Ceglia v. Zuckerberg et al

Filing 91

MOTION to Compel Defendant Zuckerberg's Compliance with the Court's Order of July 1, 2011 by Paul D. Ceglia. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Text of Proposed Order, # 8 Certificate of Service)(Lake, Jeffrey)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
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:
PAUL D. CEGLIA,
:
:
Plaintiff,
:
:
v.
:
:
MARK ELLIOT ZUCKERBERG and
:
FACEBOOK, INC.,
:
:
Defendants.
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Civil Action No. 1:10-cv-00569RJA

NOTICE OF PLAINTIFF’S MOTION TO COMPEL DEFENDANT ZUCKERBERG’S
COMPLIANCE WITH THE COURT’S ORDER OF JULY 1, 2011
TO:
Alexander H. Southwell
Orin Snyder
Gibson, Dunn & Crutcher, LLP
200 Park Avenue
47th Floor
New York, NY 10166-0193
[e-mail]
[e-mail]
Thomas Dupree
Gibson Dunn & Crutcher, LLP
1050 Connecticut Avenue, NW
Washington, DC 20036

Lisa T. Simpson
Orrick, Herrington & Sutcliffe LLP
51 West 52nd Street
New York, NY 10019
[e-mail]
Terrance P. Flynn
Harris Beach LLP
Larkin at Exchange
726 Exchange Street
Suite 1000
Buffalo, NY 14210

PLEASE TAKE NOTICE that upon the accompanying Memorandum of Law, the
annexed Declarations of Nathan Shaman, Esq., Jeffrey A. Lake, Esq., and Paul D. Ceglia,
together with the accompanying exhibits, the undersigned will move this Court, pursuant to Fed.
R. Civ. P. 37 and L.R. Civ. P. 7, at a date to be set by the Court, for an order compelling
Defendants Mark Zuckerberg and Facebook, Inc. to comply with this Court’s order dated July 1,
2011 (“Order,” Doc. No. 83), which directed that:

“. . . five (5) days subsequent to Plaintiff’s production of the Electronic Assets and his
sworn declaration, Defendant shall produce all emails in their original, native and hardcopy form between Defendant Zuckerberg and Plaintiff and/or other persons associated
with StreetFax that were captured from Zuckerberg's Harvard email account.” (Order at
2-3.)
The Order further directed that:
“. . . on July 15, 2011, Defendant Zuckerberg shall provide a sworn declaration certifying
his good-faith efforts to locate as many handwriting samples as possible, but no more
than thirty (30), specifically, up to but no more than ten (10) samples of handwriting, ten
(10) samples of initials, and ten (10) samples of signatures, written between January 1,
2003 and July 31, 2004 . . . .” (Order at 3.)
1.

On July 14, 2011, Plaintiff’s counsel Jeffrey A. Lake filed a Declaration pursuant

to and in compliance with the Order. (See Doc. No. 87, attached hereto as Exhibit A.)
2.

On July 15, 2011, Plaintiff Paul D. Ceglia filed a Declaration pursuant to and in

compliance with the Order. (See Doc. No. 88, attached hereto as Exhibit B.)
3.

Defendant Mark Zuckerberg failed to file a certificate on or before July 15, 2011

certifying his good-faith efforts to locate handwriting samples.
4.

On July 20, 2011—the deadline set by the Order for Defendant Zuckerberg’s

production of emails—and notwithstanding Plaintiff’s compliance with the Court’s Order,
Defendant Zuckerberg’s counsel sent a letter to Plaintiff’s counsel stating that Defendant would
not comply with the Court’s Order. (See Letter from Alexander Southwell dated July 20, 2011;
and Declaration of Jeffrey A. Lake Pursuant to Local Rule 7(d)(4), attached hereto as Exhibits C
and D, respectively.)

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5.

On July 21, 2011, Defendant Zuckerberg’s counsel represented to Plaintiff’s

counsel that Defendant would not comply with the Order. (See Declaration of Nathan Shaman
Made Pursuant to Local Rule 7(d)(4), attached hereto as Exhibit E.)
6.

Defendant Zuckerberg’s willful failure to comply with the Court’s Order has

continued as of the time of the filing of this Motion, and Defendant has neither produced the
emails to Plaintiff by July 20, 2011 as required by the Order, nor has Defendant Zuckerberg
provided a sworn declaration certifying his good-faith efforts to locate the handwriting samples
by the July 15, 2011 deadline set forth in the Order.
Pursuant to Local Rule 7(a)(1), Plaintiff hereby states his intention to file and serve reply
papers.
WHEREFORE, Plaintiff respectfully requests that the Court grant this Motion and order
Defendant Zuckerberg to comply forthwith with its July 1, 2011 Order, together with such other
and further relief as it deems appropriate.
The undersigned hereby certify that movant has in good faith met and conferred with the
party failing to act in an effort to obtain Defendants’ compliance with the Court’s July 1, 2011
Order.
Dated: July 25, 2011
Respectfully submitted,
s/Jeffrey A. Lake
Attorney for Plaintiff
835 Fifth Avenue, Suite 200A
San Diego, CA 92101
[phone]
[e-mail]

s/ Paul Argentieri
Attorney for Plaintiff
188 Main Street
Hornell, NY 14843
[phone]
[e-mail]

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