Ceglia v. Zuckerberg et al

Filing 573

MEMORANDUM in Opposition re 553 MOTION for Discovery filed by Paul D. Ceglia. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 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.

RESPONSE TO DEFENDANTS’
MOTION FOR DISCOVERY

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

MEMORANDUM
Defendants’ motion seeks production and a declaration. Accepting the Court’s
suggestion from the Decision and Order, Doc No. 572, Plaintiff has filed Mr.
Stewart’s Declaration with this response. Defendants have filed this harassing
motion despite being repeatedly told by Plaintiff and Mr. Stewart, that there are no
further documents to provide.1 Declaration of Larry Stewart at ¶3. A harassment
tactic, Plaintiff has learned seems to be, de rigueur, common practice at Gibson
Dunn. Simply put, Mr. Stewart has no documents the Defendants seek and no
order from this court will enable such documents to spontaneously generate. Id. at
¶2-¶3.
DAUBERT CHALLENGE VIA PLEADINGS

1

Exhibit M

1

Defendants’ misnamed Motion for Production, is in actuality a Daubert
challenge of Larry Stewart. The primary opponent challenging expert Larry
Stewart is Gibson Dunn’s junior associate, Amanda Aycock. Doc. No. 556.
Defendants are not entitled to a Daubert challenge by pleading. Should the Court
decide that it is appropriate to meticulously review the handwritten notes of Mr.
Stewart with the intent of deciding on whether a conclusion he made is admissible
for the Court’s own consideration, the Plaintiff respectfully requests the Court to
apply that same standard of review to all of Defendants’ experts as well. Plaintiff
has already requested a full Daubert hearing challenging either the qualifications,
methods and/or conclusions of several of Defendants’ experts. Doc. No. 481 at 8.
Despite Defendants’ claims, they have not “discovered” anything about Larry
Stewart’s work in this case. They have merely advanced a theory, supported by the
testimony of their own non-expert lawyer, Amanda Aycock, where she attempts to
contradict a qualified expert stating her observations of an unauthenticated video
Defendants chose not to file. Mr. Stewart has confirmed that he sent samples from
the two page FB contract. Stewart Decl. at ¶7.
Defendants continue to re-iterate, by their written arguments, dueling expert
claims in this case, while on the other hand, they continue to simultaneously deny
this reality at every opportunity. Their histrionics accompanied by the word “lie” or
“lying” have become so commonplace, and irrational, to scarcely require a response.
They have proven no lies of any kind by Plaintiff or Stewart. They have merely

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posited dueling expert and fact witness statements. The US Constitution
establishes a method to resolve such disputes - a jury trial.
The British equivalent of the Gibson Dunn law firm’s abusive tactics in the
18th century resulted in the 7th Amendment of our Bill of Rights wherein the
commoner has a fighting chance against the wealthy and politically connected bully.
Plaintiff fully understands the hidden agenda of this motion. Defendants’
counsel has a “crisis” to manage. The fact that scientific testing found both pages of
the paper in the FB contract to be consistent with originating from the “same mill
and production run.” (Doc. No. 421 at 2) is devastating to Defendants “page one
substitution” theory. It’s completely consistent with the conclusions of Plaintiff’s
experts that the FB contract is authentic, including:
1

The original Facebook Contract...examined by all of the document experts is
an authentic, unaltered document. The sum of the evidence reveals that page
1 of the Facebook Contract was originally executed together with page 2 as a
companion document. Based on the detailed forensic analysis of this two-page
document, there is no justification or support for the defendant’s theory of a
page 1 substitution, forgery or fraud. The sum of the evidence shows that
page 1 was not a later inserted page to the original two-page document set.
Doc. No. 415 at 232.

2

Based on the forensic analysis of the Facebook Contract, there is no
justification or support for the Defendants’ theory of a page 1 substitution,
forgery or fraud. Doc. No. 416-3 at 454.
3

3

The “Mark Zuckerberg” signature on page 2 of the Facebook Contract was
written by Mark Zuckerberg. Doc. No. 415 at 233.

4

The “MZ” initials on page 1 of the Facebook Contract were written by Mark
Zuckerberg. Doc. No. 415 at 233.

5

[T]he staple hole on both pages align demonstrating that these two pages of
the Facebook Contract have only been stapled one time wherein they were
actually stapled together. Doc. No. 415 at 233.

