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)

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EXHIBIT Q Page 1 1 2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK 3 No.: 1:10-cv-00569-RJA -------------------------------------------x 4 PAUL D. CEGLIA, 5 6 7 Plaintiff, -against- 8 MARK ELLIOT ZUCKERBERG, Individually, 9 and FACEBOOK, INC., 10 11 12 Defendants. -------------------------------------------x 13 June 29, 2012 14 10:07 a.m. 15 16 VIDEOTAPED DEPOSITION of JERRY GRANT, 17 Expert Witness on behalf of Plaintiff, taken by 18 Defendants, held at the offices of Gibson Dunn & 19 Crutcher, 200 Park Avenue, New York, New York, 20 before Eileen Mulvenna, CSR/RMR/CRR, Certified 21 Shorthand Reporter, Registered Merit Reporter, 22 Certified Realtime Reporter and Notary Public of 23 the State of New York. 24 25 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 2 1 2 A P P E A R A N C E S: 3 4 DEAN BOLAND, ESQ. 5 Attorneys for Plaintiff 1475 Warren Road 6 Unit 770724 Lakewood, Ohio 7 BY: 44107 DEAN BOLAND, ESQ. 8 9 GIBSON DUNN & CRUTCHER, LLP Attorneys for Defendants 10 200 Park Avenue 47th Floor 11 New York, New York BY: 12 10166-0193 ALEXANDER H. SOUTHWELL, ESQ. MATTHEW BENJAMIN, ESQ. SRIPRIYA NARASIMHAN, ESQ. 13 14 15 16 A L S O P R E S E N T: 17 MICHAEL F. McGOWAN (Stroz Friedberg) 18 DANIEL McCLUTCHEY, Videographer 19 NADER KHORASSANI, Summer Intern 20 21 22 23 24 25 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 69 1 Jerry Grant 2 correct? 3 A. I cannot authenticate the e-mails, Q. So you're not offering that expert 4 no. 5 6 opinion, that the four e-mails are real; correct? 7 A. Correct. 8 Q. You are not offering an expert 9 10 opinion that the purported e-mails were actually sent or received; correct? 11 A. Correct. 12 Q. You are not offering an expert 13 opinion that the purported e-mails were copied 14 and pasted; correct? 15 A. I don't understand. I offered an 16 opinion that it was consistent with that in my 17 report. 18 Q. But you're not offering an opinion 19 that the -- that e-mails were, in fact, copied 20 and pasted into Word files; correct? 21 A. I'm offering an opinion that text 22 was copied and pasted, okay, an e-mail copied and 23 pasted, was it consistent with the contents of 24 these Word documents. 25 offering. 212-279-9424 And that's what I'm I'm not sure if I'm answering that VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 70 1 2 Jerry Grant correctly or not. 3 Q. 4 5 Right. Your opinion is about text being copied and pasted. 6 I guess my question is, you're not 7 offering an opinion that it was actual e-mails 8 that were copied and pasted; correct? 9 A. I -- yes, I do not know what was -- 10 I just know that that text exists in those Word 11 documents, yes. 12 Q. 13 Right. So you're not offering an expert 14 opinion that e-mails -- actual e-mails were 15 copied and pasted; correct? 16 A. 17 no, sir. 18 Q. 19 No, I did not have access to that, Am I correct that you're not offering that opinion? 20 A. Correct. 21 Q. You're not offering an expert 22 opinion that the purported e-mails contain 23 accurate time zone stamps; correct? 24 A. I'm sorry, I'm not offering -- 25 Q. You're not offering an opinion that 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 74 1 Jerry Grant 2 could explain more, but I don't know if you want 3 me to explain -- 4 Q. We are going to get to that. 5 A. We'll get to that. I can't -- I 6 don't know how to answer that yes or no without 7 explaining what happened. 8 9 Q. it. Okay. So let me see if I understand You were first tasked or asked to provide an 10 opinion about whether the documents were 11 consistent with copying and pasting. 12 was by Mr. Argentieri. And that 13 Later in the case, after speaking 14 with Mr. Boland, you provided an opinion about 15 the fact of -- you provided your opinion that you 16 found nothing indicative of fraud. 17 A. Correct. 18 Q. And what are the bases, what are the 19 factual bases for that opinion? 