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 F

FilED
loeq

~ 2012

4TH c::~n:'::CT
STATE OF UTr\/-I
UTAH COi.JN-rv

IN THE FOURTH JUDICIAL DISTRICT COURT
IN AND FOR UTAH COUNTY, STATE OF UTAH

COTT BEVERAGES INC,

RULING AND ORDER

Petitioner,
Case No. 100402774
vs.
AMERICANN CO-PACK INC,
AUTOMATED PROCESS AND PACKING,

Judge Darold J. McDade
Division # 10

Respondents.

This matter came before the Court for Evidentiary Hearing on the Motion In Limine to
Exclude the Report and Testimony of RespondentiCross-Claimant Americann Co-Pack Inc.'s
Expert, Gerald M. Laporte, and opposition thereto on September 24,2012. Respondent,
Americ.ann Co-Pack Inc., was represented by counsel, Steven R. Skirvin. Respondent,
Automated Process and Packing, was represented by George L. Chingas, Jr. After hearing the
arguments ofthe parties, the Court took the pending motion in limine under advisement.

PROCEDURAL HISTORY
On August 13, 2010, Petitioner, Cort Beverages, Inc. ("Cort") filed an interpleader
complaint with the Court to determine the security interest in Cort's secured creditor sale of
assets previously owned by Daishin Co-Pack, LLC ("Daishin"). The excess funds from the
creditor's sales have been interplead in this action until the Court makes a determination

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regarding the rights to the money by Automated Process and Packaging, LLC, ("Autopropac")
and Americann Co-Pack, Inc. ("Americann"). Autopropac claims a security interest in the
money pursuant to a contract and security agreement ("Contract") signed by Daishin's officer,
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Gary Chlarson, on or about March 4, 2008. In his deposition, Mr. Chlarson testified that the
signature was his and that he signed the document on the date stated in the document.
Americann, the successor in interest to Daishin, claims that Autopropac does not have a security
interest in the money, because Mr. Chlarson post-dated his signature on the Contract, thereby
invalidating Autopropac's claim. To support the claim that Mr. Chlarson post-dated his signature
on the Contract, Americann retained a document examiner, Gerald M. Laporte ("Laporte").
Laporte conducted an examination of the signatures using gas chromatography-mass
spectrometry chemical analysis ("GCIMS") and submitted his results to Americann on
September 20, 2011. Laporte's examination stated that the signatures on pages 3 and 4 for the
representative of Autopropac, dated February 15,2008, were produced with blue non-ballpoint
ink, and that the signatures on pages 3 (dated March 4,2008) and 4 (dated February 15,2008)
for the representative of Daishin were produced with blue ballpoint ink. GCIMS was performed
on the blue ballpoint ink to determine if the signature found on page 3 was executed on the
purported date of March 4,2008. Laporte concluded that it was highly probable that the ink
used to execute the signature of the representative for Daishin on the third page of the document
was 110t placed on the document until sometime after June, 2009. Autopropac submitted its
Motion in Limine to Exclude on The Report and Testimony of DefendantiCross-Claimant

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Americann Co-Pack, Inc's Expert Gerald M. Laporte on March 14,2012. Americann submitted
its Opposition to Motion in Limine to Exclude on March 30,2012. The matter came before the
Court for Evidentiary Hearing and Oral Argument on September 24,2012.

STANDARD OF REVIEW
Under Rule 702 of the Utah Rules of Evidence, the Court must consider several factors in
a three step analysis for qualifying an expert witness and determining the reliability of the
methodology underlying the testimony given.

