May 2017: California Court Issues Decision Regarding Protection of Statements to Press Regarding Litigation

In Argentieri v. Zuckerberg, 8 Cal. App. 5th 768 (1st Dist. 2017), the California Court of Appeal recently held that an attorney’s statements to the press summarizing the allegations of a complaint are protected by the “fair and true reporting privilege,” but not the litigation privilege. Argentieri and other similar cases suggest that attorneys should exercise caution in communications with outside parties regarding ongoing litigation. In general, attorneys should adhere closely in their statements to the allegations made in any filings, and avoid extemporizing. When attorneys are communicating with the press, the safest course is often to say nothing or simply to provide interested parties with copies of public filings.

The Ceglia/Facebook Case
Paul Argentieri served as counsel to Paul Ceglia in his lawsuit against Facebook and its founder, Mark Zuckerberg (Ceglia v. Zuckerberg, No. 10–CV–00569A(F) (W.D.N.Y. 2013)). Ceglia’s complaint alleged that he and Zuckerberg had entered into a written contract in 2003 providing that Zuckerberg would perform programming and coding services for a now-defunct website Ceglia was developing, and more importantly, that Ceglia would acquire a substantial interest in what would eventually become the social networking site Facebook. In response, Zuckerberg conceded that he had signed a work for hire contract in connection with work on Ceglia’s site, but he claimed that the subject of another website (what has now become Facebook) had never been raised. In fact, Zuckerberg contended that he had not even thought of the idea for the social networking site at the time of the contract.

In support of his claim, Ceglia attached to his complaint what he alleged was the contract signed by the parties. The document stated that Zuckerberg agreed to work on Ceglia’s site and to transfer part ownership of Facebook to Ceglia. During the proceeding, an e-discovery consultant that Argentieri’s co-counsel had retained to analyze the documents located a different version of the same contract, which had no mention of Facebook. This led Argentieri’s co-counsel to conclude that the version produced by Ceglia was fraudulent. The co-counsel immediately notified Argentieri of its findings, and withdrew as counsel for Ceglia.

Nevertheless, Argentieri signed and filed an amended complaint for Ceglia, which once again attached the apparently fraudulent contract as an exhibit. The amended complaint also included quotes from emails that allegedly had been exchanged between the parties regarding the agreement. Both parties filed motions for expedited discovery regarding the authenticity of the contract, and Zuckerberg also produced a copy of the...