ECF 330 Redacted

8/20/2019 ECF 330 Redacted

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'.01.

[/STR. . ,

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLAND

Southem Divisioll

--~

*BRETT KIMBERLIN,

*Plaintiff

*

v.

J. I'ATRICK FREY,

Defendant

*

*

*

CASE NO.: GJH-13-3059

* * * * * * * * * * * * * * *

MR. WALKER'S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL AND REQUESTFOR SHOW CAUSE ORDER (ECF NO. 324)

Now COMESnon-party Aaron J. Walker, Esq.,1 and files this Opposition to the Plaintiff's Motion

to Compel and Request for Show Cause Order (ECF No. 324) (hereafter "Motion to Compel") and states

the following:

I.

TilE PLAINTIFF DID NOT PROPERLY SERVE THE SUBPOENA ON MR. WALKER

I. The Plaintiff is not entitled to a motion to compel until he successfully serves Mr. Walker

in compliance with the rules and Mr. Walker has refused to comply. Fed. R. Civ. P. 45(b)(I) states in

relevant part as follows: "Any person who is at least 18 years old and not a party may serve a subpoena.

Serving a subpoena requires delivering a copy to the named person[.]" Sister courts have interpreted

this language as requiring actual service of a subpoena before a motion to compel can be granted as its

plain language suggests. See, e.g., /11 re Subpoena 10 Huawei Techs. Co., 720 F.Supp.2d 969 (N.D. III

I Mr. Walker refers to himself in the third person for stylistic purposes and to de-personalize this case.

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2010) (denying a motion to compel on Huawei Technologies, Co., Ltd. because they had not been

served).

2. The Plaintiff's service is insufficient as a matter of law. The Plaintiff claims to have

served Mr. Walker as follows: "On or about November 16, 2015, Plaintiff served that subpoena on

Walker via first class Priority Mail with a date of December 16,2015 for compliance. See Plaintiffs

Declaration at Exhibit B." It is worth noting that there is no Exhibit B, but there is a declaration which

essentially repeats the allegation that the Plaintiff mailed service to Mr. Walker on November 16.

3. First, whether he knows it or not, the Plaintiff has admitted that he did not serve Mr

Walker in compliance with Rule 45(b)(I). The Plaintiff repeatedly claims that he carried out service o

process himself, while Rule 45(b)(I) explicitly states that the person serving the subpoena cannot be a

party to the case. See Rule 45(b)(I) ("Any person who is... not a party may serve a subpoena.")

4. Second, in Benford v. American Broadcasting, 98 F.R.D. 40, 41 n. 5 (D. Md. 1983) this

Court held that service by mail was insufficient under Rule 45(b)(I); rather, service must be

accomplished by personal service. The Plaintiff should have hired a process server.

5. Third, the Plaintiff's claim that he sent Mr. Walker the subpoena is factually false. He

did no such thing. Mr. Walker did receive mail from the Plaintiff that appeared to be sent on or about

November 16,2015. It contained service of process for a large number of filings by the Plaintiff, largely

related to the current state court case of Kimberlin v. National B10ggers Club, et al (J1). No. 403868V

(Md. Mont. Co. Cir. Ct. 2015),2 but it contained no subpoena. Mr. Walker will leave it to the Court's

2 By way of background, this Court will recall that it declined to exercise supplemental jurisdiction over

state law claims in relation to all of the original Defendants in this case. This Court further advised the

PlaintitTthat he could re-file those claims in state court if they were not barred by collateral estoppel or

2

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judgment to detennine whether the Plaintiff has perjured himself (again) or is genuinely confused on th

subject, but Mr. Walker has not actually received the Plaintiffs subpoena. In any case, the Plaintiffs

self-serving3

allegation that he completed service should not be taken as credible given the "Plaintiffs

checkered past with representations to the Court" Letter Order of July 28, 2014, p. 3, n. 2 (ECF No

168). He has demonstrated that he is not to be trusted.

6. Not only do these three failures in regard to service of process preclude a motion to

compel, they also preclude any claim for contempt. Contempt in relation to subpoenas is governed by

Rule 45(g) which states in relevant part that "The court for the district where compliance is required .

may hold in contempt a person who, having been served, fails without adequate excuse to obey the

subpoena or an order related to it" (emphasis added). The Plaintiffs admitted (and factual) failure to

serve Mr. Walker bars any finding of contempt.

7. Therefore, with the Plaintiff having admitted that he did not properly serve Mr. Walker

and having not in fact delivered the subpoena to Mr. Walker, a motion to compel is not appropriate and

a finding of contempt is barred as a matter of law.

res judicata. Despite the fairly clear application of both doctrines, Kimberlin v. National Bloggers Club,

et al (11) mainly represents his attempt to re-file those state claims in Maryland state court.

J It is worth noting that Rule 45(b)(I)'s requirement that a non-party serve the subpoena on a person

appears to be based on the assumption that any claim that service is completed by a party is self-serving

and, therefore, inherently suspect. The Plaintiffs violation of this rule, therefore, is not a mere

technicality. Instead, his conduct has created precisely the kind of "he said, he said" dispute that the rule

makers wished to avoid.

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II.

