The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
This case 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 Defendants' Eighth and Ninth Motions to Compel (Docs. Nos. 511 and 521), respectively filed September 5 and 7, 2012.
The original complaint in this action was filed on June 30, 2010, in New York Supreme Court, Allegany County. On July 9, 2010, Defendants removed the action to this court asserting subject matter jurisdiction based on diversity. The parties to this action dispute the authenticity of a "Work for Hire" contract ("the purported contract")*fn2 allegedly executed between Plaintiff Paul D. Ceglia ("Plaintiff") and Defendant Mark Elliot Zuckerberg ("Zuckerberg"), on April 28, 2003, pursuant to which Plaintiff and Zuckerberg, then a student at Harvard University ("Harvard"), 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"), an on-line database project which Plaintiff was developing and hoped to market for profit. The purported contract provides that Plaintiff would hire Zuckerberg to perform web programming for StreetFax, and Plaintiff would help fund the development of Facebook in exchange for a one-half interest in Facebook. In an Amended Complaint filed April 11, 2011 (Doc. No. 39), 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 agreement reached by Plaintiff and Zuckerberg on April 28, 2003, providing that Zuckerberg, in exchange for monetary payment from Plaintiff, would perform programming work for Plaintiff's StreetFax project, but makes no mention of Facebook.
On June 2, 2011, Defendants moved (Doc. No. 44) ("Defendants' discovery motion") to stay general discovery, but to permit Defendants to conduct expedited discovery limited to that necessary to determine the issue of the purported contract's authenticity. On June 17, 2011, Plaintiff filed a cross-motion (Doc. No. 56) ("Plaintiff's discovery motion") for mutual expedited discovery, albeit limited to the purported contract's authenticity. By Order filed July 1, 2011 (Doc. No. 83) ("July 1, 2011 Expedited Discovery Order"), Defendants' discovery motion was granted and Plaintiff's discovery motion was granted in part and denied in part. As relevant to the instant motions, the July 1, 2011 Expedited Discovery Order directed Plaintiff to produce on or before July 15, 2011, "all copies of the purported contract in hard-copy form, created on or before June 30, 2010." July 1, 2011 Expedited Discovery Order at 1. A Hard-Copy Document Inspection Protocol filed July 1, 2011 (Doc. No. 84) ("Hard-Copy Document Inspection Protocol"), governs how Plaintiff's production and Defendants' examination of the hard-copy documents will be conducted. According to the Electronic Asset Inspection Protocol, so-ordered by the undersigned on July 1, 2011 (Doc. No. 85) ("Electronic Asset Inspection Protocol"), Defendants' digital forensics and electronic evidence experts, Stroz Freidberg, LLC ("Stroz Friedberg"), were to be permitted to search and examine Plaintiff's electronic assets, and to examine the materials located by such searches in order to identify only documents, data, fragments, and artifacts that reasonably appear to be related to authenticity of the purported contract attached to the Amended Complaint and the purported emails described in the Amended Complaint.
Electronic Asset Inspection Protocol ¶ 3.
A Joint Stipulated Protective Order (Doc. No. 86) ("Protective Order"), filed July 13, 2011, provides that a party to this action 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).
Although a copy of the purported contract is attached as an exhibit to the Amended Complaint, a copy of a document titled "Street Fax" ("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 Stroz Friedberg, in July 2011 during their search of Plaintiff's electronic assets.
By Order filed August 18, 2011 (Doc. No. 117) ("August 18, 2011 Order"), the undersigned directed Plaintiff to, inter alia, identify "all electronic versions of any emails or purported emails by and among Defendant Zuckerberg, Plaintiff and/or other persons associated with StreetFax ("Emails"). . . ." August 18, 2011 Order ¶ 2(C). If any such emails were no longer in Plaintiff's "possession, custody, or control," Plaintiff was to "provide a detailed account of the non-existence, loss, or destruction of each such item, including the approximate date on which each item was lost, destroyed, or otherwise disposed of." Id. ¶ 2. Each email file identified by Plaintiff was to "be produced in their native format." Id. ¶ 3. Plaintiff's experts were to "produce directly to Defendants all electronic copies of any Contract in their possession, custody, or control," id. ¶ 3(A) and Plaintiff, similarly, was to "produce directly to Defendants all electronic copies or images of any Contract in the possession, custody, or control of Plaintiff's attorneys or other agents." Id. ¶ 3(B).
