Ceglia v. Zuckerberg et al

Filing 563

REPLY to Response to Motion re 499 MOTION to Strike 472 Declaration, RE-FILING OF NOTICE OF MOTION FOR SIGNATURE PER CLERK'S OFFICE filed by Paul D. Ceglia. (Attachments: # 1 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.

REPLY TO DEFENDANTS’
RESPONSE REGARDING
MOTION TO STRIKE NEW
EXPERT REPORT

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

DEFENDANTS ENTERED JUDICIAL ADMIS S ION THAT THE S IGNATURES
ON PAGE TWO OF THE FB CONTRACT ARE NOT IN DIS PUTE
Lesnevich’s new report focuses on the signatures on page two of the FB Contract.
Lesnevich was hired more than a year ago and long before the June 30, 2011 to evaluate the
signatures on page two of the FB Contract.
I was asked to examine and determine the authenticity of a questioned handwritten
entry and the questioned signatures of "Mark Zuckerberg" and "PaulCeglia" appearing
on a purported "WORK FOR HIRE" CONTRACT. Doc. No. 52 at ¶10.
Lesnevich’s new report is not evaluating new evidence, it is manufacturing new theories
to confront new problems in Defendants’ case. Lesnevich was instructed to examine the
signatures on page two of the FB Contract before submitting his expert report attached to the
Motion to Dismiss on March 26, 2012. They have had more than a year to examine those
signatures, and undoubtedly had examined them producing no report for obvious reason.
Defendants have waived any dispute over the signatures on page two of the FB Contract because
defense attorney Snyder entered a judicial admission of authenticity of page two. During the
June 30, 2011 hearing, Snyder entered the following judicial admission confirming the

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authenticity of page two of the FB contract.
THE COURT: But [Defendant Zuckerberg] did sign some agreement.
MR. S NYDER: Correct. S o the question is not whether the signature -THE COURT: S o the question is whether it's [Defendant Zuckerberg’s] signature on this
agreement.
MR. S NYDER: That's not a disputed issue in the case. Hearing Transcript, June 30, 2011 at
56.
Snyder’s statement above is a deliberately made unambiguous admission of fact. A
judicial admission is “a clear and unambiguous admission of fact.” United States v. McKeon, 738
F.2d 26, 30 (2d Cir.1984) Robinson v. McNeil Consumer Healthcare, 615 F.3d 861, 872 (7th
Cir.2010) (quoting MacDonald v. General Motors Corp., 110 F.3d 337, 340 (6th Cir.1997)
(“[I]n order to qualify as judicial admissions, an attorney's statements must be deliberate, clear
and unambiguous.”)).

Plaintiff and this court relied upon Defendants’ judicial admission.

Defendants’ used this judicial admission as part of their argument to obtain “efficient” and
“limited” one-sided discovery.
THE ATTEMPTED S UBMIS S ION OF THIS NEW REPORT VIOLATES RULE 26
Plaintiff opposed the use of Defendants’ expert LaPorte’s report.

In rejecting that

motion, the court held that F.R.Civ.P. 26 was violated by LaPorte, but the violation was de
minimis. Doc. No. 457 at 14. The court did not hold that Rule 26 was inapplicable to the onesided discovery or the discovery connected with their motion to dismiss. Id.
Defendants expressed during expert depositions that they were not required to share
documents with us that their experts relied on in reaching their conclusions. This is despite the
fact they demanded such documents from Plaintiff and he provided them. They asserted this
arguing that this court was not ordering “Rule 26 depositions” but depositions under the court’s
inherent power. Therefore, they did not have to follow Rule 26 or any other rules in the

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conducting of expert depositions. Without Rule 26’s restrictions, Defendants feel free to provide
new reports, to tell LaPorte to hide his notes in his hotel room and hide the results of their
analysis of twenty-eight Zuckerberg computer devices. The lack of any report on those twentyeight devices is telling. It is obvious that had Defendants examined those twenty-eight devices
and found no evidence relevant to Plaintiff or the authenticity issues in this case, they would
have highlighted that in bold letters in every brief filed following that discovery. Instead,
silence.

