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 B

SELECTED FALSEHOODS, FACTUAL ERRORS, AND MISCHARACTERIZATIONS
IN CEGLIA’S OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS
Ceglia v. Zuckerberg and Facebook, Inc., 10-cv-569-RJA
CEGLIA STATEMENT

DEFICIENCY OF STATEMENT

“Plaintiff has stated under oath, multiple times,
that the Facebook Contract examined by the
Defendants’ experts in July 2011 (the FB Contract)
was signed by himself and Defendant Zuckerberg
on April 28, 2003. Doc. No. 65 at 2.” Plaintiff’s
Opposition to Defendants’ Motion to Dismiss
(“Opp.”) at page 1.

Ceglia has never stated under oath that the version of the Work for Hire Document
presented to Defendants’ experts in July 2011 was signed by himself and Defendant
Zuckerberg. The declaration Ceglia cites is from June 2011, before any document
was ever presented to Defendants’ experts. In that declaration, Ceglia refers
generally to the version of the Work for Hire Document attached to the Amended
Complaint, which Defendants’ experts have determined is not the same document
with which they were presented on July 14, 2011. See Lesnevich Report (Doc. No.
329); Lesnevich Supplemental Report (Doc. No. 472-1).

“Plaintiff’s experts confirmed Plaintiff’s sworn
testimony that the FB contract is authentic with the
reports they submitted to this court.” Opp. 1.

Stewart admitted during his deposition that he was not offering an opinion that the
Work for Hire Document was the authentic contract actually signed by the parties.
See Southwell Decl. Ex. N (“Stewart Tr.”) 142:10-15 (“Q. Am I correct that you are .
. . not offering an opinion that [the Work for Hire Document] is the authentic contract
actually signed by the parties in 2004? A. That’s a fair assessment, yes.”).

“Defendants’ ‘fraud’ theory has changed.” Opp. 1. Defendants have maintained that this case is a massive fraud from day one, and have
accumulated the evidence of that fraud since then. As this Court has already
“From the start of this case until June 2012,
observed, Defendants have not put forward “a newly asserted theory” and “the record
Defendants have argued that the FB Contract
is simply devoid of any evidence establishing that any of Defendants’ experts ever
examined by their experts was a ‘page one
advocated the page one substitution theory . . .” Doc. No. 583 at 16.
substitution.’” Opp. 1.
There is no disagreement at all between Defendants’ experts. Tytell observed the
Ceglia’s numerous false assertions regarding
Defendants’ experts’ purported disagreement about same differences in thickness as did LaPorte, (see Tytell Tr. (Doc. No. 485) 126:14127:4) but LaPorte’s instruments were more sensitive by a factor of ten (see Tytell
the paper thickness measurements:
Tr. (Doc. No. 485) 129:24-130:12). Tytell’s instruments did not measure precisely
“Peter Tytell disagreed with Gerald LaPorte as to
enough such that he was comfortable reporting an opinion to the court, while LaPorte
the measurements of the paper thickness of the two

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CEGLIA STATEMENT
pages of the FB Contract . . .” Opp. 1.

DEFICIENCY OF STATEMENT
was comfortable reporting his more precise measurements.

“Mr. LaPorte’s thickness measurements are
contradicted by Defendants’ expert Tytell.” Opp.
20.
“Tytell disagrees with LaPorte’s conclusion he
could reliably measure the thickness of the two
pages of the FB Contract. Tytell Depo at 127.”
Opp. 37.
“Defendant Zuckerberg acknowledges receiving
his own original copy of the FB Contract on April
28, 2003 and subsequently discarding that original
copy sometime in 2003 or 2004.” Opp. 11-12.

Zuckerberg has never “acknowledged” that he “received” or signed any contract
regarding Facebook with Ceglia on April 28, 2003 or any other date. To the
contrary, Zuckerberg clearly attested that he did not sign the Work for Hire
Document attached to the Amended Complaint, or enter into any contract concerning
Facebook or any related social networking service or web site with Ceglia. See
Zuckerberg Decl. (Doc. No. 46) ¶¶ 5-10.

“Defendant Zuckerberg . . . admits to having
written a complex code capable of searching
through millions of unique names for Plaintiff.”
Opp. 12.

