The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
This action was referred to the undersigned by Honorable Richard J. Arcara on May 27, 2011 for pretrial matters. The action is presently before the court on Plaintiff's motion to strike Defendants' expert witness report (Doc. No. 499), filed August 22, 2012.
In this action, Plaintiff Paul D. Ceglia ("Plaintiff"), alleges that a "Work for Hire" contract ("the purported contract"), purportedly executed on April 28, 2003 by Plaintiff and Defendant Mark Elliott Zuckerberg ("Zuckerberg"), established a partnership for the development and commercialization of two separate internet business ventures including "The Face Book," the social-networking website now known as Defendant Facebook, Inc. ("Facebook"), and StreetFax ("StreetFax"), a project which Plaintiff was developing and hoped to market for profit. The purported contract provides, as relevant here, Plaintiff would assist in funding Facebook's development in exchange for "a half interest (50%) in the software, programming language and business interests derived from the expansion of that service to a large audience." First Amended Complaint (Doc. No. 39) ("Amended Complaint") ¶ 1. Plaintiff asserts seven claims for relief alleging breach of fiduciary duty, actual and constructive fraud, and breach of contract. Defendants contend the purported contract is a forgery, and that the real contract executed on April 28, 2003, is a two-page document titled "StreetFax" ("the StreetFax document"), containing the entire agreement reached by Plaintiff and Zuckerberg on April 28, 2003, which provided that Zuckerberg, in exchange for monetary payment from Plaintiff, would perform programming work for Plaintiff's StreetFax project. A copy of the StreetFax document was located as an attachment to an email within the memory of one of Plaintiff's computers during a forensic examination performed by Defendants' digital forensics and electronic evidence experts Stroz Friedberg, LLC ("Stroz Friedberg"), in July 2011 in connection with this action.*fn2
On March 26, 2012, Defendants filed two dispositive motions, including a motion to dismiss (Doc. No. 318) ("Motion to Dismiss"), and for judgment on the pleadings (Doc. No. 320) ("Motion for Judgment") (together, "Defendants' Dispositive Motions"), and also moved to stay discovery pending resolution of the Dispositive Motions (Doc. No. 322) ("Motion to Stay"). In a Minute and Order entered on April 4, 2012 (Doc. No. 348) ("April 4, 2012 Order"), the undersigned granted the Motion to Stay in part, gave Plaintiff 60 days in which to file expert reports opposing Defendants' Motion to Dismiss, after which both Plaintiff and Defendants had two months in which to depose the experts, following which Plaintiff was given two months in which to file his opposition to Defendants' Dispositive Motions, and Defendants thereafter had 30 days in which to file any reply. On August 3, 2012, all parties joined in a motion (Doc. No. 468) requesting a ten-day extension of the deadline set by the April 4, 2012 Order. By Text Order dated August 6, 2012 (Doc. No. 471) ("August 6, 2012 Order"), the joint motion was granted, and the deadline to conclude expert depositions was extended from August 4, 2012 to August 14, 2012, with the other deadlines also extended by 10 days.
The Motion to Dismiss is predicated on Defendants' argument that the
purported contract is a forgery, such that Plaintiff, by filing and
litigating the instant action, has perpetrated a fraud on the court,
and that Plaintiff has engaged in litigation misconduct including,
inter alia, the willful destruction of critical and relevant evidence.
Defendants' Motion to Dismiss relies in large part on the reports of
Defendants' experts including, as
relevant to the instant motion, a report prepared by forensic document
examiner and handwriting expert Gus R. Lesnevich ("Lesnevich"), dated
March 25, 2012. Expert Report of Gus R. Lesnevich, Forensic Document
Examiner ("Initial Report"), filed March 26, 2012, as Exh. E (Doc. No.
