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 P

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF NEW YORK

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PAUL D. CEGLIA,

)
)

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Plaintiff,

)
)

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vs.

)

No. 1:10-cv-00569

)
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)

Individually, and
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MARK ELLIOT ZUCKERBERG,

)

FACEBOOK, INC.,

(RJA)

)
)

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Defendants.
-------------------------

)
)

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July 25, 2012

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10:14 a.m.

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Deposition of JAMES A. BLANCO, held at

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the offices of Gibson, Dunn & Crutcher LLP,

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200 Park Avenue, New York, New York, pursuant

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to court order, before Laurie A. Collins, a

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Registered Professional Reporter and Notary

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Public of the State of New York.

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

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BOLAND LEGAL, LLC

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Attorneys for Plaintiff

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1475 Warren Road

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Unit 770724

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Lakewood, Ohio 44107

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BY:

DEAN BOLAND, ESQ.

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GIBSON, DUNN & CRUTCHER LLP

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Attorneys for Defendants

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200 Park Avenue

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New York, New York 10166-0193

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BY:

ALEXANDER H. SOUTHWELL, ESQ.

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SRIPRIYA NARASIMHAN, ESQ.

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MATTHEW BENJAMIN, ESQ.

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AMANDA AYCOCK, ESQ.

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ALSO PRESENT:

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CODY DETWEILER

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JERRY LaPORTE

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GUS LESNEVICH

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PETER TYTELL

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DMITRY ZVONKOV, Videographer

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Blanco
document with VSC?
A.

No.

That's kind of the same question

as UV and infrared.

But no, I did not.

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Q.

You did not use a VSC?

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A.

No, I did not bring one.

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Q.

You have a portable VSC; correct?

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A.

Well, I have a -- I have a VSC 4 plus.

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10
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I wouldn't really call that portable.

I do have a

portable system that I've developed.
Q.

I see.

But you did not bring that to

this inspection; correct?
A.

Correct, because it was my

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understanding Mr. Stewart was going to do those

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analyses.

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Q.

You did not use a stereomicroscope in

your examination; correct?
A.

Well, not a stereomicroscope.

I used

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my close-up lens on my camera, which is better

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than a lot of portable microscopes.

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Q.

I see.

And what's the make and model

of the camera?
A.

Well, it's a Canon camera, but what's

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significant is the lens.

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very good lens.

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It's an $1100 lens, a

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Blanco
Q.

My question was, as you have

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acknowledged, which you just did a few moments

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ago, when the "work for hire" document was

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provided for inspection on July 14th, the ink

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could have been faded; right?

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acknowledged that a few minutes prior.

You just

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I'm not talking about your declaration;

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I'm talking about what we were just talking about,

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because you weren't in fact there.

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A.

All right.

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Q.

Am I correct that on that morning of

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the 14th the ink could very well have been faded?
A.

When it appeared and was unveiled,

you're asking me.

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Q.

Right, yes.

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A.

Yes, some fading, some damage, some

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typical -- actually probably a little beyond

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typical damage just in as much as there were

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pretty extreme environmental storage conditions.

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Q.

Right.

And that could have led --

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well, for whatever reasons, there could have been

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faded ink on the morning of July 14th, as

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Mr. Tytell put in his declaration; correct?

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A.

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Well, I'd say yes.
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Blanco

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Q.

Do you think that Mr. Tytell is lying?

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A.

No, no.

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5
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he's looking at.
Q.
lying.

So he -- when he --

But my question is do you think he's
You answered that.

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8

But it's a judgment call what

MR. BOLAND:

Objection.

You're

interrupting his question -- response.

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MR. SOUTHWELL:

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MR. BOLAND:

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A.

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my answer --

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Q.

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or not.

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A.

You have done that several

times now, Alex.

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No, his response.

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question.
Q.

I don't think he's lying, but to finish

My question is do you think he's lying

I think you rolled out of another
Can we read it back, go back a couple?
I'll read it to you.

I'll ask the

court reporter to read it to you at line 121.

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(Discussion off the record.)

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(Record read as follows:

Right.

And

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that could have led -- well, for whatever

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reasons, there could have been faded ink on

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the morning of July 14th, as Mr. Tytell put in

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his declaration; correct?)

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Blanco
A.

That's what I want to answer, and so,

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no, I'm not saying he's lying.

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to believe he's lying.

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I have no reason

But when a person is looking at

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something and then they report that I see fading

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or deterioration, well, what level was that?

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That's the question I'm -- I'm confronted with is

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did he see a little and he reported that or did

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it -- was there a lot.

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he says there's a lot, what does that really mean

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to him.

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And so that -- and even if

So that's where there's a bit of

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confusion on my part in trying to assess that.

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Again, I'm trying to assess that without getting

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native format production of your experts'

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documents and imagery.

