Ceglia Motion To Compel

8/6/2019 Ceglia Motion To Compel

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

PAUL D. CEGLIA,

Plaintiff,

v.

MARK ELLIOT ZUCKERBERG and

FACEBOOK, INC.,

Defendants.

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

RJA

NOTICE OF PLAINTIFF’S MOTION TO COMPEL DEFENDANT ZUCKERBERG’S

COMPLIANCE WITH THE COURT’S ORDER OF JULY 1, 2011

TO:

Alexander H. Southwell Lisa T. Simpson

Orin Snyder Orrick, Herrington & Sutcliffe LLP

Gibson, Dunn & Crutcher, LLP 51 West 52nd Street

200 Park Avenue New York, NY 1001947th Floor [email protected]

New York, NY 10166-0193

[email protected] Terrance P. Flynn

[email protected] Harris Beach LLPLarkin at Exchange

Thomas Dupree 726 Exchange Street

Gibson Dunn & Crutcher, LLP Suite 10001050 Connecticut Avenue, NW Buffalo, NY 14210

Washington, DC 20036

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:

Case 1:10-cv-00569-RJA -LGF Document 91 Filed 07/25/11 Page 1 of 3

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“. . . 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 hard-

copy 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 o btain Defendants’ compliance with the Court’s July 1, 2011

Order.

Dated: July 25, 2011

Respectfully submitted,

s/Jeffrey A. Lake s/ Paul Argentieri

Attorney for Plaintiff Attorney for Plaintiff

835 Fifth Avenue, Suite 200A 188 Main Street

San Diego, CA 92101 Hornell, NY 14843(619) 795-6460 (323) 919-4513

[email protected] paul.argentieri@gm






PAUL D. CEGLIA,

Plaintiff,

v.


FACEBOOK, INC.,

Defendants.

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RJA

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL

DEFENDANT ZUCKERBERG’S COMPLIANCE WITH THE COURT’S ORDER OFJULY 1, 2011

Plaintiff Paul D. Ceglia respectfully submits this Memorandum of Law pursuant to Fed.

R. Civ. P. Rule 37 and in support of his Motion to Compel Defendant Zuckerberg‟s Compliance

with the Court‟s Order of July 1, 2011 (“Order,” Doc. No. 83). In pertinent part, the Order

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 hard-

copy 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

Case 1:10-cv-00569-RJA -LGF Document 91-1 Filed 07/25/11 Page 1 of 5



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(10) samples of initials, and ten (10) samples of signatures, written between January 1,

2003 and July 31, 2004 . . . .” (Order at 3.)

Statement of Facts

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.) On July

15, 2011, and following the production of electronic assets as directed by the Court, Plaintiff

Paul D. Ceglia filed a Declaration pursuant to and in compliance with the Order. (See Doc. No.

88, attached hereto as Exhibit B.)

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

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

On July 21, 2011, Plaintiff‟s counsel sent an email to Defendant‟s counsel Alexander

Southwell inquiring when Plaintiff could expect Defendant‟s compliance and production. On

July 21, 2011, Mr. Southwell sent a reply email referring Plaintiff‟s counsel‟s attention to the

letter sent by Mr. Southwell on July 20, 2011 in which, through counsel, Defendant stated his

refusal to comply with the Court‟s Order. (See Declaration of Nathan Shaman Made Pursuant to

Local Rule 7(d)(4), attached hereto as Exhibit E.)

Def endant‟s failure to comply with the Court‟s Order has continued to the time of filing

this Motion. To date, Defendant Zuckerberg has neither produced the emails ordered to be




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produced to Plaintiff, nor has he provided a sworn declaration certifying his good-faith efforts to

locate the handwriting samples as directed by the Order.

Argument

The Court‟s Order provides in pertinent part that Plaintiff comply with the relevant

portions thereof by July 15, 2011. (See Order at 1-2.) Plaintiff has certified to the Court that he

has met his obligations pursuant to the July 15, 2011 deadline set forth in the Court‟s Order.