Rule 702(a) Purported Expert Analysis
First, Under Rule 702 (a) the Court determines whether the expert testimony will be
helpful in assisting the trier of fact to understand the evidence or to determine a fact in issue.
Utah R. Evid. 702(a). Second, the court determines whether the proposed expert has the
necessary skill, knowledge, experience, training or education to provide assistance to the trier of
fact. Utah R. Evid. 702(a). The Utah Supreme Court held that the expert "testimony must simply
comply with rule 702 by assisting the trier of fact in understanding evidence or determining a fact
in issue." State v. Schultz, 58 P. 3d 879,884 (2002). Under Rule 702, the key question is
"whether on balance, the evidence will be helpful to the fmder of fact." State v. Larsen, 865 P. 2d
1355, 1361 (Utah 1993). Further, "Helpfulness depends on whether the subject is within the
knowledge or experience of the average individual." Id. at 1361. Additionally, the Utah Supreme
Court interpreted Rule 702 to routinely allow "persons to testify as experts based on the totality
of their qualifications and experience, and not on licensing or formal standards alone." State v.

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Kelly, 1 P .3d 546, 550 (Utah 2000). However, the Utah Supreme Court held that "if an expert
testifies as to scientific evidence that is based upon novel methods or techniques, a separate
threshold reliability test must be met." State v. Rimmasch, 775 P. 2d 388,397-403 (Utah 1989).
Finally, the Utah Supreme Court held that the Rimmasch inherent reliability standard applies only
where there is a plausible claim that the expert testimony sought to be admitted is based on
"novel scientific principles or techniques." Green v. Louder, 29 P. 3d 638 (Utah 2001)(emphasis
added).

Rule 702(b) Threshold Showing of Reliability Analysis
Under Rule 702(b) the court must determine whether a party has met its threshold burden
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to sho"v: 1) the reliability of the principles and methods that form the basis for the expert's
testimony; 2) that the principles and methods are based upon sufficient facts or data; and 3)
whethe! the principles and methods are reliably applied to the facts of the case. Utah R. Evid.
702(b). The Utah Court of Appeals held that the "threshold requires only a basic foundational
showing of indicia of reliability for the testimony to be admissible, not that the opinion is
undisputably correct."Gunn Hill Dairy Properties, LLC v. Los Angeles Dept. of Water & Power,
2012 WL 163827,33 (Utah App.)(quoting Utah R. Evid. 702 Advisory Committee note).
Additionally, the Court held that the threshold requirement is low in straightforward cases, but

"will vary depending on the complexity of the case."ld. at 32. After an initial showing of indicia
of reliability, "it is up to the trier of fact to determine the ultimate reliability of the evidence." ld.
Other considerations that are relevant in the courts determination of a threshold showing

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of reliability include the policy considerations shaping the courts gatekeeper function. The
advisory committee notes state that, "Contrary or inconsistent opinions may simultaneously meet
the threshold; it is for the fact finder to reconcile-or choose between-the different opinions."
Utah R. Evid. 702 advisory committee note.

,

Daubert Standard
In Dauhert, the Supreme Court charged trial judges with the responsibility of acting as
gatekeepers to exclude unreliable expert testimony. Daubert v. Merrell Dow Pharmaceutical,

Inc. 509 U.S. 579 (1993). Daubert set forth a non-exclusive checklist for trial courts to use in
assessing the reliability of scientific expert testimony. The specific factors explicated by the

Daubert Court are: 1) whether the expert's technique or theory can be or has been tested-that is,
whether the expeIi's theory can be challenged in some objective sense, or whether it is instead
simply a subjective, conclusory approach that cannot reasonably be assessed for reliability; 2)
whether the technique or theory has been subject to peer review and pUblication; 3) the known or
potential rate of error of the technique or theory when applied; 4) the existence and maintenance
of standards and controls; and 5) whether the technique or theory has been generally accepted in
the scientific community. Id. However, the Supreme Court held that a trial judge has
"considerable leeway in deciding in a particular case how to go about determining whether
particular expert testimony is reliable." Kumho Tire Co v. Carmichael, 119 S. Ct. 1167 (1999).
Finally, the Daubert Court held that "Vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof are the traditional and appropriate means

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of attacking shaky but admissible evidence." 509 U.S. at 595.