THE SUBI'OENA IS UNENI"ORCEABLE BECAUSE IT IS OVERBROAD AND IMPOSES AN

UNDUE BURDEN UPON MR. WALKER, JUSTIFYING SANCTIONS UNDER

RULE 45(0)(1)

8. Even if the subpoena had been properly and actually served on Mr. Walker, the subpoena

cannot be enforced and, indeed, represents a sanctionable breach of the Plaintiffs duty to avoid unduly

burdensome subpoenas.

9. As a preliminary matter, as of December I, 2015, the rules of civil procedure have

changed. Where previously Rule 26(b)( I) arguably allowed for discovery if it "appears reasonably

calculated to lead to the discovery of admissible evidence," the new rule has deleted that phrase in it

entirety. This is how the rule reads today:

the scope of discovery is as follows: Parties may obtain discovery regarding any

nonprivileged matter that is relevant to any party's claim or defense and proportional to

the needs of the case, considering the importance of the issues at stake in the action, the

amount in controversy, the parties' relative access to relevant information, the parties'

resources, the importance of the discovery in resolving the issues, and whether the burden

or expense of the proposed discovery outweighs its likely benefit. Information within this

scope of discovery need not be admissible in evidence to be discoverable.

The reason for the deletion of the "reasonably calculated" language is explained In the official

commentary:

The former provision for discovery of relevant but inadmissible information that appears

"reasonably calculated to lead to the discovery of admissible evidence" is also deleted.

The phrase has been used by some, incorrectly, to define the scope of discovery. As the

Committee Note to the 2000 amendments observed, use of the "reasonably calculated"

phrase to define the scope of discovery "might swallow any other limitation on the scope

of discovery." The 2000 amendments sought to prevent such misuse by adding the word"Relevant" at the beginning of the sentence, making clear that "'relevant' means within

the scope of discovery as defined in this subdivision .... " The "reasonably calculated"

phrase has continued to create problems, however, and is removed by these amendments.

It is replaced by the direct statement that "Information within this scope of discovery

need not be admissible in evidence to be discoverable." Discovery of nonprivileged

information not admissible in evidence remains available so long as it is otherwise within

the scope of discovery.

4

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Adv. Comm. Notes-2015 Amend., Fed. R. Civ. P. 26. The plain import of these changes is to tighten

up the scope of discovery and rebuke the interpretation of the "reasonably calculated" language a

setting tbe outer edge of the scope of discovery. Meanwhile, Rule 45(d)(l) directs parties such as the

Plaintiff to "take reasonable steps to avoid imposing undue burden or expense on a person subject to the

subpoena" and that "The court for the district where compliance is required must enforce this duty and

impose an appropriate sanction-which may include lost earnings and reasonable attorney's fees-on a

party or attorney who fails to comply."

IO. Additionally, it is worth taking a moment to examine the Plaintiff's theory of the case as

it stands on this date, because one cannot determine what evidence might be relevant without first

determining what it must be relevant to. This case is not about whether Mr. Kimberlin SWATted Mr

Walker, Mr. Erickson, or any person other than Mr. Frey. Rather, the case is about Mr. Frey allegedly

engaging in a retaliatory investigation related to Mr. Frey's own SWATting. That is, the Plaintiff

alleges absurdly that rather than pursue the "real SWATter" and protect the public and his family from

future SWATtings, Mr. Frey took the occasion of a crime being committed against him to retaliate

against an allegedly innocent man, the Plaintiff, to punish the Plaintiff for complaints to Mr. Frey's

public employer.

II. Viewed in this light, the subpoena at issue is startling in its breadth. As quoted in Exhibit

A to the Plaintiff's Motion to Compel, it states that Mr. Walker must produce documents, electronically

stored information, or objects containing "All communication between you and Patrick Frey concerning

Brett Kimberlin from September 2011 through May 2013." The Plaintiff adds that this "includ[es] those

concerning swattings of you and Frey" but that is only a specific example of what he has requested: it is

not language limiting the scope of the subpoena. Indeed, that language is redundant. Therefore,

5

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properly understood, the Plaintiff is seeking all communications concerning Mr. Kimberlin in any way

between those two individuals in that time period.

12. According to the Plaintiff's subpoena, for example, if Mr. Frey and Mr. Walker

communicated regarding the abusive subpoena against Mr. Walker filed in Kimberlin v. Allen, No

339254V (Md. Mont. Co. Cir. Ct. 2011) that allegedly must be produced. If Mr. Walker and Mr. Frey

discussed efforts to keep their families safe from this convicted bomber, that allegedly must be

produced. If Mr. Walker and Mr. Frey discussed the merits of the two abusive peace orders that the

Plaintiff sought against Mr. Walker in that period, or the three criminal charges (all dismissed

voluntarily by the State of Maryland), that would be allegedly covered by the subpoena. However, none

of these communications that might or might not exist are relevant to the only question before this

Court: did Mr. Frey allow the person who SWATted him to go free while he directed a retaliatory

investigation against the Plaintiff?

13. Likewise, even discussions ofMr. Walker's own SWATting are irrelevant. Mr. Frey is a

California prosecutor. The crime committed against Mr. Walker was committed in Virginia. Mr. Frey

would have no power to direct any investigation by law enforcement in Virginia and there IS no

allegation in the surviving portions of the complaint that relate to Mr. Walker's SWATting.

