Ceglia v. Zuckerberg et al

Filing 99

MEMORANDUM in Support re 95 Cross MOTION to Compel, 91 MOTION to Compel Defendant Zuckerberg's Compliance with the Court's Order of July 1, 2011 Defendants' Redacted Memorandum of Law in Support of Their Cross-Motion to Compel and For Other Relief, and In Opposition to Ceglia's Motion to Compel filed by Facebook, Inc., Mark Elliot Zuckerberg. (Snyder, Orin)

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

x
:
:
:
:
:
:
:
:
:
x

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

DEFENDANTS’ REDACTED MEMORANDUM OF LAW IN SUPPORT OF THEIR
CROSS-MOTION TO COMPEL AND FOR OTHER RELIEF, AND IN OPPOSITION
TO CEGLIA’S MOTION TO COMPEL

Thomas H. Dupree, Jr.
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]
August 4, 2011

Orin Snyder
Alexander H. Southwell
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
[phone]

TABLE OF CONTENTS
Page
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 5
FUTURE PROCEEDINGS ............................................................................................................ 8
ARGUMENT .................................................................................................................................. 8
I.

THIS COURT SHOULD GRANT DEFENDANTS’ CROSS-MOTION.............. 8
A.
B.

Ceglia Should Be Ordered To Certify His Compliance............................ 10

C.

Ceglia’s Current Lawyers Should Be Required To Sign Rule 11
Certifications. ............................................................................................ 11

D.

Ceglia Should Be Ordered To Permit Additional Ink Sampling. ............. 12

E.

This Court Should Review In Camera The Two Documents As To
Which Ceglia Has Asserted Attorney-Client Privilege. ........................... 13

F.
II.

Ceglia Should Be Ordered To Produce The Electronic Documents
Required By The Order. .............................................................................. 9

This Court Should Overrule Ceglia’s Blanket “Confidentiality”
Designation. .............................................................................................. 14

CEGLIA’S MOTION SHOULD BE SUMMARILY DENIED. .......................... 15
A.
B.

III.

Ceglia’s Motion Violates The Local Rules Because He Failed To
Meet And Confer, And Failed To File The Required Affidavit. .............. 16
Ceglia’s Claims Are Frivolous And Could Not Have Been
Brought In Good Faith. ............................................................................. 17

THE COURT SHOULD AWARD DEFENDANTS THEIR
REASONABLE ATTORNEYS’ FEES AND OTHER RELIEF. ........................ 18

CONCLUSION ............................................................................................................................. 19

i

TABLE OF AUTHORITIES
Page(s)
Cases
Auther v. Oshkosh Corp., 2010 WL 1404125 (W.D.N.Y. March 30, 2010) ................................ 13
Dellefave v. Access Temporaries, Inc., 2001 WL 286771 (S.D.N.Y. Mar. 22, 2001).................. 11
Fuller v. Summit Treestands, LLC, 2009 WL 1874058 (W.D.N.Y. May 11, 2009) .................... 13
Milton Abeles, Inc. v. Creekstone Farms Premium Beef, LLC, 2009 WL 2495802
(E.D.N.Y. Aug. 12, 2009) ....................................................................................................... 14
O’Brien v. Alexander, 101 F.3d 1479 (2d Cir. 1996) ................................................................... 10
Rules
Fed. R. Civ. P. 11 .......................................................................................................................... 11
Fed. R. Civ. P. 37(a) ..................................................................................................................... 13
Other Authorities
Gregory P. Joseph, Sanctions: The Federal Law of Litigation Abuse (3d ed. 2000)................... 11

ii

DEFENDANTS’ MEMORANDUM OF LAW
Defendants Mark Zuckerberg and Facebook, Inc. respectfully submit this memorandum
of law in support of their cross-motion to compel and for other relief, and in opposition to
Plaintiff Paul Ceglia’s motion to compel.
Defendants have filed a redacted version of this motion in the public docket and have
simultaneously filed the full version with the Court. Defendants have been forced to file the
redacted version in the public docket because of Ceglia’s egregious abuse of the confidentiality
provisions in the joint stipulated protective order. Ceglia has designated all 120 relevant
documents and files that were found on his computers, CDs and floppy disks as containing
“confidential” information that must be shielded from the public. He does not want the public to
know what was discovered on his computers because it includes smoking-gun documents that
conclusively establish that he fabricated the purported contract and that this entire lawsuit is a
fraud and a lie. Defendants are asking this Court to overrule Ceglia’s improper confidentiality
designations — in particular, his designation of the smoking-gun documents as confidential —
and place on the public docket the full version of this motion filed with the Court.
INTRODUCTION
Defendants have maintained from the beginning that this lawsuit is based on forged
documents, and sought expedited discovery to find evidence of the fraud that would end this
case. Now they have. Defendants have uncovered smoking-gun evidence that the purported
contract at the heart of this case is a fabrication. Embedded in the electronic data on Ceglia’s
computer is [THE REMAINDER OF THIS SENTENCE HAS BEEN REDACTED DUE TO
CEGLIA’S IMPROPER CONFIDENTIALITY DESIGNATIONS].
Defendants have also discovered that Ceglia is perpetrating a massive cover-up of his
crimes by concealing critical evidence he was ordered to produce. A painstaking forensic
1