This statement mischaracterizes the limited programming work Zuckerberg
performed for Ceglia’s now-defunct insurance-related StreetFax website. Zuckerberg
never “admit[ted] to having written a complex code capable of searching though
millions of unique names” for Ceglia. Zuckerberg has stated simply, “In or about
April 2003, I entered into a written contract with StreetFax, pursuant to which I
agreed to provide limited web site services solely in connection with the development
of StreetFax’s web site,” and “The written contract I signed concerned only the
development of StreetFax’s web site. It did not concern Thefacebook.com or any
related social networking service or web site.” Zuckerberg Decl. (Doc. No. 46) ¶ 7,
9.

“Zuckerberg simply denies that the contract had
provisions within it that sold the rights to 50% of a
then concept company, Facebook.” Opp. 12.

Facebook was not a “then concept company” in April 2003. As Zuckerberg attested
to this Court, he did not conceive of the idea of Facebook until many months after
April 28, 2003, in or around December 2003. Zuckerberg Decl. (Doc. No. 46) ¶ 11;

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CEGLIA STATEMENT

DEFICIENCY OF STATEMENT
see also Defendants’ Motion to Dismiss (Doc No. 319) at 10.

Ceglia’s numerous assertions regarding
Defendants’ experts’ purported failure to conduct
handwriting analysis:

These statements that Defendants did not conduct handwriting analysis are false and
ignore record evidence to the contrary. In fact, two of Defendants’ experts conducted
handwriting analysis.

“Defendants’ experts included two experienced
and qualified handwriting examiners, Peter Tytell
and Gus Lesnevich. Neither of those experts were
asked or offered to examine the handwriting on
either page of the FB contract. ‘I was not tasked
with an examination of handwriting or signatures
specifically.’ Tytell Depo. at 49.” Opp. 15-16.

Lesnevich examined the handwriting on both pages of the Work for Hire Document
and reported his conclusions—that all of the handwritten entries on both pages were
unnaturally written tracings and none of the signatures or initials are authentic—in
reports to this Court. See Lesnevich Report (Doc. No. 329); Lesnevich Supplemental
Report (Doc. No. 472-1).

“These claims [that Tytell never suggested or was
asked to examine the handwriting] are not
believable unless Defendant Zuckerberg knew that
analysis would result in precisely the conclusion
Blanco arrived at - i.e. Defendant Zuckerberg
authored the signature on page two of the FB
Contract.” Opp. 37.
“The toner on both pages is the same and dates
from the 2000-2005 time period and not later than
that. Doc. No. 416 [Stewart Report] at 92, 103.”
Opp. 17.

Additionally, in deposition Tytell testified that he conducted his own independent
handwriting analysis, and drew the same conclusions as Lesnevich—specifically that
all of the handwritten entries on both pages of the Work for Hire Document he
examined are tracings—which he explained in detail during his August 3, 2012
deposition. See Tytell Tr. (Doc. No. 485) 59:17-61:14, 67:20-72:16.

This statement is a mischaracterization of Stewart’s opinion: Stewart says nothing
about the date of the toner itself.
Instead, Stewart simply claims that the toner on the Work for Hire document was
consistent with toner from two series of Hewlett Packard printers, which were
manufactured between 2000-2005. In his deposition, Stewart confirmed that
“consistent with” is “not a very strong conclusion” and does not exclude the
possibility that it is also consistent with “some other printer.” See Stewart Tr. 318:219. Thus, the toner could also be a newer toner from a newer printer series.
More importantly, even if the toner were from one of the printer series that Stewart
identified, that in no way dates the toner to pre-2005: as Stewart himself
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CEGLIA STATEMENT

DEFICIENCY OF STATEMENT
acknowledged, those printers and the toner used in them are still commercially
available to this day. See Stewart Tr. 320:18-322:8; see also LaPorte Report (Doc.
No. 326) at 22.

“Dr. Aginsky was one of the few experts to
examine the authentic FB Contract before it was
damaged by Defendants’ experts in July of 2011
via excessive exposure to various sources of
intense light over four days.” Opp. 18-19.