6

The impression from the hand printed interlineation from page 1 of the
Facebook Contract was discovered on page 2 of the Facebook Contract
demonstrating that page 1 was over the top of page 2 of the Facebook
Contract when the hand printed interlineation was written on page 1 of the
Facebook Contract. Doc. No. 415 at 233.

7

Both sheets of paper of page 1 and page 2 of the Facebook Contract pages
measured at 0.11 mm and visual inspection revealed that the opacity and
cockling features of both pages were the same. Doc. No. 415 at 233.

8

The toner on both pages is the same and dates from the 2000-2005 time
period and not later than that. Doc. No. 416 at 92, 103.
The crisis Defendants are attempting to circumnavigate is that their own

experts’ depositions have contradicted their own experts’ reports in ways more than
conclusive of Plaintiff’s right to a trial. Coupled with that are the obvious contrary
evidence in Plaintiff’s experts’ reports.
THE PAGE ONE SUBSTITUTION THEORY FALLS
4

The devastating conclusions of Plaintiff’s experts, and Defendants’ own
expert’s deposition testimony, have required Defendants to manufacture a new
defense. Defendants’ competing theories are confusing even them. At the outset of
this case, Defendants consistently asserted that the case was about the contents of
page one of the FB contract. Gibson Dunn partner and “Vice-Chair of the Crisis
Management Practice Group” for Gibson Dunn2 Orin Snyder declared there was no
dispute about the signatures on page two of the FB contract. Hearing Transcript,
June 30, 2011 at 56.
As the case progressed, a combination of their own experts’ reports,
depositions and Plaintiff’s experts’ reports exposed that Defendants’ “page one
substitution” theory was untenable to obtain a pre-trial dismissal relying on the
court as the jury.
The court can read their numerous expert reports and dispatch with that
ruse. Those reports are replete with efforts by their experts to distinguish the ink,
paper type, toner, fonts and other features between page one and page two. All that
effort is nonsense and and white noise now that Defendants’ new theory had been
that both pages were forgeries.
DEFENDANTS’ HAVE ALREADY CONDUCTED RANTANEN’S TESTS
There is little doubt that Defendants have already conducted the precise tests
on pages one and two of the FB contract that Mr. Rantanen conducted. They know
Rantanen’s results are correct. Plaintiff can confidently make this assertion
2

http://www.gibsondunn.com/lawyers/osnyder

5

because it would be malpractice of the highest order for Defendants’ counsel to have
omitted such testing given their “page one substitution” theory and the fact they
had and have access to paper samples from page one and page two of the FB
contract to test for more than a year. Or, are they withholding those test results
from the court?3 It wouldn’t be the first time Gibson Dunn lawyers were exposed for
such unethical conduct as an apparent firm ethos.4 It would be shocking and an
affront to common sense for Defendants’ counsel to now admit they are in amateur
hour, ... “we sort of messed up on that one. We didn’t think before we advanced the
motion to dismiss for fraud to actually test the authenticity of the two pieces paper
concerning the Work for Hire contract at the epicenter of a lawsuit threatening our
client’s ownership of his billion dollar technology company.” Despite Gibson Dunn’s
history of botching billion dollar litigation mired in unethical and abusive litigation
practices,5 one presumes they did not set their firm’s resources on this case and
omit testing the paper of the FB contract. No countervailing paper test proffered by
Gibson Dunn, a priori, equates to an admission of fact.
Because Rantanen’s test results are accurate, it renders their needless and
useless voyage through yet another stack of pleadings all the more egregious. The
motivation to cover up their incompetence at not having performed this obvious and
simple paper test, Defendants now move to seek documents delay in a frivolity

3

Exhibit E at 14 and 21.

4

Exhibit F.

5

Exhibit A.

6

which will end the same way it ended multiple times already before they involved
the court. Mr. Stewart has no further documents to provide. Stewart Decl. at ¶ 2 ¶3.
It is important to note that Defendants are not challenging any of Mr.
Stewart’s conclusions in his report. They are not challenging his toner analysis,
font discussions, ink conclusions, etc. They are challenging the results obtained by
Mr. Rantanen. If Defendants omitted performing any paper tests of their own,
their solution, now long overdue and unjustified for further delay, was to have
another expert of Mr. Rantanen’s caliber perform their own paper tests on samples
they have had for more than a year.
FAILURE TO MEET AND CONFER
Defendants never met and conferred about this issue. Their repeated emails
simply demanded documents that Plaintiff repeatedly told them were not available.
No matter, they demanded them anyhow never stating that they were concerned
that Mr. Stewart had submitted the wrong samples for testing. During those weeks
of back and forth, demands and responses, they could have run their own paper
tests ten times. I think the court sees here that Defendants’ motion for discovery is
not a search for the truth about what samples were submitted by Mr. Stewart to
Mr. Rantanen for testing. If it were, Defendants could have answered that question
for themselves and not involved the court at all.
THE INFORMATION FLOW DOUBLE STANDARD