analysis of Ceglia’s computers has revealed that Ceglia [REDACTED] that he failed to disclose
or produce. [TWO SENTENCES HAVE BEEN REDACTED DUE TO CEGLIA’S IMPROPER
CONFIDENTIALITY DESIGNATIONS]. Ceglia’s failure to produce [REDACTED] — or
even to reveal their existence — amounts to willful, bad faith, contemptuous defiance of a court
order. Ceglia should be directed to produce [REDACTED] within 24 hours and to show cause as
to why he should not be sanctioned.
These discoveries come in the wake of a monthlong campaign by Ceglia and his lawyers
to obstruct the expedited discovery ordered by this Court. Ceglia has refused to comply with the
plain language of the Order and turn over the electronic documents he was commanded to
produce; he has frustrated the efforts of Defendants and their experts to examine the hard copy
documents he has produced; and he has submitted false declarations under oath and a frivolous
motion to compel. With the discovery of the [REDACTED], Ceglia’s motivation has now
become clear. Ceglia knew that if he complied with the order, and provided the documents and
certifications this Court ordered him to produce, his fraud would have been immediately
exposed. Thus, rather than produce the [REDACTED] as required by the Order, Ceglia took a
wait-and-see approach by making available a collection of computers, floppy disks and
thousands of CDs without identifying any of the files or documents stored on them — either not
realizing that the [REDACTED] remained embedded in one of the computers, or simply hoping
that Defendants would not find it.
Ceglia has also obstructed the investigation of the hard copy documents. Although the
parties had agreed that Defendants would be permitted to take additional ink samples from the
purported contract and “spec sheet” if there were ink left available to sample, Ceglia’s counsel
reneged on this agreement and abruptly barred further ink collection. Ceglia’s obstructionist

2

tactics with regard to ink sampling are motivated by the same concern — Ceglia knows full well
that if Defendants’ experts are able to fully test and date the ink on the purported contract, they
will further establish the fraud.
Ceglia’s own lawyers have acknowledged that their client has himself made little to no
effort to comply with the Order. His attorney Jeffrey Lake has admitted that Ceglia played no
role in identifying or gathering materials for discovery, that it was unlikely Ceglia would assist in
future production efforts, and that Ceglia has now moved to Ireland. See Declaration of
Alexander H. Southwell (“Southwell Decl.”), ¶ 24.
Defendants’ experts are continuing to examine Ceglia’s electronic and hard copy
documents, and will soon provide this Court with even more evidence of Ceglia’s fraud. In the
meantime, Defendants respectfully request that this Court compel Ceglia’s compliance with the
Order and grant immediate relief, including orders:
•

Directing Ceglia to comply with the provision of the Order requiring him to produce
several specific categories of electronic documents, including copies of the purported
contract in the possession of Ceglia’s lawyers or experts, and to produce the
[REDACTED] whose very existence he has concealed.

•

Directing Ceglia to comply with the provision of the Order requiring him to certify
that he has produced all the electronic assets called for by the Order.

•

Directing Ceglia’s current attorneys to file certifications under Rule 11 that they are
maintaining this lawsuit in good faith and based upon a reasonable investigation of
the underlying facts.

•

Directing Ceglia to permit additional ink sampling of the purported contract and
“spec sheet.”

3

•

Granting in camera review of two documents as to which Ceglia has asserted
attorney-client privilege to determine whether the privilege has been properly
invoked.

•

Overruling Ceglia’s abusive and improper designation of all 120 relevant electronic
documents and data items found to date on his computers, CDs and floppy disks —
including the [REDACTED] — as “confidential” documents that cannot be disclosed
under the joint stipulated protective order.

