Ceglia v. Zuckerberg et al

Filing 630

RESPONSE in Opposition re 624 MOTION for Protective Order Notice of Motion filed by Facebook, Inc., Mark Elliot Zuckerberg. (Attachments: # 1 Certificate of Service)(Snyder, Orin)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
-----------------------------------PAUL D. CEGLIA,
Plaintiff,
v.
MARK ELLIOT ZUCKERBERG and
FACEBOOK, INC.,

x
:
:
:
:
:
:
:
:
:
x

Civil Action No. 1:10-cv-00569RJA

Defendants.
-----------------------------------DEFENDANTS’ OPPOSITION TO
CEGLIA’S MOTION FOR PROTECTIVE ORDER
On October 26, 2012, Plaintiff Paul Ceglia was arrested by federal agents on two felony
counts for having brought this fraudulent lawsuit. Doc. No. 589-1 (United States of America v.
Ceglia, No. 12-MJ-2842, Complaint (S.D.N.Y. Oct. 25, 2012)). During Ceglia’s detention
hearing, United States District Judge Colleen McMahon stated, “It appears to me from reading
the criminal complaint that the strength of the government’s case is overwhelming.” Doc. No.
589-4 (Oct. 31, 2012 Tr.) at 21:24-22:1. Since that time, a sitting grand jury duly empaneled in
the Southern District of New York has returned an indictment against Ceglia on those same
charges. United States of America v. Ceglia, No. 12-CR-876-ALC, Indictment (S.D.N.Y. Nov.
26, 2012).
Ceglia’s lawyer in this case, Paul Argentieri, recently informed Defendants and this Court
that he received a grand jury subpoena, returnable December 3, 2012, demanding production of
Ceglia’s forged Work for Hire document.1 Nov. 27, 2012 Tr. at 17:1-3. Defendants are not

1

Ceglia’s motion concerns only the version of the Work for Hire document produced to Defendants’ experts in
July 2011, and no other physical electronic or hard-copy assets previously produced in this case. See Doc. No. 6242 at 1 n.1. Not having reviewed the grand jury subpoena served on Mr. Argentieri, Defendants assume that that
subpoena concerns the same hard-copy document. Defendants note that there are numerous, high-resolution images

aware of any motion to quash that subpoena filed by Mr. Argentieri in the criminal proceeding.
Instead, Ceglia now moves the Court, in this civil proceeding, for a protective order “prohibiting
the government or any other entity from taking possession of the original [contract] at issue in
this case.” Doc. No. 624-2 at 1. The motion should be denied.
ARGUMENT
Ceglia has no basis for seeking relief against the United States government in this civil
proceeding. Rather, if Ceglia wishes to seek to prohibit the government from obtaining the
Work for Hire document, he should move to quash the grand jury subpoena served on Mr.
Argentieri, or otherwise seek a negotiated resolution, in the proceeding to which both Ceglia and
the government are parties—the criminal proceeding pending in the Southern District of New
York. Ceglia may not, however, obtain a blanket prohibition in this civil litigation that would
effectively enjoin the Executive Branch of the United States Government from obtaining relevant
evidence in an ongoing, independent grand jury investigation and criminal prosecution.2
Furthermore, and irrespective of the government’s non-participation in this proceeding,
Ceglia does not even attempt to meet his burden to establish good cause for issuance of a
protective order under Federal Rule of Civil Procedure 26(c). “In order to demonstrate good
cause, a party must establish that the proposed discovery will result in a clearly defined, specific
and serious injury.” Carlson v. Geneva City Sch. Dist., 277 F.R.D. 90, 94 (W.D.N.Y. 2011)

of that document, taken both before and after the parties’ inspection in this case. Thus, Ceglia’s assertion that the
document is “irreplaceable” is overstated. Doc. No. 624-2 at 2.
2

See United States v. Nixon, 418 U.S. 683, 693 (1974) (holding that Article II of the Constitution gives the
Executive Branch “exclusive authority and absolute discretion to decide whether to prosecute a case”); Deaver v.
Seymour, 822 F.2d 66, 69, (D.C. Cir. 1987) (“[I]n no case that we have been able to discover has a federal court
enjoined a federal prosecutor's investigation or presentment of an indictment.”); Ramos v. Winiewicz, No. 12-cv157, 2012 WL 1044530, at *4 (W.D.N.Y. Mar. 23, 2012) (observing that the “basic doctrine of equity
jurisprudence” instructs that the federal courts should not act, “and particularly should not act to restrain a criminal
prosecution, when the moving party has an adequate remedy at law”) (quoting Younger v. Harris, 401 U.S. 37, 43–
44 (1971).