Rule 702© Judicial Notice of Reliability if Generally Accepted by Relevant
Scientific Community
Under Rule ~702© the court may take judicial notice of the threshold reliability analysis
under subsection (b) if the principles and methods underlying the testimony are generally
accepted by the relevant scientific community. Utah R. Evid. 702©. The Utah Supreme Court
held that "When expert testimony does not require evaluation under the inherent reliability test
announced in Rimmasch, we evaluate the testimony according to the standard set forth in State v.

Clayton." Balderas v. Stark, 138 P. 3d 75 (2006). The Utah Supreme Court held that "Once the
expert is qualified by the court, the witness may base his opinion on reports, writings, or
observations not in evidence which were made or compiled by others, so long as they are of a
type reasonably relied upon by experts in that particular field. The opposing party may challenge
the suitability or reliability of such materials on cross-examination, but such challenge goes to
the weight to be given the testimony, not to its admissibility." State v. Clayton, 646 P. 2d 723
(tJtah 1982).

RULING
The Court finds that the Motion In Limine to Exclude the Report and Testimony of
Respondent/Cross-Claimant Americann Co-Pack Inc.'s Expert should be denied, and fmds that
Laporte is qualified as an expeIt with the necessary skill, knowledge, experience, training, and
education to provide assistance to the trier of fact, and that his testimony will be helpful to the
trier of fact under Utah R. Evid. 702(a).
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Laporte is extremely qualified to testify in the general and specific areas of forensic
science and inkdating methodology. Laporte is arguably one of the foremost researchers,
presenters, educators, and expert witnesses in the field of forensic science in general and in the
area of ink-dating methodology in particular. Laporte's job, career, and educational qualifications
are unsurpassed. He received his Masters of Science in Forensic Science from the University of
Bim1ingham in 1994, followed by ajob as Guest Forensic Lecturer for the University for two
years. From January 1993 to July 1996 he served as ali Autol?sy AssistantlForensic Technician
for the Jefferson CountylMedical Examiner Office in Birmingham, Alabama. From January 1999
to November 1999 he worked as a forensic chemist for the Anne Arundel County Police
Department Crime Lab. From November 1999 to April of2001 he worked as a forensic scientist
for the Virginia Division of Forensic Science. From August 2008 to January 2009 he served as
an adjunct Professor of Forensic Science at Marymount University. From April 2001 to March
2009 he served as the Chief Research Forensic Chemist, Senior Document Analyst, and
Document Analyst for the United States Secret Service. From March 2009 to the present he is
employed as the Forensic Policy Program Manager and Acting Associate Director ofthe
Department of Justice's Forensic Department. Additionally, Laporte is or has been a member of
organizations/policy working groups devoted to the standardization and improvement of the
forensic sciences, including membership in the American Society of Questioned Document
Examiners, and International Collaboration for Ink Dating, and Co-Chair of the Standards,
Practices, and Protocols Inter-Agency Working Group.

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Laporte's knowledge, training and skill in the area of forensic science and ink dating
methodology is also unsurpassed. He has given 36 lectures and instructional courses to County,
State, and federal law enforcement officers and forensic technicians. He has provided training
for the United States Secret Service, the Federal Bureau ofInvestigation, the Department of
Justice, numerous workshops for University curriculum, and international organizations. Many
of the instructional courses have focused on the specific area of Ink and Paper chemistry and
Forensic Examination. Additionally, he has given at least 46 professional presentations before
the leading forensic working groups and forensic organizations, law enforcement specialists, and
private research groups. Additionally, he has published at least 15 peer reviewed scientific
articles in the standard and foremost journals of the forensic science field, including an article
titled, "The Identification of2-Phenoxyethanol in Ballpoint Inks Using Gas
Chromatography/Mass Spectrometry". Further, he has authored a book review in the Journal of
Forensic Identification titled, "Advances in th Forensic Analysis and Dating of Writing Ink."
Additionally, he has published and presented over 15 times on the topic of analyzing PE using
GC/M~

for dating inks. Finally, he has testified approximately 60 times on issues related to

forensic document examinations in State, Federal, and International Courts. The majority of
which have involved the ink-dating method of GC/MS.
Laporte is extremely qualified and is arguably one of the foremost experts in the specific
area of GC/MS and his educational, career, and professional qualifications support this
conclusion. Because of his experience, skill, and knowledge in the specific area of GC/MS