This Court should also deny Ceglia’s motion to compel, which is nothing more than his
latest attempt to play fast and loose with the judicial process. The Court’s local rules require that
discovery motions such as Ceglia’s be accompanied by a detailed affidavit setting forth the
history of the parties’ attempts to resolve the dispute though the meet-and-confer process. Ceglia
failed to meet-and-confer before filing his motion; he failed to file the required affidavit; and the
“statement of facts” in his motion is riddled with misleading assertions and outright falsehoods.
Foremost among these is the claim that Zuckerberg has not “provided a sworn declaration
certifying his good-faith efforts to locate the handwriting samples as directed by the Order.”
Plaintiff’s Motion to Compel (Doc. No. 91), ¶ 6. Defendants sent this declaration to Ceglia’s
lawyers on July 15 — the date specified by the Order — yet even after this fact was called to
their attention, they have refused to withdraw their pleading. Ceglia’s claim that Defendants
have improperly withheld the emails captured from the Harvard server is equally meritless. As
Defendants informed Ceglia’s counsel before he filed his motion, Defendants had gathered all of
the Harvard emails and were poised to produce them — and they remain ready to produce them
at a moment’s notice. But under the Order’s plain language, Ceglia’s production of documents is
an express precondition to Defendants’ production of the Harvard emails. See Order at 2.

4

Because Ceglia has openly defied his own production obligations, Defendants are not yet
required to produce the Harvard emails.
Ceglia’s continued disobedience of this Court’s orders and local rules should not be
tolerated. In addition to directing Ceglia to immediately comply with his discovery obligations,
this Court should invoke its authority under Federal Rule of Civil Procedure 37 and its inherent
power, and award Defendants their reasonable attorneys’ fees and all other relief to which they
may be entitled.
BACKGROUND
On July 1, 2011, this Court granted Defendants’ Motion for Expedited Discovery, and
granted in part and denied in part Ceglia’s Cross-Motion for Mutual Expedited Discovery. (Doc.
No. 83.)
The Order provided that: “Plaintiff shall produce on or before July 15, 2011, the
following electronic assets: (1) the native electronic version of the purported contract attached to
the Amended Complaint and all electronic copies of the purported contract including the forms
described in paragraph 8 of the Declaration of Paul D. Ceglia, dated June 12, 2011; (2) the
original, native electronic files consisting of or containing the purported emails described in the
Amended Complaint and all electronic copies of the purported emails; and (3) all computers and
electronic media in Plaintiff’s possession, custody, or control, including but not limited to the
electronic assets listed in paragraph 6 of the Declaration of John H. Evans, dated June 17, 2011,
and all assets certified to by Plaintiff pursuant to the Court’s June 30, 2011 Order (collectively,
the ‘Electronic Assets’).” Order at 2.
Rather than produce the electronic documents called for in the Court’s Order, Ceglia
made available for copying a collection of computers, CDs and floppy disks but did not identify

5

any of the files or documents they contained. Defendants immediately advised Ceglia that he
had failed to comply with the Order. Counsel for Defendants explained that Ceglia was
obligated to produce: the native electronic version of the purported contract; all electronic copies
of the purported contract, including those in the possession of Ceglia’s attorneys or experts; the
forms described in Ceglia’s June 12th declaration; the native electronic files consisting of or
containing the purported emails; and all electronic copies of the purported emails. See Ex. F to
Southwell Decl. In an attempt at accommodation, counsel for Defendants stated that “to the
extent these items are on the electronic assets already produced, you may identify where they
are. And if any of these items do not presently exist, you must provide a clear statement of nonexistence of the item and explanation of the reasons the item does not presently exist.” Id. at 2.
Ceglia did not respond to the letter. He neither produced the documents nor identified where
they might be found on the computers or electronic media he had already produced. Southwell
Decl., ¶ 25.
The Order further provided that “on or before July 15, 2011, in a sworn declaration
Plaintiff shall identify all computers and electronic media in his possession, custody, or control,
including without limitation the electronic assets listed in paragraph 6 of the Declaration of John
H. Evans, dated June 17, 2011, and certify that all such computers and electronic media are being
produced for inspection to Defendants and that such computers and electronic media contain all
communications Plaintiff claims to have had with Defendants.” Order at 2.
On July 15, Ceglia submitted a sworn declaration purporting to identify a complete list of
such computers and electronic media and certifying that they had all been produced for
inspection. See Declaration of Paul D. Ceglia (Doc. No. 88). Three days later, however, Ceglia
produced an image of a Seagate hard drive that he had sworn had already been produced.

