Opinion

Alison Frankel

Facebook challenger’s new lawyer: I’m not afraid of Gibson Dunn

By Alison Frankel
November 3, 2011

On Thursday, the Buffalo federal court judge overseeing Paul Ceglia’s claim to own half of Facebook — by virtue of a 2003 contract he claims CEO Mark Zuckerberg signed as a Harvard undergraduate — is expected to enter an order directing Ceglia to return from Ireland to produce crucial undisclosed computer evidence, and to answer Facebook’s withering questions about the authenticity of the contract and his own failures to comply with previous court directives.

For Facebook’s lawyers at Gibson, Dunn & Crutcher, this order, which follows a three-hour hearing Wednesday, is the latest success in a string of rulings that express the judge’s concern with the evidence offered by Ceglia, an upstate New York wood-pellet salesman who decamped to Ireland in the face of Facebook’s relentless attacks. Facebook’s lead lawyer, Orin Snyder of Gibson, said that when Ceglia finally produces the evidence ordered Thursday, his purported two-page contract with Zuckerberg will be indisputably exposed as a fraud.

But Ceglia’s latest lawyer — who joined the case about two weeks ago, after four other firms resigned over the last year — told me in a long interview Wednesday evening that he and Ceglia have turned the tables on Facebook and Gibson Dunn. In the face of sanctions motions by Facebook, California solo Dean Boland filed retorts accusing Facebook and Gibson Dunn of tampering with the original contract between Ceglia and Zuckerberg, who did some coding work for Ceglia before founding Facebook, and with Zuckerberg’s Harvard email account. Facebook and Gibson have argued, very persuasively, that the Harvard email records prove Ceglia fabricated a series of emails between him and Zuckerberg to bolster his false account of their contract.

But Boland insisted to me that Ceglia’s experts have verified the authenticity of the two-page contract that purportedly gives his client rights to half of Zuckerberg’s billion-dollar company. In fact, he said, the sworn testimony of those experts is why he was willing to take on a representation that so many other lawyers — including DLA Piper and former New York State Attorney General Dennis Vacco – have walked away from.

“I’d be an idiot as a lawyer and tactician and strategist if that didn’t concern me,” he said. “Like any other lawyer, before I took on this case I did due diligence. I was confident I was relying on someone who is telling the truth. And I relied on two experts who know the documents, and who are telling me it is authentic. … If I’m suspicious I ask questions. If I don’t get answers, I’m out of here.”

Boland said he was persuaded by Ceglia’s experts’ findings on the aligned staple holes on the two-page contract, which, according to him, prove the two pages were stapled together. (Facebook has argued that Ceglia created a false first page and attached it to a signed second page that made no mention of Facebook.) He also said Ceglia’s experts concluded the ink on the two pages of the document match, and the toner cartridge is relatively rare. “If my client created the [allegedly fabricated first page] he had to be holding onto a printer and cartridge from 2005,” Boland said. (He offers a full explanation of the Ceglia expert testimony, complete with videos, at his blog.) “There is no evidence the contract is anything but authentic,” Boland asserted. “[Facebook counsel] Mr. Snyder hasn’t offered a single fact that it’s not authentic. As the judge said Wednesday, that silence is deafening.”

I’ve always considered the evidence from Zuckerberg’s Harvard email account to cast the biggest shadow on Ceglia’s story. Ceglia had offered a series of purported emails between him and Zuckerberg, in which he and the then-Harvard undergraduate discuss the launch of Facebook. But when Gibson Dunn retrieved Zuckerberg’s emails from Harvard’s server, none of the purported Ceglia emails appeared — even though dozens of other emails between Ceglia and Zuckerberg, in which Zuckerberg hounded Ceglia for money he earned as a coder, did show up. Gibson Dunn’s forensic analysts eventually determined that the emails Ceglia quoted in court filings don’t appear as e-mails on any of the computers he has turned over to the defense, but show up only in a Word file in which Ceglia claims to have cut and pasted the emails.

“I agree — if my client is lying about those emails, it’s pretty devastating,” Boland told me Wednesday. “Why would you have to make up the emails if you have the contract?” But in one of the sanctions motions Boland filed Tuesday, he asserted that Zuckerberg’s own forensic analysts conceded that emails listed on the Harvard account in 2010 had disappeared by the time the Harvard records were turned over to Ceglia. Moreover, he said, Zuckerberg has previously admitted, in a deposition in another Facebook case, to backdating a document. “No one can read this and say this is a person who is honest,” Boland said.

Boland told me Ceglia is happy to return from Ireland to produce additional evidence and answer Facebook’s questions. “Everything they wanted, my client is not shying away from,” he said. “He’s got a contract. He’s got a case.”

That’s one view of where things stand. Thursday morning I got an alternate reality from Snyder. He first addressed Boland’s assertion that Zuckerberg somehow deleted emails from the Harvard server. Snyder supplied me with a sworn declaration from the forensic expert Boland cited as the basis of the claim of email tampering. The expert, Bryan Rose, explained that the initial automated review of the Zuckerberg Harvard records suggested 17 emails appeared in the earlier account but not the later version. But when the forensic team rechecked the records by hand, all 17 were accounted for. Minor formatting discrepancies, Rose said, were responsible for the preliminary failure to match the emails.

“There are no missing emails from the Harvard account,” Snyder said. “That baseless claim has been entirely refuted by forensic evidence.”

Snyder also said Ceglia’s purported document experts cannot explain why Facebook found an original version of Ceglia’s contract with Zuckerberg on Ceglia’s computers — and that version does not refer to Facebook, but to Streetfax, the Ceglia Internet project on which he employed Zuckerberg. Ceglia has alleged that Facebook planted that contract on his computer — but Snyder said the Streetfax contract has also turned up on the computer of a Sidley Austin lawyer to whom Ceglia sent it in 2004. (Here’s a memo explaining that.)

“We now know why Ceglia resisted turning over the computers to us,” Snyder said. “They contain the authentic contract, which has nothing to do with Facebook. That exposes this entire case to be a fraud.”

Snyder said that once Ceglia returns from Ireland to face Gibson Dunn’s questions, the case will be over. “Their most recent arguments are delusional,” he said. “These are the desperate acts of a plaintiff who has been exposed as a fraud and whose case is collapsing around him.”

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