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inkdating his testimony is not only helpful, but necessary. Therefore, the Court finds that
Lap0l1e satisfies the requirements under Rule 702(a).

The Court Takes Judicial Notice of Method
Under Rule 702©, the Court takes judicial notice of the threshold reliability of
Laporte's GCIMS ink-dating method because the principles and methods underlying the
testimony are generally accepted by the relevant scientific community. Utah R. Evid. 702©. The
Supreme Court held in the context of conducting Daubert hearings a trial judge
has discretion "both to avoid unnecessary 'reliability' proceedings in ordinary cases where the
reliability of an expert's methods is properly taken for granted, and to require appropriate
proceedings in the less usual or more complex cases where cause for questioning the expert's
reliability arises." Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167,1176 (1999). Further, the
Court finds that the'Rimmasch standard does not apply because GCIMS analysis is not a novel
scientific technique. Here, GelMS ink-dating differs from artificial aging that Autopropac asserts
is not generally accepted in the relevant scientific community and the research to support this
however is somewhat inconclusive but tends to suggest that artificial aging is unreliable and not
generally accepted but GCIMS and the method of measuring burned off2-Phenoxyethanol is
generally accepted in the relevant scientific community as demonstrated by the extensive
published research conducted in this area (see section III), the acceptance of this method in Utah,
and other state and federal cases,
After qualifying Laporte as one of the foremost experts in the area of using GCIMS on

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the volatile substance PE, his testimony and opinion should be granted substantial deference.
Laport~

testifies that this method is routinely used in forensic laboratories throughout the world,

has a variety of applications, and that to the best of his expert knowledge, the chemical analysis
of GCIMS has never been excluded or held unreliable by any court in the world. LaPorte Dec!. at
'10.
In Utah, the use of and reliability of GCIMS for chemical analysis and comparison has
been codified. Utah Code Ann. 34-38-6(6)(a) states, "Testing ofa sample shall conform to
scientifically accepted analytical methods and procedures. (b) Before a test of a sample may be
considered a failed test and used as a basis for an action by an employer under Section 34-38-8,
testing of the sample shall include a confirmation test: (1) by gas chromatography, gas
chromatography-mass spectroscopy, or other comparably reliable analytical method." Utah Code
Ann. 34-38-6(6)(a) and Utah Code Ann. 34-38·-(6)(b)(I). Additionally, the Utah Court of Appeals
held that with GC/MS there is "no novel scientific principles or techniques involved." State v.

Kemp, 2002 WL 466553 *1 (Utah App.). The GC/MS analysis was held reliable in Dowland v.
Lyman Products/or Shooters, 642 P.2d 380,380-81 (Utah 1982). Finally, the Supreme Court of
the United States has held recently that "Gas chromatography is a widely used scientific method
of quantitatively analyzing the constituents of a mixture." Bullcoming v. New Mexico, 131 S. Ct.
2705,2711 (2011).
The Court finds based on the reliability of the method and the evidence that GC/MS
analysis is widely used, and has been admitted as reliable evidence in courts, that Americann has