6

Southwell Decl., ¶¶ 20-22. The day after that he produced a computer that he had not mentioned
in his declaration. Id., ¶ 23.
Based on the forensic examination conducted by Stroz Friedberg, the evidence
demonstrates that Ceglia [REDACTED]. Southwell Decl., ¶ 42B. [THIS SENTENCE HAS
BEEN REDACTED DUE TO CEGLIA’S IMPROPER CONFIDENTIALITY
DESIGNATIONS]. Not a single one of these [REDACTED] was disclosed or produced by
Ceglia. [THIS SENTENCE HAS BEEN REDACTED DUE TO CEGLIA’S IMPROPER
CONFIDENTIALITY DESIGNATIONS].
On August 2, Stroz Friedberg produced to Defendants documents they found that were
not designated as privileged by Ceglia. Among these documents was the [THE REMAINDER
OF THIS SENTENCE AND TWO THAT FOLLOW HAVE BEEN REDACTED DUE TO
CEGLIA’S IMPROPER CONFIDENTIALITY DESIGNATIONS]. The [REDACTED] was
recovered from the image of the Seagate hard drive that Ceglia had withheld until July 18 —
three days after he swore under oath that it had already been produced.
As Defendants explained in their Memorandum of Law in Support of Their Motion for
Expedited Discovery (Doc. No. 45), in early 2003, when Zuckerberg was a freshman at Harvard
University, he agreed to provide limited web site development services for StreetFax — a web
site that provided a database of photographs of traffic intersections for use by insurance
adjustors. See Memorandum of Law at 4; Declaration of Mark Elliot Zuckerberg (Doc. No. 46),
¶¶ 6-7. He signed a contract memorializing this agreement. Id. The contract concerned
StreetFax and StreetFax alone — it said nothing about Facebook. The contemporaneous emails
between Zuckerberg, Ceglia and other persons affiliated with StreetFax — indisputably authentic

7

emails captured from Zuckerberg’s Harvard email account — confirm this. None of the more
than 175 emails mentions Facebook or any web site created by Zuckerberg.
The [REDACTED] has now been found on Ceglia’s own computer, [THE REMAINDER
OF THIS SENTENCE AND PARAGRAPH HAVE BEEN REDACTED DUE TO CEGLIA’S
IMPROPER CONFIDENTIALITY DESIGNATIONS].
FUTURE PROCEEDINGS
The Court has scheduled a hearing on the instant motions for August 17. Defendants will
then have until September 9 to report the findings from their forensic examination of Ceglia’s
documents and computers. At that time, Defendants will present additional evidence
conclusively establishing that Ceglia is perpetrating a massive fraud on this Court.1
ARGUMENT
I.

THIS COURT SHOULD GRANT DEFENDANTS’ CROSS-MOTION.
Ceglia has demonstrated a contemptuous disregard for the orders of this Court. He has

deliberately and willfully disobeyed this Court’s Order, in bad faith and for tactical purposes, and
is currently concealing evidence from Defendants and this Court. Pursuant to Local Rule
7(d)(1), Defendants have described their attempts to resolve the issues identified below in the
supporting Declaration of Alexander H. Southwell.

1

Although Defendants presently anticipate adhering to the September 9th deadline established
by the Court, they reserve the right to seek additional time or to supplement their filing, if
warranted by Ceglia’s continued refusal to comply with the discovery obligations and
deadlines ordered by the Court.

8

A.

Ceglia Should Be Ordered To Produce The Electronic Documents
Required By The Order.

