Ceglia v. Zuckerberg et al

Filing 589

DECLARATION signed by Alexander H. Southwell re 588 Reply to Response to Motion 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)(Snyder, Orin)

EXHIBIT N

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.

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24
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A P P E A R A N C E S:

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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

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idea of creating a school for private

3

investigators and it has, it's still in the

4

creation stage, it has never taken off.

5

Q.

And just to be clear, you are not

6

intending to mislead anyone into thinking that

7

you are on the board of directors of the American

8

Academy of the Forensic Sciences?

9
10

A.

If I was, I would say that there.

It says the academy.

11

Q.

12
13

No.

Right.
And have you ever been to the office or

physical headquarters of the academy?

14

A.

Yes, I have.

15

Q.

When was your last board meeting?

16

A.

It's been a couple of years.

They

17

pretty much are trying to regroup at this point,

18

they are almost broke.

19
20
21

Q.

Who are the members of the board right

A.

Bill Copeland is the head of the board.

now?

22

As far as active members, I don't know.

23

I know that they were in a situation where some

24

people weren't going to be involved with it

25

anymore, so I don't know who is active anymore.

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on July 14, 2011?

3

A.

Yes.

4

Q.

And do you recall that the condition of

5

the handwriting appears markedly different in the

6

two scans?

7

A.

Yes.

8

Q.

Now, you said that you have a cropped

9

image of 238-2 and that was a document you were

10

relying on in providing your expert testimony, so

11

I'm going to direct your attention now to 238-2.

12

If you go toward the back of Mr. Tytell's

13

declaration you'll see his scanned image of the

14

Work For Hire contract that he took immediately

15

after Mr. Argentieri removed the document from

16

the envelope in the Harris Beach offices on July

17

14th, 2011.

18
19

Do you see the condition of the
handwriting ink on page 1 of that scan?

20

A.

Yes.

21

Q.

How would you describe it?

22

A.

It appears faded and the document

23
24
25

appears brownish.
Q.

You would agree that the appearance of

the ink at 9:18 a.m. on July 14, 2011 is markedly

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dissimilar from the appearance of the ink that

3

Dr. Aginsky photographed earlier in the year?

4

A.

Yes.

5

Q.

And you are offering no expert

6

opinion --

7
8

MR. SNYDER:
Q.

Withdrawn.

You are offering no expert opinion,

9

sir, are you, about what happened to this

10

document between 1/13/11 when Dr. Aginsky

11

photographed it and 9:11 a.m. when Mr. Argentieri

12

appeared at the offices of Harris Beach with the

13

document in a Redweld?

14

A.

15
16
17

He says that's on the 14th.
No, I'm not reaching any conclusion

between Aginsky and the 14th.
Q.

And did you ask Mr. Ceglia or

18

Mr. Argentieri what if anything they did to the

19

document between January 2011 and July 14, 2011

20

to cause the handwritten ink to become faded?

21

A.

22

No, of course I didn't ask them that.
Based on the scanned images of your

23

experts, the fading occurred between the 14th and

24

the 15th.

25

Q.

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Sir, are you aware that the scan that
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that doesn't match anything that I was provided.
Q.

Sir, were you provided with Dr. Tytell's

scan?

5

A.

Mr. Tytell's --

6

Q.

Were you provided with Dr. Tytell's

7
8
9
10
11
12

scan?
A.

I don't know a Dr. Tytell, I know a

Mr. Tytell and -Q.

Mr. Tytell's scan is before you in

238-2; correct?
A.

No.

What's before me is your printing

13

of a document.

14

document that was filed with the Court and in

15

there are scanned images that I used.

16
17
18
19
20

Q.

I was provided the actual

Sir, I just handed you the document

that was filed with the Court by Mr. Tytell.
A.

No.

You handed me a photocopied

version of the file.
Q.

Mr. Tytell testified under oath, swore

21

under oath that this image was taken at 9:18 a.m.