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satisfied the requirements under Rule 702© and takes judicial notice of the method as
generally accepted in the relevant scientific community. However, although the Court's inquiry
can now conclude based on the above, a further reliability analysis will also be undertaken under
Rule 702(b).
GCIMS Meets the Threshold Reliability
The standard that Laporte's method must meet is an initial showing of an indicia of
reliability. GCIMS ink-dating differs from artificial aging that Autopropac asserts is not
generally accepted in the relevant scientific community. However, the method used in this case is
not artificial aging but the dynamic approach to ink-dating by GSIMS analysis and the Court
finds its reliability is demonstrated through extensive peer reviewed research and literature and
that the method has been reliably applied to the facts of this case.

rn a research a11iclc detennining the reliability of the GCIMS method on PE, Laporte and
his co-authors state that, "Volatile analysis of ballpoint inks, using GCIMS, for detennining the
age of inks on paper [have] been studied and reviewed in the literature for more than a decade."
Gerald M. Laporte et aI., The Identification of 2-Phenoxyethanol in Ballpoint Inks Using Gas
Chromatography/Mass Spectrometry-Relevance to Ink Dating, 1. Forensic Sci., 49(1) (2004).
Additionally, the authors state that "Chemical analysis of writing inks by means of thin layer

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chromatography (TLC) is viewed by the scientific community as a valid procedure to compare
inks." Id. The research determined that PE was identified in 85% and 83% of black and blue ink,
this finding was used to detennine how often PE occurs in ink fonnulations. The thrust of the

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article is that PE is fl volatile organic compound that serves as a scientifically valid and reliable
compound to applythe methods of GCIMS to determine solvent loss percentages. Additionally,
in another study the basic methodology of GCIMS is described as being "used to compare noncolorant ingredients in inks that are not detectable when analyzed with TLC, such as resins,
volatile, and semi-volatile components." JH Bugler et aI., Characterization o/ballpoint inks by
thermal desorption and gas chromatography-mass spectrometry, J. Forensic Sci., 50(5) (2005).

Further and extensive research supports Laporte's method of burning off the particular
volatile component known as 2-phenoxyethano1. These studies suggest that PE as a solvent
dissolves and evaporates in the twenty four months after the ink has been placed on a document.
The research is conclusive that after twenty four months PE no longer evaporates at a significant
or measurable rate. Valery N. Aginsky, Current Methods/or dating Documents·· Which is Best?
Proceedings of 49th Annual Meeting of the American Academy of Forensic Sciences, (1997)(See
also, Valery N. Aginsky, Measuring Ink Extractability as a Function 0/Age - Why the relative
Aging Approach is Unreliable and Why it is more Correct to Measure Ink Volatile Components
than Dyes. Int. J of Forensic Document Examiners, 4(3):214-230 (1998); Valery N. Aginsky, Ink
Dating Using a Solvent Loss Ratio Method. Proceedings of the 60th Annual Conference for the

American Society of Questioned Document Examiners, August 14-19 (2002); JH Bugler et aI.,
Age Determination 0/ ballpoint ink by thermal desorption and gas chromatography-mass
spectromety, J. Forensic Sci., 50(5) (2005)).

Additionally, the method ofbuming offPE at temperature of70 degrees Celsius to

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compare with an unheated sample to determine the evaporation and concentration rate of burned

affrE is supported by extensive research conducted by laboratories all over the world, including
the United States, Russia, Germany, Canada, and Sweden. Further, the extensive research and
validation studies conducted on this particular method shows a that there is a significant decrease
in the level of PE by more than 25% after the questioned sample is heated indicates that the ink
is less than two years old. Jan Andrasko, Some Examples ofApplications of a Microthermal

Desorption Device in the Forensic Laboratory. 1. Forensic Sci, 54(5) (2009); Valery N. Aginsky,
Dating and characterizing writing, stamp pad and jet printer inks by gas chromatography/mass
spectrometry. Int J Forensic Doc Exam, 2(2)103-16 (1996); L. Brazeau & M. Gaudreau,
Ballpoint Pen Inks: The Quantitative Analysis ofInk Solvents on Paper by Solid-Phase
Microextraction. J Forensic Sci, 52(1 ):209-215 (2007). Additionally, as pertains to the error rate
of the method, it is well settled in this area that the 24 month threshold is the most conservative
and correct benchmark, as no research indicates that any amount ofPE remains after that date,
reducing the error rate to nearly zero. Gerald M. Laporte et al., The Identification of 2-