This Court ordered Ceglia to produce several specific categories of electronic documents.
See Order at 2. But rather than produce these documents to Defendants, Ceglia simply turned
over to Stroz Friedberg a large collection of computers, CDs and floppy disks containing
numerous electronic files. Given Defendants’ discovery of the [REDACTED], it is now
apparent why Ceglia took this approach: either he mistakenly thought he had erased
[REDACTED] from his computer, or he hoped that Defendants would not find it.
Ceglia should be directed to immediately produce the documents described in the Order.
These include the native electronic version of the purported contract attached to the Amended
Complaint; all electronic copies of the purported contract, including those in the possession of
Ceglia’s attorneys or his experts John Paul Osborn and Valery Aginsky, or those in any webmail
account;2 the electronic forms described in Ceglia’s June 12th declaration; the original, native
electronic files consisting of or containing the purported emails; and all electronic copies of the
purported emails.
If Ceglia claims that these documents have already been produced because they are
stored on the computers or electronic media he has made available for copying, Ceglia should be
directed to identify the files containing these documents (or if they no longer exist, to state that
fact and explain why). See Electronic Asset Inspection Protocol, ¶ 1 (requiring Ceglia to
“identify” the electronic assets in question). Ceglia’s bad faith approach to production has made
it impossible for Defendants to determine whether Ceglia has fully complied with his discovery
2 Given the overwhelming evidence of fraud, we respectfully request that the Court order
Ceglia to consent to the acquisition and inspection of any of his webmail accounts by Stroz
Friedberg pursuant to the Electronic Assets Inspection Protocol.

9

obligations. For example, there is no way to tell which electronic file contains the purported
contract Ceglia is seeking to enforce in this case. Moreover, some documents encompassed by
the Order do not exist on Ceglia’s computers. For example, copies of the purported contract in
the possession of his attorneys or experts should be obtained from the recipient and produced.
Similarly, Ceglia did not produce relevant emails from his web-based Hotmail account — emails
that are encompassed by the Order but may not exist on his computers.
Ceglia should also be ordered to produce within 24 hours the [REDACTED] identified by
Stroz Friedberg and any other undisclosed media. His failure to disclose or produce the
[REDACTED] is egregious and inexcusable, and this Court should direct Ceglia to show cause
why he should not be sanctioned for his contumacious disregard of this Court’s Order.
B.

Ceglia Should Be Ordered To Certify His Compliance.

The purpose of including the certification requirement in the Order was to nail Ceglia
down and prevent him from subsequently “discovering” new computers containing newlymanufactured emails. Thus, the Court directed that before Defendants are obligated to produce
the emails captured from Zuckerberg’s Harvard account — emails that Ceglia could use as a
basis for future forgeries — Ceglia must provide a certification attesting that he has produced all
potentially relevant computers and electronic assets in his possession or under his control. Here,
just days after Ceglia swore under oath that he had identified and produced all relevant
computers, his lawyers discovered one he had overlooked. They also discovered that he had not
produced an image of a hard drive that Ceglia had sworn he had produced — indeed the very
hard drive that contained the [REDACTED]. And, most critically, Stroz Friedberg has now
discovered that Ceglia [REDACTED] in connection with those computers — [REDACTED] that
were neither identified by Ceglia in his sworn declaration nor produced for inspection.

10

There can be no dispute that Ceglia’s sworn declaration of July 15 is untruthful. It fails
to identify the computer his lawyer later disclosed, and it fails to identify the [REDACTED] that
Stroz Friedberg found. Ceglia’s counsel has attempted to excuse his client’s noncompliance by
explaining that Ceglia was not involved in the production process and now lives in Ireland.
Southwell Decl., ¶ 24. But these are obviously not legitimate excuses, and the fact is that Ceglia
has signed a sworn declaration that has now been exposed as utterly false. He should be directed
to correct it and immediately file a new declaration consistent with the terms of the Order.
C.

Ceglia’s Current Lawyers Should Be Required To Sign Rule 11
Certifications.

Ceglia’s current attorneys — Jeffrey Lake and Paul Argentieri — did not sign the
Amended Complaint. It was signed by Christopher P. Hall of DLA Piper, who has since
withdrawn. It appears that the Second Circuit, for Rule 11 purposes, treats a new attorney’s
maintenance or pursuit of a lawsuit filed by a different attorney as though the new attorney had
filed the lawsuit in his own name. See O’Brien v. Alexander, 101 F.3d 1479, 1489 (2d Cir. 1996)
(“‘[A] litigant’s obligations with respect to the contents of . . . papers are not measured solely as
of the time they are filed with or submitted to the court, but include reaffirming to the court and
advocating positions contained in these pleadings and motions after learning that they cease to
have any merit.’” (quoting Fed. R. Civ. P. 11, Advisory Committee Notes)); Dellefave v. Access
Temporaries, Inc., 2001 WL 286771, at *5-6 (S.D.N.Y. Mar. 22, 2001) (imposing sanctions on
counsel who had not signed challenged pleading where counsel later advocated its claims in
motions and at oral argument); Gregory P. Joseph, Sanctions: The Federal Law of Litigation
Abuse (3d ed. 2000) (“[W]hile successor counsel assumes no responsibility for papers previously
presented, new counsel does have an independent obligation to conduct a reasonable inquiry into