329), to Defendants' Motion to Dismiss. In his Initial Report,
Lesnevich concluded that during the course of this litigation,
Plaintiff has proffered at least two different versions of the
purported contract, including one that was attached to the original
complaint, and a different one produced to Plaintiff's expert for
examination in January 2011, and then to Defendants' experts for
examination in July 2011. This conclusion was reached after Lesnevich
analyzed four separate electronic images of the purported contract,
including (1) an image in TIF file format*fn3 sent by
Plaintiff to his attorney, Paul A. Argentieri, Esq. ("Argentieri"), on
June 27, 2010 ("Q-1"); (2) an image attached to the original complaint
filed June 30, 2010 ("Q-2"); (3) an image taken by Plaintiff's expert,
Valerie Aginsky ("Aginsky"), during Aginsky's January 13, 2011
examination of the purported contract ("Q-3"); and (4) an image taken
by Defendants' forensic document examiner expert Peter V. Tytell
("Tytell"), during Defendants' July 14, 2011 examination of the
purported contract presented by Argentieri ("Q-4").*fn4
In his Initial Report prepared based on his analysis of the
four images, Lesnevich identified 20 dissimilarities among the four
images, all found on page 1 of the purported contract. The types of
dissimilarities Lesnevich observed
include dissimilarities as to (1) slant/slope of individual letters
and numbers, Initial Report at 3-10; (2) letter formation or design of
the letters, id. at 11-14; (3) letter spacing or placement on the
document, id. at 15-20; (4) beginning/ending strokes, id. at 21-22;
(5) height-relationship, id. at 23-26; and (6) alignment of the
handwritten interlineations with certain typeface letters, id. at
27-29. Both Q-1 and Q-2 contained the same dissimilarities on page 1
as Q-3 and Q-4, leading Lesnevich to conclude two different versions
of the purported contract had been proffered, with Q-1 and Q-2 being
different images of the version attached as an exhibit to the original
complaint ("first version"), and Q-3 and Q-4 being different images of
the version proffered for examination by Plaintiff's expert Aginsky
and Defendants' experts ("second version").
For example, one of the "slant/slope dissimilarities" Lesnevich observed was that in "the word 'May' in the questioned handwritten interlineations . . . the legs of the letter "M" run parallel to each other on Exhibits Q-1 and Q-2. However, on Exhibits Q-3 and Q-4, the legs of the letter "M" do not run parallel to each other." Initial Report at 3-4 and Fig. 2 at 6. With regard to letter spacing or placement on the document, Lesnevich "examined the number '2003' in the questioned handwritten interlineations and found that the space between the numeral '2' and the numeral '0' on Exhibits Q-1 and Q-2 is significantly smaller than the space between the numeral '2' and the numeral '0' on Exhibits Q-3 and Q-4." Initial Report at 15 and Fig. 12 at 18.
In accordance with the April 4, 2012 Order, on June 4, 2012, Plaintiff filed his expert reports with exhibits, including Plaintiff's expert witness reports (Doc. No. 415) ("Doc. No. 415"). On June 19, 2012, Plaintiff moved to strike Doc. No. 415 and all related exhibits, requesting permission to refile Doc. No. 415 with redacted exhibits, and the motion was granted by a text order entered June 20, 2012 (Doc. No. 450). By order entered June 26, 2012, Plaintiff re-filed Doc. No. 415, redacted, as the Declaration of Forensic Document Examiner James A. Blanco in Support of Plaintiff's Forthcoming Response to Defendants' Motion to Dismiss for Fraud (Doc. No. 459) ("Blanco Report"), attached to which are the reports of Plaintiff's other experts.