That silence tells this court all it needs to know about whether Defendants are

withholding information relevant to the court’s motion to dismiss determination. Meanwhile
they demand more from the court and Plaintiff.
NO JUS TIFICATION FOR DEFENDANTS ’ DELAY IN PROVIDING NEW REPORT
Defendants offer no excuse for their delay in providing this report timely. A review of
the report exposes that the data underlying it was available to Defendants for more than a year
before its submission.
LES NEVICH REPORT ADDS NEW THEORY, NOT BAS ED ON NEW FACTS
There is no clear or convincing substance to Lesnevich’s new report. Defendants’ were
compelled to attempt to maneuver around the Court’s clear deadline to provide something to duel
with Blanco’s conclusions. Lesnevich’s new report continues to underline expert disputes on
meaningful facts relating to Defendants’ motion to dismiss for fraud on the court.
Lesnevich New Conclusion #1 - Plaintiff has disposed of Lesnevich’s first conclusion
regarding the nonsensical theory that there were two physical documents (Doc. No. 472-1 at 73).
Lesnevich supported his first expert report with a comparison an original to an image altered by
Argentieri. Doc. No. 481 at 33.
Lesnevich New Conclusion #2 - Lesnevich’s new report concluded, “that the

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questioned Zuckerberg signature and date found on the Work for Hire document were modeled
after a near-identical source-signature and date...unnaturally written tracings...not written by
Mark Zuckerberg.” Doc. No. 472-1, at 74. At best, this conclusion merely rebuts Blanco’s
previously unrebutted conclusion that the Mark Zuckerberg signature on page two of the FB
Contract is not a trace forgery. Doc. No. 415 at 38. More dueling experts.
Lesnevich New Conclusion #3 - Lesnevich’s new report concluded that “the questioned
Zuckerberg initials...were not written by Mark Zuckerberg.” No. 472-1 at 74. This conclusion,
at best, disputes Blanco’s previously unrebutted conclusion that “the questioned ‘MZ’
initials...represent the natural, normal and genuine handwriting characteristics of Mark
Zuckerberg....” Doc. No. 415 at 46. More dueling experts.
Lesnevich New Conclusion #4 - Lesnevich concluded that Plaintiff forged his own
signature. Defendants cannot even reasonably argue that Lesnevich is the more reliable expert
over Blanco. Lesnevich not only failed to examine the handwriting his first time around or the
intervening ten months, but also provided in his March 26, 2012 report, a comparison to an
obviously altered image presuming it to be unaltered. This is not the work of an expert whose
conclusions are reliable. It is at best sloppy and at worst contrived to meet a pre-determined
conclusion. Not to escape the obvious question here, but how can a person forge their own
signature and why would they? It is their signature, they could just sign it.
DEFENDANTS ’ CHANGING DEFENS E THEORY MAKES NEW REPORTS
S UPERFLUOUS
The clear and convincing standard, if it means anything, means a defense that has a
theory that is not fluctuating with every new expert report. From the outset of this case, until
Lesnevich’s March 26, 2012 report, Defendants have consistently urged a page one substitution
theory in this case. That is, they have, in various forms and at various times, attempted to
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distinguish the two pages of the FB contract, focusing on the claimed forgery of page one of the
contract and acknowledging the authenticity of page two of the FB contract.
Defendants repeatedly emphasized this page one substitution theory of fraud.
DEFENDANTS DES IRE TO OPEN THE FLOODGATES OF NEW REPORTS
Defendants intended to ambush Plaintiff at the beginning of or during Lesnevich’s
deposition by not previously providing the new seventy-five page report. It strains credulity that
Lesnevich forgot or failed, during this months of access to evidence, to consider the conclusions
he now seeks to provide to this court outside scrutiny of Plaintiff’s experts. Doc. No. 472-1. The
court should ponder why Defendants would seek to enter new reports into the record strategically
and procedurally positioned to evade scrutiny from Plaintiff’s experts.
It has taken a full six months to get from the submission of the Defendants’ motion to
dismiss (Doc. No. 318) to where we are today, at the brink of a ruling that Defendants’ have no
clear and convincing evidence of fraud. Defendants know full well that fairness dictates that in
order for the court to consider any expert opinions presented by the Defendants, that the Plaintiff
should be given the opportunity for his experts to review the new reports, depose the Defendants’
expert about the information in the new reports and permit Plaintiff’s experts to submit a report
in response.

