Ceglia Motion To Compel

Case 1:10-cv-00569-RJA -LGF Document 91
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ------------------------------------ x : PAUL D. CEGLIA, : : Plaintiff, : : v. : : MARK ELLIOT ZUCKERBERG and : FACEBOOK, INC., : : Defendants. ------------------------------------ x
Civil Action No. 1:10-cv-00569RJA
NOTICE OF PLAINTIFFS MOTION TO COMPEL DEFENDANT ZUCKERBERGS COMPLIANCE WITH THE COURTS 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 asouthwelll@gibsondunn.com osnyder@gibsondunn.com 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 LSimpson@orrick.com 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 Courts order dated July 1, 2011 (Order, Doc. No. 83), which directed that:
. . . five (5) days subsequent to Plaintiffs 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, Plaintiffs 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, 2011the deadline set by the Order for Defendant Zuckerbergs
production of emailsand notwithstanding Plaintiffs compliance with the Courts Order, Defendant Zuckerbergs counsel sent a letter to Plaintiffs counsel stating that Defendant would not comply with the Courts 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.)
5.
On July 21, 2011, Defendant Zuckerbergs counsel represented to Plaintiffs
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 Zuckerbergs willful failure to comply with the Courts 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 Courts 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 (619) 795-6460 jlake@lakeapc.com s/ Paul Argentieri Attorney for Plaintiff 188 Main Street Hornell, NY 14843 (323) 919-4513 paul.argentieri@gmail.com
Case 1:10-cv-00569-RJA -LGF Document 91-1
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION TO COMPEL DEFENDANT ZUCKERBERGS COMPLIANCE WITH THE COURTS ORDER OF JULY 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 Zuckerbergs Compliance with the Courts Order of July 1, 2011 (Order, Doc. No. 83). In pertinent part, the Order directed that: . . . five (5) days subsequent to Plaintiffs 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
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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, Plaintiffs 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, 2011the deadline set by the Order for Defendant Zuckerbergs production of emailsand notwithstanding Plaintiffs compliance with the Courts Order, Defendant Zuckerbergs counsel sent a letter to Plaintiffs counsel stating that Defendant would not comply with the Courts 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, Plaintiffs counsel sent an email to Defendants counsel Alexander Southwell inquiring when Plaintiff could expect Defendants compliance and production. On July 21, 2011, Mr. Southwell sent a reply email referring Plaintiffs counsels attention to the letter sent by Mr. Southwell on July 20, 2011 in which, through counsel, Defendant stated his refusal to comply with the Courts Order. (See Declaration of Nathan Shaman Made Pursuant to Local Rule 7(d)(4), attached hereto as Exhibit E.) Defendants failure to comply with the Courts 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 Courts 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 Courts Order. (See Exhibit A.) The Courts 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 Plaintiffs production and certification. (Order at 2-3.) Plaintiffs production and certification was effected by July 15, 2011. (See Exhibits A and B) Pursuant to the Order, Defendants 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 Courts Order on or before July 20, 2011. Defendants 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 Courts Order. The Courts Order as it pertains to setting Defendant Zuckerbergs production deadlines is clear and unambiguous. Simply put, Defendants 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 Defendants failure to comply with the Courts Order is admitted and volitional as well as willful and ongoing. (See Exhibit C.) While Defendants actions may certainly be considered sanctionable under long-established decisional authority, Plaintiff seeks only Defendants compliance with the Courts Order. Defendants 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 Courts Order is there any mention of a precondition that operates to excuse Defendant of his respective duty to comply with the Courts Order. Moreover, nowhere in the Courts Order is there any language predicating Defendants production and certification obligations on Defendants satisfaction with Plaintiffs 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 Plaintiffs 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 Defendants 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 Courts Order. A partys 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 partys failure to obey an order of the Court. Id. Defendant Zuckerberg remains bound by the Courts July 1, 2011 Order, and the Court should enforce his compliance with its terms. Defendants willing refusal to comply with the obligations imposed on him by the Courts 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 Plaintiffs 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. Dated: July 25, 2011 Respectfully submitted, s/Jeffrey A. Lake Attorney for Plaintiff 835 Fifth Avenue, Suite 200A San Diego, CA 92101 (619) 795-6460 jlake@lakeapc.com s/ Paul Argentieri Attorney for Plaintiff 188 Main Street Hornell, NY 14843 (323) 919-4513 paul.argentieri@gmail.com