14. Furthermore, the subpoena is duplicative and therefore presents an undue burden. For

instance, attached as Exhibit RC-3 is the second document request delivered to Mr. Frey's attorney, Ron

Coleman. It requests in relevant part that Mr. Frey provide: "A complete copy of any and all digital,

electronic or stored media containing any information related to Brett Kimberlin and swattings from

2010 through 2013, including hard drives, CDs, DVD and thumb drives" (emphasis in original).

Obviously, the term "any information related to Brett Kimberlin" would include documents containing

6

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"All communication between you [Mr. Walker] and Patrick Frey concerning Brett Kimberlin from

September 2011 through May 2013" as sought in the subpoena to Mr. Walker.

15. Meanwhile, attached as Exhibit RC-I is the interrogatories posed to Mr. Frey. In

interrogatory number 23, the Plaintiff instructs Mr. Frey to "State the dates, times, and subject matter o

your conversations with Aaron Walker concerning Brett Kimberlin before during [sic] and after your

swatting incident, and provide copies of those communications." Since there is no time limitation

asserted in relation to the time "before" or "after" Mr. Frey's SWATting the time frame is unlimited.

For instance, technically, Mr. Frey was born "before" his SWATting. Likewise, technically, yesterday

was "after" his SWATting. Therefore, requesting a catalogue of all communications "before[,] during

and after" Mr. Frey's SWATting is to request a catalogue of all communications, period. Further, even

if it was deemed improper to make a request for documents in an interrogatory, the first set of document

production requests included a request for "All documents identified, referenced, or relied upon in

Defendants' Answers to Plaintiff's First Set of Interrogatories and/or concerning the subject matter o

said Interrogatories, and all documents requested in said Interrogatories." See RC-2. So, therefore, the

Plaintiff has already asked Mr. Frey to provide copies of all communications between Mr. Walker and

Mr. Frey long before he obtained the instant subpoena. There is no reason to obtain these documents

twice, and therefore the entirety of the subpoena violates the Plaintiff's duty to avoid imposing an undue

burden on Mr. Walker.

16. Indeed, it is even significantly redundant with prior discovery requests directed to Mr.

Walker in another case. Attached as Exhibit DB- I is the document request filed against Mr. Walker by

Mr. Kimberlin in the case of Walker v. Kimberlin, No. 12000631-00 CPr. Wm. Co. Cir. Ct. 2012), a

Virginia case. As this Court can see, the Plaintiff asked Mr. Walker to "Produce all records of

7

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correspondence in any form Plaintiff has had with any other party regarding Defendant Kimberlin since

January 1,2011." This was interpreted by Mr. Walker to include communications between Mr. Walker

and Mr. Frey regarding the instant Plaintiff, and since that case ended on December 4, 2012, i

represents a prior disclosure of precisely the same material in that time period. So, in essence, the

Plaintiff has asked Mr. Walker to produce the same documents that Mr. Frey was required to produce

and many of the same documents that Mr. Walker had already previously produced.

17. This is not permitted by the Rules. Rule 26(b)(2)(C) governs when this Court must limit

discovery as follows:

(2) Limitations on Frequency and Extent ....

(C) When Required. On motion or on its own, the court must limit the

frequency or extent of discovery otherwise allowed by these rules or by

local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or

can be obtained from some other source that is more convenient,

less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain

the information by discovery in the action; or

(iii) the proposed discovery is outside the scope permitted by Rule26(b)( I).

Both Rule 26(b)(2)(C)(i) and (ii) are implicated by the instant facts. The discovery is deeply

duplicative. Additionally, the Plaintiff has had ample opportunity to obtain the information by discovery

from Mr. Frey. Upon information and belief, Mr. Frey has complied when appropriate and objected

when appropriate and will comply with any motion to compel that this Court might issue as appropriate.

Thus, the Plaintiff has received, or will receive, any documents he is entitled to from Mr. Frey regarding

any correspondence with Mr. Walker and has no need to obtain the same infonnation from Mr. Walker

8

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as well. Therefore, this Court must deny any motion to compel this subpoena-Rule 26(b)(2)(C)(i) and

(ii) are not discretionary rules.

18. Likewise, a duplicative subpoena violates Rule 45(d)( I), which requires the Plaintiff to

avoid imposing an undue burden on third parties such as Mr. Walker. The same rule also states tha

"The court for the district where compliance is required must enforce this duty[.]" Id. This is again a

non-discretionary rule, requiring the Court to enforce the duty-by refusing to enforce the subpoena.

See, e.g., EI/io/l v. Superior Pool Prods., LLC, No. l5-cv-1126 at *5 (C.D. Ill., October 7, 2015)

("Ordering NEXTCHEX to produce duplicate records is unnecessary and would impose an undue

burden on NEXTCHEX"); Bada Co. v. MontgomelY Ward & Co., 32 F.R.D. 208,209-10 (S.D. Cal

1963) (a non-party "should not be burdened with the annoyance and expense of producing the

documents sought unless the plaintiff is unable to discover them from the defendant"); and Countryman

v. Community Link Federal Credit Union, 2012 WL 1143572, at *5 (N.D. Ind. April 3, 2012) ("A

party's ability to obtain documents from a source with which it is litigating is a good reason to forbid i

from burdening a non-party with production of those same documents").