7

During depositions, events Defendants claimed were “not Rule 26
depositions”, they instructed their experts to hide their notes in their hotel rooms
like children playing keep away.
[BOLAND] Did you bring any of your notes or anything with you to
the deposition?
[LAPORTE] I did not.
[BOLAND] Why didn't you bring any of that stuff with you?
[LAPORTE] I was instructed by the Gibson, Dunn attorneys that
there was an ongoing dispute and to leave my notes back at my hotel.
6

Meanwhile, Defendants have spent hours reviewing videos, dragging this
court around and needlessly wasting everyone’s time on an issue they could have
resolved in a single day - testing their own paper samples of the two pages of the FB
Contract. This hypocrisy is not merely a point of fact, it is an abuse of the court
system by a wealthier client7 to the prejudice of a Plaintiff seeking his day in court.
Defendants are asking this Court to meticulously review Stewart’s
handwritten notes based on the speculation of Amanda Aycock - a lawyer for
Defendants who is entirely incompetent to challenge an ink expert, or any expert, in
their field. If there were no disagreements about material facts in this case,
Defendants would not be volunteering their junior attorney to be a sacrificial lamb
in this way. But, as is known nation wide, Gibson Dunn often taps younger,
inexperienced associates for such bullet catching duties. Id.

6

Exhibit L, Deposition of Gerald LaPorte at 144-145.

7

Exhibit A.

8

The proper time for determining the admissibility of each expert finding is
during regular discovery. Plaintiff finds himself twenty eight months into litigation
without yet seeing a scheduling order for regular discovery. Defendants have
masterfully delayed this case causing all involved to bend to their will to simply
continue the litigation, billing of their billionaire clients and back and forth on
matters of no consequence while minimizing the obvious dueling experts and factual
disputes in an attempt to bankrupt Plaintiff to a win. Snyder and Southwell’s firm,
Gibson Dunn, has employed these tactics many times before resulting in million
dollar sanction awards against them.8 That is the only possible explanation for
their hostile opposition to any delay, even seven days, back in July 2012 and now
their hours of preparation applied to their desire to have this court infinitely delay
this case. Plaintiff should not be forced to spend his money to clarify his already
clear conclusion just because Defendants’ expensive legal team dislikes the
devastating conclusions.
THE GIBSON DUNN WAY
Gibson Dunn lawyers are steeped in the kind of mindless, time wasting
litigation they have employed throughout this case already. Their firm website
advertises their skill at “crisis management.” 9 Defendants’ counsel Snyder, is
Gibson Dunn’s New York leader in crisis management cases.10 Defendants’ counsel

8

Exhibit C.

9

http://www.gibsondunn.com/practices/pages/CMT.aspx

10

http://www.gibsondunn.com/lawyers/osnyder

9

Snyder props up his reputation with published falsehoods like this: “Worst thing
ever said to me In the Facebook case, lawyers for the Plaintiff sought to prevent
Snyder from participating in calls with them. ‘They said I was too aggressive. The
judge denied their request."11 Of course, this event never occurred.
Gibson Dunn’s history and firm wide policy of handling such “crisis
management” litigation matters is stained with sanctions, abusive threats to judges
and the sacrificing of lower level associates to the unethical ends their clients’
demands. Gibson Dunn, including Southwell and Snyder, participated defended
Chevron in what courts have found in several instances was unethical conduct
worthy of severe sanctions.12 The Chevron case, a comically mishandled piece of
litigation involved a list of fraud, bribery, threats and sanctions of Gibson Dunn
lawyers too long for this brief. At the bottom of this conduct - money - as it always
is.
In all, Gibson Dunn was billing Chevron an estimated $250 million per year
in 2010 and 2011 as the company launched lawsuits against the plaintiffs in 16
different federal courts, helped to litigate an international arbitration action
against Ecuador's government, filed a fraud case against the Ecuadorians and their
lawyers in U.S. federal court, and supervised Chevron's battery of local lawyers in
Ecuador as they faced multiple setbacks that culminated in the adverse judgment
against Chevron, said Hinton.13 The basic Gibson Dunn template is to attack
victims to distract from the evidence, said Hinton. When that doesn't work, the firm
resorts to outright intimidation to silence any lawyer or advocate who stands up to
the firm. Id.
These tactics seem particular familiar to Plaintiff here.
11

http://www.hollywoodreporter.com/lists/orin-snyder-350379

12

Exhibit G at 5.

