Ceglia v. Zuckerberg et al

Filing 555

DECLARATION signed by Alexander H. Southwell re 553 MOTION for Discovery 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, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA, # 28 Exhibit BB, # 29 Exhibit CC, # 30 Exhibit DD, # 31 Exhibit EE, # 32 Exhibit FF, # 33 Exhibit GG, # 34 Exhibit HH, # 35 Exhibit II, # 36 Exhibit JJ, # 37 Exhibit KK, # 38 Exhibit LL, # 39 Exhibit MM, # 40 Exhibit NN)(Snyder, Orin)

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EXHIBIT G Page 1 1 2 UNITED STATES DISTRICT COURT 3 WESTERN DISTRICT OF NEW YORK 4 No. 1:10-cv-00569-RJA 5 -----------------------------x PAUL D. CEGLIA, 6 Plaintiff, 7 vs. 8 MARK ELLIOT ZUCKERBERG, 9 Individually, and FACEBOOK, INC., 10 Defendants. 11 -----------------------------x 12 13 14 July 11, 2012 15 10:03 a.m. 16 17 Videotaped deposition of LARRY F. 18 STEWART, held at the offices of Gibson, 19 Dunn & Crutcher LLP, 200 Park Avenue, 20 New York, New York, pursuant to notice, 21 before Cary N. Bigelow, Court Reporter, 22 a Notary Public of the State of New York. 23 24 25 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 2 1 2 A P P E A R A N C E S: 3 BOLAND LEGAL, LLC 4 Attorneys for Plaintiff 5 1475 Warren Road 6 Unit 770724 7 Lakewood, Ohio 44107 8 BY: DEAN BOLAND, ESQ. 9 10 GIBSON, DUNN & CRUTCHER LLP 11 Attorneys for Defendants 12 200 Park Avenue 13 New York, New York 10166-0193 14 BY: ORIN SNYDER, ESQ. 15 ALEXANDER H. SOUTHWELL, ESQ. 16 MATTHEW BENJAMIN, ESQ. 17 AMANDA AYCOCK, ESQ. 18 SRIPRIYA NARASIMHAN, ESQ. 19 20 ALSO PRESENT: PETER TYTELL 21 GERALD LAPORTE NADER KHORASSANI, Summer Associate, 22 Gibson, Dunn & Crutcher, LLP (a.m. session) 23 ANNA CHASE, Summer Associate, Gibson, Dunn & Crutcher, LLP 24 (p.m. session) DANIEL McCLUTCHY, Videographer 25 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 56 1 L. Stewart 2 3 Q. But your task was overseeing the plaintiff's examinations; correct? 4 A. That's correct. 5 Q. But you're not aware of what tests he 6 conducted or not; right? 7 8 A. on the ink to see if he could identify it. 9 10 Q. But you weren't sure what other tests he conducted? 11 12 As I mentioned, he conducted the tests A. If I can answer that, I will explain why. 13 When you conduct an ink analysis where 14 you are trying to do an identification, many 15 times you have to do exams on the paper as well, 16 so when you ask the question did he examine the 17 paper, I can't answer that other than to assume 18 that he did when he did the identification of the 19 ink. 20 Q. As the person tasked with overseeing 21 the plaintiff's examinations didn't you 22 coordinate which tests he would be running and 23 which he wouldn't? 24 A. Yes. 25 Q. And did you get the samples he took 212-279-9424 I asked him to identify the ink. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 57 1 2 L. Stewart back? 3 A. No. 4 Q. Does he still have them? 5 A. I don't know. 6 Q. Let's go back to this concept of peer 7 review. 8 At paragraph 447 you state toward the 9 end of your report that as part of your original 10 tasking on this case you conducted what you call 11 technical review of the work conducted by 12 Mr. Blanco; is that correct? 13 A. Correct. 14 Q. And you reviewed his declaration along 15 with the supporting exhibits? 16 A. Yes. 17 Q. And you peer-reviewed Mr. Blanco's 18 declaration before or after it was executed? 19 A. Before. 20 Q. Did Mr. Blanco himself provide you with 21 the declaration and its exhibits or did someone 22 else? 23 A. No. 24 Q. So it's your statement here today under 25 Mr. Blanco did. oath that you received Mr. Blanco's declaration 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 201 1 L. Stewart 2 The technique as far as forensics goes 3 is used in many different applications and is 4 reliable. 5 age analysis. 6 7 Q. And I understand that and we'll get to that. 8 9 I'm questioning its use here in ink I'm asking a more general question which is, on its own GCMS testing itself, you are 10 not offering an opinion that it is unreliable; 11 correct? 12 A. Across the board, no. 13 Q. And you also do not offer an opinion 14 there's anything wrong with conducting GCMS 15 testing on ink; correct? 16 17 18 A. For research no problem, beyond that there may be a problem. Q. 19 Okay. Well, you don't offer any opinion about 20 any GCMS testing that you yourself conducted; 21 right? 22 A. 23 24 25 I did not conduct GCMS tests in this case. Q. In fact you conducted no ink testing in this case; correct? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 202 1 2 L. Stewart A. No. I did physical analysis on the ink 3 and decided at that point to hold off doing any 4 chemical analysis and I still have the ink 5 samples today, I have not tested them. 6 7 8 9 Q. And why did you hold off on doing the chemical analysis? A. Because once we -- once I determined that the ink was degraded, I agree at that point 10 that you're very limited what you can do 11 chemically to analyze that ink and held off at 12 that point doing any additional tests so I would 13 not lose the sample that I had. 14 Q. Did you explain that in your report 15 that you have those ink samples and you decided 16 not to do any ink testing? 17 A. No. 18 Q. Any particular reason why you didn't 19 20 explain that in your report? A. I'm not asked questions in the report, 21 I am only putting in the report what I found. 22 I didn't do a test I didn't find anything. 23 24 25 Q. If You explain in the report that you took ink samples from the document, do you not? A. 212-279-9424 Yes, I do. I still have them. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 305 1 L. Stewart 2 the general analysis of the document, the 3 indentations and the interlineation, I examined 4 the document in general, I looked to see if the 5 two pages were together, bound together, or if 6 they came from two different sources; I also 7 looked at the staple, I also looked at the 8 interlineations and then I addressed the ink 9 issues. 10 directed sending the paper out for testing. 11 Q. 12 13 I also did the toner analysis and Right. And Mr. Speckin, he has got a GCMS machine; right? 14 A. Yes, he does. 15 Q. And he does PE ink-dating testing; 16 right? 17 A. He has in the past. That's not the 18 direction that I would have had him go in this 19 case if we had chosen to do ink-age determination. 20 Q. Did he do ink-age determination? 21 A. I don't know if he did in this case or 23 Q. Did you ask him? 24 A. No, because his connection to me in 22 25 not. this case involving what he did and didn't do has 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 306 1 L. Stewart 2 been disconnected the past number of months, so I 3 don't have a current connection with him on this 4 case. 5 6 7 Q. What exactly do you mean by that, your connection to him has been disconnected? A. Once we decided that ink-age analysis 8 wasn't feasible, then it wasn't important for him 9 to issue any additional work in the case, so we 10 continued at that point with Mr. Blanco and 11 myself doing the lion's share of the forensic 12 work. 13 14 Q. analysis wasn't feasible. 15 16 17 18 Who's we? A. Well, on our side I decided, on your side Mr. Lyter decided. Q. 19 20 You testified that we decided ink-age I'm asking who is we. You said we decided that ink-age analysis wasn't feasible. 21 Who is we? 22 A. It would have been myself when I was -- 23 Q. You decided that? 24 A. I shouldn't have included Lyter in 25 that, it should have been just me. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 307 1 2 L. Stewart Q. 3 Okay. And as you said before, I think, 4 Mr. Speckin apparently told you that it was -- 5 well, let me ask you this: 6 you that he had come to any conclusions about ink 7 dating? 8 9 A. Did Mr. Speckin tell He told me that he had come to conclusions about ink analysis and identification, 10 and when he told me he could not identify the ink 11 because of its deterioration that is, I believe, 12 the end of the work that he did. 13 to ask the lawyers for further information; 14 that's the last I know of. 15 16 17 Q. You would have So you didn't interact with him anymore after that? A. I have on other cases. I have not 18 interacted with him about his findings in this 19 case. 20 21 Q. Is everything you did as part of your examination spelled out in your report? 22 A. I doubt it. 23 Q. Are all the tests that you ran detailed 24 25 in your report? A. 212-279-9424 The tests that yielded a finding are VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 345 1 L. Stewart 2 Q. How many paper blanks did you take? 3 A. For that particular document? 4 Q. How many paper blanks did you take of 5 the Work For Hire contract document? 6 A. Looks like 16 from page 1 and then 16 7 from page 2 and then an additional 20 from page 1 8 and an additional 20 from page 2. 9 10 11 12 Q. And what vials were those paper blanks A. That would be vial 1, vial 2, vial 7 in? and vial 9. 13 Q. 14 vials? 15 A. They were paper-only samples. 