19. However, that is not all that this provision requires: the entire sentence says: "The court

for the district where compliance is required must enforce this duty and impose an appropriate

sanction-which may include lost earnings and reasonable attorney's fees-on a party or attorney who

fails to comply." id. (emphasis added). Mr. Walker asks for this Court to impose such sanctions at this

time in a separate motion filed simultaneously with this opposition, including $500 for lost earnings as

he was forced to respond to his frivolous motion to compel, rather than serve paying c1ients4

4 Mr. Walker does not ask for attorneys' fees because there is doubt that a pro se is entitled to them.

However, nothing in the statutory language indicates that Mr. Walker cannot be compensated for his

9

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20. Finally, Mr. Walker notes that he doesn't know at this time how many documents ar

responsive to the subpoena and whether any privilege or other objection applies to them. He asks to

reserve such document-specific objections for the future, should any subpoena be upheld implicating

such potential objections5

21. Accordingly, this Court should refuse to compel enforcement of the subpoena for the

additional reason that it is wholly duplicative of other discovery and, therefore, places an undue burden

on Mr. Walker. Further, Mr. Walker is entitled to sanctions to compensate him for lost earnings and

suggests a sanction of not less than $500 as well be laid out in a separate motion.

CONCLUSION

22. The Plaintiff is not only not entitled to a motion to compel or a finding of contempt, bu

the Plaintiffs behavior in relation to the subpoena has itself been sanctionable. First, the Plaintiff did

not in fact serve the subpoena on Mr. Walker. Second, the Plaintiff admits he did not properly serve the

subpoena on Mr. Walker, claiming that he attempted to perform service himself and attempted to

perform such service by mail in violation of Rule 45(b)(l). In addition, the Plaintiff violated his duty to

avoid imposing an undue burden under Rule 45( d)( I) on Mr. Walker by seeking a subpoena that i

time just like the average plumber. The fact that Mr. Walker happens to work in the legal profession

should not give him less right to recover than other persons.

5 Mr. Walker's reasoning in deciding not examine the documents to determine if any issue of privilege

or other objection applied, now, is as follows. It is an axiom of law that one has a duty to mitigate the

damage they seek to pass to another person. Mr. Walker believes that the subpoena is so clearly

duplicative that it is highly unlikely to be enforced and that Mr. Walker would be entitled to sanctions

including lost wages to compensate him for his time. If he also went through every document that might

be responsive, that will add a great deal to those lost wages, but if Mr. Walker is right-that this Court

will not enforce such a clearly duplicative subpoena-then that would have been a wasted effort. Thus,

to avoid the potential waste of Mr. Walker's time-which then Mr. Walker would want compensation

from the Plaintiff for-Mr. Walker asks to reserve this issue in the unlikely event that the Plaintiff is

allowed to obtain any documents subpoenaed from Mr. Walker.

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entirely duplicative with two document requests directed to Mr. Frey, and partially duplicative with a

document request in a prior case involving Mr. Walker. The Plaintiff's failure to avoid imposing an

undue burden in tum imposes two duties on this Court. First, this Court must enforce the duty to avoid

an undue burden by refusing to enforce the subpoena at issue. Second, this Court must sanction the

Plaintiff for having violated that duty. Mr. Walker has suggested a sanction of no less $500 to

compensate Mr. Walker for lost earnings.

WHEREFORE, the Plaintiffs motion to compel and for sanctions should be denied; the Plaintiff should

be sanctioned not less than $500 for Mr. Walker loss of earnings; and this Court should grant any other

relief that isjust and equitable.

Wednesday, January 13,2016 Respectfully submitted,

b1~~~-Va Bar# 48882

P.O. Box 3075

Manassas, Virginia 20108

(703) 216-0455

[email protected]

(No fax)

II

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mailto:[email protected]:[email protected]


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VERIFICA nON

I, Aaron Walker, state under penalty of perjury under the laws of the United States of America

that the foregoing is true and correct and that all exhibits are true and correct copies of the originals.

Executed on Wednesday, January 13,2016.

CERTIFICATE OF SERVICE

Icertify that on the l3Jk daYOf~"\l-lI'-Ort ' 2016,I served copies of this document on Brett Kimberlin at 8I 0 Beech Tree Road, Bethesda, Maryland

20817 and Ron Coleman, Esq. for Patrick Frey by email with his permission.

ILtlIId;

12

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EXHIBIT A:

Declaration of Ronald D. Coleman, Esq.

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J.v.

D!.3TP:': , .'

IN THE UNITED STATES DISTRICT COURT "nl~ . 'I" P'IIt.~:17FOR THE DISTRICT OF MARYLAND J,v~ ... ,)

SOllthem Divisiol/ ,v_.

BRETT KIMBERLIN,

Plaintiff

*

*

*

EFUTY

v.

PATRICK FREY,

Defendant

*

*

*

CASE NO.: GJH-I3-3059

* * * * * * * * * * * * * * *

DECLARATION OF RONALD D. COLEMAN

1. I am Ronald D. Coleman, a member of the bars of New York and New Jersey and

co-counsel for defendant Patrick Frey in this matter. I make these statements based upon my own

personal knowledge, and if called to do so, I am competent to testify that the contents of this

declaration are accurate and true.