13

Exhibit H.

10

And, to dispel any notion that only a rogue few at Gibson Dunn are engaged
in such practices, note the following list below of partners and associates of Gibson
Dunn sanctioned for abusive conduct in other cases. In essence, it is the DNA of
Gibson Dunn to conduct themselves in the way they have in this motion and others
in this case, demanding documents that Plaintiff and his expert have repeatedly
said do not exist.
In 2010, a federal court in Colorado sanctioned Gibson Dunn partner Andrew
Neumann, a partner, who worked with Southwell and Snyder on the Chevron case,
for harassing an expert witness in that case.14 This is identical to Gibson Dunn’s
repeated questions to Larry Stewart here which have been answered multiple times
that Mr. Stewart has no additional documents to provide, yet spawning Defendants’
harassing motion.
A federal appellate court panel in New York rebuked Gibson Dunn Partner
Mastro (who worked with Southwell and Snyder on the Chevron case) for
attempting, without any legal precedent, to use the U.S. court system to block the
Ecuadorian rainforest communities from enforcing a judgment from their courts in
any country in the world.15 Mastro was so rude to the appellate panel that he had
to be ordered to sit down during appellate argument. “Mr. Mastro, you may take
notice of the fact that the presiding judge has told you to sit down.” 16

14

Exhibit B.

15

Exhibit F.

16

See Exhibit J at 19.

11

Partners working with Southwell and Snyder working on the Chevron case
mislead Congress sparking an investigation of the Gibson Dunn lawyers.17
While Southwell, Snyder and other partners were advising Chevron, their
client attempted to bribe Ecuador's government to turn their failed case in their
favor.18
While Southwell and Snyder were advising Chevron along with other Gibson
Dunn partners and associates, it was caught lying to its own expert witnesses to
benefit their case. See Exhibit A, Gibson Dunn Associates Begin to Flee as Firms
Ethical Problems in Chevron’s Ecuador Case Deepen. Southwell and Snyder’s
Chevron defense designed along with other Gibson Dunn partners fell apart after
mounting evidence revealed it was based on fraudulent science designed to hide
evidence of life-threatening amounts of contamination.19 Here, while insisting on
orders compelling documents from Larry Stewart that Snyder and Southwell know
do not exist, they have persuaded the court to permit withholding of evidence (e.g.
28 analyzed electronic assets), including communications of Defendant Zuckerberg,
from times relevant to the events of this litigation.
Gibson Dunn and its partners are notorious for unethical litigation practices
in other cases as well. The entire Gibson Dunn law firm, which would include all its
partners (i.e. Southwell and Snyder) were sanctioned $9.9 million dollars by a court

17

Exhibit F.

18

Exhibit F.

19

Exhibit F.

12

in Montana for harassing an expert witness in similar ways to their harassment of
Larry Stewart here.20 The Montana Supreme Court in upholding the huge sanction
against the Gibson Dunn firm called Gibson Dunn practices “thuggery.” Id.
In short, [Gibson Dunn’s] use of the judicial system amounts to legal
thuggery. This behavior is truly repugnant to Montana’s foundational notions of
justice and is therefore highly reprehensible. Thus, in accordance with Montana’s
legitimate interest in punishment and deterrence, we conclude that a particularly
severe sanction comports with due process. Exhibit E at 92.
THE GIBSON DUNN WAY APPLIED TO THIS MATTER
The conduct the Montana Supreme Court identified in upholding a multi
million dollar sanction on Gibson Dunn lawyers may look familiar to this court.
Gibson Dunn’s practices in that Montana case are reminiscent of some of the
contentions in this litigation.
The Montana Supreme Court found sanctions justified for Gibson Dunn’s
failure to disclose evidence adverse to their claims. Id at 14 and 21. In this case,
Gibson Dunn analyzed twenty eight electronic assets and failed to mention the
existence of those items to the court or reveal the results of their analysis of those
assets. Obviously, if that analysis of those twenty-eight devices was favorable to
Defendants, Snyder and Southwell would have not only revealed that fact, but
trumpeted it at every opportunity. The inescapable presumption is, there is
something on those devices Gibson Dunn wants withheld from this court and
Plaintiff.