Defendants’ experts did not damage the Work for Hire Document. The Work for
Hire Document was in its damaged condition—with an off-white cast and faded, tancolored ink—when Paul Argentieri produced it at 9:11 a.m. on the morning of July
14, 2011. See Tytell Report (Doc. No. 330) at 4-9; Tytell Decl. (Doc. No. 238) ¶¶
15-24; Romano Report (Doc. No. 327) at 3. The damage was done prior to
Defendants’ experts ever receiving the document for inspection.
As Tytell noted in his deposition, the white tabs at the top of each page of the
document—indicative of the document’s exposure while clipped—are visible in the
very first scans taken of the document at 9:18 and 9:22 a.m. on July 14, when the
images are adjusted with “the kinds of basic adjustments that you and I used to do
back when we had analog televisions,” like contrast and saturation. Tytell Tr. (Doc.
No. 485) 195:19-196:2. And the reverse side of the Work for Hire Document can be
seen fluorescing more brightly than the front at around 11:00 a.m. on the video, and
the fluorescing white tabs were documented at 5:00 p.m. on the first day, as can also
be seen in the video of the inspection. Tytell Tr. (Doc. No. 485) 195:7-13.
Finally, both Blanco and Stewart admitted in their depositions that the assertion that
Defendants’ experts damaged the Work for Hire Document—either with excessive
lights while using clips or weights, or in some other manner—has no basis in fact: it
is merely a “possibility.” See, e.g., Southwell Decl. Ex. P (“Blanco Tr.”) 262:12-16
(“Q. . . . [Y]ou don’t actually have any factual basis for suggesting that this theory
[that Defendants’ experts caused damage with clips in the VSC machine] occurred
with respect to this “work for hire” document; correct? A. Correct.”), 262:25-263:7
(“Q. Now, do you have any specific factual basis that [Defendants’ experts having
touched the document and left deposits of suntan lotion or talcum powder] in fact
affected this “work for hire” document? A. No. Q. This is, again, just speculation
about a possibility, correct? A. It is.”); Stewart Tr. 197:16-20 (“Q. And to be clear,
you have no evidence that there were in fact weights of any kind in the room during
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CEGLIA STATEMENT

DEFICIENCY OF STATEMENT
the defendants’ examination of the document in this case; correct? A. That's
correct.”).

“[T]here is no discernible difference in the ink
Dr. Aginsky, who made the initial visual determination that there was “no discernible
used to write the interlineation on page one and the difference” in the ink used for the interlineation on page 1 and signatures on page 2
signature and date on page two . . .” Opp. 19.
back in June 2011 (see Aginsky Decl. (Doc. No. 66) ¶ 9), admitted during his
deposition that further tests—which Dr. Aginsky did not himself perform—could
further differentiate the inks on pages 1 and 2 of the Work for Hire Document (see
Aginsky Tr. (Doc. No. 486) 171:18-172:19).
Defendants’ experts, who performed additional tests, including chemical tests, found
that there was a discernible difference in the inks used to write the various
handwritten entries on pages one and two of the Work for Hire Document. See Tytell
Report (Doc. No. 330) at 10; LaPorte Report (Doc. No. 326) at 15. These findings
are un-rebutted by Ceglia’s experts.
“. . . [Defendants’ expert Gerald] Laporte, the most This statement is misleading and a false representation of LaPorte’s experience.
junior and least experienced examiner on either
LaPorte, a forensic chemist and document dating specialist, has a Master of Science
side.” Opp. 21.
in Forensic Science and nearly two decades of experience as a forensic scientist. See
LaPorte Report (Doc. No. 326) at 1-2. Moreover, he regularly uses gaschromatography/mass-spectrometry (GC/MS) in his forensic document examination
practice, and has used the instrument for well over a decade. See id., Ex. A. GC/MS
is the instrument LaPorte used to conduct the chemical analysis that determined the
ink on page 1 of the Work for Hire Document is less than two years old. See id. at
15-16. On the other hand, Stewart, Ceglia’s so-called expert in ink chemistry, has
not used a GC/MS instrument in thirty years. See Stewart Tr. 258:15-20. Stewart
also confessed that he does not know why the chemical solvent PE is used in ink,
revealing his lack of relevant knowledge and experience. See Stewart Tr. at 210:1222. A quick review of LaPorte’s and Stewart’s resumes demonstrates LaPorte’s
superior experience: LaPorte has decades of experience with chemical ink dating
using GC/MS and numerous current academic articles and presentations on the
subject; Stewart has not published a truly academic article on ink analysis since his
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CEGLIA STATEMENT

DEFICIENCY OF STATEMENT
arrest for perjury in 2004. Compare Doc. No. 326, Exhibit A with Doc. No. 416-4 at
1-14.