2

(quoting In re Terrorist Attacks on Sept. 11, 2001, 454 F. Supp. 2d 220, 222 (S.D.N.Y. 2006)).
“[B]road allegations of harm, unsubstantiated by specific examples or articulated reasoning, are
not sufficient to satisfy the burden.” McDonnell v. First Umum Life Ins. Co., No. 10 CV 08140,
2012 WL 13933, at *1 (S.D.N.Y. Jan. 4, 2012) (internal quotation marks omitted); see also
Davis v. AT&T Corp., No. 98-CV-0189, 1998 WL 912012, at *2 (W.D.N.Y. Dec. 23, 1998).
And even when the movant has established good cause, the Court must then “consider other
factors that may militate against issuing a protective order [such as] whether the order will
prevent the threatened harm, whether there are less restrictive means of preventing the threatened
harm, the interests of the party opposing the motion, and the interests of the public.” Orillaneda
v. French Culinary Institute, No. 07 Civ. 3206, 2011 WL 4375365, at *4 (S.D.N.Y. Sept. 19,
2011) (quoting Koster v. Chase Manhattan Bank, 93 F.R.D. 471, 479 (S.D.N.Y. 1982)).
Ceglia does not demonstrate how the government’s possession of the Work for Hire
document “will result in a clearly defined, specific and serious injury.” Carlson, 277 F.R.D. at
94. Indeed, Ceglia admits that he does not know what forensic test the government intends to
conduct, going so far as to assert that the government may not even need to test the Work for
Hire document in order to prosecute the criminal case. See Doc. No. 624-2 at 3-4. And there are
obvious less restrictive means of regulating the government’s possession or potential testing of
the Work for Hire document, such as a motion to quash the federal grand jury subpoena served
on Mr. Argentieri, or a negotiated protocol regarding the government’s possession of the Work
for Hire document, in the criminal proceeding.
In fact, based on a November 30, 2012 letter from Assistant United States Attorneys
Janis Echenberg and Christopher Frey to the Honorable Andrew L. Carter, Jr., docketed in the
criminal proceeding on December 3, Defendants understand that there is continuing dialogue

3

between Ceglia and the government regarding the government’s handling of the Work for Hire
document. See United States of America v. Ceglia, No. 12-CR-876-ALC (S.D.N.Y.), Doc. No.
12. According to that letter, on November 30, Ceglia’s counsel provided the government with a
draft of a proposed discovery order that would govern the parties’ handling of that document.
The government informed Judge Carter that the parties’ discussions are ongoing. The parties in
the criminal proceeding have also jointly developed a protective order concerning the
government’s production of certain discovery materials to Ceglia. See id., Doc. No. 13
(Protective Order on Consent). Given that Ceglia’s interests are being vigorously represented in
the criminal proceeding, and Mr. Argentieri’s failure to exhaust his remedies in that proceeding,
Ceglia’s effort to obtain improperly wide-reaching relief from this Court is inappropriate.
Based on public representations made by the government during Ceglia’s detention
hearing and arraignment, Defendants also understand that, contrary to Ceglia’s representations,
the Work for Hire document has not been “securely maintained” in the safety deposit box where
it was located at the time of the Court-ordered hard-copy document inspection in July-August
2011. See Doc. No. 624-2 at 1. During Ceglia’s October 31, 2012 detention hearing, Ceglia
himself told United States District Judge McMahon that “the original contract still sits in a safety
deposit box under a civil attorney’s name.” Doc. No. 589-4 (Oct. 31, 2012 Tr.) at 25:22-23. In
response, the government informed Judge McMahon that that safety deposit box “was closed in
May of 2012,” according to the bank. Id. at 29:8-15. The government also informed Judge
Carter of this evidence during Ceglia’s November 28, 2012 arraignment. See Nov. 28, 2012 Tr.
at 16-17. Given Ceglia’s false statements regarding the location of the Work for Hire document,
as well as his history of destroying and manipulating evidence in this case, the government’s
need to take possession of the Work for Hire document may be well-founded.

4

Ceglia’s motion for a protective order seeks improperly far-reaching relief against the
United States government, which is not a party to this civil proceeding, and without attempting
to meet his burden under Rule 26(c). To the extent Ceglia seeks to prohibit the government from
obtaining the Work for Hire document, he should move to quash the grand jury subpoena served
on Mr. Argentieri, or pursue a negotiated resolution (as Ceglia’s criminal defense lawyer appears
to be doing), in the proceeding to which both Ceglia and the government are parties—the
criminal proceeding pending in the Southern District of New York. Accordingly, this Court
should deny Ceglia’s Motion for Protective Order (Doc. No. 624).

Dated:

New York, New York
December 12, 2012
Respectfully submitted,
/s/ Orin Snyder
Orin Snyder
Alexander H. Southwell
Matthew J. Benjamin
Amanda M. Aycock
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
[phone]

Thomas H. Dupree, Jr.
Erik R. Zimmerman
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, NW
Washington, DC 20036
[phone]
Terrance P. Flynn
HARRIS BEACH PLLC
726 Exchange Street
Suite 1000
Buffalo, NY 14210
[phone]

Attorneys for Defendants Mark Zuckerberg and Facebook, Inc.

5