20 A. When I looked at it to indicate 21 fraud, my -- my biggest area that I looked at was 22 impossibilities. 23 on these, a forensic artifact, that would 24 indicate an impossibility. 25 that is something that just could not happen 212-279-9424 That means is there something And what I mean by VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 75 1 2 Jerry Grant regardless of an explanation. 3 And that's why I concentrated in one 4 way on the versions. If there was a version of a 5 document that was on a floppy disk that wasn't in 6 existence yet, let's say Word 2010, okay -- if a 7 document was created or saved on a floppy disk 8 with that version, and it was supposedly saved 9 between 2003, 2004, but Word wasn't invented 10 until after that fact, then that's an 11 impossibility. 12 So I was looking at any 13 impossibilities with standards, fonts, you know, 14 all of the other known facts at that point. 15 And so that's where I concentrated 16 my efforts on. 17 Q. 18 When you say "standards," what do you mean by that? 19 A. Well, there's like the Rich Text 20 Format, the standard that the file was created 21 in. 22 their own little set of standards. 23 their own file headers, their own contents, their 24 own metadata. The version -- each version of Word has 25 They have And so the Rich Text Format, the doc 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 86 1 Jerry Grant 2 A. I've read that in a news article, 4 Q. Does that give you any cause for 5 concern? 6 A. No. 7 Q. And did you read the motion that 3 yes. 8 your declaration was submitted with before it was 9 submitted? 10 A. No. 11 Q. Are you aware that the motion 12 asserted that your analysis confirmed Mr. Ceglia 13 and the authenticity of the purported e-mails? 14 A. I'm not aware. 15 Q. Actually, let's show you that. 16 MR. SOUTHWELL: 17 I did not read it. If I could have this marked as Defendants' Exhibit 11, please. 18 (Defendants' Exhibit 11, No Bates 19 numbers, Declaration of Jerry Grant, marked 20 for identification.) 21 BY MR. SOUTHWELL: 22 23 Q. I'm showing you now what's marked as Defendants' Exhibit 11. 24 Do you recognize that? 25 A. 212-279-9424 Yes, my declaration. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 87 1 Jerry Grant 2 Q. What's the date of the declaration? 3 A. It is November 16, 2011. 4 Q. That's the date you signed it -- 5 A. Yes, sir. 6 Q. -- right? 7 You'll note on the top it's got a 8 reference to it being filed on November 17, 9 2011 -- 10 A. 17 -- 11 Q. -- right? 12 A. Yes, sir. 13 Q. Now, in this declaration, you were 14 careful to note that you had examined these two 15 floppy disks and you had not identified any 16 evidence of fraud; is that accurate? 17 A. Right. 18 Q. You did not say in this declaration 19 that the purported e-mails were authentic; 20 correct? 21 A. Correct. 22 Q. And what you were -- in the 23 declaration, you reviewed a number of areas that 24 you had focused on with respect to the two floppy 25 disks in those Word files; right? 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 88 1 Jerry Grant 2 A. Correct. 3 Q. And your opinion again is that you 4 could not rule out -- rather, that you did not 5 find anything that rendered them impossible; 6 right? 7 A. 8 9 (Discussion off the record.) BY MR. SOUTHWELL: 10 11 Correct. Q. Okay. I'm sorry, because I'm seeing how it's coming out. It's not as -- 12 A. There's no problem. 13 Q. -- clear as I would like it. 14 The opinion contained in this 15 declaration is that you did not find anything 16 that rendered the Word files impossible; correct? 17 A. Correct. 18 Q. That is the extent of your opinion 19 you're offering? 20 A. Correct. 21 Q. You're offering no other opinion in 22 this declaration; correct? 23 A. I -- I thought I had put in that it 24 was consistent -- let me see. 25 the first one. 212-279-9424 Unless it was in Let me just double-check here. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 89 1 Jerry Grant 2 (Witness peruses the exhibit.) 