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)

EXHIBIT G

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

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No. 1:10-cv-00569
PAUL D. CEGLIA,

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Plaintiff,

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vs.

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MARK ELLIOT ZUCKERBERG,
Individually, and FACEBOOK,

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INC.,

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Defendants.
________________________________/

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110 East Broward Blvd.
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Fort Lauderdale, Florida
September 24, 2012

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9:00 a.m. 11:45 a.m.

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VIDEOTAPED DEPOSITION OF ERICH SPECKIN

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Taken before SUZANNE VITALE, R.P.R., F.P.R.

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and Notary Public for the State of Florida at Large,

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pursuant to Notice of Taking Deposition filed in the

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above cause.

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APPEARANCES:

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On behalf of Plaintiff:

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BOLAND LEGAL, LLC
1475 Warren Road

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Unit 770724
Lakewood, Ohio 44107

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BY:

DEAN BOLAND, ESQ. (via telephone)

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On behalf of Defendants:

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GIBSON DUNN & CRUTCHER LLP
200 Park Avenue

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New York, NY 10166-0913
BY:

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AMANDA M. AYCOCK, ESQ.
ALEXANDER H. SOUTHWELL, ESQ.

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ALSO PRESENT:

Paul Calcatara, Videographer

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Q.

Just -- I was going to ask you about that

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in a moment, but let's just stay on that since

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you're talking about it.

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This is the second page of Speckin 2.

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Your understanding that the agreement was that each

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side, or you specifically, as your side, plaintiff's

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side, can take four plugs from the initials, ten

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plugs from the signature, ten plugs from the

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handwriting sort of line, interlineation, as you

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sometimes refer to it?

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A.

Correct.

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Q.

And 20 plugs from the toner and 20 plugs

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from the paper on each page?
A.

Well, I didn't take the toner and paper.

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I just took a couple of paper blanks.

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if it was 20 of toner and 20 of paper or 20 total of

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toner and/or paper.

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with that either way because it wasn't what I was

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taking.

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positive, but the first three were right.

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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

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take that much.

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it, or one expert could take them all.

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told I could take them all for the ink and then to

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say how many I wanted for the paper blank.

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So either the experts could split

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So I was

And then

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my understanding is Larry Stewart took whatever was

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left for his paper blanks.

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took.

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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?

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A.

Larry Stewart, I'm pretty sure.

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Q.

So looking at the first page here of

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Speckin 2.

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and on the bottom you got paper blanks, and those

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So on the top, you got the ink samples

are labeled A, B, C, D?

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A.

Correct.

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Q.

I'm interested in obviously just your

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memory of what the sampling was.

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It looks to me like Vials 1 to 5 were from

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the first two pages of the work-for-hire contract

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and then 6 to 10 were from the specifications sheet,

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because if you look, that's where the text is and

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where the signatures are.

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Does that comport with your memory?
A.

That's right.

That's why I asked to see

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the copy.

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didn't see any writing on what I had for page 4, I

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was a little confused, but now I understand that it

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was from page 4, just my copy was missing.

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Q.

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When it says page 4 in the margin, and I

There's a little line between 5 and 6?
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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

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that I had said let's do the ink identification --

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that was if we wanted to, that we could.

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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.

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Number one is if I was going to do an ink

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identification, it's standard procedure, although,

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in my opinion, not required in most cases.

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this case, with the yellow on the document, I wanted

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to take a blank to make sure there were no

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interfering factors from the paper that would look

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as either dyes or fluorescent components to allow

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for a proper identification if I did it.

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But in

It probably wasn't as significant from the

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StreetFax document because there really wasn't

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anything in the paper, but I took them, in large

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part, probably because everybody else did, and I

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wasn't going to be able to go back.

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other reason.

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Q.

That was the

And what is the notation in the upper left

corner on page 1 of Speckin 2?

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A.

Black ballpoint.

I believe that every

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ink, at least as best I can tell from what was

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there, was black ballpoint.

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Q.

Looking at the second page, so the top you

said was your understanding of the agreement.

I

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take it below there is a listing of what was already

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taken by defendants' experts and then what's below

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there, it says "and toner," can you describe what's

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listed there on the second page?

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A.

Well, I can tell you I don't know who took

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it, so when you say defendants' experts, that's my

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guess.

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the samples.

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when I got it.

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it.

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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,

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four from each initial, ten plugs of paper, ten

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squares of paper, which I assume that's two

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different people.

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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,

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typical case for me.

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Q.

that fingerprints might be an issue in this case?

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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.

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Q.

When you take --

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A.

He said they could be an issue.

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I don't

believe he said they would or are or whatever.

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Q.