22

on July 14th.

23
24
25

Do you have any reason to think that
Mr. Tytell is not telling the truth?
A.

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No, not at all.
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larger envelope and he is opening one; correct?
A.

4

Correct.
MR. BOLAND:

Can you just reiterate

5

what document this is coming from for the

6

record?

7

MR. SNYDER:

I will in a moment.

8

MR. BOLAND:

Very well.

9
10

Q.

And now he's removing something from

the envelope; correct?

11

A.

Not yet, but --

12

Q.

He is about to, it is 9:11:40, okay?

13

A.

Yes.

14

Q.

And he's put two pages down.

15

MR. SNYDER:

16

please.

17

Q.

Can you freeze it there,

Can you tell me, do you see the title

18

"Work For Hire Contract" on either of those

19

pieces of paper based on the video at 9:11:51?

20

A.

No.

21

Q.

Can you tell me which piece of paper is

22

page 1 and which is page 2?

23

A.

No.

24

Q.

Can you show me where the handwritten

25

interlineations are on this video still?

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A.

Of course not, I can't tell you which

one is page 1 or page 2.
Q.

Can you show me where the signature of

Mark Zuckerberg and Paul Ceglia are in this?

6

A.

Same answer as before.

7

Q.

You can't see any text on either of

8

those pages based on the video, can you?

9

A.

No.

10

Q.

You can't see any ink, can you?

11

A.

No.

I can see what appears to be

12

little lines on it, but I can't tell what's ink

13

and what's printed.

14

Q.

And to the naked eye these could be

15

blank documents as well as text-laden documents;

16

correct?

17
18
19

A.

No, I don't think so.

I see little

lines where printing appears to be.
Q.

But you can't see any distinct features

20

in these videos, whether it's signatures,

21

handwriting or content of any kind; correct?

22

MR. BOLAND:

Objection.

23

A.

From that stilled frame, no, I can't.

24

Q.

And what's your factual basis for

25

asserting that the document is face up?

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A.

When you look at the video in its

3

entirety I believe there's a segment where you

4

can see that it's placed face up.

5

Q.

So you agree with me that on the video

6

the pages of the documents are so washed out at

7

the moment that they are produced and laid out on

8

the table that you cannot see the printed text;

9

correct?

10

A.

No.

As I testified before, I can see

11

subtle little lines there, I can't tell what's

12

printing and what's handwriting, and so in that

13

particular still image of the video I cannot make

14

it out.

15

Q.

But it is this video that you're

16

relying on as the factual basis for your opinion

17

that Mr. Tytell's visual observation of the

18

document was invalid and that your conclusion

19

that the Work For Hire document was white when it

20

was produced is valid; is that correct?

21

A.

No, I've never said that.

I have no

22

reason to dispute his initial observation that he

23

was looking at a tanned document with discolored

24

ink.

25

didn't know what it looked like before unless he

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He had no comparison at that point and he

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A.

I believe his images were provided as

3

the first images that were available and I

4

believe I got that from Mr. Argentieri.

5
6

Q.

Those were his images of January 2011;

is that right?

7

A.

I believe so.

8

Q.

Now, you are not an expert in video or

9

film; correct?

10

A.

No, I'm not.

11

Q.

You are not an expert in forensic video

12

analysis; correct?

13

A.

No.

14

Q.

You are not a videographer?

15

A.

No.

16

Q.

Have you taken a course or seminar on

17

forensic video analysis from any law enforcement

18

association?

19

A.

No.

20

Q.

Ever taken a course or seminar in

21

forensic video analysis from the International

22

Association for Identification?

23

A.

No.

24

Q.

You don't have any specialized training

25

regarding film or video; correct?

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A.

No.

3

Q.

You personally didn't take video of the

4

inspection; correct?

5

A.

That's correct.

6

Q.

Do you know how it was recorded?

7

A.

On a video camera with some kind of a

8

taping system, that's all I know.