11

law and fact, and may be sanctioned for improper reliance on predecessor counsel’s work. This
would extend to ‘later advocating’ a violative paper previously filed by predecessor counsel.”).
Nonetheless, in light of the overwhelming evidence of fraud, including the discovery of
the [REDACTED] on Ceglia’s computer and the fact that Ceglia has been concealing critical
evidence, Mr. Lake and Mr. Argentieri should be required to certify that they are pursuing this
lawsuit in good faith and on the basis of a reasonable factual investigation into their client’s
claims.3
D.

Ceglia Should Be Ordered To Permit Additional Ink Sampling.

The Hard Copy Inspection Protocol, approved and entered by this Court (Doc. No. 84),
does not restrict Defendants’ ability to take ink samples from the hard copy documents,
including the purported contract and spec sheet. It simply requires that Defendants provide
notice of their testing and that any physical sampling must be done in the presence of both
parties’ representatives. See id. at 3-4.
On July 19, at the conclusion of that day’s examination of the hard copy documents,
counsel for both parties discussed the possibility of taking additional ink samples from the
documents. Southwell Decl., ¶ 34. Defendants’ experts had advised that additional ink sampling
would be helpful in determining whether the documents were recent forgeries. See id. Ceglia’s

3

The revolving door of plaintiff’s counsel continues to spin. Shortly after the June 30
discovery hearing, the Edelson McGuire firm began representing Ceglia in connection with
the document inspections. Then, on the morning of July 26, the day after the hard copy
documents were examined at Edelson McGuire’s Chicago offices, the firm abruptly
withdrew, advising Defendants’ counsel in a short phone call that it would no longer be
representing Ceglia and could not comment further. Edelson McGuire is now the fourth firm
to have withdrawn from representing Ceglia in this case.

12

counsel Jeffrey Lake agreed that if there were sufficient ink available after Ceglia’s experts had
taken their samples, then he would permit Defendants’ experts to extract additional samples.
On July 25, Defendants sought to extract additional ink samples. Ceglia’s experts had
concluded their initial sampling, and Defendants’ expert Dr. Albert Lyter III had advised that
there was enough ink remaining on the documents for both parties’ experts to extract additional
samples. See Lyter Decl., ¶ 10. However, despite Mr. Lake’s prior agreement to permit
additional sampling, Ceglia’s attorney Paul Argentieri refused to allow Dr. Lyter to take
additional samples and demanded that Defendants seek court intervention if they wished to
pursue the issue further.
Additional sampling of the ink on the purported contract and spec sheet would be helpful
in determining whether Ceglia recently doctored these documents for purposes of this lawsuit.
The Court’s Order placed no restrictions on sampling, other than that it be done in the presence
of representatives from each side. This Court should direct Ceglia to adhere to his original
agreement and permit Defendants’ experts to take additional samples.
E.

This Court Should Review In Camera The Two Documents
As To Which Ceglia Has Asserted Attorney-Client Privilege.

Ceglia has asserted that two documents found on his computer are protected from
disclosure by the attorney-client privilege. See Ex. J to Southwell Decl. [TWO SENTENCES
HAS BEEN REDACTED DUE TO CEGLIA’S IMPROPER CONFIDENTIALITY
DESIGNATIONS.] Southwell Decl., ¶ 41. Moreover, in light of the massive evidence of fraud
Defendants have already uncovered, there is simply no ground for concluding, based on the bare
assertion of Ceglia’s lawyers, that these [REDACTED] are in fact protected attorney-client
communications. Nor is there any basis for concluding that the crime-fraud exception does not
vitiate any privilege that might otherwise attach.

13

Under these circumstances, and given the fact that Defendants are only challenging the
privilege designation of two documents, this Court should conduct an in camera review of the
documents to determine whether, and the extent to which, Ceglia’s invocation of the privilege is
warranted.
F.

This Court Should Overrule Ceglia’s Blanket “Confidentiality” Designation.