(See Exhibit A.) The Court‟s Order provided that Defendant Zuckerberg was to file his

certification of his good-faith efforts by July 15, 2011 and produce the relevant emails to

Plaintiff five days after Plaintiff‟s production and certification. (Order at 2-3.) Plaintiff‟s

production and certification was effected by July 15, 2011. (See Exhibits A and B) Pursuant to

the Order, Defendant‟s email production deadline was five days later, on July 20, 2011.

Defendant did not certify his good-faith efforts on or before July 15, 2011. Furthermore,

Defendant did not produce the emails described in the Court‟s Order on or before July 20, 2011.

Defendant‟s failure to produce has continued up to and including the time of filing of this

Motion. It is now past time for Defendant to meet his discovery obligations and comply with the

Court‟s Order.

The Court‟s Order as it pertains to setting Defendant Zuckerberg‟s production deadlines

is clear and unambiguous. Simply put, Defendant‟s unequivocal statement that he will not

comply with the Order can only be deemed willful. (See Exhibit.) “Non-compliance may be

deemed willful „when the court's orders have been clear, when the party has understood them,

and when the party's non-compliance is not due to factors beyond the party's control.‟” Brissett

v. Manhattan and Bronx Surface Operating Auth., 2011 WL 1930686, at *3 (E.D.N.Y. 2011)

(citations omitted); see also Nieves v. City of New York , 208 F.R.D. 531, 536 (S.D.N.Y. 2002).




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Further, such willful violations of court orders are highly disfavored. “„A party who flouts such

orders does so at his peril.‟” Bambu Sales, Inc. v. Ozak Trading, Inc., 58 F.3d 849, 853 (2d Cir.

1995) (citation omitted). It is undisputed that Defendant‟s failure to comply with the Court‟s

Order is admitted and volitional as well as willful and ongoing. (See Exhibit C.) While

Defendant‟s actions may certainly be considered sanctionable under long-established decisional

authority, Plaintiff seeks only Defendant‟s compliance with the Court‟s Order .

Defendant‟s stated reasons for his abject non-compliance with the Order strain credulity.

Defendant claims that some “precondition” has not been met, and that this “precondition”

somehow operates to excuse his compliance.1

(See Exhibit C.) That said, nowhere in the

Court‟s Order is there any mention of a precondition that operates to excuse Defendant of his

respective duty to comply with the Court‟s Order. Moreover, nowhere in the Court‟s Order is

there any language predicating Defendant‟s production and certification obligations on

Defendant‟s satisfaction with Plaintiff‟s production. Certainly, during the hours-long hearings

before this Court, no compliance-excusing preconditions were sought or requested by any party

hereto. Given the tenor of this litigation to date, it is not surprising that Defendant is unhappy

with Plaintiff‟s production and certification made in compliance with the Order. However,

Defendant is free to file for whatever relief to which he believes his may be entitled.

Defendant is not free to violate a court order. It is well established that compliance with

a court order is not optional. “All litigants . . . have an obligation to comply with court orders . .

. and failure to comply may result in sanctions, including dismissal with prejudice.‟” Banton v.

Schuck , 2010 WL 547403, at *2 (W.D.N.Y. 2010) (citing Agiwal v. Mid Island Mortgage Corp.,

1 Defendant also threatens Plaintiff with a motion for sanctions if Defendant‟s “precondition” is not met. (See

Exhibit C.)




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555 F.3d 298, 302 (2d Cir. 2009)). “A party is obliged by law to comply with an order of the

court unless and until it is stayed or reversed.” Ginter Logistics Service Co., Ltd. v. ACH Freight

Forwarding, Inc., 2010 WL 4455402, at *2 (S.D.N.Y. 2010). Whatever procedural options may

otherwise be available to Defendant, it is clear that such options do not include a unilateral and

intentional refusal to comply with the Court‟s Order. A party‟s “unilateral attempt to control the

flow of mandated discovery only serve[s] to obstruct the litigation,” Quadrozzi v. City of New

York , 127 F.R.D. 63, 76 (S.D.N.Y. 1989), nor can it excuse a party‟s failure to obey an order of

the Court. Id.