9

Q.

Do you know what the taping system was?

10

A.

No.

11

Q.

Do you know if the tape was ever edited

12

by the videographer?

13

A.

No, I do not.

14

Q.

Are you aware of the credentials of the

15

videographer?

16

A.

No.

17

Q.

Do you know whether the videographer

18

did anything to ensure the quality of the

19

recording?

20

A.

No.

21

Q.

Do you know if he set the white

22

balance?

23

A.

No.

24

Q.

Do you know if he used any additional

25

lighting?

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A.

I believe he did not, but that's just

my recollection.
Q.

Your recollection is that he used

5

whatever the office background lighting was;

6

correct?

7

A.

That's correct.

8

Q.

Are you aware of whether in Buffalo in

9

the conference room the shades were drawn or open?

10

A.

No.

I'd have to look at the videotape.

11

Q.

You don't remember one way or the

12

other?

13

A.

I don't recall, no.

14

Q.

What about in the conference room in

15

the inspection that occurred in Chicago, do you

16

remember whether there were shades there?

17
18
19

A.

I don't recall if they were left open

or not.
Q.

If I were to tell you that in the

20

Buffalo conference room the shades were closed

21

and the lighting was mostly artificial

22

fluorescent lighting, would that refresh your

23

recollection?

24

A.

No.

25

Q.

And although you are not an expert in

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video analysis, you are aware, are you not, that

3

fluorescent lighting is different than natural

4

light particularly when it relates to sort of the

5

color temperatures and the appearance of things;

6

is that fair to say?

7

MR. BOLAND:

Objection.

8

A.

Yes, they're different.

9

Q.

Mr. Stewart, are you familiar with VSC?

10

A.

Yes.

11

Q.

What is a VSC?

12

A.

Video spectral comparator and it's an

13

acronym that many companies manufacture but one

14

in particular is famous for, a company named

15

Foster + Freeman.

16
17
18
19

Q.

Do you know the difference between a

VSC 4, a VSC 40, a VSC 400 and VSC 2000?
A.

I know some of the differences.

I

don't have a spec sheet in front of me.

20

Q.

Which kind do you personally own?

21

A.

I own a VSC 2000 high-resolution HR.

22

Q.

Where do you keep that?

23

A.

In my office.

24

Q.

Where?

25

A.

In San Luis Obispo.

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in the course of your work when you were with the

3

Secret Service?

4

A.

Yes.

5

Q.

And you're referring to small white

6
7

clips; is that how you referred to them?
A.

You could argue that they are clips.

8

don't know if that's what they at Foster +

9

Freeman refer to them as because they also, I

10

believe, held or had a device that physically

11

kind of put pressure down on the document, and

12

I

that may be also called a clip.

13

This was, as I said, something like a

14

whitish-colored rectangular-shape piece and there

15

were two of them.

16

Q.

And to be clear, you have no evidence

17

that there were in fact weights of any kind in

18

the room during the defendants' examination of

19

the document in this case; correct?

20

A.

That's correct.

21

Q.

Now, as you testified earlier, you are

22

aware that it's the defendants' position that the

23

Work For Hire document is a recent forgery

24

created for the purposes of bringing this

25

fraudulent lawsuit; correct?

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A.

In the world?

3

Q.

Yeah.

4

A.

It's on my list there, everything that

5

I could research, it's insect repellent,

6

fragrances, hand lotion.

7

Q.

And you said that because it's a

8

volatile component a known feature is that it

9

will evaporate with heat; right?

10
11

A.

That's typically what I mean when I

talk about something being volatile, yes.

12

Q.

13

chemicals?

14

A.

15
16
17

Why is PE used in ink other than other

I don't know.

I'm not an ink

manufacturer.
Q.

You are providing this court with an

expert opinion about the ink.

18

A.

19

some inks.

20

Q.

21

Correct.

I know that it's found in

You don't know why it's included in the

inks?