20

Exhibit C and E.

13

Gibson Dunn lawyers sought a witness to swear to a “pure misrepresentation
of his professional [expert] opinion” in order to avoid crushing litigation expenses.
Id. at 86. In this case, Snyder sent threatening letters to all counsel seeking their
reversal of their support of Plaintiff.21
“Consistent with its tactics in the underlying suit, [Gibson Dunn]
has...continued to disregard fundamental litigation rules and basic principles of
professional conduct. For example, [Gibson Dunn] blatantly misrepresented an
important fact in one of its motions filed with the District Court.” Id. at 89, fn 26.
Emphasis added. This conduct, this court will note, is identical to Gibson Dunn’s
conduct in this case falsely representing to this court that the Kasowitz email and
attachments were disclosed to a third party when it has been conclusively proven
not to be the case. When challenged to have a computer expert refute Plaintiff’s
claim on this issue, Snyder and Southwell were mute. Plaintiff is seeking a full
hearing on this matter before the District Court and still, Snyder and Southwell are
mute. They both know that a hearing on this matter with experts from both sides
and the court’s adviser, Mr. Healy, present, would be a suicidal mission for them.
Snyder and Southwell have also asserted that there are no competing experts
- a misrepresentation of a second important fact. Snyder and Southwell have
knowingly told the court that any expert disputes are “insignificant,” a third
misrepresentation of an important fact. “To be clear, the information is not

21

Exhibit K.

14

complicated in that it suggests factual disputes (of which there remain none of any
consequence)...”, Doc. No. 525 at 10.
Snyder’s threats to all counsel in this case attempt to end this litigation short
of a trial.22 His threatening letter ends with a condescending but laughable attempt
to be ominous. “Guide your conduct accordingly,” Snyder paternalistically advises.
Obviously, if Plaintiff and his counsel guided their conduct in accordance with a
review of Gibson Dunn’s conduct as detailed above, it would lead to the “legal
thuggery” the Montana court identified. In this case, however, Snyder and
Southwell have guided their conduct in accordance with a variety of other Gibson
Dunn lawyers.
Southwell and Snyder’s firm, Gibson Dunn, is awash in a history of unethical
practices including cases in which Southwell and Snyder were partners involved.
Yet, they seek an order that will result in no production, not because of defiance of
this court’s order, but because the they seek documents they know Stewart does not
possess. Stewart Decl. at ¶2-¶3. We have all seen this movie before. The Chevron
case unraveled on Gibson Dunn, descending into the largest civil damage award in
toxic spill history, all with lawyers including Southwell and Snyder at the helm.
Certainly, Gibson Dunn is keenly aware that another perceived loss in yet another
billion dollar boondoggle case will be detrimental to the firm’s attempt to position
itself as a “crisis management” specialist. Plaintiff is bearing the brunt of Gibson
Dunn’s desperation handling their own crisis.
22

Exhibit K.

15

CONCLUSION
Larry Stewart submitted the correct samples for testing. Stewart Decl. at ¶7¶8. Stewart has, on multiple previous occasions before the filing of Defendants’
motion, produced all documents in his possession on this matter. Id. at ¶3.
Defendants’ only claim to the contrary is the testimony of an unqualified, nonexpert, and lawyer for Defendants, Amanda Aycock. The video she claims as the
source of her declaration is not in evidence in this case, has never been
authenticated and cannot be relied upon by this court short of that authentication.
It was important for Plaintiff to outline the history of Gibson Dunn, and
Southwell and Snyder, to provide this court insight into the identical practices to
which it is being subjected in this case, along with Plaintiff. The similarities noted
above are not merely coincidental. They represent a pattern and practice by
Southwell and Snyder, along with other Gibson Dunn lawyers, that this court needs
to keep in mind when reviewing Defendants’ motions, arguments and claims of facts
which, in many instances, turn out to be false.
This Daubert hearing disguised as a motion for discovery is improper,
unnecessary, harassing and should be summarily denied.
Respectfully submitted,
/s/Dean Boland

16

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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