Ceglia v. Zuckerberg et al

Filing 638

REPLY/RESPONSE to re 630 Response in Opposition to Motion filed by Paul D. Ceglia. (Attachments: # 1 Exhibit, # 2 Certificate of Service)(Argentieri, Paul)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,

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

Plaintiff,
v.

REPLY TO RESPONSE TO
MOTION FOR PROTECTIVE
ORDER

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

MEMORANDUM
As the court knows, there are two cases, this matter and a criminal case, that
have an interest in the original Facebook Contract. The government has an interest
in seeing the document, which they have never seen, to do an independent
investigation, which it claims it has already completed, to determine the contract’s
authenticity. The need for preservation of the Facebook Contract in this matter is
obvious.
The government and defense counsel in the criminal case, discuss the very
concerns raised by Plaintiff’s motion here on the record on November 28, 2012. Two
days earlier, the grand jury subpoenaed Mr. Argentieri seeking the original
Facebook Contract.
At the November 28, 2012 arraignment in the Manhattan Federal Court, the
Court indicated “it may make sense for the parties to come up with some sort of

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protective oder for this contract…” Hearing Transcript, November 28, 2012 at 20.
The prosecutor, Mr. Frey, “I think that’s fine. I think the parties can talk
amongst themselves and see if we can resolve the issue.” Mr. Frey went on to say,
“[t]he government has shared only what is publicly available at this time with
counsel for Facebook….” Id. at 21.
The court in the criminal matter indicated he did not want to “frustrate the
purposes of the civil action and that judge’s ruling.” Id. at 22.

The court then

ordered the parties to submit a joint status report on this issue by December 3,
2012. Id.
On November 30, 2012, the government received Mr. Argentieri’s response to
the subpoena containing all records responsive to the subpoena in his possession,
custody or control. That response did not include the original Facebook Contract.
The original Facebook Contract is not in Mr. Argentieri’s possession, custody or
control and has not been since December 29, 2011.

It was placed into a safety

deposit box in the sole possession, custody and control of counsel for Plaintiff, Dean
Boland as of December 29, 2011. This is a fact that could have been obtained by the
government with a simple phone call to Plaintiff’s counsel.
Mr. Argentieri’s December 3, 2012 calls to both Mr. Frey and Ms. Echenberg,
the prosecutors from Manhattan, to communicate this fact, were never returned.
Mr. Argentieri was served a second subpoena, again seeking the original
Facebook Contract, on December 5, 2012, the same day Plaintiff filed the motion for
protective order. Mr. Argentieri again responded on December 6, 2012 that he had
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already provided all documents responsive to the subpoena that were in his
possession, custody or control. The government and defense counsel in the criminal
case had not yet approached the court with a proposed protective order.
While simultaneously dragging its feet in the criminal case to reach a
protective order preserving the original Facebook Contract, the government has
aggressively pursued possession of it with grand jury subpoenas.

Obtaining the

original Facebook Contract via grand jury subpoena, of course, gives the
government limitless and unrestricted ability to handle, store, test and share the
document with any other third party including Facebook’s lawyers from Gibson
Dunn, two former assistant United State’s Attorneys from the Manhattan office
where the criminal prosecution of Plaintiff originated.
The failure of this court to provide a protective order gives the Defendants an
unfair advantage. Should the government take destructive samples, unregulated by
this court, Defendants can seize on that damage to the original Facebook Contract
to question its authenticity further in front of the jury.

Defendants can claim

spoliation, even if caused by the Government, laying it at Plaintiff’s feet nonetheless
during the civil case.
The bottom-line is that both cases have an interest in preserving the original
Facebook Contract and not permitting any testing of it to occur without notice to
both the parties in the civil matter and those in the criminal matter. This matter
could easily be resolved by an order from this court consistent with this notion. The
criminal court judge has already acknowledged he would essentially abide by any
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order this court issues designed to preserve the original Facebook Contract.
CONCLUSION
Therefore, a simple order from this court, as follows, out to suffice to protect
all interested parties’ concerns:
1. The original Facebook Contract shall be transferred to the possession of the
Government by a representative of Plaintiff upon disclosure to this court of the
government’s justification for obtaining control of the original Facebook Contract;
and
2. The Government shall preserve the document in its current condition including
leaving it sealed in its currently sealed envelope; and
3. The Government shall not conduct any testing of the document, or share the
document with any third parties, including Facebook’s lawyers and any of
Facebook’s experts, without obtaining the approval of this court including a
testing protocol which can be worked out at that time; and
4. Some remedy for Plaintiff in the event the original Facebook Contract is
damaged, lost or destroyed while in the government’s possession, custody or
control.
CONCLUSION
The original Facebook Contract has already been irreparably damaged by
Defendants’ experts. The issuance of an order consistent with the above
information will protect the interest of all parties to this litigation while preserving

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the original Facebook Contract for the government’s use in the criminal matter
should it have a need to test the document in the future.
Respectfully submitted,
/s/ Paul A. Argentieri
Paul A. Argentieri
188 Main Street
Hornell, NY 14843
607-324-3232 phone
607-324-6188
[e-mail]

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