Defendant Zuckerberg remains bound by the Court‟s July 1, 2011 Order, and the Court

should enforce his compliance with its terms. Defendant‟s willing refusal to comply with the

obligations imposed on him by the Court‟s Order can only be characterized as an obstructive

delay tactic. Such tactics are especially egregious, where, as in this case, it is Defendant who

insisted on expedited discovery, and such tactics should neither be rewarded nor ignored by the

Court.

WHEREFORE, Plaintiff respectfully requests that the Court grant Plaintiff‟s instant

motion and order Defendant Mark Zuckerberg to comply forthwith with the July 1, 2011 Order,

together with such other and further relief as the Court deems appropriate.



s/Jeffrey A. Lake s/ Paul Argentieri

Attorney for Plaintiff Attorney for Plaintiff 835 Fifth Avenue, Suite 200A 188 Main Street

San Diego, CA 92101 Hornell, NY 14843

(619) 795-6460 (323) 919-4513

[email protected] paul.argentieri@gm




Exhibit “A”





WESTERN DISTRICT OF NEW YORK

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PAUL D. CEGLIA,

Plaintiff,

v.


FACEBOOK, INC.,

Defendants.

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DECLARATION OFJEFFREY A. LAKE


RJA

Jeffrey A. Lake, being over the age of 21, and pursuant to this Court’s order dated July 1,

2011, hereby declares under penalty of perjury:

1. I am counsel of record for Plaintiff Paul Ceglia (“Plaintiff”) in the above

captioned matter and make this declaration pursuant to this Court’s order dated July 1, 2011.

2. All computers and electronic media in Plaintiff’s 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 have been identified.

3. I hereby 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.

I hereby certify and declare under penalty of perjury that the foregoing is true and accurate.

DATED: July 14, 2011

/s/ Jeffrey A. Lake__ Jeffrey A. Lake, Esq.

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Exhibit “B”






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PAUL D. CEGLIA,

Plaintiff,

v.


FACEBOOK, INC.,

Defendants.

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DECLARATION OFPAUL D. CEGLIA


RJA

I, Paul D. Ceglia, being over the age of 21, and pursuant to this Court’s Order regarding

Expedited Discovery dated July 1, 2011, hereby declare under penalty of perjury:

1. I am the Plaintiff (“Plaintiff”) in the above captioned matter and make this

Declaration pursuant to this Court’s Order regarding Expedited Discovery dated July 1, 2011.

2. As required by the Court’s July 1, 2011 Order, I hereby identify all computers and

electronic media in my possession, custody or control, including without limitation and the

electronic assets listed in Paragraph 6 of the Declaration of John H. Evans, dated June 17, 2011

as follows:

A. As currently possessed by the Sylint Group in Sarasota, Florida

i. One (1) Seagate 120GB internal hard drive SN: 3JT1JQF6

ii. One (1) Maxtor 300GB external USB drive SN: L42PMZBG

iii. Five (5) 3.5” floppy disks

iv. Twelve (12) CD/DVDs

B. As currently possessed by the Project Leadership Associates, Chicago

i. One (1) Toshiba laptop SN: 69500395Q

ii. 169 3.5” floppy disks

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Exhibit “C”
















Exhibit “D”




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PAUL D. CEGLIA,

Plaintiff,

v.


FACEBOOK, INC.,

Defendants.

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RJA

DECLARATION OF JEFFREY A. LAKE PURSUANT TO LOCAL RULE 7(d)(4)

Jeffrey A. Lake, being over the age of 21, submits this Declaration pursuant to Local

Rule 7(d)(4), in support of Plaintiff’s Motion to Compel Defendant Zuckerberg’s Compliance

with the Court’s Order of July 1, 2011 (Motion to Compel) and hereby declares under penalty of

perjury:

1. I am counsel of record for Plaintiff Paul Ceglia in the above-captioned matter.

2. Plaintiff has complied with this Court’s Order dated July 1, 2011, and the required

certifications were filed and docketed with this Court on July 14, 2011 and July 15, 2011. True

and correct copies of these certifications are attached to the Motion to Compel as Exhibits A and

B.