When you take samples, do you have any

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particular habit or procedure in the sense that -- I

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know some document examiner would take paper samples

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in a straight line on the bottom or they may take it

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in a square or diamond formation.

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Do you have a particular habit, formula or
procedure?

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A.

I never thought about that one.

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know if I have a habit.

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nothing that ever mattered to me, but I may have

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one.

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that.

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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

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agreements that you were aware of in terms of the

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number of samples and that would govern what each

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side would take and then each side would divide

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amongst themselves how they were to arrange it?

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A.

That was my understanding.

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Q.

And as you testified, you took all of the

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ink samples permitted by your side, plus some paper

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blanks, and then Mr. Stewart took everything else,

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which would be the remaining paper samples and toner

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samples, correct?

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A.

As of the July 25, 2011 status, that was

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what I took.

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more samples taken.

I've heard rumblings that there were
I have no idea what happened

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after that or who got what.

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them, I can tell you that.

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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

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fax, it's totally coincidental.

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fax was dated, so it clearly didn't come from me.

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Q.

It was 2010 this

You're referring to the specifications

document?
A.

Right.

So it was just a total coincidence

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that it was two days before the exam.

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I saw it before.

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Q.

I don't think

I'm going to now show you what is marked

as Speckin Exhibit 5.

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(Thereupon, the referred-to document was

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marked by the court reporter for Identification as

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Defendants' Exhibit 5.)

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BY MR. SOUTHWELL:

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Q.

Can you identify that first?

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A.

Yes, these are the notes taken by Patty

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Giebink, G-I-E-B-I-N-K, from my office, with the

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samples that I gave to her that I took in Chicago to

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test.

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The left-hand side are her initials, the

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date she did it, 7/27, the client's name, which is

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cut off, but is Lake, and the case, the internal

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case number, which is 159-11.

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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,

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what I told her, when she got the samples, what I

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told her I wanted to have done and then what she

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did, what solvent she used, where they were spotted

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on the plate, the order, that sort of thing.

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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.

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That's correct -- well, and paper.
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There's three paper samples as well.
Q.

What does this tell us about the number of

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samples that were used for the TLC analysis, if

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anything?

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A.

It says four plugs were used from Vials 2,

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3, 7 and 8, B and C, and three samples or three

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plugs were used from Vials 1, 4, 5, 6, 9 and 10.

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Q.

So were there ink samples left after this

analysis?

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A.

Yes.

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Q.

And where are those ink samples today?

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A.

They may still be in my office, but

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they're probably discarded after a year, so I don't

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believe that we would still have them now.

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typically don't retain them for over a year because

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they generally don't have any value.

We

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Q.

After a year, they don't have any value?

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A.

After a year of sitting out of the

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document in a vial, any value would be very

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minimized.

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It's possible you can have comparison

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value, does this match this or is this a different

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ink than this.

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solvents or dyes after sitting in a vial for a year,

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I would think would be very questionable.

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But to do ink dating either by

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I'd rather take new samples so we
generally don't keep them over a year.

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Q.

And this was -- did you provide all of the

vials to Ms. Giebink at your Michigan lab?

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A.

Yes, all the vials are kept together.

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didn't take some and leave some.

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I

They're all in one

place.

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Q.

How did you get from Chicago to your lab?

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A.

As I said earlier, I don't remember if I

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flew or if I drove.

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back with the instruments because of the flight

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times, but I'm not really sure.

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flew out or drove back.

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Q.

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I don't know if I

I can't remember.

But you personally delivered all the vials

to the lab in Michigan?

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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

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tested what she tested, as indicated here, and

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whatever remained would have remained at the

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Michigan lab; is that right?

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A.

Correct.

I don't believe they would

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have -- well, they're not in the case, so they

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didn't come to Florida.

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then they are still in Michigan.

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If they're not discarded,

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Q.

And those ink samples were never provided

to Mr. Stewart; is that right?

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A.

That's right, they were not.

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Q.

What do you understand about your standard

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office procedure in terms of the destruction of

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those, in other words, you said typically after a

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year, they would be destroyed, what is the procedure

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with respect to that?

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A.

Well, after a year, we can get rid of

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them.

Whether we do at 366 or 367 days, or not, is

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probably a different issue.

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I don't know if we have them or not still,

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but we do tell clients we can get rid of them after

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a year so we don't have to save things forever.

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whether we actually police it up at the actual

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one-year mark, I don't know.

But

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I mean, we don't, but we're well past a

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year, and Patty's last day was last Friday, so if

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they got cleaned up when she left, I don't know the

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answer.

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Q.

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Got it.

Let me now show you Speckin

Exhibit 4 and have you identify that, please.

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(Thereupon, the referred-to document was

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marked by the court reporter for Identification as

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Defendants' Exhibit 4.)

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