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just mean imagery.

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Q.

When I say "documents," I

If Mr. Tytell testified that the

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appearance of the ink did not change between July

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14th and July 15th, would he be lying then?

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A.

No, it doesn't mean he's lying.

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could be wrong.

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be wrong doesn't mean you're lying.

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Q.

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It doesn't mean he's lying.

He
To

And if he were to testify to that, you
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Blanco
that Mr. Rantanen did.

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Am I pronouncing that right, Rantanen?

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Q.

No, but that's okay.

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A.

Okay.

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Q.

We won't tell?

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A.

That's what I've been saying the whole

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time.

That's what I thought it was.
Q.

But right.

You make certain assertions

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about his results.

Those are among the additional

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opinions that you have, including handwriting and

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staple analysis, the impression analysis, all of

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which go to support your general opinion, as you

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set out in your report, that the Facebook

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contract, the "work for hire" contract, is an

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authentic, unaltered document; right?

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A.

Yes.

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Q.

And with the exception of the

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handwriting analysis, which we will talk about

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momentarily.

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handwriting analysis, all of the other additional

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opinions which you set out in your report are

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completely consistent with the hypothetical that

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Mr. Ceglia forged both pages of the "work for

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hire" document at the same time; correct?

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But with the exception of the

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Blanco
A.

It would be consistent -- to be clear,

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that's not my opinion, but you gave me the

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hypothetical --

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Q.

Yeah.

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A.

-- and in that hypothetical,

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irrespective of the handwriting, as you said, then

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that would be consistent, yes.

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Q.

Now, you understand best practices in

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conducting forensic examination of documents, and

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one tenet of that would be that all portions of a

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questioned document are important to consider in

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rendering an evaluation; right?

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A.

Yes, to the extent that you can perform

detailed analysis of everything that you can, yes.
Q.

So that would be all writings,

markings, and accompaniments to a document?
A.

To the extent that you can have time to

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examine them, explore them, consider them, and

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write about them in a report, yes.

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Q.

So by "accompaniments," something like

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an envelope in which a document was found or

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something like a staple that kept a document

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together, those are the important pieces of

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evidence to consider in rendering an evaluation of

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Blanco

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However, I've done this and I've seen

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it done.

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would use other things, anything handy to hold

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down a document, even a penny, a couple of dimes,

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a quarter, whatever was handy to place on the

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document to hold it down.

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9
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When I was at government crime labs, we

So it is common practice to do
something -- to use something.
Q.

So your basis for asserting this

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possibility is that you believe it's common

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practice, but you don't actually have any factual

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basis for suggesting that this theory occurred

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with respect to this "work for hire" document;

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correct?

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A.

Correct.

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Q.

The other possible explanation you

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speculate about with respect to the fluorescent

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tabs is that an ungloved hand wearing suntan

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lotion or something similar may have touched the

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document and left deposits of suntan lotion in

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those particular locations; right?

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A.

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powder.

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Q.

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Yes, or something else, such as talcum

Now, do you have any specific factual
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Blanco

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basis that this in fact affected this "work for

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hire" document?

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A.

No.

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Q.

This is, again, just speculation about

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a possibility; correct?

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A.

It is.

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Q.

Now, in your report at page 76, you

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include copies of some of the images taken by

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Mr. Tytell of the "work for hire" document on July

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14th, 2011; right?

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A.

Yes.

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Q.

Those images show the fluorescent tabs

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that we've just been talking about that both you

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and defendants' experts described in your reports?

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A.

Yes.

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Q.

Mr. Tytell was the first expert to

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examine the document; right?

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A.

Yes.

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Q.

And Mr. Tytell's images here clearly

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show that the fluorescent tabs exist; correct?

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A.

I'm trying to get located here.

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Q.

Paragraph 201, page 76.

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A.

I'm with you, yes.

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Q.

Your Figure 14.

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Blanco

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A.

Yes, go ahead.

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Q.

Those images clearly show the

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fluorescent tabs exist; right?

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A.

Yes.

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Q.

So, Mr. Blanco, you have no reason to

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believe the fluorescent tabs were not present on

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the document at 9:11 a.m. on July 14th when

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Mr. Tytell took the first images of the "work for

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hire" document, do you?
A.

I don't have any factual basis for

that, to believe that, no.
Q.

You have no basis to know when the

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fluorescent tabs appeared on the "work for hire"

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document; right?

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A.

Right.

And I think I said towards the

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end of this discussion, the truth is none of the

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experts really know where these came from.

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Q.

And you note in your report that the

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"work for hire" document was stored in such a way

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that it had to endure extreme variations in

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temperature and changes in humidity over the

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years; right?

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A.

Yes.

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Q.

You mentioned in your report these

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