22

A.

No.

23

Q.

And you are aware that PE in ink --

24
25

I am not a manufacturer.

MR. SOUTHWELL:
Q.

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Strike that.

You are aware that a known feature of
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Ceglia's house was not constantly in subzero

3

temperatures; right?

4

A.

That's correct.

5

Q.

It was subject to all the seasons of

6

the year; right?

7

A.

That's correct.

8

Q.

So every year since 2003, since the

9

Work For Hire document was supposedly signed in

10

April of 2003, it was supposedly subjected to the

11

summers of 2003, 2004, 2005, 2006, 2007, 2008,

12

2009 and part of 2010; right?

13

A.

As well as the winters, yes.

14

Q.

So roughly seven summers, seven

15
16

winters; yes?
A.

Again, I don't know if the document was

17

stored there its entire life, but it's been -- it

18

would have been seven years wherever it was

19

stored.

20

Q.

So you would acknowledge that in this

21

area of the country where the document was stored

22

you have substantial periods of time over those

23

seven years where it's hot, which might

24

accelerate the aging of ink, and where it's cold

25

which might decelerate the aging of ink; right?

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A.

number of people who touched it without gloves on.
Q.

And if they touched the edges of the

document would that have --

6
7

My recollection is that there were a

MR. SOUTHWELL:
Q.

Well, strike that.

How would touching a document using --

8

let's use an example -- an arm that had sunscreen

9

on it, how would that put the contaminant onto

10

the document?

11

forearm, something like that?

12
13

A.

Would it have to be a palm or a

I don't know that it would.

It would

have to be researched.

14

If we know that PE is in that material

15

and somebody had it on their hands and they

16

touched the document without gloves, then there's

17

certainly the possibility of transfer.

18

To get it on the ink there would have

19

to be a specific touch to the area that had the

20

ink on it or it would have to be rubbed over to

21

that area by someone else at a later time.

22

Q.

And just to be clear, you are

23

speculating that these might be options that

24

should be considered; right?

25

A.

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Correct.
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Q.

You didn't find any of these items,

3

these contaminants on the Work For Hire document;

4

correct?

5
6

A.

No.

We don't know if there's any

contaminants on the document.

7

Q.

Well, did you look?

8

A.

I wouldn't know what to look for.

9

I

don't have chemical compositions of these

10

materials.

11

come from a number of sources.

12
13

Q.

The mere presence of PE could have

Did you conduct any test to determine

whether there were contaminants on the page?

14

A.

No.

It would be a permanent position

15

for the rest of my life to try to figure that

16

out.

17

Q.

But the answer is you did not conduct

18

any tests to determine whether there were any

19

contaminants on the page; correct?

20

A.

Correct.

21

Q.

Did you see anyone buy lotion or

22

sunscreen on their hands and then handle the

23

document?

24
25

A.

No.

I saw people leave the room for

restroom breaks and I don't know what they did.

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Q.

Did you see anyone spray insect

repellent on the document?
A.

No.

That referral was maybe under the

5

control of the Ceglias when it was in the hope

6

chest.

7

Q.

8

on it?

9

A.

He might have.

10

Q.

Do you know who did test the document

11

He might have sprayed insect repellent

I don't know.

for contaminants?

12

A.

I don't know if anyone tested it.

13

Q.

Mr. LaPorte tested the document for

14

contaminants.

15
16
17
18

Did you know that?
A.

I would love to have the chance to

depose him on that.
Q.

Oh, okay.

19

You want to depose Mr. LaPorte now?

20

MR. BOLAND:

21

A.

No.

Objection.

I assume when his chance for

22

deposition comes I will be, as he is here with

23

you, I'll be providing questions and I'd love

24

that opportunity.

25

Q.

212-279-9424

Do you want to ask the questions in the
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period.
Q.

And that was before you were with the

Secret Service?

5

A.

That's correct.

6

Q.

