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Ceglia Motion

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Ceglia Motion Opposing Sanctions

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									     Case 1:10-cv-00569-RJA -LGF Document 153                 Filed 10/07/11 Page 1 of 4



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

 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
                  TO THE ISSUANCE OF SANCTIONS

                                                 I.

         CEGLIA SHOULD NOT PAY FOR DEFENDANTS’ MISDEEDS

       F.R.C.P. 37(a) provides,

       If the motion [to compel] is granted . . . the court must, after giving an opportunity
       to be heard, require the party or deponent whose conduct necessitated the motion,
       the party or attorney advising that conduct, or both to pay the movant's reasonable
       expenses incurred in making the motion, including attorney's fees. But the court
       must not order this payment if:
       (i) the movant filed the motion before attempting in good faith to obtain the
       disclosure or discovery without court action;
       (ii) the opposing party's nondisclosure, response, or objection was substantially
       justified; or
       (iii) other circumstances make an award of expenses unjust.

(Emphasis added). The Advisory Committee determined that an award of expenses would

be unjust “where the prevailing party also acted unjustifiably.” F.R.C.P. 37 advisory

committee’s note (1970).

       As discussed in more detail in Plaintiff’s Motion to Set Delayed Briefing Schedule (Doc.

No. 134) and the documents that accompanied it, Defendants blatantly violated Ceglia’s privacy,

this Court’s orders, and applicable state and federal law by disclosing Ceglia’s email accounts
     Case 1:10-cv-00569-RJA -LGF Document 153               Filed 10/07/11 Page 2 of 4



and passwords to the public. No award of damages to Ceglia or any other sanction against

Defendants will ever be able to undue this irreparable harm. Eventually, Ceglia will ask this

Court to repair some of the integrity lost to the legal system by preventing Defendants from

relying on any of the emails. However, for now the Court can at least refuse to award expenses to

Defendants for bringing the very motion that resulted in the violations of Ceglia’s privacy.

Hopefully, such a decision will deter Defendants from future malicious conduct like what has

happened here with Ceglia’s email accounts and in the past when Defendants “accidentally”

published redacted material and discussed protected material in violation of the Joint Stipulated

Protective Order. (See Doc. No. 95.)

                                           II.

 CEGLIA’S ATTORNEYS SHOULD NOT BE SANCTIONED BECAUSE THEY

          PLAYED NO PART IN VIOLATING THE COURT’S ORDER

       Ceglia originally complied with the Order by providing his email accounts and

passwords to Stroz Friedberg on August 29, 2011 as required by the August 18 Order.

(Declaration of Nathan Shaman 2, ¶ 4.) However, Defendants and Stroz Friedberg

rendered that information useless when they violated Ceglia’s privacy. Absent their

misconduct, Stroz Friedberg would have had access to Ceglia’s email accounts

immediately upon Judge Arcara’s Order overruling Ceglia’s objections (Doc. No. 145).

However, Ceglia was forced to execute and deliver new consent forms with his recently

changed passwords. (Shaman Decl. 2-3, ¶¶ 10-12.) Therefore, a substantial portion of the

delay was a result of Defendants’ unsavory and inexcusable tactics.

       Both of the attorneys with the primary responsibility for assisting Ceglia in

complying with the Court’s August 18, 2011 Order (Doc. No. 117) (August 18 Order)



                                                 2
     Case 1:10-cv-00569-RJA -LGF Document 153                   Filed 10/07/11 Page 3 of 4



repeatedly contacted Ceglia throughout August and September to remind him of his

continuing obligations to comply with the August 18 Order. (See Declaration of Jeffrey

A. Lake & Shaman Decl.) Initially, Ceglia refused to comply with the August 18 Order.

(Lake Decl. 1, ¶ 2.) As such, Ceglia’s attorneys moved to stay the August 18 Order (Doc.

No. 118) pending objections, but Judge Arcara denied the request. (Shaman Decl. 1, ¶ 3.)

However, Ceglia eventually agreed to turn over his information on the condition that

Stroz Friedberg would not have access until Judge Arcara ruled on the forthcoming

objections. (Lake Decl. 1-2, ¶ 4.) Therefore, Ceglia complied as required on August 29,

2011. (Shaman Decl. 2, ¶ 4.) However, pursuant to Ceglia’s wishes, that same day,

Ceglia’s attorneys again moved to stay the August 18 Order (Doc. No. 126). (Id. 2, ¶ 5.)