On March 26, 2012, Defendants filed two dispositive motions, including a motion to dismiss the action as a fraud perpetrated on the court (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 general 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, but granted Plaintiff expert discovery limited to that necessary to prepare Plaintiff's responses in opposition to Defendants' Dispositive Motions.
Statements within the Declaration of Paul Argentieri, Esq. (Doc. No. 484) ("Argentieri Declaration"), filed August 21, 2012, in opposition to Defendants' Motion to Dismiss indicate the creation of at least four hard-copies of the purported contract which have not been produced for Defendants' inspection, including (1) a copy Plaintiff made in June 2010 when Plaintiff "took the original Facebook Contract that was examined in July 11 by Defendants [sic] experts, and copied it on a grocery store copier near his home in Wellsville, New York," Argentieri Declaration ¶ 14 (first copy); (2) which Plaintiff then scanned to convert into an electronic file to attach to the email sent to Argentieri who, in preparation of the original complaint for filing, printed the attached electronic file and attached the printed copy of the purported contract as an exhibit to the complaint, id. ¶¶ 3-7 and 15 (second copy); and (3) of which Argentieri, using Argentieri's office copier machine, then made "multiple copies" for service on both Defendants to this action, id. ¶¶ 8-11 (at least third and fourth copies). In a letter to Plaintiff's attorney Dean Boland ("Boland") dated September 4, 2012, Defendants' attorney Alexander H. Southwell ("Southwell"), requested Plaintiff produce by 5:00 P.M. on September 5, 2012, the hard-copies of the purported contract as described in the Argentieri Declaration, or Defendants would file a motion to compel their production.
On September 5, 2012, Defendants filed Defendants' Eighth Motion to Compel (Doc. No. 511) ("Eighth Motion to Compel"), supported by Defendants' Memorandum of Law in Support of Their Eighth Motion to Compel and for Other Relief (Doc. No. 512) ("Defendants' Memorandum- Eighth Motion to Compel"), and the Declaration of Alexander H. Southwell, Esq. (Doc. No. 513) ("Southwell Declaration - Eighth Motion to Compel") with attached exhibits A through C ("Defendants' Eighth Motion to Compel Exh(s). __").
In an email to Southwell dated September 6, 2012, Boland denied that the Argentieri Declaration established the existence of additional, undisclosed hard-copies of the purported contract made prior to the commencement of this action. Boland further advised that Plaintiff was aware of his ongoing duty to supplement discovery, and that there are no documents within the custody or possession of Plaintiff or his counsel that have not yet been produced. On September 7, 2012, seeking to compel production of the additional hard-copies of the purported contract, Defendants filed Defendants' Ninth Motion to Compel (Doc. No. 521) ("Ninth Motion to Compel"), supported by Defendants' Memorandum of Law in Support of Their Ninth Motion to Compel and for Other Relief (Doc. No. 522) ("Defendants' Memorandum - Ninth Motion to Compel"), and the Declaration of Alexander H. Southwell (Doc. No. 523) ("Southwell Declaration - Ninth Motion to Compel"), with exhibits A and B ("Defendants' Ninth Motion to Compel Exh(s). __").
On September 10, 2012, Defendants filed a motion seeking to extend the time in which to file their reply in further support of their Motion to Dismiss (Doc. No. 525) ("Defendants' Motion to Extend Time to Reply"). Included in the papers Plaintiff filed on September 12, 2012 in opposition to Defendants' Motion to Extend Time to Reply were the Declaration of Paul Ceglia (Doc. No. 535) ("Ceglia Declaration Opposing Motion to Extend Time"), and the Declaration of Paul Argentieri, Esq. (Doc. No. 536) ("Argentieri Declaration Opposing Motion to Extend Time").
On September 14, 2012, Plaintiff filed responses to both the Eighth and Ninth Motions to Compel. Specifically, Plaintiff filed the Memorandum in Opposition to Defendants' Eighth Motion to Compel (Doc. No. 540) ("Plaintiff's Response - Eighth Motion to Compel"), with an attached exhibit ("Plaintiff's Eighth Motion to Compel Exhibit"), and the Declaration of Jason Holmberg (Doc. No. 541) ("Holmberg Declaration"). Plaintiff also filed his Response in Opposition to Ninth Motion to Compel (Doc. No. 543) ...