Ceglia v. Zuckerberg et al

Filing 556

DECLARATION signed by Amanda M. Aycock 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)(Snyder, Orin)

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EXHIBIT G Page 1 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK 2 3 No. 1:10-cv-00569 PAUL D. CEGLIA, 4 Plaintiff, 5 vs. 6 MARK ELLIOT ZUCKERBERG, Individually, and FACEBOOK, 7 INC., 8 Defendants. ________________________________/ 9 110 East Broward Blvd. 10 Fort Lauderdale, Florida September 24, 2012 11 9:00 a.m. 11:45 a.m. 12 13 VIDEOTAPED DEPOSITION OF ERICH SPECKIN 14 15 Taken before SUZANNE VITALE, R.P.R., F.P.R. 16 and Notary Public for the State of Florida at Large, 17 pursuant to Notice of Taking Deposition filed in the 18 above cause. 19 20 21 22 23 24 25 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 2 1 APPEARANCES: 2 3 On behalf of Plaintiff: 4 BOLAND LEGAL, LLC 1475 Warren Road 5 Unit 770724 Lakewood, Ohio 44107 6 BY: DEAN BOLAND, ESQ. (via telephone) 7 8 On behalf of Defendants: 9 GIBSON DUNN & CRUTCHER LLP 200 Park Avenue 10 New York, NY 10166-0913 BY: 11 AMANDA M. AYCOCK, ESQ. ALEXANDER H. SOUTHWELL, ESQ. 12 13 ALSO PRESENT: Paul Calcatara, Videographer 14 15 16 17 18 19 20 21 22 23 24 25 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 50 1 Q. Just -- I was going to ask you about that 2 in a moment, but let's just stay on that since 3 you're talking about it. 4 This is the second page of Speckin 2. 5 Your understanding that the agreement was that each 6 side, or you specifically, as your side, plaintiff's 7 side, can take four plugs from the initials, ten 8 plugs from the signature, ten plugs from the 9 handwriting sort of line, interlineation, as you 10 sometimes refer to it? 11 A. Correct. 12 Q. And 20 plugs from the toner and 20 plugs 13 14 from the paper on each page? A. Well, I didn't take the toner and paper. 15 I just took a couple of paper blanks. 16 if it was 20 of toner and 20 of paper or 20 total of 17 toner and/or paper. 18 with that either way because it wasn't what I was 19 taking. 20 positive, but the first three were right. 21 I don't know I didn't really concern myself So I don't know what the agreement was, My understanding was that each side got to 22 take that much. 23 it, or one expert could take them all. 24 told I could take them all for the ink and then to 25 say how many I wanted for the paper blank. 212-279-9424 So either the experts could split VERITEXT REPORTING COMPANY www.veritext.com So I was And then 212-490-3430 Page 51 1 my understanding is Larry Stewart took whatever was 2 left for his paper blanks. 3 took. 4 5 I don't know how many he I didn't count them. Q. Who was it that told you you can take all of the ink samples? 6 A. Larry Stewart, I'm pretty sure. 7 Q. So looking at the first page here of 8 Speckin 2. 9 and on the bottom you got paper blanks, and those 10 So on the top, you got the ink samples are labeled A, B, C, D? 11 A. Correct. 12 Q. I'm interested in obviously just your 13 memory of what the sampling was. 14 It looks to me like Vials 1 to 5 were from 15 the first two pages of the work-for-hire contract 16 and then 6 to 10 were from the specifications sheet, 17 because if you look, that's where the text is and 18 where the signatures are. 19 20 Does that comport with your memory? A. That's right. That's why I asked to see 21 the copy. 22 didn't see any writing on what I had for page 4, I 23 was a little confused, but now I understand that it 24 was from page 4, just my copy was missing. 25 Q. 212-279-9424 When it says page 4 in the margin, and I There's a little line between 5 and 6? VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 52 1 2 3 4 5 A. Meaning that's a different document, correct. Q. And on the right-hand side, it says ID, what does that mean? A. Ink identification. That was something 6 that I had said let's do the ink identification -- 7 that was if we wanted to, that we could. 8 9 10 11 12 13 I didn't believe we could do the ink identification on the work-for-hire documents after I had looked at it on the TLC plate. Q. And then the paper blanks, what is the purpose of taking paper blanks? A. I took paper blanks for two purposes. 