To do otherwise would be to consider allegations made by Defendants in a

dispositive motion without ever giving Plaintiff a chance to respond.
The last six month process was not only time consuming, but financially draining on
Plaintiff. Defendants desire nothing more than to start a second six month process to delay the
inevitable in hopes that they can bankrupt the Plaintiff before justice is served. The cost and
expense of motion practice and expert fees to permit a second indeterminant period would be
prejudicial to Plaintiff. Plaintiff was unable to depose Lesnevich previously because of the

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unreasonable expert fees demanded and that situation persists. Plaintiff desires to move this
litigation on towards trial.
If the Court decides not to strike the Lesnevich report, Plaintiff will be prejudiced.
Plaintiff cannot and will not again depose Defendants’ expert as part of another protracted
process serving Defendants’ aim to financially punish Plaintiff in hope of winning this case
avoiding the obvious facts entitling Plaintiff to a trial. Plaintiff sought additional discovery and
was met with a motion denial and looming sanctions. Defendants have sought and received
additional time and information repeatedly.

The court interpreted Plaintiff’s motion for

discovery as merely a strategy to delay. Defendants’ motions, however, have actually caused
delay and have been met with unequivocal approval. Plaintiff sought an extra week to submit
expert reports and was denied following Defendants cacophonous bleating about delay, etc.
Defendants easily ignore hypocrisy seeking delays and receive those delays unhindered by the
Court’s history of greeting Plaintiff’s motions, incidentally including delay, with harsh rejection.
FAIRNES S
Plaintiff’s request for additional time to file his expert’s reports (Doc. No. 391) was
denied by the Court (Doc. No. 408). It was clear to Plaintiff that it was not the Court’s intention
to allow the parties to file expert reports at will. If the court’s order were properly interpreted to
allow periodic “updating” of information in expert reports, Plaintiff had no need to approach the
court about the denied one week extension. He could have just timely submitted his reports as
they were and added information to them throughout the months afterward. The court nor
Defendants indicated in any filings or rulings that this was the understanding of either -- and with
good reason -- it’s not the court’s order. Defendants would have clearly sought exclusion of any
Plaintiff’s expert report filed even one day late. Yet, here, Defendants seek to file new reports

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more than six months late.
Endorsing Defendants’ late-comer strategy by permitting filing of the new Lesnevich
report, would encourage Defendants to add as many unrefuted expert reports as possible in their
reply. Even if the Court desires to deny this motion to strike, the Court should clearly state no
other reports will be permitted until Defendants’ motions to dismiss are decided.
THE UNEXPLAINED IRRATIONALITY OF DEFENDANTS ’ TWO PAGE FORGERY
CLAIM
Along with being Defendants’ theory du jour, the new two page forgery theory makes no
rational sense. To be believed, Defendants have to explain, which they have not attempted, why
a supposed expert forger would know enough to forge two documents, copy the fonts and
margins exactly on page two and disregard them completely on page one. The inconsistency in
their theories is underlined by their inconsistency in their description of Plaintiff. They oscillate
between Plaintiff being an “amateur forger” and others a near genius that he could trace
Defendant Zuckerberg’s signature with machine precision. Defendants claim Plaintiff is capable
of a sophisticated trace forgery, matching margins and fonts to page two of the Street Fax digital
images, but blatantly disregarding matching those same fonts and margins to page one of the
Street Fax digital iimages.
DEFENDANTS DENY REALITY HOPING THIS COURT PLAYS ALONG
Defendants sought expedited discovery claiming their expert Romano had determined
that page one of the FB contract was an “amateurish forgery.” They crowed about having
enough fabrication evidence to obtain a dismissal in June 2011, but wanted more scientific
evidence which they claimed all experts would converge on. That did not happen. In fact, there
are now nationally recognized experts in every relevant field in this case on opposite sides of
every relevant conclusion about the FB contract and the emails. The focus of those experts and
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Defense Counsel Orin Snyder, was persuading the court that page one of the FB contract was a
fraud attached to the authentic page two.
Some of Defendants’ early examples of what they predicted would become undisputed
areas of fraud proof included:
1. Toner or paper that wasn’t manufactured in 2003, making the contract unarguably fake. That
claim was neatly rebutted by several of Plaintiff’s experts.
2. The Romano “amatuer forgery” theory was deduced from visually examining a copy of the
contract that we now know was altered by Mr. Argentieri before filing the New York state
complaint. Doc. No. 536.
They failed in all of these promised claims and more. By March 26, 2012, Lesnevich and
Tytell, both Defendants’ handwriting experts, gave no opinion on the signatures of page two.
This is consistent with Defendants then existing page one substitution argument. Defendants
now suggests that page two was not ignored. They focused on page one, but their experts did not
think of thoroughly examining page two of the FB contract until they read Plaintiff’s expert
reports. This is an incredible statement about the the incompetence of their handwriting experts
that they did not realize to test both pages of a two page document until the Plaintiff’s experts
completed their tests. Incompetence is not a substitute for a justification for not conducting tests
when Defendants were afforded the opportunity to do so.
THE AMBUS H AVERTED
Defendants intended to ambush Plaintiff’s counsel with this new report on the day of
Lesnevich’s deposition. That is obviously untimely per the court’s order as well as the parties’
agreement to timely share documents before deposition days. Defendants claim they made
Plaintiff aware of the new expert report before the end of depositions. This point is irrelevant.