16 Q. And of those samples you gave the 17 18 entirety of vials 7 and 9 to Mr. Rantanen? A. 19 20 Those were all paper blanks in those I believe so. Let me check. Q. Sir, if you don't mind, if you'd leave 21 that out, I could just have a quick copy made of 22 that. 23 24 25 A. Okay. I just want to make sure I get it back in the right place. Q. 212-279-9424 Is that just that one page? VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 346 1 L. Stewart 2 A. That's all you've asked for. 3 Q. Well, is there anything else that you 4 5 6 7 haven't produced provided to us? A. 10 11 12 13 You say you didn't have it, but I did provide it to you. Q. 8 9 I provided that to you. Okay. Is there anything else that you have that you haven't provided to us? A. I provided you everything. I don't know whether you have everything. Q. And what did you do with the rest of the paper blanks? 14 A. I have them. 15 Q. Did you do anything with them? 16 A. I used some for the toner analysis and 17 18 19 20 I have the rest in my laboratory. Q. How did you use them for the toner analysis? A. As a paper blank to subtract any 21 influence from the paper from the results of the 22 toner. 23 Q. 24 25 You ran those before you ran the TLC of the toner, the TLC analysis on the toner? A. 212-279-9424 No. You run them at the same time. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 352 1 L. Stewart 2 Q. How? 3 A. In my notes that were taken at the desk 4 as I was doing the examination. 5 Q. Did you measure them? 6 A. Yes, I did. 7 Q. What were the measurements? 8 A. Reading from my notes it says there 9 were two slightly wider areas on both pages on 10 top edges about 1/2 inch in from left on page 1 11 and one inch from right on page 1. 12 They are -- and this is not in my 13 notes, but just my recollection, they are 14 amorphous in size so that you cannot do an 15 accurate measurement of exactly how big they 16 were. 17 18 Q. your notes in the case. 19 Can you just hold those up, please? 20 21 And what are you -- you're reading from A. Yes. It was provided to you, it's got Staples at the top from a Staples -- 22 Q. And how many pages? 23 A. Just one page. 24 Q. And how do you know it was provided to 25 us? Did you provide it to us? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 353 1 L. Stewart 2 A. Yes. 3 Q. You did? 4 A. Yes. 5 Q. How? 6 A. It's my recollection it was provided to 7 you back in November and it was provided to you 8 again on Mr. Southwell's request last week when 9 you got that file. 10 Q. And you provided it to us directly? 11 A. No. I don't deal with you directly. 12 provided it to the lawyers on Mr. Ceglia's side 13 I and they provided it to you. 14 Q. How do you know they provided it to us? 15 A. You are showing me some of them, so I 16 17 assume that they did. Q. Do you want to look through here, 18 because those notes are not in here, those notes 19 were not provided to us. 20 21 22 A. If you want me to look through there, I will. Q. 23 Can I make a copy of those notes? Let's look at the TLC worksheet form 24 that you just provided to us today and which we 25 have made a copy of. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 357 1 2 L. Stewart staple holes? 3 4 A. any photographs. 5 6 Q. MR. SOUTHWELL: 8 10 And you understand that someone who is -- that it is possible to -- 7 9 I took scans on site, I did not take Q. Strike that. Let me actually hand you back your notes here and if we could have this marked as Defendants' Exhibit 27. 11 (Defendants' Exhibit 27, photocopy of 12 one page of handwritten notes by Mr. 13 Stewart, marked for identification, as of 14 this date.) 15 Q. 16 Defendants' Exhibit 27 is the notes we were just referring to? 17 A. Yes, sir. 18 Q. Yes? 19 So if you refer to that, can you 20 identify what Q1 and Q2 on Defendants' Exhibit 26 21 is? 22 A. 23 I will try. There I'm calling Q2 the six-page 24 document. 25 you look at the worksheet, you'll see that 212-279-9424 I believe what is going on there, if VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 358 1 L. Stewart 2 there's two pages listed for Q1, two pages listed 3 for Q2, and I just doubled my sampling because at 4 the time of the analysis we were asked -- we were 5 allowed to do additional plugs and so I'm using 6 the same name twice, it appears. 7 Q. 8 9 10 Well, let's discuss this. So Defendants' 27 are your notes from the date of the inspection July 25th, 2011; correct? 11 A. That's correct. 12 Q. Those are your contemporaneous notes of 13 what you did; yes? 14 A. That's correct. 15 Q. And Q1 is the two-page document that 16 we've been referring to as the Work For Hire 17 document; yes? 18 A. The six-page document, yes. 19 Q. Q1 is the two-page document that we 20 referred to as the Work For Hire document on your 21 notes, Defendants' Exhibit 27? 