14 Number one is if I was going to do an ink 15 identification, it's standard procedure, although, 16 in my opinion, not required in most cases. 17 this case, with the yellow on the document, I wanted 18 to take a blank to make sure there were no 19 interfering factors from the paper that would look 20 as either dyes or fluorescent components to allow 21 for a proper identification if I did it. 22 But in It probably wasn't as significant from the 23 StreetFax document because there really wasn't 24 anything in the paper, but I took them, in large 25 part, probably because everybody else did, and I 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 53 1 wasn't going to be able to go back. 2 other reason. 3 4 Q. That was the And what is the notation in the upper left corner on page 1 of Speckin 2? 5 A. Black ballpoint. I believe that every 6 ink, at least as best I can tell from what was 7 there, was black ballpoint. 8 9 Q. Looking at the second page, so the top you said was your understanding of the agreement. I 10 take it below there is a listing of what was already 11 taken by defendants' experts and then what's below 12 there, it says "and toner," can you describe what's 13 listed there on the second page? 14 A. Well, I can tell you I don't know who took 15 it, so when you say defendants' experts, that's my 16 guess. 17 the samples. 18 when I got it. 19 it. 20 I wasn't there so I can't tell you who took But this was the condition it was in When I say "they," someone else took Ten plugs from handwritten line on page 1, 21 four from each initial, ten plugs of paper, ten 22 squares of paper, which I assume that's two 23 different people. 24 25 They just took ten is my guess. And toner, it says, page 2, PC 7 from the signature, three from the date, MZ 7 signature, 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 72 1 typical case for me. 2 3 Q. that fingerprints might be an issue in this case? 4 5 Did somebody -- did Mr. Stewart tell you A. Yes, I'm pretty sure that's who told me, yes, it would have been Mr. Stewart. 6 Q. When you take -- 7 A. He said they could be an issue. 8 I don't believe he said they would or are or whatever. 9 Q. When you take samples, do you have any 10 particular habit or procedure in the sense that -- I 11 know some document examiner would take paper samples 12 in a straight line on the bottom or they may take it 13 in a square or diamond formation. 14 15 Do you have a particular habit, formula or procedure? 16 A. I never thought about that one. 17 know if I have a habit. 18 nothing that ever mattered to me, but I may have 19 one. 20 that. 21 I don't know. Q. Okay. I'd have to look. I don't It's I don't know the answer to And we talked before about the 22 agreements that you were aware of in terms of the 23 number of samples and that would govern what each 24 side would take and then each side would divide 25 amongst themselves how they were to arrange it? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 73 1 A. That was my understanding. 2 Q. And as you testified, you took all of the 3 ink samples permitted by your side, plus some paper 4 blanks, and then Mr. Stewart took everything else, 5 which would be the remaining paper samples and toner 6 samples, correct? 7 A. As of the July 25, 2011 status, that was 8 what I took. 9 more samples taken. I've heard rumblings that there were I have no idea what happened 10 after that or who got what. 11 them, I can tell you that. 12 13 14 Q. I didn't get any of You didn't take any additional samples at some later time of these documents? A. No. Just to clear up one thing on the 15 fax, it's totally coincidental. 16 fax was dated, so it clearly didn't come from me. 17 18 19 Q. It was 2010 this You're referring to the specifications document? A. Right. So it was just a total coincidence 20 that it was two days before the exam. 21 I saw it before. 22 23 Q. I don't think I'm going to now show you what is marked as Speckin Exhibit 5. 24 25 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 74 1 (Thereupon, the referred-to document was 2 marked by the court reporter for Identification as 3 Defendants' Exhibit 5.) 4 BY MR. SOUTHWELL: 5 Q. Can you identify that first? 