2. On or about June 10, 2015, Plaintiff transmitted a document request and

interrogatories to me by email for service on Mr. Frey. A true and correct copy of the

interrogatories is attached hereto as Exhibit RC-l and a true and correct copy of the document

request is attached as RC-2.

3. On or about December 2, 2015, I received a second document request from Mr.

Kimberlin, also by email. A tme and correct copy of that document request is attached as Exhibit

RC-3.

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1 declare under penalty of perjury under the laws of the United States of America that the

forgoing is true and correct to the best of my knowledge, and that if the foregoing statements are

found to be intentionally false, 1 am subject to punishment.

Executed on January 10,2016 in Passaic County, New Jersey.

~

RONALD D. COLEMAN

2

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BRETT KIMBERLIN,

Plaintiff,

PARTlCK FREY,

Defendant

UNITED STATES DISTRICT COURT

DISTRICTOF MARYLAND

No. G/H 13 3059

PLAINTIFF'S FIRST SET OF INTERROGATORIES/PATRICK FREY

1. Provide and state all evidence to support your statements that Brett Kimberlin

is responsible for swatting you or others.

2. State all policies, letters, emails or other communications of your employer,

including those you relied on, giving you authority to use your official capacity to

target Brett Kimberlin for criminal prosecution.

3. State what you reported to the police the night of your swatting concerning

who you were writing about and who you believed was involved in the swatting call

to your home, and provide a copy of you swatting police report

4. State what prompted you to contact Kent Gibson rather than someone with the

FBI to determine the voice analysis of your swatting call.

5. State who told you to contact Kent Gibson.

6. State the nature of your relationship with Erick Erickson.

7. Describe your conversations with Erick Erickson prior to his swatting and

whether you advised him to contact his local police department to tell them that he

might be swatted.

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8. State the dates and times that you contacted Erick Erickson before during and

after your swatting incident and provide copies of any written communications

regarding Brett Kimberlin and swattings.

9. State your relationship with the person who blogs as AceotSpades, state his

real name, and provide copies of all emails you had with him regarding Brett

Kimberlin and swattings.

10. State the dates, times, and subject matter of your discussions with the blogger

known as AceofSpades before during and after your swatting incident

11. State the names of the FBI agents and USAttorneys you contacted in Los

Angeles, Dallas, and Washington, DCconcerning Brett Kimberlin and your swatting

incident, and provide copies of any written communications with them.

12. State the dates, times, names and subject matter of all correspondence with FBI

agents and U.S.Attorneys or Assistant U.S.Attorneys concerning your swatting

incident and provide copies of all communications with them.

13. State your reasons for stating that Los Angeles County or California state

officials were not interested enough in your swatting incident to investigate it to

your satisfaction.

14. State why you had "given up" on law enforcement to solve your swatting

incident, and what you meant by that statement

15. State how many different people you have stated were involved with or

responsible for your swatting incident, and provide what evidence you compiled on

these possible suspects.

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16. State the dates, times, and names and subject matter of all contacts to United

States Senator(s) or Representative(s) that you contacted regarding your swatting

incident, and provide copies of those communications.

17. State the dates, times, and names and subject matter of media contacts that you

talked to before during and after your swatting incident to discuss the incident, and

provide copies of those communications.

18. State the date times and subject matter of all discussions between you and

Andrew Breitbart concerning Brett Kimberlin, and any action planned of taken

against Mr. Kimberlin.

19. State the policy of the Los Angeles District Attorney's Office that gave you

permission to be directly involved in investigating crimes committed against you.

20. State whether the Los Angeles District Attorney's office has a policy that

precludes you from investigating criminal cases in which you are directly involved.

21. State whether you were you told by anyone in a supervisory capacity in the Los

Angeles District Attorney's Office not to be involved in investigating your own

swatting case. lfso, state the name(s) of this person(s) you talked with, and what

were the dates, times and subject matter of these conversations, and provide copies

of those communications.

22. State the dates, times, and subject matter of your conversations with William

Hoge concerning Brett Kimberlin before during and after your swatting incident,

and provide copies of those communications.

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23. State the dates, times, and subject matter of your conversations with Aaron

Walker concerning Brett Kimberlin before during and after your swatting incident,

and provide copies of those communications.

24. State whether you are aware of any disposition of your the swatting incident by

law enforcement officials at the state or federalleveI. If so, state the result of that

investigation and provide any written communication regarding that disposition

and whether it is still pending.

25. State the dates, times, and subject matter of conversations you had with

Brandon Darby about Brett Kimberlin before during and after your swatting

incident

26. State the names and contact information of all Law Enforcement investigators

you talked with concerning your swatting incident, and provide copies of those

communications.

27. State whether it is the policy of Law Enforcement or Prosecutors in Los Angeles

County to recuse themselves from investigating crimes in which they are directly

involved.

28. State the names of all persons who you believe have discoverable information

about this case, and provide any such information that is in your custody.

29. State the dates, times, and subject matter of your conversations with Glen

Reynolds concerning Brett Kimberlin before during and after your swatting

incident, and provide copies of those communications.