“LaPorte’s conclusion [that there are more than
two different ink formulations on pages one and
two of the Work for Hire document] is
contradicted by Defendant’s expert Tytell. ‘The
optical examination of the ink of the Work for Hire
document that I conducted revealed two groups of
ink: one that included the interlineation on page 1
and the signatures and dates on page 2; the other
that included just the initials on page 1.’ Tytell
Dec Doc 330 Page 11.” Opp. 21.

The statement that there is a contradiction between LaPorte and Tytell’s conclusions
is false. While using his methodologies Tytell was able to differentiate only two inks
on the Work for Hire Document, he explicitly noted in his Report that additional
optical and chemical tests could differentiate the inks beyond his level of analysis.
See Tytell Report (Doc. No. 330) at 11. LaPorte confirmed optically Tytell’s
differentiation of the interlineation and initials, and performed additional chemical
tests that allowed him to further differentiate the other inks present on the Work for
Hire Document. See LaPorte Report (Doc. No. 326) at 14-15. There is no
contradiction between LaPorte’s and Tytell’s conclusions—indeed, there is
consistency.

“The FB contract LaPorte tested, had been stored
at below the freezing temperature for a majority of
each year for each year of its storage. Doc. No.
422 at 2.” Opp. 26.

Even assuming, arguendo, that Ceglia’s belated statements regarding the purported
storage of the Work for Hire Document are true, the weather reports relied on by
Ceglia’s experts clearly demonstrate that Ceglia’s house’s location was subject to
normal, fluctuating seasons, including typical summer and winter temperatures.
Stewart Tr. 230:5-15; Blanco Report, Ex. 38 (Doc. Nos. 459-4 to 459-6); LaPorte Tr.
(Doc. No. 497) 191:11-192:24.

“Since Mr. LaPorte relies on this ink matrix to
continue to trap PE within it during and after
heating the second sample, not knowing the effect
of freezing on the matrix and how it may release
additional PE into a tested sample negates the test
results in their entirety as PE that was expected to
stay trapped may not.” Opp. 26-27.

In fact, LaPorte does take into account purported storage conditions, including
temperature variations by: (1) using a conservative, two-year threshold that takes into
account unknown factors such as storage conditions; and (2) stating his conclusion as
a probability (“highly probable” rather than definitive) to account for unknown
storage conditions. See LaPorte Tr. (Doc. No. 497) 190:13-192:24.

“[I]t is possible to determine that the ink is
younger than six months if the [PE loss ratio]
exceeds 50 percent. Aginsky Depo at 179.

Ceglia takes Dr. Aginsky’s testimony out of context and distorts his meaning. Dr.
Aginsky immediately clarified that he uses two distinct tests to make the six-month
determination, that this determination is only a conditional one because it can be
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CEGLIA STATEMENT

DEFICIENCY OF STATEMENT

Therefore, the main developer of the PE test
confirmed that average PE evaporation loss rates
exceeding fifty (50) percent (lower than those
LaPorte reported) would indicate that the ink was
less than 6 months old, if the test conditions
allowed for a legitimate test.” Opp. 29.

rebutted by other factors, and that such a determination cannot always be made. See
Aginsky Tr. (Doc. No. 486) 179:23-180:12. LaPorte’s use of a two-year threshold is
more conservative because it takes into account unknown factors, and thus allows for
a conclusion with a greater degree of accuracy. See LaPorte Tr. (Doc. No. 497)
45:25-47:1.