Have you ever testified about a GCMS

7
8
9
10

result when you personally conducted the testing?
A.

I don't recall if any of those old

cases ever went to trial, I'm not sure.
Q.

And you were with the Bureau of

11

Alcohol, Tobacco and Firearms up until 1982; is

12

that right?

13

A.

July of 1982, yes.

14

Q.

Okay.

15
16

So that was back before 1982 that you
had done the GCMS testing; correct?

17

A.

Correct.

18

Q.

And not since then; right?

19

A.

No, I have not done that particular

20

approach since then.

21

MR. SOUTHWELL:

22

quick break here.

23

MR. BOLAND:

Why don't we take a

Before you do that, just a

24

note that it's approximately 4:10 p.m. and

25

so we started at 10 o'clock this morning, I

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resins, I did the tests on the extractible

3

components.

4

Q.

So when you say the toners matched,

5

what you actually mean is that they matched at

6

the level of analysis of TLC; right?

7

A.

Right.

I followed the protocol of the

8

federal agency and I stopped at the point of a

9

match.

10

Q.

11

But there are other tests that you did

not perform; correct?

12

A.

Of course.

13

Q.

And it's possible that these other

14

tests could find differences in other components

15

of the toner; right?

16

A.

Right.

That's why I kept some sample

17

behind.

18

directly and have them identify it.

19

Q.

It may be we go to Hewlett-Packard

And if there are differences in the

20

organic resins or other components then the

21

toners could be said to not match; right?

22

A.

Not if it matches, but yes.

23

Q.

But if it doesn't match, then it

24
25

wouldn't match?
A.

212-279-9424

Of course.
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Q.

And you say the toner from this

3

document is consistent with toner from an HP

4

1100/3200 series machine; right?

5

A.

Correct.

6

Q.

Consistent with does not exclude the

7

possibility that it's also consistent with other

8

printers; right?

9
10
11
12

A.

possibility of that, yes.
Q.

15

Well, consistent with doesn't strike me

as a very strong conclusion.

13
14

I found none, but there is the

Do you mean it to be a strong
conclusion?
A.

No.

We are directed by standards on

16

what consistent with means and doesn't mean.

17

agree with you it's not a very strong conclusion

18

because there is a possibility that there's some

19

other printer out there we are not aware of.

20

Q.

And how did you do your comparison?

21

A.

I

A number of years back I developed a

22

library of standards for toners and printers and

23

I had those filed in my collection along with the

24

analysis results.

25

Q.

212-279-9424

Let me stop you there for one second.
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L. Stewart
at the end of 97, right, Exhibit 6; right?
A.

I'm citing information from, I believe,

Hewlett-Packard there.

5

I'm sorry, that citation is the

6

section, I believe, of the Secret Service

7

operating procedures for the questioned documents

8

branch, if I am not mistaken.

9
10
11
12
13
14

Q.

So that does not actually provide a

specific illustration of your comparison; right?
A.

No, I did not -- I purposely did not

put an illustration of my comparison in there.
Q.

Now, you didn't identify a specific

cartridge in your report; right?

15

A.

No.

16

Q.

You identified two printer series;

17

right?

18

A.

19

That would not be possible.

It's two series that use the same

cartridge or same toner.

20

Q.

And what cartridge is that?

21

A.

I believe it's a 92A.

22

Q.

Now, you don't include in your report

23

the fact that a 92A cartridge used in those

24

printer series is still commercially available

25

today, do you?

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2

A.

No, I do not include that.

3

Q.

Are you aware of the fact that the 92A

4

cartridge is still commercially available today?

5

A.

Yes.

6

Q.

I could print a document today using

7
8
9
10

that cartridge, couldn't I?
A.

Yes, if you had one of those printers

and you had that cartridge, you could.
Q.

In fact, the 92A cartridge works in

11

lots of different printers, not just those

12

printer series; right?

13
14
15

A.