The motion was denied. (Id.)

       After Judge Arcara overruled Ceglia’s objections (Doc. No. 145), Ceglia’s

attorneys asked him to turn over his email accounts along with his new passwords, on the

forms provided by Stroz Friedberg. (Id. 2, ¶¶ 7-11.) Ceglia sent out the forms via DHL

Express on September 23, 2011. (Id. 3, ¶ 12.) Immediately after receiving them on

September 28, 2011, Ceglia’s attorneys emailed copies of the consent forms and mailed

the original consent forms to Stroz Friedberg. (Id. 3, ¶ 13.)




                                                  3
     Case 1:10-cv-00569-RJA -LGF Document 153                 Filed 10/07/11 Page 4 of 4



                                           III.

                                    CONCLUSION

       For the foregoing reasons, Plaintiff Paul D. Ceglia respectfully requests that the

Court refuse to award attorney’s fees to Defendants because of their misconduct and his

efforts to comply with the August 18 Order.



Dated: October 7, 2011

                                                      Respectfully submitted,

s/ Jeffrey A. Lake                                    s/ Paul Argentieri
Attorney for Plaintiff                                Attorney for Plaintiff
11650 Iberia Place, Suite 216                         188 Main Street
San Diego, CA 92128                                   Hornell, NY 14843
(858) 487-5253                                        (323) 919-4513
jlake@lakeapc.com                                     paul.argentieri@gmail.com




                                                  4
    Case 1:10-cv-00569-RJA -LGF Document 153-1                 Filed 10/07/11 Page 1 of 2



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


                          DECLARATION OF JEFFREY A. LAKE

       I, Jeffrey A. Lake, Esq. submit this Declaration in opposition to the issuance of sanctions

and hereby declare:

       1.      I am an attorney with the law firm of Lake, A.P.C., counsel for Plaintiff Paul D.

Ceglia. I am licensed to practice law before the courts of the state of California and the District

Court for the Western District of New York.

       2.      On August 18, 2011 I informed Mr. Ceglia that the Court had ordered him to

produce, among other things, accounts and passwords for all email accounts he had used since

2003. Mr. Ceglia instructed me not to comply with this provision and to bring the issue before

District Judge Arcara.

       3.      On August 26, 2011 I informed Mr. Ceglia of his continuing obligation to comply

with the Court’s August 18, 2011 Order (Doc. No. 117) (August 18 Order) by producing the

information concerning his email accounts by August 29, 2011.

       4.      On August 27, 2011 I again informed Mr. Ceglia of his continuing duty regarding

his email accounts. Mr. Ceglia authorized us to provide his email account information on
    Case 1:10-cv-00569-RJA -LGF Document 153-1                  Filed 10/07/11 Page 2 of 2



modified versions of the consent form provided by Stroz Friedberg. The consent form was

rewritten to condition consent on resolution of the forthcoming objections to Magistrate Judge

Foschio’s August 18 Order.


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

DATED: October 7, 2011

                                      s/ Jeffrey A. Lake____
                                      Jeffrey A. Lake




                                                 2
    Case 1:10-cv-00569-RJA -LGF Document 153-2                      Filed 10/07/11 Page 1 of 3



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


                         DECLARATION OF NATHAN A. SHAMAN

       I, Nathan A. Shaman, Esq. submit this Declaration in opposition to the issuance of

sanctions and hereby declare:

       1.      I am an attorney licensed to practice law in the State of California. I am an

associate attorney with Jeffrey A. Lake, A.P.C., counsel of record for Plaintiff Paul D. Ceglia in

the above-captioned matter. I make this declaration based upon personal knowledge.

       2.      On August 18, 2011 I informed Mr. Ceglia that we would file objections to

Magistrate Judge Foschio’s August 18, 2011 Order (Doc. No. 117) (August 18 Order) pursuant

to his instructions. (See Declaration of Jeffrey A. Lake 1, ¶ 2.)

       3.      On August 19, 2011 we filed a motion to stay the August 18 Order (Doc. No.

118). On August 26, 2011, District Judge Arcara denied that motion. That same day, I informed

Mr. Ceglia that the stay was denied and that he was still obligated to provide us the information

concerning his email accounts by August 29, 2011. Mr. Ceglia continued to refuse to comply

with the August 18 Order.
    Case 1:10-cv-00569-RJA -LGF Document 153-2               Filed 10/07/11 Page 2 of 3



       4.     On August 28, 2011 Mr. Ceglia provided me the email addresses and passwords

for his Gmail and MSN email accounts. In turn, I provided that information to Bryan Rose of

Stroz Friedberg on August 29, 2011 using the consent forms with modifications to allow for

resolution of our objections to Judge Foschio’s August 18 Order.

