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 Q

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

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No.: 1:10-cv-00569-RJA
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PAUL D. CEGLIA,

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Plaintiff,
-against-

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

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Defendants.
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June 29, 2012

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10:07 a.m.

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VIDEOTAPED DEPOSITION of JERRY GRANT,

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Expert Witness on behalf of Plaintiff, taken by

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Defendants, held at the offices of Gibson Dunn &

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Crutcher, 200 Park Avenue, New York, New York,

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before Eileen Mulvenna, CSR/RMR/CRR, Certified

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Shorthand Reporter, Registered Merit Reporter,

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Certified Realtime Reporter and Notary Public of

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the State of New York.

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

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DEAN BOLAND, ESQ.
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Attorneys for Plaintiff
1475 Warren Road

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Unit 770724
Lakewood, Ohio

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BY:

44107

DEAN BOLAND, ESQ.

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GIBSON DUNN & CRUTCHER, LLP
Attorneys for Defendants

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200 Park Avenue
47th Floor

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New York, New York
BY:

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10166-0193

ALEXANDER H. SOUTHWELL, ESQ.
MATTHEW BENJAMIN, ESQ.
SRIPRIYA NARASIMHAN, ESQ.

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A L S O

P R E S E N T:

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MICHAEL F. McGOWAN (Stroz Friedberg)

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DANIEL McCLUTCHEY, Videographer

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NADER KHORASSANI, Summer Intern

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correct?

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A.

I cannot authenticate the e-mails,

Q.

So you're not offering that expert

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no.

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opinion, that the four e-mails are real; correct?

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A.

Correct.

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Q.

You are not offering an expert

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opinion that the purported e-mails were actually
sent or received; correct?

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A.

Correct.

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Q.

You are not offering an expert

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opinion that the purported e-mails were copied

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and pasted; correct?

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A.

I don't understand.

I offered an

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opinion that it was consistent with that in my

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report.

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Q.

But you're not offering an opinion

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that the -- that e-mails were, in fact, copied

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and pasted into Word files; correct?

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A.

I'm offering an opinion that text

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was copied and pasted, okay, an e-mail copied and

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pasted, was it consistent with the contents of

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these Word documents.

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offering.

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And that's what I'm

I'm not sure if I'm answering that
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correctly or not.

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Q.

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Right.
Your opinion is about text being

copied and pasted.

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I guess my question is, you're not

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offering an opinion that it was actual e-mails

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that were copied and pasted; correct?

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A.

I -- yes, I do not know what was --

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I just know that that text exists in those Word

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documents, yes.

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Q.

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Right.
So you're not offering an expert

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opinion that e-mails -- actual e-mails were

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copied and pasted; correct?

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A.

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no, sir.

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Q.

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No, I did not have access to that,

Am I correct that you're not

offering that opinion?

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A.

Correct.

21

Q.

You're not offering an expert

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opinion that the purported e-mails contain

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accurate time zone stamps; correct?

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A.

I'm sorry, I'm not offering --

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Q.

You're not offering an opinion that

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could explain more, but I don't know if you want

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me to explain --

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Q.

We are going to get to that.

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A.

We'll get to that.

I can't -- I

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don't know how to answer that yes or no without

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explaining what happened.

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9

Q.
it.

Okay.

So let me see if I understand

You were first tasked or asked to provide an

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opinion about whether the documents were

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consistent with copying and pasting.

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was by Mr. Argentieri.

And that

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Later in the case, after speaking

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with Mr. Boland, you provided an opinion about

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the fact of -- you provided your opinion that you

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found nothing indicative of fraud.

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A.

Correct.

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Q.

And what are the bases, what are the

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factual bases for that opinion?

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A.

When I looked at it to indicate

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fraud, my -- my biggest area that I looked at was

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impossibilities.

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on these, a forensic artifact, that would

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indicate an impossibility.

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that is something that just could not happen

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That means is there something

And what I mean by

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regardless of an explanation.

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And that's why I concentrated in one

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way on the versions.

If there was a version of a

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document that was on a floppy disk that wasn't in

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existence yet, let's say Word 2010, okay -- if a

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document was created or saved on a floppy disk

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with that version, and it was supposedly saved

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between 2003, 2004, but Word wasn't invented

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until after that fact, then that's an

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impossibility.

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So I was looking at any

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impossibilities with standards, fonts, you know,

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all of the other known facts at that point.

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And so that's where I concentrated

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my efforts on.

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Q.

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When you say "standards," what do

you mean by that?

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A.

Well, there's like the Rich Text

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Format, the standard that the file was created

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in.

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their own little set of standards.

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their own file headers, their own contents, their

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own metadata.

The version -- each version of Word has

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They have

And so the Rich Text Format, the doc

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A.

I've read that in a news article,

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Q.

Does that give you any cause for

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concern?

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A.

No.

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Q.

And did you read the motion that

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yes.

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your declaration was submitted with before it was

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submitted?

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A.

No.

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Q.

Are you aware that the motion

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asserted that your analysis confirmed Mr. Ceglia

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and the authenticity of the purported e-mails?

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A.

I'm not aware.

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Q.

Actually, let's show you that.

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MR. SOUTHWELL:

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I did not read it.

