RICO Madness ECF 283

US_ACTIVE-122340287

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND

(Baltimore Division)

____________________________________

BRETT KIMBERLIN, )

)

Plaintiff, )

)

v. ) Civil Action No. 13cv3059-GJH

)

NATIONAL BLOGGERS CLUB, et al., )

)

Defendants. )

____________________________________)

MOTION TO QUASH SUBPOENA DUCES TECUM

SERVED ON INTERMARKETS, INC., OR IN THE ALTERNATIVE

FOR PROTECTIVE ORDER

Non-Party Intermarkets, Inc. (Intermarkets), by counsel, and pursuant to Federal Rules

of Civil Procedure 26 and 45, requests that this Court quash the Subpoena Duces Tecum served

on Intermarkets, Inc. by the Plaintiff, Brett Kimberlin, or in the alternative, issue a Protective

Order preventing the production or disclosure of the documents requested by the Subpoena

Duces Tecum. The basis for this Motion is set forth in a memorandum being filed concurrently

herewith.

Case 8:13-cv-03059-GJH Document 283 Filed 06/09/15 Page 1 of 2

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Dated: June 9, 2015 Respectfully submitted,

INTERMARKETS, INC.

By Counsel

REED SMITH LLP

/s/ Stephen T. Fowler

Stephen T. Fowler, Esq. (Md. Bar No. 16881)

3110 Fairview Park Drive Suite 1400

Falls Church, Virginia 22042

(703) 641-4200

(703) 641-4340 FAX

[email protected]

Counsel for Intermarkets, Inc.

CERTIFICATE OF SERVICE

I hereby certify that on June 9, 2015, a true and correct copy of the foregoing will be filed

using the Courts ECF system, which will then send a notification of such filing to all counsel of

record.


Stephen T. Fowler, Esq.(Md. Bar No. 16881)



(703) 641-4200

(703) 641-4340 FAX

[email protected]


Case 8:13-cv-03059-GJH Document 283 Filed 06/09/15 Page 2 of 2

US_ACTIVE-122340367

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND

(Baltimore Division)

____________________________________

BRETT KIMBERLIN, )

)

Plaintiff, )

)

v. ) Civil Action No. 13cv3059-GJH

)

NATIONAL BLOGGERS CLUB, et al., )

)

Defendants. )

____________________________________)

MEMORANDUM IN SUPPORT OF

MOTION TO QUASH SUBPOENA DUCES TECUM

SERVED ON INTERMARKETS, INC. OR IN THE ALTERNATIVE

FOR PROTECTIVE ORDER

Non-Party Intermarkets, Inc. (Intermarkets), by counsel, and pursuant to Federal Rules

of Civil Procedure 26 and 45, submits its Memorandum in Support of Motion to Quash

Subpoena Duces Tecum Served on Intermarkets, or in the alternative, for Protective Order

(Motion).

INTRODUCTION

Plaintiff Brett Kimberlin served a subpoena duces tecum on Intermarkets on June 3, 2015

that requested any documents relating to now-dismissed Defendant, Ace of Spades, in order to

ascertain the identity of any blogger associated with the now-dismissed Defendant Ace of

Spades. On March 17, 2015, the Court dismissed Plaintiffs claims against Ace of Spades and

all other defendants, with the exception of Assistant District Attorney Patrick Frey. Plaintiffs

remaining civil rights claim against Defendant Frey, a government actor, have no relevance to

the records related to Ace of Spades sought by Plaintiffs subpoena. Plaintiff, of course knew

that Ace of Spades had been dismissed when he requested the issuance of the subpoena at issue

Case 8:13-cv-03059-GJH Document 283-1 Filed 06/09/15 Page 1 of 8

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two months later. With Ace of Spades no longer a defendant in this action, Plaintiffs subpoena

is an obviously improper attempt to access Intermarkets confidential business records and use

this litigation as a vehicle to identify any blogger associated with Ace of Spades.

That the subpoena is improper is further demonstrated by the fact that on March 17,

2015, the Court denied Plaintiffs Motion to Identify any blogger associated with Ace of Spades

as moot because the Court dismissed Ace of Spades from this action. With full knowledge that

this Court had already ruled that information relating to Ace of Spades was no longer relevant to

this case, Plaintiff nonetheless caused the subpoena to be issued thereby engaging in a clear

end-run around the Courts decision. The Court should not countenance such conduct and

should quash Plaintiffs subpoena.