22 23 24 25 A. I'm sorry. Yes, Q1 is the Work For Hire document. Q. Q2 is the six-page document titled "StreetFax Back-End" dot, dot, dot, that we 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 359 1 2 L. Stewart referred to as the specifications document; yes? 3 A. That's correct. 4 Q. And if you look in your report at 5 paragraph -- page 12, you refer to, again, Q1 is 6 the Work For Hire contract, Q2 is the Street Fax 7 back-end technical specification; yes? 8 A. That's correct. 9 Q. Now, the TLC form that we were 10 referring to as Defendants' Exhibit 26 is also a 11 contemporaneously dated document from July 25, 12 2011, when you conducted this examination; 13 correct? 14 A. That's correct. 15 Q. And there vials 1 through 6 reflect 16 your document here, your log reflects that those 17 samples were taken from Q1 and your log reflects 18 that vials 7 through 10 were taken from Q2; 19 correct? 20 A. That's what that says, yes, and I'm 21 trying to explain that to you. 22 the videotape, you'll see where the analysis was 23 taken from. 24 additional plugs and I renamed it. 25 unfortunately used the same name there that I 212-279-9424 If you look at I was given the authority to take VERITEXT REPORTING COMPANY www.veritext.com I 212-490-3430 Page 360 1 L. Stewart 2 then used in the report, but you could see that 3 those are both two-page documents and it's just 4 reiteration of the same analysis. 5 Q. So your testimony is that this 6 inventory is inaccurate with respect to -- well, 7 your inventory uses a different nomenclature than 8 your contemporaneous notes of the same day, 9 that's what you're testifying to? 10 A. That's not my testimony. I would have 11 made it clearer to you reading it now if I'd used 12 an A or some other name that I didn't use in the 13 report, so, again, I could have probably 14 clarified it, but it's very clear from reading 15 the worksheet that it's a two-page document in 16 what I did there. 17 Q. And so you are absolutely certain that 18 vials 7 to 10 which are denominated Q2 are not 19 actually the specs document? 20 A. Right. You can see from the pieces of 21 plugs that it's yellow on one side; the specs 22 document was not. 23 Q. And if we go back and check the 24 videotape do you think that that's going to 25 support your opinion? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 362 1 2 L. Stewart A. I recall that name being used. I don't 3 recall seeing the document, I was just told what 4 I could do. 5 Q. And you recall that in fact you were 6 allowed to take only 20 plugs from the Work For 7 Hire document? 8 9 10 11 A. I don't recall the number, I would have to go back and look. Q. But your testimony here is that you were allowed to take additional plugs. 12 Are you sure that wasn't later when you 13 had access, exclusive access to the documents 14 that was not part of the authorized examination? 15 16 17 18 19 20 21 A. No. My analysis as far as taking plugs was only done in Chicago. Q. So did you send plugs from the specifications document to Mr. Rantanen? A. No. I sent him only the document, the Work For Hire document. Q. Now, it's your position that the 22 physical document that was used to create the 23 copy that was attached to the complaint of the 24 Work For Hire document is the same physical 25 document as the one produced to experts in this 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 367 1 L. Stewart 2 Do you have a document that identifies 3 what the lanes on this TLC plate Defendants' 4 Exhibit 28 is? 5 A. 6 7 I'm looking. Yes. It was provided to you, it has 10 lanes described on the left column. 8 Q. What are you referring to? 9 A. Another TLC worksheet that you were 10 provided in that package. 11 Q. Can you hold that up, please? 12 A. It says "Plate 1" in the upper left and 13 the upper right "Plugs taken from those removed 14 7/25." 15 Q. 16 that refer to the different plates? 17 18 And how many sheets do you have here You just have this one sheet that refers to plate 1? 19 A. Yes, one plate and one sheet. 20 Q. You only did one plate and you have one 21 22 sheet that corresponds? A. Right. The next page that you've got 23 is the back side of that sheet, the handwritten 24 notes beginning with I-706 in the top part. 25 Q. 212-279-9424 I don't think we have that. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 368 1 L. Stewart 2 Could I make a copy of that? 3 It might be easier if you just give us 4 the whole file and then we can make sure we have 5 a copy of everything. 6 number of documents that have not been provided. 7 A. It seems that there are a If it helps you on those type of 8 documents, they were part of a PDF that was sent 9 with the file and there are many pages in the PDF. 10 Q. I am confident we printed everything 11 that we were provided. 