After preparing his Initial Report, Lesnevich continued to examine the four images based on which Lesnevich prepared a Supplemental Report ("Supplemental Report") (Doc. No. 472-1). In the Supplemental Report, Lesnevich particularly focused on the second pages of the four copies of the purported contract, on which 12 dissimilarities were noticed. Consistent with the dissimilarities found among the four copies of page 1, Q-1 and Q-2 contained the same dissimilarities on page 2 as Q-3 and Q-4, corroborating Lesnevich's conclusion in the Initial Report that Plaintiff has proffered at least two different versions of the purported contract during this litigation. The types of dissimilarities Lesnevich observed include dissimilarities as to (1) beginning/ending strokes, Supplemental Report at 6-14; (2) letter formation or design of the letters, id. at 15-30; and (3) letter spacing or placement on the document, id. at 31-33. Lesnevich also examined the handwritten signatures, signature dates, and initials on Exhibit Q-3, being one of the two copies of the second version of the purported contract and, more specifically, the image taken by Plaintiff's expert, Aginsky during Aginsky's January 13, 2011, physical examination of the purported contract, and compared such handwritings to known handwriting exemplars of Zuckerberg. Lesnevich "observed significant evidence of changes in direction, hesitation, unnatural writing movement, poor line quality, angular writing movements, differences in letter formation and design, and beginning stroke dissimilarities in the questioned Zuckerberg signature and date of signature on Exhibit Q-3." Supplemental Report at 34. Lesnevich concluded "that the questioned Zuckerberg signature and date of signature on Exhibit Q-3 were slowly drawn and not naturally written." Id. In particular, Lesnevich found with regard to Zuckerberg's signature (1) line quality dissimilarities, Supplemental Report at 34-38; (2) letter formation or design of letters, id. at 39-32; (3) hesitation, id. at 44-48; and (4) retouching dissimilarities, id. at 49-50. As to Zuckerberg's initials, Lesnevich found (1) tapered and blunt ending strokes, Supplemental Report at 51-52; (2) slant/slope dissimilarities, id. at 53-56; and (3) vertical-alignment dissimilarities, id. at 57-60. Lesnevich also compared Ceglia's signature and date of signature on Exhibit Q-3 to known Ceglia handwriting exemplars, and concluded "the questioned Ceglia signature and date of signature one Exhibit Q-3 were slowly drawn and not naturally written." Supplemental Report at 61. In particular, Lesnevich found dissimilarities as to (1) pen pressure and line quality, id. at 61-67; (2) tapered and blunt ending strokes, id. at 68-70; and (3) re-touching, id. at 71-72.
Similar to the Initial Report, Lesnevich concluded that Plaintiff "has proffered at least two different physical documents as the Work for Hire document," Supplemental Report at 73, and with respect to Exhibit Q-3, the questioned Zuckerberg signature, initials, and date of signature on the purported contract "are unnaturally written tracings that were not written by Mark Zuckerberg," id. at 73-74, and the questioned Ceglia signature and signature date on the purported contract "are unnaturally written tracings" that "could have been modeled off of another source," including Exhibits Q-1 and Q-2. In short, Lesnevich determined Zuckerberg's purported signature and date on page 2 and initials on page 1 were "trace forgeries."
While Lesnevich continued to examine the four images of the purported contract, expert depositions were noticed and conducted by the parties, with Defendants noticing and conducting depositions of all eight of Plaintiff's experts, but Plaintiff, despite noticing eleven depositions of Defendants' experts, only deposed five, and canceled the other six depositions. Lesnevich was one of the six Defendants' experts whose depositions had been noticed and then canceled by Plaintiff. Specifically, after scheduling Lesnevich's deposition for August 8, 2012, Plaintiff's attorney, Dean Boland, Esq. ("Boland"), informed Defendants' attorney, Alexander H. Southwell, Esq. ("Southwell"), by email on August 6, 2012, that Plaintiff had decided not to depose Lesnevich, and wanted to advise Defendants of such decision before Lesnevich spent time traveling to New York for the deposition. In response, Southwell informed Boland that the deposition cancellation notice was sent too late, and that Lesnevich was already en route to New York for the deposition at which Lesnevich had anticipated providing Plaintiff with Lesnevich's Supplemental Report. On August 9, 2012, Defendants filed the Supplemental Report, five days before the scheduled close of expert depositions based on the April 4, 2012 Order, as extended by the August 6, 2012 Order. Plaintiff made no attempt to reschedule Lesnovich's deposition, nor did Plaintiff request more time to consider Lesnevich's findings contained in the Supplemental Report; rather, on August 21, 2012, Plaintiff filed his response in opposition to Defendants' Motion to Dismiss (Doc. No. 481).
On August 22, 2012, Plaintiff filed the Motion to Strike New Expert Reports (Doc. No. 499) ("Plaintiff's motion"), supported by Motion to Strike New Expert Reports and for Order Prohibiting the Filing of New Expert Reports in Support of Defendants' Motion to Dismiss for Fraud on the Court (Doc. No. 500) ("Plaintiff's Memorandum"). On September 21, 2012, Defendants filed Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Strike New Expert Reports and for Order Prohibiting the Filing of New Expert Reports in Support of Defendants' Motion to Dismiss for Fraud on the Court (Doc. No. 548) ("Defendants' Response"), and the Declaration of Amanda M. Aycock, Esq. (Doc. No. 549) ("Aycock Declaration"). On ...