Phenoxyethanol in Ballpoint Inks Using Gas Chromatography/Mass Spectrometry. J Forensic
Sci, 49 (1) (2007).
Laporte starts the method by conducting a physical examination by visual examination
and by Microscopic examination using Stereomicroscopes, of the questioned document to
determine how it was produced, if there are any extraordinary observations that might serve to
date the document, and a physical examination and classification of the ink, according to the

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ASTM International Standard Guide E 1422-05. Standard Guide/or Test Methods/or Forensic

Writing ink Comparison. ASTM International (2005). Second, Laporte conducts Optical
Examinations using the Video Spectral Comparator to assess Ultraviolet, infrared reflectance,
and infrared luminescence characteristics of the writing inks and paper. Filtered light
examinations are used to detect the presence of colorants and other materials that might affect the
manner in which an ink absorbs, reflects, and transmits light. Third, Laporte conducts Chemical
Examinations of the writing inks. The first examination he used is not at issue in this case but is
referred to as Thin Layer Chromatography ("TLC"). TLC involves using solvent to extract ink or
paper components and separate them, so that they can be compared with each other to determine
if they match, and if the combination of components is identifiable by manufacturer and if the
date of introduction is known. Laporte determined based on TLC that the blue ballpoint inks used
for the Daishin signatures matched and that the blue non-ballpoint inks used for the Autopropac
signatures matched. Fourth, Laporte conducted a GCIMS analysis ofPE to determine if the ink
entries were authentic. GCIMS was performed on the blue ballpoint ink to determine if the
Daishin signature found on page 3 was executed on the purported date of March, 4, 2008. During
the initial testing, high levels of PE were found relative to the levels that are typically not
observed in inks that are more than two years old. Laporte then conducted additional testing for
reproducibility and ~eduction of error, and found that the PE level decreased an average of 28%
when the questioned ink samples were heated. Then, GCIMS analysis was performed on the
Daishin signatures on page 3 and 4 and found that the levels of PE in both signatures were

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determined to be comparable. A second analysis was performed nearly 90 days after the first
examination . Laporte found that the level ofPE had continued to decrease significantly
indicating that the ink is still in an ongoing aging process. Laporte concluded based on his
application of the method of GCIMS on PE, that it was highly probable that the ink used to
execute the signature of the representative for Daishin on page 3 was not placed on the document
until sometime after June 2009.
Finally, Laporte's conclusion was couched in reliable and scientifically valid
terminology, stating that it was "highly probable" based on the error rate in the evaporation rates
ofPE studies and that the signature was not placed until after June 2009, well within the 24
month time frame that has been found to be a reliable threshold for reducing error rates and false
positives.

ORDER
Based upon the above ruling, the Court hereby ORDERS that the Motion In Limine to
Exclude the Report and Testimony of Respondent/Cross-Claimant Americann Co-Pack Inc.'s
Expert shall be, and it is, hereby DENIED, and thus determines that Laporte is qualified as an
expert in accordance with Utah R. Evid. 702(a).
DATED

thisi.!l-

day of October, 2012.

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MAILING CERTIFICATE
I hereby certify that true copies of the foregoing Ruling and Order were mailed, postage
prepaid, on the~, day of October, 2012, to the following at the addresses indicated, to wit:

·STEVENR SKill.VIN
ATTORNEY FOR AMERICANN CO-PACK INC
222 S MAIN #500
SALT LAKE CITY UT 84101
GEORGE L CHINGAS JR
ATTORNEY FOR AUTOMATED PROCESS AND PACKING
3319 N UNIVERSITY AVE
PROVO UT 84604

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