Ceglia has designated every single one of the 120 relevant documents and files found
thus far on his computer, CDs or floppy disks as “Confidential” documents that may not be
publicly disclosed under the joint stipulated protective order. Ex. J to Southwell Decl.
Defendants objected to Ceglia’s blanket confidentiality designation and asked that Ceglia
withdraw it. Southwell Decl, ¶ 43. Ceglia responded by asserting that “all confidential
designations are appropriate” and refused to de-designate a single one. Id., ¶ 49. Nor did he
attempt to explain or justify any of his designations.
The protective order provides that “[t]he designating party may designate documents,
materials, or information as ‘CONFIDENTIAL — SUBJECT TO PROTECTIVE ORDER’ if the
party believes in good faith that the documents, materials, or information contain confidential
information that is not publicly available (such as proprietary or confidential business, technical,
sales, marketing, financial, commercial, private, or sensitive information, or information that is
otherwise reasonably designable as confidential).” Protective Order (Doc. No. 86), ¶ 3. The
order further provides that “[i]f any receiving party objects to the designation of any documents,
materials, or information as Confidential Information, the parties shall confer to attempt to
resolve the dispute. If such attempt is unsuccessful, and the dispute remains unresolved, the
parties shall submit the dispute to the Court.” Id., ¶ 5.
A blanket designation of this nature is clearly improper and abusive. Ceglia has made no
attempt to justify his designation, and it is not remotely plausible that each and every one of the
14

documents contains sensitive or proprietary information that must be kept from the public. This
Court should overrule Ceglia’s blanket confidentiality designation or require Ceglia to justify the
designation as to each document. If Ceglia cannot establish that his designations are warranted
and were made in good faith, then they should be overruled. At a minimum, the Court should
overrule his designation of the [REDACTED] as confidential. Having attached the fake contract
to his complaint and publicized it to the world, it is the height of cynicism for Ceglia to now
demand that the [REDACTED] be shielded from view.
II.

CEGLIA’S MOTION SHOULD BE SUMMARILY DENIED.
This Court’s Order required Zuckerberg to conduct a good faith search for up to 30

samples of his handwriting, and provided “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 . . . .” Order at 3. Ceglia has moved to compel production of this
Declaration. The Order also provided that “five (5) days subsequent to Plaintiff’s production of
the Electronic Assets and his sworn declaration, Defendants shall produce” the emails captured
from the Harvard server. Order at 2. Ceglia has moved to compel production of these emails.
Ceglia’s motion should be summarily denied because it blatantly violates the local rules’
requirement that motions to compel include an affidavit detailing the parties’ sincere attempts to
resolve the discovery dispute without court intervention. Even if this Court were to consider the
substance of Ceglia’s arguments, they are meritless: Defendants timely produced the Zuckerberg
declaration, and their obligation to produce the Harvard emails has not been triggered because
Ceglia has failed to comply with the precondition that he produce his electronic documents and a
sworn declaration.

15

A.

Ceglia’s Motion Violates The Local Rules Because He Failed To
Meet And Confer, And Failed To File The Required Affidavit.

This Court should summarily deny Ceglia’s motion because he failed to meet-and-confer
and to provide the affidavit required by Local Rule 7(d)(1). That rule provides:
Discovery Motion. No motion for discovery and/or production of documents
under Federal Rule of Civil Procedure 37 shall be heard unless accompanied
by an affidavit showing that sincere attempts to resolve the discovery dispute
have been made. Such affidavit shall detail the times and places of the parties’
meetings or discussions concerning the discovery dispute and the names of all
parties participating therein, and all related correspondence must be attached.
See also Fed. R. Civ. P. 37(a) (motions under Rule 37 “must include a certification that the
movant has in good faith conferred or attempted to confer with the person or party failing to
make disclosure or discovery in an effort to obtain it without court action”). Ceglia moved to
compel “pursuant to Fed. R. Civ. P. Rule 37,” see Motion at 1, yet failed to meet-and-confer or
to attach the required affidavit to his motion.
Under a straightforward application of Local Rule 7(d)(1) and Federal Rule 37, Ceglia’s
motion must be denied. See, e.g., Auther v. Oshkosh Corp., 2010 WL 1404125, at *2 (W.D.N.Y.
March 30, 2010) (failure to meet-and-confer prior to bringing discovery motion “necessitates
denial of the motion”); Fuller v. Summit Treestands, LLC, 2009 WL 1874058, at *6 (W.D.N.Y.
May 11, 2009) (denying motion to compel for failing to satisfy meet-and-confer requirement);
Milton Abeles, Inc. v. Creekstone Farms Premium Beef, LLC, 2009 WL 2495802, at *3-4
(E.D.N.Y. Aug. 12, 2009) (imposing sanctions on plaintiff for failing to certify compliance with
meet-and-confer obligation in local rules).