       5.     On August 29, 2011 we filed a motion to stay paragraph 5 of the August 18 Order

(Doc. No. 126). Judge Arcara denied that motion on August 30, 2011.

       6.     On September 1, 2011 Defendants filed an Accelerated Motion to Compel (Doc.

No. 128), asking the Court to compel Mr. Ceglia to comply with paragraph 5 of the August 18

Order. In blatant violation of the law and their ethical obligations, Defendants published Mr.

Ceglia’s email accounts and passwords to the world. As such, Mr. Ceglia was forced to change

his passwords the following morning after we informed him of Defendants’ egregious conduct.

       7.     On September 1, 2011 we filed objections to the August 18 Order (Doc. No. 131).

       8.     On September 2, 2011 we filed a motion to set a delayed briefing schedule on the

Accelerated Motion to Compel based on Defendants’ misconduct.

       9.     On September 16, 2011 Judge Arcara denied our objections to the August 18

Order (Doc. No. 145).

       10.    On September 19, 2011 I informed Mr. Ceglia of Judge Arcara’s decision and

asked him to execute new consent forms with his new email account information and to send out

those consent forms as soon as possible.

       11.    After receiving no response from Mr. Ceglia, I contacted him again on September

21, 2011 to request the same information.




                                               2
    Case 1:10-cv-00569-RJA -LGF Document 153-2                  Filed 10/07/11 Page 3 of 3



       12.     On September 23, 2011 Mr. Ceglia informed me that he would send out the new

consent forms that day. In fact, Mr. Ceglia sent out the consent forms via DHL Express that same

day. A true and correct copy of the DHL package label is attached hereto as Exhibit A.

       13.     On September 28, 2011, we received the consent forms from Mr. Ceglia.

Immediately upon receipt, I emailed scans of the consent forms to Mr. Rose at Stroz Friedberg.

A true and correct copy of that email is attached hereto as Exhibit B. The originals of the consent

forms were sent via registered mail that same day. A true and correct copy of the registered mail

receipt is attached hereto as Exhibit C.


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

DATED: October 7, 2011

                                      s/ Nathan Shaman____
                                      Nathan A. Shaman




                                                 3
Case 1:10-cv-00569-RJA -LGF Document 153-3   Filed 10/07/11 Page 1 of 1
                  Case 1:10-cv-00569-RJA -LGF Document 153-4                                                Filed 10/07/11 Page 1 of 1


Nathan Shaman

From:                                            Nathan Shaman <nshaman@lakeapc.com>
Sent:                                            Wednesday, September 28, 2011 11:18 AM
To:                                              brose@strozfriedberg.com
Cc:                                              jlake@lakeapc.com
Subject:                                         Ceglia v. Zuckerberg - Consent Forms
Attachments:                                     Signed Consent Forms.pdf



Dear Mr. Rose,

Attached you will find Mr. Ceglia’s consent forms for his Gmail and MSN email accounts. Pursuant to the Electronic
Asset Inspection Protocol, you are not permitted to divulge these forms or any of their contents to anyone other than
employees of Stroz Friedberg. This includes Facebook, Mark Zuckerberg, and any and all of their attorneys. We will
send out the original consent forms by U.S. mail today.

Very Truly Yours,

Nathan A. Shaman, Esq.
835 5th Ave., Ste. 200A
San Diego, CA 92101
Tel: (619) 795-6460
Fax: (619) 795-6478
nshaman@lakeapc.com




WARNING: This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521. It contains information from the law firm of Jeffrey A. Lake,
A.P.C. which may be privileged, confidential and exempt from disclosure under applicable law. Dissemination or copying of this e-mail and/or any attachments by
anyone other than the addressee or the addressee's agent is strictly prohibited. If this electronic transmission is received in error, please notify Jeffrey A. Lake A.P.C.
immediately at (619) 795-6460. Thank you.




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Case 1:10-cv-00569-RJA -LGF Document 153-5   Filed 10/07/11 Page 1 of 1

								
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