Dated this 9th day of]une, 201S

Brett Kimberlin

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EXHIBIT RC-2

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BRETT KIMBERLIN,

Plaintiff,

PATRICKFREY,

Defendant

UNITED STATES DISTRICTCOURT

DISTRICTOF MARYLAND

No. GJH 13 3059

PLAINTIFFS' FIRST REQUEST FOR PRODUCTION OF

DOCUMENTS

Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Plaintiff

Brett Kimberlin hereby requests that Defendant Patrick Frey produce for Plaintiff

each of the documents identified below within thirty (30) days from the date of

service of this Request, at the home of Brett Kimberlin, 8100 Beech Tree Rd,

Bethesda, MD 20817

INSTRUCTIONS

I. Defendant's responses should include all responsive documents in the

possession, custody or control of Defendant or any of his agents, servants,

representatives, and attorneys as well as his employer and related state agencies.

The requests include all documents and communications between Defendant and an

outside party.

2. The documents requested are to be reproduced either as they are

kept in the usual course of business or shall be organized and labeled to correspond

with the categories in this request in accordance with Fed. R. Civ. P. 34(b).

3. In the event that any documents responsive to the requests set forth

in the numbered paragraphs below were, but not longer are, within Defendant's

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such writing are protected from disclosure; (b) each and every fact upon which the

defendant relies on to support the claim of privilege; (c) the type of writing (e.g.

letter, memorandum, telegram, telefax, notes or memoranda of telephone

conversations, etc.); (d) the date of each such writing; (e) the author(s) of each such

writing; (f) the person(s) to whom each such writing was directed; (g) the person(s)

to whom copies of each such writing were supplied; and (h) the general subject

matter of each such writing.

9. lfno documents exist that are responsive to a particular request,

please state that no documents exist

10. These document requests are deemed to be continuing so as to

require the service of supplemental responses and supplemental document

productions in the event that Defendant (including counsel) locate additional

documents not previously disclosed.

II. Unless otherwise'~d, these document requests are limited to

documents created and/or dated between August 2010 and the present

DEFINITIONS

All det1nitions as set forth in Fed. R. eiv. P. 34(a) are incorporated by

reference including in particular, but without limitation, the det1nitions therein as to

"document," "communication," "p,e.r.son," and ltconcerning."

=--'

I. "Defendant," "you, or "your" means each Patrick Frey.

(a) The term "document" shall include, without limitation, any

writing, whether handwritten, printed, typed or otherwise made, of any kind

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or nature, however produced or reproduced, including drafts thereof, and

including copies bearing notations or marks not found on the original.

(b) This definition shall further include, without limitation,

agreements, letters, correspondence, memoranda, e-mail, notes, analyses,

appraisals, valuations, reports, studies, bills, statements, work papers, books,

records, journals, ledgers, logs, messages of any nature [including reports,

notes, notations, and memoranda of or relating to telephone conversations

and conferences), agenda, minutes or transcripts or tapes of communications

or meetings, desk calendars, appointment books, diaries, lists,

questionnaires, surveys, tapes or other recordings from which information

can be obtained.

[c) This definition shall include documents stored, maintained, or

transmitted as electronic data.

2. The term "electronic data" includes writings of every kind and

description whether inscribed by mechanical, facsimile, electronic, magnetic, digital,

or other means, and means the original, or identical duplicate when the original is

not available, and any non-identical copies, whether non-identical because of notes

made on copies or attached comments, annotations, marks, transmission notations,

or highlighting of any kind. Electronic data includes, but is not limited to, activity

listings of electronic mail recipients and/or transmittals, output resulting from the

use of any software program, including word processing documents, spreadsheets,

database files, charts, graphs and outlines, electronic mail, any and all items stored

on electronic media, including, but not limited to, computer memories, hard disks,

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tloppy disks, CD-ROMsand removable media. Electronic data also includes the file,

folder tabs and/or containers and labels appended to, or associated with, any

physical storage device associated with each original and/or copy.

3. The phrase "provided" or "providing" means any service or treatment

offered, authorized, funded, or approved by the defendant, the Partnership, or the

Medicaid HMOs.

4. The term "State" means the State of California and its agencies.

5. "And" and "or" shall be construed conjunctively or disjunctively,

whichever makes the particular Interrogatory more inclusive, and "any" shall mean

each and every.

6. The singular form of a word shall be deemed to include the plural, and

the masculine or feminine, whenever appropriate in order to bring within the scope

of these Interrogatories any information which otherwise might be considered to be

beyond their scope.

7. To the extent that any request, or interrogatory, or any subpart

thereot: that is incorporated into a request by reference, refers to a statute or

regulation, terms used in the request or interrogatory shall have the same meaning

as used in the statute or regulation.

DOCUMENT REOUESTS

Request No.1.

All documents concerning, retlecting or referring to any and all matters

related to the swatting of Defendant, Aaron Walker, Mike Stack and Eric Erickson.

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Request No.2.

All documents identified. referenced, or relied upon in Defendants' Answers to

Plaintiffs First Set of Interrogatories and/or concerning the subject matter of said

Interrogatories, and all documents requested in said Interrogatories.