16

B.

Ceglia’s Claims Are Frivolous And Could Not Have Been
Brought In Good Faith.

Ceglia had no good faith basis for filing this motion. Defendants emailed the Zuckerberg
declaration to Ceglia’s counsel Jeffrey Lake on July 15 — the date specified by the Court.
Southwell Decl., ¶ 10. When Ceglia inexplicably moved to compel production of the declaration
five days later, Defendants reminded Mr. Lake that he had already received the document. Id., ¶
12. Mr. Lake stated that he would check his emails and, if it turned out that he did receive the
declaration, he would consider taking remedial action, such as apologizing to the Court or
withdrawing this portion of his motion. See id. At Mr. Lake’s request, Defendants’ counsel
even forwarded a copy of the July 15 transmission to Mr. Lake. Id. When Mr. Lake took no
action, Defendants’ counsel asked Mr. Lake what he intended to do to correct his
misrepresentations, but Mr. Lake failed to provide a responsive answer. Id., ¶ 13. As of August
4, Mr. Lake has failed to notify the Court of his false representations or correct his filing.
To the extent Ceglia may be suggesting that Defendants did not comply with the Order
because they sent Zuckerberg’s declaration to Ceglia’s lawyers rather than filing it with the
Court, that argument is meritless. The Order does not require that the declaration be filed with
the Court, only that it be “provide[d]” to opposing counsel. See Order at 3 (“Defendant
Zuckerberg shall provide a sworn declaration certifying his good-faith efforts to locate as many
handwriting samples as possible . . . .”) (emphasis added). Indeed, it is the usual practice in this
District that discovery declarations are not filed with the Court. Moreover, Defendants’ counsel
specifically told Ceglia’s counsel that, consistent with local practice, they did not intend to file
the Zuckerberg declaration with the Court — and Ceglia’s counsel did not object. See Southwell
Decl., ¶¶ 8-9; Flynn Decl., ¶ 3. Nor, for that matter, did Ceglia’s contact Defendants’ counsel to
say that the declaration should have been filed with the Court. Southwell Decl., ¶ 11.

17

Ceglia also argues that Defendants have failed to produce the Harvard emails.
Defendants gathered the emails in question and were prepared to produce them. But in response
to Defendants’ concerns that Ceglia could use those emails as a roadmap to deepen the fraud that
pervades this case, the Order sequenced discovery by expressly conditioning Defendants’
obligation to produce the emails on Ceglia’s compliance with his production obligations. See
Order at 2 (providing that “five (5) days subsequent to Plaintiff’s production of the Electronic
Assets and his sworn declaration, Defendants shall produce all emails . . . .”). As shown above,
Ceglia has defied his production obligations in many key respects, missed numerous deadlines,
and stonewalled and obstructed discovery. Accordingly, Defendants are under no obligation to
produce the Harvard emails unless and until Ceglia complies with the Order. Defendants have
collected all of the Harvard emails, placed them on a CD, and are ready and willing to produce
the CD to Ceglia once he has complied. See Ex. F to Southwell Decl.

III.

THE COURT SHOULD AWARD DEFENDANTS THEIR REASONABLE
ATTORNEYS’ FEES AND OTHER RELIEF.
In light of Ceglia’s outright defiance of this Court’s order, his obstruction of discovery,

and his filing of a frivolous motion to compel, this Court should award Defendants their
reasonable attorneys’ fees and costs under Rule 37 and the Court’s inherent power, and should
consider additional sanctions up to and including dismissal.
As shown above, Ceglia has not complied with the Order, and his attorneys have
repeatedly stonewalled Defendants’ attempt to conduct the discovery permitted by this Court.
He filed a groundless motion to compel production of a document that Defendants had already
produced — an abusive and unnecessary filing that could have been avoided had Ceglia

18

complied with the local rules’ meet-and-confer obligation — and then refused to withdraw the
request even after Defendants alerted him to the error.
CONCLUSION
For the foregoing reasons, this Court should grant Defendants’ cross-motion to compel,
deny Ceglia’s motion to compel, and award Defendants all other relief, including attorneys’ fees,
to which they may be entitled.

Dated:

New York, New York
August 4, 2011
Respectfully submitted,
/s/ Orin Snyder
Orin Snyder
Alexander H. Southwell
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue, 47th Floor
New York, NY 10166-0193
[phone]

Thomas H. Dupree, Jr.
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.

19