3. On July 20, 2011, Defendant’s counsel faxed a letter addressed to me stating that

Defendant would not comply with the Court’s July 1, 2011 Order. A true and correct copy of

that letter is attached as Exhibit C to the Motion to Compel.

4. Despite sincere attempts to resolve this dispute, Plaintiff’s efforts to obtain

Defendant’s compliance with the Court’s Order have been unsuccessful.




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5. As of the time of filing of Plaintiff’s Motion to Compel, Defendant has not

produced the emails or handwriting samples required by the Court’s Order .

6. As of the time of filing of the Motion to Compel, and to the best of Plaintiff’s

knowledge and belief, Defendant Zuckerberg has not filed his Certification of Good-Faith

Efforts either by service or through the Court’s ECM/ECF system.



/s/ Jeffrey A. Lake




Exhibit “E”




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PAUL D. CEGLIA,

Plaintiff,

v.


FACEBOOK, INC.,

Defendants.

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RJA

DECLARATION OF NATHAN SHAMAN PURSUANT TO LOCAL RULE 7(d)(4)

Nathan Shaman, being over the age of 21, submits this Declaration pursuant to Local

Rule 7(d)(4), in support of Plaintiff’s Motion to Compel Defendant Zuckerberg’s Compliance

with the Court’s Order of July 1, 2011 (Motion to Compel) and hereby declares under penalty of

perjury:

1. I am an associate with Jeffrey A. Lake, A.P.C., counsel of record for Plaintiff Paul

Ceglia in the above-captioned matter.

2. In a July 21, 2011 email, I asked Defendant’s counsel Alexander Southwell

whether Defendant had produced the emails in accordance with the Court’s July 1, 2011 Order.

3. Mr. Southwell did not respond to my direct request but instead referred my

attention to the letter he sent Jeffrey A. Lake on July 20, 2011. A true and correct copy of that

letter is attached as Exhibit C to the Motion to Compel.




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4. The July 20, 2011 Letter from Mr. Southwell contained Defendant’s refusal to

comply with the Court’s July 1, 2011 Order.



s/ Nathan Shaman






PAUL D. CEGLIA,

Plaintiff,

v.


FACEBOOK, INC.,

Defendants.

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[PROPOSED] ORDERGRANTING PLAINTIFF’S

MOTION TO COMPEL


RJA

THIS MATTER having come before the Court on Plaintiff’s Motion to Compel Defendant

Zuckerberg’s Compliance with the Court’s Order of July 1, 2011 pursuant to F. R. Civ. P. 37 and

L.R. Civ. P. 7; and the Court having fully considered the briefs and papers pertaining to this

matter, and for good cause shown:

IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel Defendant Zuckerberg’s

Compliance with the Court’s Order of July 1, 2011 be and hereby is GRANTED, and it is further

ORDERED that by _____, 2011 Defendants shall produce the emails described in this Court’s

July 1, 2011 Order, and it is further

ORDERED that by ______, 2011 Defendant Mark Zuckerberg shall provide his certificate of

good-faith efforts as required by the Court’s July 1, 2011 Order.

SO ORDERED this ____ day of __________, 2011.

__________________________

Honorable Leslie G. Foschio

United States Magistrate Judge






PAUL D. CEGLIA,

Plaintiff,

vs.

MARK ELLIOT ZUCKERBURG and

FACEBOOK, INC.,

Defendants.

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CERTIFICATE OF SERVICE

CIVIL ACTION NO. 1:10-CV-00569-RJA

I hereby certify that on July 25, 2011 I caused to be filed with the Clerk of the United

States District Court for the Western District of New York the document entitled “Motion to

Compel Defendant Zuckerberg’s Compliance with the Court’s Order of July 1, 2011,” which

caused a Notice of Electronic Filing to be served electronically on all counsel of record in this

case.



s/ Jeffrey A. Lake_______

Attorney for Plaintiff

835 5th Avenue, Suite 200ASan Diego, CA 92101

(619) 795-6460

[email protected]


Documents

Ceglia Motion To Compel