Request No.3

All documents not referenced in Plaintiffs Interrogatories but related in any way to

the subject matter of this complaint. swattings, and Brett Kimberlin that may be

relevant to the claim in the complaint

Respectfully,

Brett Kimberlin

June 9, 2015

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EXHIBIT RC-3

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BRETT KIMBERLIN.

Plaintiff.

PATRICK FREY.

Defendant

UNITED STATES DISTRICTCOURT

DISTRICTOF MARYLAND

No. GJH 13 3059

PLAINTIFFS' SECOND REQUEST FOR PRODUCTION OF

DOCUMENTS

Pursuantto Rules 26 and 34 of the Federal Rules of Civil Procedure, Plaintiff

Brett Kimberlin hereby requests that Defendant Patrick Frey produce for Plaintiff

each of the documents identified below within thirty (30) days from the date of

service of this Request. at the home of Brett Kimberlin, 8100 Beech Tree Rd,

Bethesda, MD 20817

INSTRUCTIONS

I. Defendant's responses should include all responsive documents in the

possession. custody or control of Defendant or any of his agents. servants.

representatives, and attorneys as well as his employer and related state agencies.

The requests include all documents and communications between Defendant and an

outside party.

2. The documents requested are to be reproduced either as they are

kept in the usual course of business or shall be organized and labeled to correspond

with the categories in this request in accordance with Fed. R. Civ. P. 34(b).

3. In the event that any documents responsive to the requests set forth

in the numbered paragraphs below were. but not longer are. within Defendant's

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possession, custody, or control, state the circumstances and timing of the loss of

possession, custody, or control, and the name of the persons or entities to which

possession was transferred, if any.

4. Each request for the production of documents is a request for the

original of the final version of such document(s), although an identical copy may be

produced when an original is not available, as well as any non-identical drafts or

non-identical copies of such document(s), including those that are non-identical by

reason of notations or markings on the copies.

5. Proper safeguards against destruction of electronic/computer data,

including the destruction of back-up and archival data. must be followed pending

final resolution of this case.

6. Where electronic data or information stored on any electronic media

is responsive to a request, the plaintiffs seek electronic copies of the information, as

well as instruction and programs necessary to search or retrieve such information,

including all attachments and enclosures, which should not be separated from the

items to which they are attached or with which they are enclosed.

7. If Defendant contends that any responsive document is protected

from disclosure by virtue of a privilege. supply a description of the information in

question which shall provide, with respect to each such writing as part of such

description thereof: (a) each privilege whereby Defendant contends the contents of

such writing are protected from disclosure; (b) each and every fact upon which the

defendant relies on to support the claim of privilege; (c) the type of writing (e.g.

letter, memorandum, telegram. telefax, notes or memoranda of telephone

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conversations, etc.); (d) the date of each such writing; (e) the author(s) of each such

writing; (f) the person(s) to whom each such writing was directed; (g) the person(s)

to whom copies of each such writing were supplied; and (h) the general subject

matter of each such writing.

8. If no documents exist that are responsive to a particular request,

please state that no documents exist

9. These document requests are deemed to be continuing so as to

require the service of supplemental responses and supplemental document

productions in the event that Defendant (including counsel) locate additional

documents not previously disclosed.

10. Unless otherwise stated, these document requests are limited to

documents created and/or dated between August 2010 and 2013.

DEFINITIONS

All definitions as set forth in Fed. R. eiv. P. 34(a) are incorporated by

reference including in particular, but without limitation, the definitions therein as to

"document," "comnlunication," "person," and "concerning."

I. "Defendant," "you, or "your" means each Patrick Frey.

(a) The term "document" shall include, without limitation, any

writing, whether handwritten, printed, typed or otherwise made, of any kind

or nature, however produced or reproduced, including drafts thereof, and

including copies bearing notations or marks not found on the original.

(b) This definition shall further include, without limitation,

agreements, letters, correspondence, memoranda, e-mail, notes, analyses,

!"#$ &'()*+,*-)-./*012 34+56$78 ))-*9 :;()>(? @"A$ 9 4B ?


31/39

appraisals, valuations, reports, studies, bills, statements, work papers, books,

records, journals, ledgers, logs, messages of any nature (including reports,

notes, notations, and memoranda of or relating to telephone conversations

and conferences), agenda, minutes or transcripts or tapes of communications

or meetings, desk calendars, appointment books, diaries, lists,

questionnaires, surveys, tapes or other recordings from which information

can be obtained.

(c) This definition shall include documents stored, maintained, or

transmitted as electronic data.

2. The term "electronic data" includes writings of every kind and

description whether inscribed by mechanical, facsimile, electronic, magnetic, digital,

or other means, and means the original, or identical duplicate when the original is

not available, and any non-identical copies, whether non-identical because of notes

made on copies or attached comments, annotations, marks, transmission notations,

or highlighting of any kind. Electronic data includes, but is not limited to, activity

listings of electronic mail recipients and/or transmittals, output resulting from the

use of any software program, including word processing documents, spreadsheets,

database files, charts, graphs and outlines, electronic mail, any and all items stored

on electronic media, including, but not limited to, computer memories, hard disks,

floppy disks, CD-ROMs and removable media. Electronic data also includes the file,

folder tabs and/or containers and labels appended to, or associated with, any

physical storage device associated with each original and/or copy.

