June 24, 2011 3:19 PM

The Winklevoss Twins Press On

Posted by Jan Wolfe

From The Litigation Daily

Cameron and Tyler Winklevoss aren't taking their Facebook claims to the U.S. Supreme Court, but that doesn't mean the twins have given up. On Thursday, one day after declaring that they wouldn't ask the high court to overturn a decision by U.S. Court of Appeals for the Ninth Circuit refusing to undo their $65 million settlement with Facebook, the twins told a judge they'd seek discovery on whether Facebook hid evidence from them, possibly breathing new life into their epic court battle with CEO Mark Zuckerberg.

The Winklevosses, with new counsel from Berkeley-based Meade & Schrag, filed a status report Thursday in their long-dormant Boston federal district court trade secrets case against Facebook and its founder. Despite their decision not to appeal the Ninth Circuit's decision, Meade & Schrag's Tyler Meade wrote in the filing, the twins will ask for discovery under Rule 60 of the federal rules of civil procedure on whether Facebook suppressed instant messages in which a young Zuckerberg brags to a friend about duping the Winklevosses. Depending on the results of that inquiry, they may ask Judge Douglas Woodlock to reopen the case.

Zuckerberg has admitted to writing the messages, and The New Yorker reported last year that higher-ups at Facebook reviewed some of them as early as January 2006. "If true, this raises a serious issue as to whether or not plaintiffs were deprived of critical evidence for over two years leading up to the February 2008 mediation," the twins lawyers at Meade & Schrag wrote in an April court filing. Until now, however, the twins' new lawyers haven't been able to get their hands on the discovery files compiled by the Winklevosses' former counsel at Finnegan, Henderson, Farabow, Garrett & Dunner.

"These are old and baseless allegations that have been considered and rejected previously by the courts," said counsel for Facebook Neel Chatterjee, of Orrick, Herrington & Sutcliffe, through a spokesperson.

Meanwhile, as previously reported, another plaintiff is making new trouble for Facebook and Zuckerberg. Paul Ceglia, a 37-year old businessman from upstate New York, emerged in April with the remarkable claim that Zuckerberg sold him a 50 percent stake in Facebook eight years ago. Ceglia's purported evidence, including what he says are e-mails from Zuckerberg, convinced DLA Piper to take the case. But Facebook's lawyers at Gibson, Dunn & Crutcher have called Ceglia's suit a "fraud on the courts."

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