If I could have this

marked as Defendants' Exhibit 11, please.

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(Defendants' Exhibit 11, No Bates

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numbers, Declaration of Jerry Grant, marked

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for identification.)

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BY MR. SOUTHWELL:

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Q.

I'm showing you now what's marked as

Defendants' Exhibit 11.

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Do you recognize that?

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A.

212-279-9424

Yes, my declaration.
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Q.

What's the date of the declaration?

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A.

It is November 16, 2011.

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Q.

That's the date you signed it --

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A.

Yes, sir.

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Q.

-- right?

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You'll note on the top it's got a

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reference to it being filed on November 17,

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2011 --

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A.

17 --

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Q.

-- right?

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A.

Yes, sir.

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Q.

Now, in this declaration, you were

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careful to note that you had examined these two

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floppy disks and you had not identified any

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evidence of fraud; is that accurate?

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A.

Right.

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Q.

You did not say in this declaration

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that the purported e-mails were authentic;

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correct?

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A.

Correct.

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Q.

And what you were -- in the

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declaration, you reviewed a number of areas that

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you had focused on with respect to the two floppy

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disks in those Word files; right?

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A.

Correct.

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Q.

And your opinion again is that you

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could not rule out -- rather, that you did not

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find anything that rendered them impossible;

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right?

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A.

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(Discussion off the record.)
BY MR. SOUTHWELL:

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Correct.

Q.

Okay.

I'm sorry, because I'm seeing

how it's coming out.

It's not as --

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A.

There's no problem.

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Q.

-- clear as I would like it.

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The opinion contained in this

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declaration is that you did not find anything

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that rendered the Word files impossible; correct?

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A.

Correct.

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Q.

That is the extent of your opinion

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you're offering?

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A.

Correct.

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Q.

You're offering no other opinion in

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this declaration; correct?

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A.

I -- I thought I had put in that it

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was consistent -- let me see.

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the first one.

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Unless it was in

Let me just double-check here.

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(Witness peruses the exhibit.)

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A.

You are correct, sir.

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Q.

Now, you did not say that the

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purported e-mails were authentic in this

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declaration; correct?

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A.

Correct.

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Q.

So if the motion asserted that your

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analysis confirmed that they were authentic, that
would be inaccurate; correct?

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A.

I did not state that.

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Q.

Correct, right.

So if the motion

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said that you had stated that the analysis

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confirms the purported e-mails were authentic,

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that would be inaccurate?

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MR. BOLAND:

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The motion doesn't state what he

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Objection.

stated.

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THE WITNESS:

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said, then correct.

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If that's what it

BY MR. SOUTHWELL:

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Q.

Now, you next submitted a

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declaration a few weeks later, on December 8th of

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2011; is that right?

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A.

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Let me double-check, sir.
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that file.

That's a fact that there's a date on

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that file.

So that's not a -- an opinion.

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right.

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says it's July 1990, that's a fact that that's

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the date of the file.

All

And what I mean by that, if that date

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I do not know, because it's on a

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floppy disk, if that date is accurate or not

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because I have no other source to confirm it to.

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So, therefore, I cannot relate an opinion based

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on that because I do not have that answer.

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So I -- I don't want to state an

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opinion unless you can rule things out.

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that's more or less going into impossibilities.

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So can metadata change from other many different

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factors?

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fact.

Yes.

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And

So, therefore, I can't state a

So there's no impossibility there.

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Q.

So you're saying "simply can't be

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done" is that you can't state a conclusion

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without having ruled out other possibilities,

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without having determined that it's not

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impossible?

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A.

Correct.

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Q.

So you can't -- you would not be

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So your conclusion was that nothing

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was found to indicate fraud, or something very

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similar to that, and you meant essentially to say

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the same thing with respect to each of these

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paragraphs; right?

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A.

Impossibilities, yes, sir.

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Q.

Impossibilities you said, right.

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And what were the steps that you
took to lead to that conclusion?

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A.
one or --

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Q.

A.

Can I go through a few of these and

then I can explain them?

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Generally speaking, you would look

at the result of the metadata field?

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As far as like for each individual

Q.

So if --

Actually, I'm going to get into the

particulars in a moment --

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A.

I would look at each individual

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category and try to, you know, get the

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information that FTK is showing me.

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metadata or file dates, then I would look at the

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file dates, times and everything to get that

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information.

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So if it's

I would then take into consideration

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better to be a little more specific in this

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section?

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A.

I think it would have given more

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information so it would be easier to determine

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what it was I was referring to, yes, sir.

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Q.

You know, how is it that the court

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can rely on this information when you don't have

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any of the specifics about it?

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MR. BOLAND:

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THE WITNESS:

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Objection.
Do I answer?

BY MR. SOUTHWELL:

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Q.

Yes.

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A.

Because I looked at all of them, I

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was taking everything into consideration.

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not state any authenticity on any of them.

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even in this one, I can't state that it's

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authentic.

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the proper formatting of HTML that would have

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come up in a web browser address field, that that

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doesn't indicate fraud.

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I did
And

I can just state that because it has

Even with the ones here that did not

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contain HTML, I still can't come to the

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conclusion that it was fraudulent because it's

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text inside a word processing document.

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