“Using every other known PE evaporation curve
(all of which were shown to LaPorte during his
deposition) yields a conclusion that, if the test
were legitimate, the ink in the interlineation of
page one of the Facebook contract was less than
three months old. LaPorte Depo. Exhibit #7.”
Opp. 29.

The exhibit cited here consists of misleading attorney-manufactured illustrations that
fundamentally misrepresent the meaning of the charts. The curves on these charts,
which Boland showed LaPorte during his deposition, represent the theoretical rate of
evaporation of PE from an ink, which occurs rapidly at first, then at a measurable
rate, and then tapers. The charts use non-specific, arbitrary units—they do not
represent the amount of time it takes for PE to evaporate. Indeed, some of the charts
shown to LaPorte by Boland did not even represent PE, but represented volatile
components generally. See LaPorte Tr. (Doc. No. 497) 59:16-18, 59:22-23; see also
id. 108-109, 118:5-8. Boland’s attempt to interpret these charts in the context of the
PE analysis performed by LaPorte is like “comparing apples and oranges.” LaPorte
Tr. (Doc. No. 497) 130:18.

“Thousands of household products contain PE.”
Opp. 30.

These statements mischaracterize the facts, and are unsupported by evidence.

“Mr. Laporte was unaware of the admissions made
by Mr. Tytell that he had frequently, during his
examination, used hand soap - a product known to
contain PE.” Opp. 31.

They are also rank speculation: Ceglia’s experts did not test the document to
determine whether it had been contaminated, did not see anyone use a product
containing PE and then touch the document, and did not verify that any products that
might have been near the Work for Hire Document contained PE. See Stewart Tr.
251:12-252:9. Indeed, although Ceglia claims that “[t]housands of household
products contain PE,” the website he cites to support that claim states that PE is most
commonly found in eye shadow, mascara, and anti-aging cream. See
http://www.goodguide.com/ingredients/273522-phenoxyethanol. Needless to say,
Ceglia has not established that Defendants’ experts were using any of those products
at the time of their inspection—much less that they were using them in such a way as
to have contaminated the specific areas of ink writing on the Work for Hire

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CEGLIA STATEMENT

DEFICIENCY OF STATEMENT
Document.
In any event, Ceglia’s speculation regarding potential contamination fails because, as
part of his standard procedure, LaPorte tested a paper “blank” to ensure that no PE
was present in the paper, and concluded that there was no PE contamination that
might affect his results. See LaPorte Tr. (Doc. No. 497) 212:6-213:9, 218:14-219:3,
220:6-16.

“Yet, shockingly, Mr. LaPorte intentionally took
only half the amount he knew he needed to test the
PE on the PC initials. LaPorte Depo. at 276.”
Opp. 32.

This statement is false, and unsupported by the record. At no point does Ceglia
establish how many samples he purports LaPorte “needed to test the PE on the
[Ceglia] initials.” In fact, the samples available from the “PC” initials—those from
the staff of the “P”—were unsuitable for PE testing because the ink line of the staff
was doubled over, creating a heavily inked line. Ink chemists do not use such
anomalous areas of ink writing in order to achieve the most accurate results. At the
August 2011 sampling by Defendants’ experts, there were four samples total
available to Defendants’ experts. See Doc. No. 117 ¶ 6. Defendants’ experts took all
four available samples.

“Jerry Grant did the only full analysis of the
metadata on the MS Word files found on the
floppy disks. Doc. No. 418.” Opp. 48.

The Stroz Friedberg Report discusses the metadata of the Word documents, and
explains how it demonstrates that those documents were created fraudulently. See
Stroz Friedberg Report (Doc. No. 325) at 23-26. Moreover, Grant’s “analysis” was
limited to his assessment of factual “impossibilities”—basically, based on his
particular analysis, Grant reported that there was “no evidence of fraud” because it
was not “factually impossible” that under some speculative scenario Ceglia’s
fabricated emails could have been authentic. See, e.g., Southwell Decl. Ex. Q
(“Grant Tr.”) 74:20-75:16, 127:12-17, 154:2-8.

“Defendants’ experts Stroz [] admitted at
deposition that the Street Fax images were created
somewhere else, i.e. not on Plaintiff’s parents’
computer, and placed onto that computer. Rose
Depo at 25.” Opp. 55.

