topic were had with him either. 
Id.  
The Court stated in its June 28, 2012 Decision and Order, “Because it is so
clear that Plaintiff has failed to preserve any privilege that attached to the
5

Kasowitz Letter, the court does not reach Defendants’ remaining arguments in
support of its Sixth Motion to Compel.”  Doc. No. 457 at 11.  The court’s conclusion
noted above rests entirely on the now discredited claim of Defendants that the
Kasowitz Letter was disclosed to Jason Holmberg.   Therefore, the court’s finding
above, did not consider the remainder of Defendants’ privilege waiving claims
having stopped at the now factually inaccurate claim that the Kasowitz Letter was
disclosed to Holmberg.  
The District Court has not ruled on the matter of subject matter waiver, as
Defendants imply.  Doc. No. 512 at 12.  Judge Arcara reviewed the specific question
of whether “attorney-client   privilege   extends   to   Items   360 and 379 because
Holmberg viewed the communications as Argentieri’s agent, and not as an
unrelated third party.”  Doc. No. 480 at 3.  To this specific question, Judge Arcara
affirms the April 19th, 2012 Decision and Order.   Judge Arcara’s adoption of the
this court’s order focused exclusively on reinforcing this court’s conclusion that
Holmberg was not an agent of Plaintiff’s counsel to which privilege applied. 
However, Judge Arcara implicitly accepted this court’s now inaccurate conclusion,
adopted from Defendants’ false description of Item 379, etc., that Item 379 was
disclosed to Holmberg (indisputably false) and that the Kasowitz Letter was
disclosed to Holmberg (indisputably false).
Defendants argument that “there has been a general subject-matter waiver
on the subject of the Kasowitz firm’s withdrawal,” Doc. No. 512 at 12, conveniently
overlooks the fact that the three privileged documents they seek do not discuss the
6

Kasowitz firm’s withdrawal.  Despite there being no subject matter waiver as noted
herein, even if Defendants claim there is a subject matter waiver, that subject
matter, as described by Defendants, is not the subject matter of the items sought by
the Eighth Motion to Compel.  There is no ethical way that Defendants could know
the subject matter of these letters.  None of these letters were listed on any relevant
materials log provided by Defendants’ experts pursuant to this court’s order, Doc.
No. 85.  If the Defendants have been provided access to these letters already, then
their assertion of knowing their subject matter makes sense.   Otherwise, their
claims in this regard are spurious and made in bad faith.
CONFIDENTIAL DESIGNATION OF KASOWITZ LETTER
Contrary to Defendants assertion that Plaintiff must cite a “clearly defined
specific and serious injury.” (Doc. No. 512 at 14), the Court correctly found in its
August 12, 2011 Decision and Order “the [Joint Stipulated Protective] Order
requires that the designation of confidentiality be based on a good faith belief that
the designated material contains confidential information that is not publicly
available “such as proprietary or confidential business, technical, sales, marketing,
financial, commercial, private, or sensitive information, or information that is
otherwise reasonably designable as confidential.” Doc. No. 107 at 5.  The Court held
in its August 12, 2011 Decision and Order that Plaintiff could have held a good faith
belief that certain electronic communications were covered by the Joint Stipulated
Protective Order, without citing a clearly defined specific and serious injury.  
The Kasowitz letter and the information contained therein is not publicly
7

available, contains sensitive information and was reasonably designated as
confidential.

  For these reasons alone, the Court should uphold Plaintiff’s

designation as confidential.  Defendants have no compelling need for full disclosure
to the public of the Kasowitz letter.

They have referenced the document in

pleadings, including unredacted versions provided to the court.  The only restriction
Plaintiff’s properly applied confidentiality designation places on Defendants is the
inability to produce a pleading as a public relations press release detailing the
contents of the letter itself.  
Even if this Court rules that the Kasowitz Letter is not properly designated
as confidential under this court’s order, the designation should stay in place until
the District Court has the opportunity to rule on Plaintiff’s objection regarding the
seventh motion to compel.   Doc. No. 506.   Without this cautious approach, the
disclosure of documents now may be unrecoverable if the District Court reaches a
different conclusion about whether the Kasowitz Letter was attached to Item 379
(which it indisputably was not), whether Item 379 was disclosed to Jason Holmberg
(which it indisputably was not), whether the Kasowitz letter or email to which it
was attached was disclosed to Jason Holmberg (which it indisputably was not) and
finally, whether the subject matter of the decision of Kasowitz to decline to
represent Plaintiff was disclosed to Holmberg (which it indisputably was not).
CONCLUSION
The origin of the entire conflict that the Fifth, Sixth, Seventh and Eighth
motions to compel is the adoption of Defendants’ now indisputably false description
8

of the items at issue, including Item 379 and the Kasowitz Letter as noted above
and in Plaintiff’s objection to this court’s order on its seventh motion to compel. 
From the adoption of that false description the court was wilfully mislead to believe
the opposite of the undisputed truth which is the following:
1. The single email that is Item 379 was not disclosed to Jason Holmberg or any
third party; and
2. The Kasowitz Letter was not attached to Item 379; and
3. The email to which the Kasowitz Letter was attached was not disclosed to Jason
Holmberg or any third party; and
4. The Kasowitz Letter, attached to an undisclosed and privileged email, was never
disclosed to Jason Holmberg nor any third party.
5. Jason Holmberg never discussed with anyone the circumstances or reasons why
the Kasowitz firm declined to represent Plaintiff therefore, there is no subject
matter waiver of that issue supported by any facts in this case.
For the reasons contained in this response, Defendants’ Eighth Motion to
Compel should be denied.
Respectfully submitted,
/s/Dean Boland

9

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]

10