The legal team for Paul Ceglia fired back at Facebook’s request to dismiss an ongoing lawsuit claiming that their client owns one-half of the social network, stating, among other things, that the plaintiffs were not given comparable time for discovery.
The opposition, filed with the U.S. District Court for the Western District of New York, repeatedly claims that Facebook’s request for dismissal was based on “disputed factual issues,” and that the social network’s legal team has “engaged in — and completed — months of broad, one-sided discovery,” while the plaintiff, Ceglia, has had no opportunity for discovery at all:
Defendants’ motion to stay discovery assumes that the court will grant their motion to dismiss, such that it would be unfair and unnecessary to subject them to discovery. Given that defendants have taken months to prepare the motion to dismiss, which involves hundreds of pages of submissions prepared after many months of one-sided discovery, it is not realistic to expect plaintiff to respond to its merits (or lack thereof) without discovery and on the expedited schedule established for the motion to stay. Nonetheless, it should be noted that plaintiff’s experts’ testimony already in the record supports the authenticity of the work for hire contract, underscoring the disputed facts and expert testimony at issue in this case. Accordingly, defendants’ summary judgment motion masquerading as a motion to dismiss must be denied.
Facebook Co-Founder and Chief Executive Officer Mark Zuckerberg’s June 1 statement that he did not sign a work for hire contract with Ceglia was front-and-center, as it was the basis for Facebook’s request for dismissal, but Ceglia’s team stressed the need for time for discovery, saying:
The motion to dismiss raises numerous other material fact issues, many of which can only be resolved by obtaining evidence in defendants’ possession, custody, or control, including, but not limited to:
- The location, condition, and terms of Zuckerberg’s copy of the contract between the parties;
- Whether defendants’ expert opinions are sufficient to satisfy the Daubert standard;
- When Zuckerberg conceived of Facebook;
- Whether the contract involved any work for Facebook, i.e., whether work for StreetFax was used for both websites;
- When Facebook went live and how (and by whom) the website was viewed during its development;
- What caused the contract to appear aged or degraded — whether mishandling during testing, “baking,” or something else;
- What caused the alleged “clip marks” in the contract; and
- The authenticity of the emails that have been cited and quoted in the course of this litigation, including why Mr. Ceglia and Mr. Zuckerberg have differing email records, and discovery of the records and record retention practices of Harvard and Mr. Zuckerberg.
Also on the subject of the disputed contract, the filing by Ceglia’s team pointed out that one expert witness for Facebook, Gerald LaPorte, claimed that ink sampled from the document was “less than two years old,” but another expert on Facebook’s side disputed that finding.
Ceglia’s case against Facebook and Zuckerberg looked dead in the water for a while and, while it still appears to be shaky, the plaintiffs seem to be gaining some momentum, particularly with last month’s announcement that prestigious law firm Milberg LLP was on board.
Grab a Snickers, folks: We’re going to be here a while.