Ceglia v. Zuckerberg et al

Filing 639

DECISION and ORDER denying 624 Motion for Protective Order; dismissing Government's motion to intervene 631 . Signed by Hon. Leslie G. Foschio on 12/17/2012. (SDW) (Main Document 639 replaced on 12/18/2012) (SDW).

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

DECISION
and
ORDER
10-CV-569A(F)

Defendants.

APPEARANCES:

PAUL A. ARGENTIERI, ESQ.
Attorney for Plaintiff
188 Main Street
Hornell, New York 14843
BOLAND LEGAL, LLC
Attorney for Plaintiff
DEAN M. BOLAND, of Counsel
18123 Sloane Avenue
Lakewood, Ohio 44107
GIBSON, DUNN & CRUTCHER, LLP
Attorneys for Defendants
ORIN S. SNYDER,
ALEXANDER H. SOUTHWELL,
THOMAS H. DUPREE, JR., of Counsel
200 Park Avenue, 47th Floor
New York, New York 10166-0193
HARRIS BEACH LLP
Attorneys for Defendants
TERRANCE P. FLYNN, of Counsel
Larkin at Exchange
726 Exchange Street, Suite 1000
Buffalo, New York 14210

By papers filed December 5, 2012 (Doc. No. 624), Plaintiff moves for a
protective order (“Plaintiff’s motion”). Defendants filed, on December 12, 2012,
Defendants’ Opposition To Ceglia’s Motion For A Protective Order (Doc. No. 630)
(“Defendants’ Response”). Plaintiff’s Reply To Response To Motion For Protective

Order was filed December 14, 2012 (Doc. No. 628) (“Plaintiff’s Reply”).
Separately, on December 13, 2012, the United States of America (“the
Government”) filed, under seal, the Government’s Response To Plaintiff’s Motion For A
Protective Order (Doc. No. 631) (“Government’s Response”). In the Government’s
Response, the Government moves in this action, pursuant to Fed.R.Civ.P. 24(a) and
24(b), to intervene for the limited purpose of opposing Plaintiff’s motion and requests
this court hold Plaintiff’s motion in abeyance pending a determination by Hon. Andrew
L. Carter, the district judge assigned to Plaintiff’s indictment, 12-CR-876(ALC), currently
before the Southern District of New York, on the Government’s motion to compel
compliance by Paul A. Argentieri, Esq., one of Plaintiff’s attorneys of record in this
action, with a Grand Jury subpoena seeking production of the original purported
contract in this action presently scheduled for a hearing on December 27, 2012 (“the
contract document”) (“Government’s motion to intervene”).
Based on the reasons and authorities stated in Defendants’ Response, Plaintiff’s
motion should be denied. Specifically, to warrant issuance of a protective order “a party
must establish that the proposed discovery ‘will result in a clearly defined, specific and
serous injury.’” Carlson v. Geneva City School District, 277 F.R.D. 90, 94 (W.D.N.Y.
2011) (quoting In re Sept. 11 Litig., 262 F.R.D. 274, 277 (S.D.N.Y. 2009) (quoting In re
Terrorist Attacks on Sept. 11 Litig., 454 F.Supp.2d 220, 222 (S.D.N.Y. 2006))). As
revealed in Plaintiff’s Reply, Judge Carter is fully aware of the need for a satisfactory
means to provide safe and secure access by the parties to the contract document, and
has directed the parties in the criminal case to attempt to effect a mutually satisfactory
arrangement for that purpose (Transcript of Plaintiff’s arraignment conducted November
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28, 2012, Doc. No. 638-1 at 19-20). Moreover, an accurate copy of the contract
document was made as part of the testing protocol established by the parties, and
approved by the court, in this action. Defendants’ Response at 1-2, n. 1 referencing
(citing to Doc. No. 624-2 at 2). Plaintiff’s counsel in this action may wish to consult
Plaintiff’s defense counsel(assuming this has not already occurred) to facilitate
Plaintiff’s need to preserve the integrity of the contract document while providing for the
reasonable testing, to the extent necessary, of the contract document in connection
with the criminal proceeding now pending against Plaintiff in the Southern District of
New York.
Additionally, while Plaintiff correctly notes that Judge Carter, in addressing at
Plaintiff’s arraignment, the question of the parties’ need for secure access to the
contract document, presumably in Plaintiff’s or Plaintiff’s attorneys’ possession, and
suggested the need for a “protective order” to govern such access, contrary to Plaintiff’s
representation of the colloquy, Plaintiff’s Reply at 1-2, a full and fair reading of Judge
Carter’s comment strongly indicates the court was making reference to Plaintiff’s
criminal proceeding, not this action as Plaintiff appears to imply (Doc. No. 638-1 at 20)
(“And then [after agreement on the proposed custody and inspection protocol for the]
the parties can work out amongst themselves how the contract is returned to Mr.
Ceglia’s lawyer in the civil case.”) (underlining added). Finally, the court notes there is
no order in this action governing the custody of the contract document. Accordingly,
Plaintiff has failed to establish that absent the requested protective order, Plaintiff will
suffer “a clearly defined, specific and serious injury.” Carlson, 277 F.R.D. at 94 (internal
quotation omitted).
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CONCLUSION
Based on the foregoing, Plaintiff’s motion (Doc. No. 624) is DENIED; the
Government’s motion to intervene (Doc. No. 631) is DISMISSED as moot.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: December 17, 2012
Buffalo, New York

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