BACKGROUND

On June 24, 2014 Plaintiff Brett Kimberlin (Plaintiff) filed his Second Amended

Complaint naming Ace of Spades as a defendant. (Dkt. 135.) On or about October 24, 2014

Defendant Ace of Spades filed a motion to dismiss, a corrected version of which was filed on

October 27, 2014. (Dkts. 213, 216.) Every other defendant in the action filed motions to dismiss.

(Dkts. 136, 140, 147, 148, 149, 152, 156, 180, 184, 190, 213, 216, 238, 255.) On or about

December 12, 2014, Plaintiff filed a Motion to Identify Defendant Ace of Spades seeking to

identify the blogger associated with defendant Ace of Spades. (Dkt. 232.)

On or about March 17, 2015, the Court granted Defendant Ace of Spades Motion to

Dismiss holding that Plaintiff failed to state a claim against Ace of Spades. (Dkts. 263, 264.) On

that same day, the Court also granted every other motion dismiss except for Assistant District

Attorney Patrick Freys motion to dismiss, which the Court granted in part and denied in part.

(Id.) As a result, only Defendant Frey remained in the case after March 17, 2015, and only


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Plaintiffs 42 U.S.C. 1983 claim against Defendant Frey remained in the case after March 17,

2015. (Id.) Furthermore, having dismissed Defendant Ace of Spades from the case on March 17,

2015, the Court denied Plaintiffs Motion to Identify Defendant Ace of Spades as moot. (Dkt.

264.) Then, on May 21, 2015, four days after the Court dismissed Defendant Ace of Spades

from the action, Plaintiff requested the subpoena duces tecum seeking documents from

Intermarkets related to the dismissed Defendant Ace of Spades. See Subpoena to Intermarkets

(attached as Exhibit A.) Given this factual backdrop, Plaintiffs subpoena must be quashed or a

protective order precluding the disclosure of any documents must be issued because (1) Ace of

Spades is no longer a defendant in this action; (2) the only remaining claim in this action is a

civil rights claim against a government actor, and this claim has no relevance to Ace of Spades;

(3) Plaintiffs subpoena seeks Intermarkets confidential information; and (4) Plaintiffs

subpoena is an end-run around the Courts denial of Plaintiffs Motion to Identify Defendant Ace

of Spades.

Accordingly, for the reasons more fully stated below, Plaintiffs subpoena must be

quashed or a protective order must be issued precluding the disclosure of any documents.

ARGUMENT

I. Ace of Spaces is No Longer a Defendant in this Action

Plaintiffs subpoena must be quashed or a protective order issued because the subpoena

seeks irrelevant documents related to Ace of Spades a defendant who the Court dismissed

from this action on March 17, 2015. (Exhibit A.) A party only may obtain discovery regarding

any nonprivileged matter that is relevant to any partys claim or defense Fed. R. Civ. P.

26(b). On March 17, 2015, the Court granted Ace of Spades Motion to Dismiss the Second

Amended Complaint. (Dkt. 264.) In doing so, the Court held that Plaintiff failed to state a claim


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against Ace of Spades (Dkt. 263), and consequently, the Court dismissed defendant Ace of

Spades from the action.

Plaintiffs subpoena seeks:

[a]ll documents related to the blog Ace of Spades, or person associated with the

blog Ace of Spades, and the person responsible for billing for the blog called Ace

of Spades, which has a url at http://www.ace.mu.nu/.

(Exhibit A.) Plaintiffs subpoena unquestionably seeks documents regarding a defendant no

longer in the action, and therefore, seeks irrelevant information. Accordingly, Plaintiffs

subpoena must be quashed or a protective order must be issued because the subpoena seeks

irrelevant information.

II. The Only Claim Remaining in This Action is a 1983 Claim Against A

Government Actor

Further, Plaintiffs subpoena must be quashed or a protective order issued because the

only remaining claim in this action is a civil rights claim under 42 U.S.C. 1983 against a

government actor. As noted above, a party may only obtain discovery on relevant information.

Fed. R. Civ. P. 26(b). The civil rights claim remaining in this action has no relationship to Ace

of Spades, whose records Plaintiff seeks. The only remaining defendant in this action is Patrick

Frey, who is an Assistant District Attorney for the Los Angeles County District Attorneys

Office. (Dkt. 263 at 25.) Plaintiff alleged in his Second Amended Complaint that Mr. Frey

violated his civil rights. (Id.) This civil rights claim is unique to Patrick Frey and is completely

separate from the dismissed allegations against Ace of Spades.1 Having only a civil rights claim

remaining against a government actor, Plaintiff has no reason or need to subpoena records

relating to now-dismissed claims against a separate and distinct defendant.