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What they craftily did not do is make Plaintiff aware of the new Lesnevich report sufficiently
before the day of Lesnevich’s deposition. Their ambush was thwarted and they ask this court for
permission to formally ambush Plaintiff with Lesnevich’s new report and certainly many others
their experts are preparing now in anticipation of this court granting them, unfairly, unrefuted
shots into their reply. Other of Defendants’ experts admitted during their deposition that they
were working on other tasks and generating additional conclusions that could easily be converted
into new reports as well.
LES NEVICH’S NEW ‘FINDINGS ’ CONTRADICT DEFENDANTS ’ OTHER EXPERTS
Lesnevich’s new report only partially aligns with his original report, while

nearly

perfectly aligning with Tytell’s report. Tytell found that the handwritten inks on page one of the
FB Contract match the inks on page two. LaPorte’s PE testing, however, found the inks on page
one and page two distinguishable, i.e. a page one substitution supporting conclusion. This is
completely inconsistent with what Defendants have represented to this court before as noted
above.
Defendants used the page one substitution theory to induce this court to grant them onesided discovery. The June 30, 2011 hearing is filled with commentary and incisive questions
from the court exposing that Defendants were not then disputing the authenticity of page two of
the FB contract. Hearing Transcript, June 30, 2011 at 51-64.
Defendants still suggest that Lesnevich’s new report should help rather than hinder this
court’s ability to find clear and convincing proof, proof so overwhelming, so uncontested, that no
jury could find in favor of authenticity. The new report masquerading as mere supplemental
findings does just the opposite. It creates disputed questions of fact between their own experts
and their own lawyers. Defendants’ expert Romano also underlined Defendants’ page one

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substitution theory, now apparently abandoned, in his report. “I observed numerous significant
inconsistencies between Pages 1 and 2 of Exhibit B.” Doc. No. 48 at ¶ 14. “Furthermore, all the
references to “The Face Book or “The Page Book” appear on Page 1. Thus, it is my conclusion
that Page 1 of Exhibit B is an amateurish forgery.” Id. at ¶16. Emphasis added.
In Doc. No. 330, Defendants’ expert Tytell, also underlines the page one substitution
theory:
I observed significant differences between pages 1 and 2 of the Work for Hire
document in the typeface and line spacing of the printed text.15 S uch differences are not
normally seen in a two-page document prepared in a single, continuous process.” Doc.
No. 330 at 11. The line spacing of the text on page 2 of the Work for Hire document
measured 3.175 mm, or 9 points.16 The line spacing of the text on page 1 of the Work for
Hire document measured 3.245 mm, or just under 9.2 points, within paragraphs. There is
extra space between paragraphs on page 1; however, this formatting feature is not present
on page 2. Id. at 12.
His conclusion was the following:

“The two-page Work for Hire document is not

consistent with the normal preparation of a two-page document. Rather the use of multiple type
styles and the pattern of ink usage indicate preparation of the two pages at different times.” Id. at
13. Emphasis added.
CONCLUS ION
Defendants’ attempted submission of Lesnevich’s new report merely underlines there are
dueling experts in this case. It is being submitted in violation of Rule 26 and Defendants offer
no excuse why this report could not have been presented on March 26, 2012 with their other
reports. The admission of this untimely new report at this late stage would entitle Plaintiff to
counter reports and perhaps further depositions dragging this case past deadlines this court has
fought to protect from Plaintiff’s motions in the past. Until this Court grants regular discovery,
Defendants will continue to manufacture reasons to deny Plaintiff his right to discovery, a trial
and generally delay these proceedings.
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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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