Now, it’s Facebook’s turn: The social network filed its rebuttal to the filing by Paul Ceglia’s legal team on Facebook’s request to dismiss Ceglia’s lawsuit, inferring that Ceglia is using his request for comparable time for discovery as a delaying tactic, and saying that the plaintiff and his lawyers continue to ignore the most compelling piece of evidence in the case.
The smoking gun Facebook is referring to is the authentic contract between Ceglia and Facebook Co-Founder and Chief Executive Officer Mark Zuckerberg related to StreetFax, and not Facebook.
Here are some of the key points from Facebook’s filing, with today’s hearing under way:
Plaintiff Paul Ceglia’s opposition to defendants’ stay motion confirms three critical points, each of which establishes that Ceglia is not entitled to plenary discovery.
First, this is the second time that Ceglia has asked this court to authorize wide-ranging discovery in the face of defendants’ showing that the entire lawsuit is a fraud.
In June 2011, defendants sought expedited discovery based on a good-cause showing that the work for hire document attached to Ceglia’s amended complaint and the alleged emails quoted within it were complete fabrications. Ceglia objected to defendants’ request and sought broad discovery of his own on an array of collateral issues. This court correctly rejected Ceglia’s objections, ordering the limited discovery defendants sought concerning Ceglia’s fraud based on the substantial showing they made.
The discovery that defendants sought is now substantially complete — despite Ceglia’s ongoing obstructionist tactics, necessitating five separate, successful motions to compel. And, just as defendants represented to the court, discovery has revealed conclusive proof that both the work for hire document and the alleged emails are forgeries
If the so-called reciprocal discovery Ceglia sought from defendants was unwarranted in July 2011, based only on defendants’ good-cause showing of fraud, such discovery is certainly unjustified now in light of the overwhelming evidence of fraud defendants have obtained and presented to the court in their motion to dismiss. Indeed, allowing Ceglia to obtain today discovery he was not entitled to in July 2011 would perversely reward him for his ongoing efforts to derail the discovery process to keep his spurious lawsuit alive, and penalize defendants for fulfilling their promise to prove that Ceglia’s lawsuit is a lie.
Second, Ceglia’s renewed request for plenary discovery is notable for what he does not say. Incredibly, but tellingly, nowhere in his 17-page brief cataloging a laundry list of supposed factual disputes does Ceglia mention — let alone deny or explain — the smoking-gun evidence that ends this case: the authentic StreetFax Contract, discovered in emails Ceglia sent to Jim Kole in 2004, which conclusively proves that the work for hire document is a fake. No further discovery can possibly be justified in light of that incontrovertible proof of his fraud.
Third, Ceglia pretends that defendants’ motion to dismiss is merely a summary judgment motion in disguise. But simply incanting the phrase “summary judgment” a dozen times in his brief does not magically transform defendants’ filing into a Rule 56 motion.
In short, Ceglia’s opposition establishes that plenary discovery is still unwarranted. He has failed to show that any additional discovery is necessary for him to respond to defendants’ motions. His claim that discovery to date has been “one-sided” is a gross distortion, as he had access to the work for hire document and his own electronic files before bringing this lawsuit, and was granted additional discovery by the court.
If the court concludes that Ceglia is entitled to some additional discovery to respond to defendants’ motions, however, such discovery should be narrowly tailored to the relevant forensic issues raised in defendants’ motion to dismiss.
Finally, it is critical to emphasize that Ceglia does not come to these proceedings with clean hands. He has willfully disobeyed this court’s orders for nine months, tampered with and spoliated evidence (including the work for Hire document on which his suit is based, and USB devices), tried to conceal the true StreetFax contract, and directed his lawyers to disregard court orders. On these facts, the court would be well within its discretion to deny any discovery, and any discovery request by Ceglia must be evaluated in light of his litigation misconduct to date.
Things are starting to heat up. What will today’s hearing bring? Stay tuned.
Image courtesy of Shutterstock.