1

Plaintiffs subpoena acknowledges on its face that the now-dismissed Defendant Ace of Spades is a blog, not a

government actor.


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Accordingly, Plaintiffs subpoena must be quashed or a protective order must be issued

because Intermarkets records related to Ace of Spades have no relevance to the remaining

1983 claim against Defendant Frey.

III. Plaintiffs Subpoena Seeks Intermarkets Confidential Information

Plaintiffs subpoena also must be quashed or a protective order must be issued because

Plaintiffs subpoena seeks Intermarkets confidential commercial information. Federal Rule of

Civil Procedure 45 requires a court to quash a subpoena when the subpoena requires disclosure

of privileged or other protected matter Fed. R. Civ. P. 45(3)(A)(iii). Further, Rule 45 permits

a court to quash a subpoena if it requires disclosing a trade secret or other confidential research,

development, or commercial information. Fed. R. Civ. P. 45(d)(3)(B). Likewise, under Rule

26(c), a court may, for good cause, issue an order to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense, including[by] forbidding the

disclosure or discovery.

Intermarkets enters into business transactions with websites and internet blogs that value

anonymity, and it is central to Intermarkets business that the identity of the website owners or

internet blogs remain anonymous. As a result, Intermarkets agrees to keep its agreements and

records with website owners or internet blogs confidential. If Intermarkets is forced to reveal

documents which disclose the identity of anyone associated with the blog Ace of Spades, it

will be forced to disclose confidential records. Furthermore, websites and internet blogs will be

less likely to use Intermarkets in the future resulting in damage to Intermarkets future business.

Accordingly, under Rules 26 or 45, Plaintiffs subpoena must be quashed or a protective order

must be issued because Plaintiffs subpoena seeks confidential information.


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IV. Plaintiffs Subpoena is an End-run Around His Motion to Identify Ace of Spades

Finally, Plaintiffs subpoena must be quashed or a protective order issued because

Plaintiff is using the subpoena as an end-run around the Courts decision to deny Plaintiffs

Motion to Identify Defendant Ace of Spades. Before the Court granted Ace of Spades Motion

to Dismiss, and dismissed Ace of Spades from this action, Plaintiff filed a Motion to Identify

Defendant Ace of Spades (Dkt. 232). When the Court determined that Plaintiff failed to state a

claim against Ace of Spades and dismissed Ace of Spades from this action (Dkts. 263-64), the

Court denied Plaintiffs Motion to Identify Defendant Ace of Spades as moot. (Dkt. 264.)

Plaintiff requested the subpoena seeking records related to Ace of Spades well after

Defendant Ace of Spades was dismissed from this action. See Exhibit A (noting a subpoena issue

date of May 21, 2015). Plaintiff unquestionably knew on May 21, 2015 that the Court dismissed

Ace of Spades from the action two months prior. Consequently, Plaintiffs subpoena merely is

an improper attempt to discover the identity of the blogger associated with Ace of Spades. The

Court already denied Plaintiffs Motion to Identify as moot presumably because the claims

against Ace of Spades had been dismissed. The subpoena must be quashed because the identity

of Ace of Spades is now moot, and Intermarkets should not be forced to disclose any confidential

documents that will disclose the identity of anyone associated with Ace of Spades. Accordingly,

Plaintiffs subpoena must be quashed or a protective order must be issued because Plaintiff is

using the subpoena as an end-run around the Courts denial of Plaintiffs Motion to Identify.

CONCLUSION

For the foregoing reasons, Intermarkets, Inc. respectfully requests the Court to enter an

Order quashing Plaintiffs subpoena duces tecum, or in the alternative, for the Court to issue a

protective order.


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Dated: June 9, 2015 Respectfully submitted,

INTERMARKETS, INC.

By Counsel

REED SMITH LLP


Stephen T. Fowler, Esq. (Md. Bar No. 16881)



(703) 641-4200

(703) 641-4340 FAX

[email protected]



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CERTIFICATE OF SERVICE

I hereby certify that on June 9, 2015, a true and correct copy of the foregoing will be filed

using the Courts ECF system, which will then send a notification of such filing to all counsel of

record.


Stephen T. Fowler, Esq.(Md. Bar No. 16881)



(703) 641-4200

(703) 641-4340 FAX

[email protected]



Documents

RICO Madness ECF 283