This statement is false, and a mischaracterization of deposition testimony. No
representative of Stroz Friedberg admitted during deposition testimony that the
images of the StreetFax Contract “were created somewhere else, i.e., not on
Plaintiff’s parents’ computer.” No evidence on the record supports that statement.
Rather, Rose stated that the scans appeared to be copied to the hard drive, but that

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CEGLIA STATEMENT

DEFICIENCY OF STATEMENT
does not mean they were created somewhere else. Rose Tr. (Doc. No. 498) 25:21-24.
McGowan stated that “the forensic evidence is that the TIFF image was created on
this computer on the morning of March 3rd, 2004, I can’t say whether it was scanned
directly onto this computer or if it had been created from another media, transferred
from another media.” McGowan Tr. (Doc. No. 496) 142:3-8.

“Plaintiff was renting a home in Florida at the time This irrelevant statement is unsupported by any citation or evidence.
the Kole email was allegedly sent from his parents’
computer.” Opp. 56.
“Plaintiff’s parents were never involved in sending
emails to Plaintiff’s lawyer Jim Kole at any time.”
Opp. 57.

This irrelevant statement is unsupported by any citation or evidence.

“The abundance of these hacking tools on the
Seagate drive are but a mere coincidence, so say
the Defendants.” Opp. 59.

This statement is unsupported by any citation or evidence.

Ceglia’s numerous assertions regarding
Zuckerberg’s purported “hacking” and “planting”
of the StreetFax Contract:

This statement is unsupported by any citation or evidence, and demonstrably false.

Ceglia has not identified any file that would have provided remote access or
“hacking” to his computer on March 3, 2004.

Carmine Ceglia asserts that he “used [his] adelphia account and email password as
[his] username and password for [his StreetFax] account.” Doc. No. 419 ¶ 11. But
“Defendant Zuckerberg being the only party in this even assuming, arguendo, that is true, Ceglia’s statement that “Defendant
case with the credentials to send an email from
Zuckerberg being the only party in this case with the credentials to send an email
Plaintiff’s parents’ account, Doc. No. 419 at 2,
from Plaintiff’s parents’ account” is false several reasons.
also another coincidence say the defendants.”
First, there is no evidence that Zuckerberg knew about the Adelphia email account in
Opp. 59.
2004, let alone knew anything about Ceglia’s family or their computers, had any
“It is undisputed by Defendants, as it cannot be
specific knowledge of the Seagate computer, had any idea who Jim Kole was, or had
disputed, that Defendant Zuckerberg had the
any knowledge necessary to access the computer containing the Seagate hard drive.
ability, information and motive necessary in 2004
See Doc. No. 319 at 29. Defendants dispute that Zuckerberg had the ability,
to hack Plaintiff’s parents’ computer containing
information, and motive necessary to perform Ceglia’s absurd fantasy “explanation”
regarding the presence of the StreetFax Contract on the Seagate hard drive. Indeed,
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CEGLIA STATEMENT
the Seagate hard drive.” Opp. 60.

DEFICIENCY OF STATEMENT
while Carmine Ceglia asserts that he used his “adelphia email address and adelphia
account email password as [his] username and password for [his StreetFax] account,”
Doc. No. 419 ¶¶ 9-11, there is no evidence that Zuckerberg ever had knowledge of
that information as it related to any “StreetFax account.”
Next, there is undisputed record evidence—authentic emails, present in Zuckerberg’s
Harvard account and filed by Ceglia himself in this litigation—suggesting that
Carmine Ceglia’s testimony is not true. Specifically, an authentic September 15,
2003 email contradicts Ceglia’s testimony and demonstrates that (i) the usernames
for the StreetFax email accounts were not email addresses, as he claims, but
abbreviations of individuals’ names, and (ii) Zuckerberg did not create an account for
Carmine Ceglia when he was creating StreetFax email accounts. Doc. No. 224-1 at
66-67.
It is outrageous and defamatory to suggest that Zuckerberg, back in 2004, had the
foresight that Ceglia would file this bogus lawsuit, and so at that time “hacked” into
the Seagate hard drive and “planted” the StreetFax Contract.

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