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3. The phrase "provided" or "providing" means any service or treatment

offered, authorized, funded, or approved by the defendant, the Partnership, or the

Medicaid HMOs.

4. The term "State" means the State of California and its agencies.

5. "And" and "or" shall be construed conjunctively or disjunctively,

whichever makes the particular Interrogatory more inclusive, and "any" shall mean

each and every.

6. The singular form of a word shall be deemed to include the plural, and

the masculine or feminine, whenever appropriate in order to bring within the scope

of these Interrogatories any information which otherwise might be considered to be

beyond their scope.

7. To the extent that any request, or interrogatory, or any subpart

thereof. that is incorporated into a request by reference, refers to a statute or

regulation, terms used in the request or interrogatory shall have the same meaning

as used in the statute or regulation.

DOCUMENT REOUESTS

Request NO.1. A complete copy of any and all digital, electronic or stored

media containing any information related to Brett Kimberlin and swattings from

2010 through 2013, including hard drives, CDs, DVDand thumb drives.

Brett Kimberin

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Il" THE Ul"ITED STATES DISTRICT COURT

FOR THE DISTRICT OF i\IARYLA~D

SOlltheT1lDb'isioll

BRETT KIMBERLI1\,

Plaintiff

Y.

lXATI01\AL BLOGGERS CLUB, et al.,

Defendants

*

*

*

*

*

*

* * *

CASE 1\0.: GJH-13-3059

*

DECLARUI01\ OF DA~ BACKER, ESO.

1. My name is Dan Backer. Esq.• and I make Ihcse statements based upon my o\m

personal knowledge. I am allomey in good standing in Virginia. I am over 18 years of age. and

if called 10 do so. I am competent to testif}' Ihat the contents of this declaration are accurate and

true.

2. I represented Aaron J. Walker. Esq. in the case of Walker 1'. Kimherlin. No.

12000631-00 (Pr. Wm. Co. Cir. Ct. 2012). That is the same ~lr. Walker who was once a

defendant in Ihis case. and that lawsuit was filed against Ihe same Bretl Kimberlin \\ho is Ihe

plaintifT in Ihis case. On or aboul September 19.2012,1 received a document request from :vlr.

Kimberlin. A lrue and correct copy of il is allached as Exhibit DB-I. ivlr. Walker and I

interpreted it as including (but not limited 10) any records of correspondence between ~Ir.

Walker and J. Patrick Frey. Esq.. Ihe Defendant in Ihis case with respect 10 :vlr. Kimberlin. We

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complied with that document request on or about October 10, 2012, and had a continuing

obligation to tum over new documents until the case was ended on December 4.2012.

Ideclare under penalty of peIjury under the laws of the United States of America that the

forgoing is true and correct to the best of my knowledge and that the attached exhibit is a true

and correct copy of the original.

ExecutedonJanuary CD .2016inAle'xc.o'I"ir ;CA(city)

2

.•..

~

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EXHIBIT DB-l

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IN THE CIRCUITCOURT FOR PRINCE WILLIAM COUNTY

MANASSAS,VIRGINIA

AARONWALKER,

Plaintiff,

Vs

BRETT KIMBERLIN,eta],

Defendants.

No. CL 12-631

REQUEST FOR PRODUCTION OF DOCUMENTS

Comes now Defendant Brett Kimberlin, pursuant to Rule 4.9 of the Rules of the

Supreme Court, and requests the following for production within twenty one days.

1. Produce a complete copy of Plaintiff's Everyone Draw Mohammed blog, with

all photos, depictions, videos, comment, text, submissions, and all other

material related to the blog as it existed on January 1, 2012 or until it was

made private by Plaintiff.

Z. Produce all records involving Plaintiff's employment at Professional Health

Care Resources, including salary, termination determinations, appeals of

such determination, and communications with PHCI with regard to that

determination.

3. Produce all records and accounting of all funds raised by Plaintiff or on

behalf of Plaintiff by others, including the National Bloggers Club and the

Bloggers Defense Team, to litigate against Defendant or to assist Plaintiff

with other expenses.

4. Produce all records of correspondence in any form Plaintiff has had with any

other party regarding Defendant Kimberlin since January 1, 2011.

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLAND

Southem Divisioll

*BRETT KIMBERLIN,

*Plaintiff

*v.

.1.PATRICK FREY, et al.,

Defendant

*

*

*

CASE NO.: GJH-I3-3059

* * * * * * * * * * * * * * *

ORDER DENYING PLAINTIFF'S MOTION TO COMPEL AND FOR SHOW CAUSE

Upon consideration of the Plaintiff's "Motion to Compel Compliance with Subpoena Duces

Tecum and Request for an Order to Show [Cause Why] Non-Party Aaron Walker Should Not Be Held in

Contempt," (ECF No. 324), Mr. Walker's "Opposition to Plaintiffs Motion to Compel and Request for

Show Cause Order," and any other filings in support or opposition thereto, it is this day of

____________ ,,2016, hereby

ORDERED that the Plaintiff's to compel and for a show cause order is hereby is DENIED.

Hon. George J. Hazel

United States District Judge for the District of Maryland

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ECF 330 Redacted

Documents

Transcript of ECF 330 Redacted