I believe I listed all of them.

I can

find that if you direct me -Q.

You're not providing an opinion that

16

the 92A cartridge works only in those two

17

machines, are you?

18

A.

No.

I do not recall if my list had

19

other machines, but I did not -- I can find that,

20

as I said, if you would like to discuss it.

21

Q.

So, but you agree with me that I could

22

go today to the Staples down the street, assuming

23

they have this, and get a 92A cartridge and then

24

print a document with it; right?

25

A.

212-279-9424

You'd probably would have to do that
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online, but yes, you can do that.

3

Q.

So today someone could purchase that

4

toner and use it to print a fraudulent document;

5

correct?

6

A.

Yes.

I believe I included the printout

7

from Amazon that lists it as being available

8

today.

9

Q.

Now, you also counter Professor

10

Romano's conclusion the two pages were printed on

11

two different printers; right?

12
13

A.

Yes and no.

I countered his conclusion

based on his results he cannot say that.

14

Q.

15

I see.
But as you said, I think, earlier, you

16

are not an expert in typeface, typography or

17

printing technology; right?

18

A.

I disagree.

I taught that at Rochester

19

Institute of Technology and I have been trained

20

in that by the Secret Service, so I disagree with

21

you.

22

Q.

Have you ever been qualified by a court

23

as an expert in typeface, typography and printing

24

technology?

25

A.

212-279-9424

Quite often.

The first time was in the

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document.
Q.

4

I see.
So he could not conclude one way or the

5

other whether the paper samples were affected by

6

contact with UV light?

7
8
9

A.

conclude it.
Q.

10
11

Right.
And with respect to the first

request --

12
13

At this point, no, he could not

MR. SOUTHWELL:
Q.

14

Sorry.

Strike that.

Right.
So he determined that the fiber

15

contents of the two samples is consistent with

16

coming from the same mill and production run;

17

correct?

18

A.

I believe that's what he --

19

Q.

And that does not mean the paper

20

samples actually came from the same paper mill

21

and production run; right?

22

A.

No.

23

Q.

It means only that he could not

24

differentiate the paper samples at the level of

25

analysis he performed; right?

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2

A.

That seems accurate, yes.

3

Q.

And based on that conclusion one

4

couldn't conclude that the paper samples were

5

actually produced during the same production run;

6

right?

7

A.

8
9

Based on a consistent -- the word

"consistent," no, you cannot conclude that.
Q.

10

Right.
So it would be inappropriate to

11

conclude that the paper samples were produced on

12

the same day; right?

13

A.

I don't want to put words into

14

Mr. Rantanen's mouth, but based on my use of the

15

word "consistent" you would not be able to say

16

that they were done on the same day, no.

17

Q.

And assuming that -- well, a conclusion

18

that the paper came from the same mill and

19

production run would be completely consistent

20

with Mr. Ceglia having created a fraudulent

21

contract and printed it on paper from the same

22

production run; correct?

23

A.

I assume so, yes.

24

Q.

And such a conclusion would be

25

consistent with Mr. Ceglia having created

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2

multiple versions of the fraudulent document and

3

printed them on paper from the same production

4

run; right?

5

A.

Yes.

6

Q.

And you noted also with respect to the

7

paper that it is bond type paper.

8
9

What do you mean by bond type paper?
A.

As opposed to hundred percent wood

10

paper that would be found in poor quality Xerox

11

paper.

12

Q.

13

I am handing you back your TLC

worksheet form which we have now made a copy of.

14

What are the characteristics of bond

15

paper?

16

A.

Typically it would involve some type of

17

rag content, cotton fiber, linen, that type of

18

thing, to make it have a softer feel.

19

Q.

You state in your report that you

20

observed the white fluorescing tab marks on the

21

front of pages 1 and 2 of the Work For Hire

22

document; right?

23

A.

That's correct.

24

Q.

Did you document those tab areas?

25

A.

Yes, I did.

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