In a strange case I reported on a few months ago, a Western NY man is claiming he was an original partner of Mark Zuckerberg’s in Facebook. He claimed he had a signed contract and emails to and from Zuckerberg proving his claim. FB immediately shot back and called the whole claim a fraud and further alleged that the documents themselves were fraudulent.
Checking back in on the case yesterday, I learned that the fight is raging on and getting very nasty. As part of its proof that that the plaintiff’s claims are fraudulent, FB’s lawyers submitted volumes of electronic data searching, expert reports, affidavits, all showing that the emails plaintiffs claims he sent and received from Zuckerberg are nowhere to be found. It seems plaintiff’s lawyers did a little digging and found that as part of the lawsuit between Connect U and FB (that was the subject of the movie The Social Network) five computer drives belonging to FB were preserved as evidence pending the lawsuit. They were scheduled to be destroyed at the end of this year. The plaintiff’s lawyer also found that the lawyers for FB in the Connect U case (who also represent the company in this case) have been sending letters to their adversaries asking them to destroy the drives as son as possible. He has now filed a motion for sanctions and penalties for their failure to disclose that these additional hard drives existed and for continuing to seek their destruction even though this case is still pending and those drives may contain important evidence for plaintiff’s claims. In fact, one of the drives sought is from Mark Zuckerberg’s original Harvard dorm room computer from which he created and launched the site.
The motion was just filed and FB’s lawyers have yet to respond to these serious allegations. While plaintiff’s lawyer, Dean Boland, is prone to hyperbole and his writing is bit too over-the-top dramatic for my taste (Dean -no exclamation points are ever necessary in legal writing -what’s next ALL CAPS?) he makes some pretty strong arguments that FB’s lawyers knew about these drives and not only hid them, but sought their destruction.
There’s alot at stake here. Plaintiff claims he has a signed contract with Zuckerberg giving him 50% of FB for an initial cash investment and help with the project. A battle of experts has been raging over the authenticity of the document and even that has gotten nasty. But if plaintiff can prove that FB was playing unfair and trying to destroy evidence, he may not need to prove much, especially if the drives are preserved and they contain the emails he claims he has. A federal judge could technically sanction FB by striking their answer and awarding the case directly to the plaintiff. While that’s unlikely, federal courts take electronic discovery and preservation of electronic discovery very seriously and do give out very harsh penalties for not playing by the rules. Lets see what happens once FB’s lawyers have their say.