3 A. You are correct, sir. 4 Q. Now, you did not say that the 5 purported e-mails were authentic in this 6 declaration; correct? 7 A. Correct. 8 Q. So if the motion asserted that your 9 10 analysis confirmed that they were authentic, that would be inaccurate; correct? 11 A. I did not state that. 12 Q. Correct, right. So if the motion 13 said that you had stated that the analysis 14 confirms the purported e-mails were authentic, 15 that would be inaccurate? 16 MR. BOLAND: 17 The motion doesn't state what he 18 Objection. stated. 19 THE WITNESS: 20 said, then correct. 21 If that's what it BY MR. SOUTHWELL: 22 Q. Now, you next submitted a 23 declaration a few weeks later, on December 8th of 24 2011; is that right? 25 A. 212-279-9424 Let me double-check, sir. VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 127 1 Jerry Grant 2 that file. That's a fact that there's a date on 3 that file. So that's not a -- an opinion. 4 right. 5 says it's July 1990, that's a fact that that's 6 the date of the file. All And what I mean by that, if that date 7 I do not know, because it's on a 8 floppy disk, if that date is accurate or not 9 because I have no other source to confirm it to. 10 So, therefore, I cannot relate an opinion based 11 on that because I do not have that answer. 12 So I -- I don't want to state an 13 opinion unless you can rule things out. 14 that's more or less going into impossibilities. 15 So can metadata change from other many different 16 factors? 17 fact. Yes. 18 And So, therefore, I can't state a So there's no impossibility there. 19 Q. So you're saying "simply can't be 20 done" is that you can't state a conclusion 21 without having ruled out other possibilities, 22 without having determined that it's not 23 impossible? 24 A. Correct. 25 Q. So you can't -- you would not be 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 154 1 Jerry Grant 2 So your conclusion was that nothing 3 was found to indicate fraud, or something very 4 similar to that, and you meant essentially to say 5 the same thing with respect to each of these 6 paragraphs; right? 7 A. Impossibilities, yes, sir. 8 Q. Impossibilities you said, right. 9 10 And what were the steps that you took to lead to that conclusion? 11 12 A. one or -- 13 14 Q. A. Can I go through a few of these and then I can explain them? 17 18 Generally speaking, you would look at the result of the metadata field? 15 16 As far as like for each individual Q. So if -- Actually, I'm going to get into the particulars in a moment -- 19 A. I would look at each individual 20 category and try to, you know, get the 21 information that FTK is showing me. 22 metadata or file dates, then I would look at the 23 file dates, times and everything to get that 24 information. 25 So if it's I would then take into consideration 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430 Page 176 1 Jerry Grant 2 better to be a little more specific in this 3 section? 4 A. I think it would have given more 5 information so it would be easier to determine 6 what it was I was referring to, yes, sir. 7 Q. You know, how is it that the court 8 can rely on this information when you don't have 9 any of the specifics about it? 10 MR. BOLAND: 11 THE WITNESS: 12 Objection. Do I answer? BY MR. SOUTHWELL: 13 Q. Yes. 14 A. Because I looked at all of them, I 15 was taking everything into consideration. 16 not state any authenticity on any of them. 17 even in this one, I can't state that it's 18 authentic. 19 the proper formatting of HTML that would have 20 come up in a web browser address field, that that 21 doesn't indicate fraud. 22 I did And I can just state that because it has Even with the ones here that did not 23 contain HTML, I still can't come to the 24 conclusion that it was fraudulent because it's 25 text inside a word processing document. 212-279-9424 VERITEXT REPORTING COMPANY www.veritext.com 212-490-3430

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