6 A. Yes, these are the notes taken by Patty 7 Giebink, G-I-E-B-I-N-K, from my office, with the 8 samples that I gave to her that I took in Chicago to 9 test. 10 The left-hand side are her initials, the 11 date she did it, 7/27, the client's name, which is 12 cut off, but is Lake, and the case, the internal 13 case number, which is 159-11. 14 15 16 Q. The 1 is cut off. These are the notes of her analysis that you asked her to do of the ink samples? A. It's the notes of what she -- number one, 17 what I told her, when she got the samples, what I 18 told her I wanted to have done and then what she 19 did, what solvent she used, where they were spotted 20 on the plate, the order, that sort of thing. 21 22 23 24 25 Then the bottom third is what she saw when she looked at the plate. Q. This refers to TLC analysis of the ink sample, right? A. 212-279-9424 That's correct -- well, and paper. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 75 1 2 There's three paper samples as well. Q. What does this tell us about the number of 3 samples that were used for the TLC analysis, if 4 anything? 5 A. It says four plugs were used from Vials 2, 6 3, 7 and 8, B and C, and three samples or three 7 plugs were used from Vials 1, 4, 5, 6, 9 and 10. 8 9 Q. So were there ink samples left after this analysis? 10 A. Yes. 11 Q. And where are those ink samples today? 12 A. They may still be in my office, but 13 they're probably discarded after a year, so I don't 14 believe that we would still have them now. 15 typically don't retain them for over a year because 16 they generally don't have any value. We 17 Q. After a year, they don't have any value? 18 A. After a year of sitting out of the 19 document in a vial, any value would be very 20 minimized. 21 It's possible you can have comparison 22 value, does this match this or is this a different 23 ink than this. 24 solvents or dyes after sitting in a vial for a year, 25 I would think would be very questionable. 212-279-9424 But to do ink dating either by VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 76 1 2 I'd rather take new samples so we generally don't keep them over a year. 3 4 Q. And this was -- did you provide all of the vials to Ms. Giebink at your Michigan lab? 5 A. Yes, all the vials are kept together. 6 didn't take some and leave some. 7 I They're all in one place. 8 Q. How did you get from Chicago to your lab? 9 A. As I said earlier, I don't remember if I 10 flew or if I drove. 11 back with the instruments because of the flight 12 times, but I'm not really sure. 13 flew out or drove back. 14 15 Q. 18 I don't know if I I can't remember. But you personally delivered all the vials to the lab in Michigan? 16 17 I have a feeling that I rode A. Yes. And it says that at the top of the Q. And you gave her all of them. page. She then 19 tested what she tested, as indicated here, and 20 whatever remained would have remained at the 21 Michigan lab; is that right? 22 A. Correct. I don't believe they would 23 have -- well, they're not in the case, so they 24 didn't come to Florida. 25 then they are still in Michigan. 212-279-9424 If they're not discarded, VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 77 1 2 Q. And those ink samples were never provided to Mr. Stewart; is that right? 3 A. That's right, they were not. 4 Q. What do you understand about your standard 5 office procedure in terms of the destruction of 6 those, in other words, you said typically after a 7 year, they would be destroyed, what is the procedure 8 with respect to that? 9 A. Well, after a year, we can get rid of 10 them. Whether we do at 366 or 367 days, or not, is 11 probably a different issue. 12 I don't know if we have them or not still, 13 but we do tell clients we can get rid of them after 14 a year so we don't have to save things forever. 15 whether we actually police it up at the actual 16 one-year mark, I don't know. But 17 I mean, we don't, but we're well past a 18 year, and Patty's last day was last Friday, so if 19 they got cleaned up when she left, I don't know the 20 answer. 21 Q. 22 Got it. Let me now show you Speckin Exhibit 4 and have you identify that, please. 23 (Thereupon, the referred-to document was 24 marked by the court reporter for Identification as 25 Defendants' Exhibit 4.) 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430

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