12 reason we were not provided those documents. 13 14 I think that for whatever I will want to ask you some questions about that, so you'll have to hold on. 15 Now, with respect to your library of 16 standards, do you have an index to your library 17 of toner standards? 18 19 20 21 A. I have a logbook that has all of them in there. Q. And have you been asked for that in other litigations? 22 A. Yes. 23 Q. And have you provided that in discovery 24 25 in other litigations? A. 212-279-9424 No, I have not. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 371 1 2 L. Stewart is that right? 3 4 A. That's right. It's a moral agreement in words that I've had with the industry. 5 Q. And what specifically is there that is 6 proprietary or confidential about the list of the 7 materials that you have in your library? 8 A. Composition and formula information. 9 Q. I'm handing you back your notes. 10 There's some sort of, like, on the -- I 11 see. 12 copy of a back of a page; is that what's going on 13 here? 14 This was the back of -- this is a color A. 15 Yes, sir. MR. SOUTHWELL: Let's just take a real 16 quick break. 17 document. 18 understand that these are documents you have 19 not provided to us previously, so I need the 20 opportunity to look at them. 21 you have travel arrangements, but let me 22 look at them and let me see if we can do 23 that and we will be right back. 24 25 I want to look at this Mr. Boland, you have to MR. BOLAND: I understand I'm not agreeing that we haven't provided them, but I understand 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 372 1 2 L. Stewart your position is that we haven't. 3 4 MR. SOUTHWELL: as we can. 5 6 We'll be back as soon THE VIDEOGRAPHER: record. Going off the The time is 6:36. 7 (Recess taken.) 8 THE VIDEOGRAPHER: 9 10 11 record. We are back on the The time is 6:41. BY MR. SOUTHWELL: Q. Mr. Stewart, referring you to 12 Defendants' Exhibit 26, you did not take any 13 samples of ink; is that right? 14 A. 15 26 is. 16 Q. I don't know what Defendants' Exhibit That reflects that you did not take any 17 ink samples; right? 18 inventory sheet? 19 A. Or is there some other There should be a different one that 20 has ink on it. 21 paper. 22 Q. 23 A different form, okay. I see. Another form that we don't have. 24 25 This one is just for toner and Does it look like this form, the worksheet form, but you're saying it includes ink 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 373 1 2 L. Stewart samples? 3 A. Yes. 4 Q. It should look the same? 5 A. It should look the same, but it would 6 7 It should -- indicate that there's ink samples. Q. You mentioned that when you were doing 8 the hard copy inspection, you used a digital 9 microscope, right, that was your testimony? 10 A. I believe I recall that I told you that 11 I would have to review the videotape to see, but 12 I think I recall taking one with me and using it. 13 14 15 16 17 Q. And what manufacturer is your digital microscope that you used on that day? A. I think I took a Pro Scope, but, again, I would have to look at the videotape. Q. And that would have been attached to 18 the computer; right? 19 attached to the computer to capture images; yes? 20 21 A. If it's digital, it's It would be attached to a laptop computer, yes. 22 Q. And did you capture images using that? 23 A. If I had they would have been included. 24 I don't know if I did, I would have to look at 25 the videotape. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 378 1 L. Stewart 2 very much weight, and we can litigate that 3 opinion, if appropriate. 4 I don't think it contains proprietary 5 information, it lists the different toners 6 and the manufacturers. 7 could explain what's in that index. 8 9 MR. BOLAND: Maybe Mr. Stewart Obviously, we have a difference of opinion. We say we've given 10 you all of the documents, you say we 11 haven't, that's fine, so if you want to 12 finish out the deposition time, then make a 13 motion. 14 MR. SOUTHWELL: Mr. Stewart is going to 15 be here for other days, we can simply 16 reconvene with him he's here on a day that 17 we're deposing defendants' experts. 18 MR. BOLAND: I don't know if he's going 19 to be here on other days, but if he is, 20 certainly, if that's convenient. 21 MR. SOUTHWELL: So I would ask that you 22 produce the documents either now or after 23 you make your flight and then we arrange to 24 reconvene to review those documents with 25 Mr. Stewart. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430

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