Exhibit A
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DECLARATION OF JEFFREY A. LAKE Civil Action No. 1:10-cv-00569RJA
Jeffrey A. Lake, being over the age of 21, and pursuant to this Courts 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 Courts order dated July 1, 2011. 2. All computers and electronic media in Plaintiffs 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.
Exhibit B
DECLARATION OF PAUL D. CEGLIA Civil Action No. 1:10-cv-00569RJA
I, Paul D. Ceglia, being over the age of 21, and pursuant to this Courts 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 Courts Order regarding Expedited Discovery dated July 1, 2011. 2. As required by the Courts 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
iii. 1075 CD/DVDs iv. An electronic image of a one (1) Seagate 120GB internal hard drive SN: 3JT1JQF6 C. As currently possessed by Paul Argentieri, Esq. in Buffalo, New York i. One Compaq SR5000 computer SN: 3CR8190BXZ with Samsung hard drive, SN: S19JJ1DQ400135. 3. I hereby certify that all such computers and electronic media are being produced
for inspection to Defendants on July 15, 2011and that such computers and electronic media contain all the electronic communications I have had with Defendants regarding the claims set forth in the First Amended Complaint for this matter filed on April 11, 2011. I hereby certify and declare under penalty of perjury that the foregoing is true and accurate. DATED: July 15, 2011 /s/ Paul D. Ceglia__ Paul D. Ceglia
Exhibit C
Exhibit D
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 Plaintiffs Motion to Compel Defendant Zuckerbergs Compliance with the Courts Order of July 1, 2011 (Motion to Compel) and hereby declares under penalty of perjury: 1. 2. I am counsel of record for Plaintiff Paul Ceglia in the above-captioned matter. Plaintiff has complied with this Courts 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, Defendants counsel faxed a letter addressed to me stating that
Defendant would not comply with the Courts 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, Plaintiffs efforts to obtain
Defendants compliance with the Courts Order have been unsuccessful.
5.
As of the time of filing of Plaintiffs Motion to Compel, Defendant has not
produced the emails or handwriting samples required by the Courts Order. 6. As of the time of filing of the Motion to Compel, and to the best of Plaintiffs
knowledge and belief, Defendant Zuckerberg has not filed his Certification of Good-Faith Efforts either by service or through the Courts ECM/ECF system. I hereby certify and declare under penalty of perjury that the foregoing is true and accurate. DATED: July 25, 2011 /s/ Jeffrey A. Lake
Exhibit E
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 Plaintiffs Motion to Compel Defendant Zuckerbergs Compliance with the Courts 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 Defendants counsel Alexander Southwell
whether Defendant had produced the emails in accordance with the Courts 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.
4.
The July 20, 2011 Letter from Mr. Southwell contained Defendants refusal to
comply with the Courts July 1, 2011 Order. I hereby certify and declare under penalty of perjury that the foregoing is true and accurate. DATED: July 25, 2011 s/ Nathan Shaman
[PROPOSED] ORDER GRANTING PLAINTIFFS MOTION TO COMPEL Civil Action No. 1:10-cv-00569RJA
THIS MATTER having come before the Court on Plaintiffs Motion to Compel Defendant Zuckerbergs Compliance with the Courts 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 Plaintiffs Motion to Compel Defendant Zuckerbergs Compliance with the Courts 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 Courts 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 Courts July 1, 2011 Order.
SO ORDERED this ____ day of __________, 2011. __________________________ Honorable Leslie G. Foschio United States Magistrate Judge
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK x : : : : : : : : : : x
PAUL D. CEGLIA, Plaintiff, vs. MARK ELLIOT ZUCKERBURG and FACEBOOK, INC., Defendants.
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 Zuckerbergs Compliance with the Courts Order of July 1, 2011, which caused a Notice of Electronic Filing to be served electronically on all counsel of record in this case.
Dated: July 25, 2011 Respectfully submitted, s/ Jeffrey A. Lake_______ Attorney for Plaintiff 835 5th Avenue, Suite 200A San Diego, CA 92101 (619) 795-6460 jlake@lakeapc.com

Ceglia Motion To Compel

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Case 1:10-cv-00569-RJA -LGF Document 91

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DECLARATION OF JEFFREY A. LAKE Civil Action No. 1:10-cv-00569RJA

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DECLARATION OF PAUL D. CEGLIA Civil Action No. 1:10-cv-00569RJA

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK x : : : : : : : : : : x

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

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