ECF 345 Redacted

8/20/2019 ECF 345 Redacted

1/8

,.

~:SlF,.=:,

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND

BRETT KIMBERLIN,

Plaintiff,

v.

PATRICK FREY,

Defendant.

-~No. GJH 13-3059

I "

_':::ruT'f"

PLAINTIFF'S SUPPLEMENTAL RESPONSE TO LOS ANGELES COUNTY AND

DEFENDANT FREY'S MOTIONS TO QUASH SUBPOENA

Now comes Plaintiff Brett Kimberlin and files a supplemental response to non-

party Los Angeles County and Defendant Frey's motions to quash the LA County

subpoena duces tecum. In a prior response, Plaintiff advised the Court that LA

County had agreed with Plaintiff to narrow the scope of the subpoena, but after that

agreement was reached, LA County notified Plaintiff that it would not comply other

than providing him with a copy of the County's "Social Media Policy." Exhibit A.

Today Plaintiff has filed a Reply to Los Angeles County's opposition to his Motion

to Amend. He attached more than a dozen emails that implicate Los Angeles County

and Defendant Frey's supervisor, Anne Ingalls, in the scheme to retaliate against

Plaintiff for filing complaints against Defendant Frey. These underscore why

Plaintiff needs the discovery he requested from LACounty. It will support Plaintiffs

claims in this case.

Moreover, LACounty states that it will not provide any information about other

complaints or disciplinary actions involving Defendant Frey, which is clearly

relevant to the instant case. Plaintiff is aware of at least four official complaints filed

against Defendant Frey by Bill Schmalfeldt, Neal Rauhauser, Nadia Naffe and

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


2/8

Plaintiff. Clearly, these show a pattern of unethical and rogue behavior by

Defendant Frey, which is important to show that he acted intentionally in the instant

case.

Plaintiff believes that there have been other complaints made to the District

Attorney's Office against Defendant Frey because of his defamatory smears against

various people on his blog. Yet without discovery about how these complaints were

handled, Plaintiff can only conclude that LACounty determined that it approved and

condoned Defendant Frey's false narratives and that his smears constitute the "best

practices" and "good judgment" as set forth in their August 15, 2013 Social Media

Policy, attached.

Wherefore, Plaintiff moves this Court to deny the motions to quash the LACounty

subpoena and order LA County to produce the requested documents.

Respectfully submitted,

Brett Ki~ in ~

8100 Beech T Rd

Bethesda, 20817

j\l51ig!jtmp~mmc

(301) 320 5921

CERTIFICATE OF SERVICE

I certify that I served a copy of this motion on attorneys for Defendant Frey and

on attorneys for LA County this 12th day of February, 2016.

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


3/8

TO:

FROM:

SUBJECT:

DATE:

SPECIAL DIRECTIVE 13-03

ALL DISTRICT ATTORNEY PERSONNEL

SHARON J. MATSUMOTO~

Chief Deputy District Attorney' 0

SOCIAL MEDIA POLICY

AUGUST 15,2013

This Special Directive supercedes Special Directive 12-03.

Technology has fundamentally changed the way we do our jobs and live our lives. Flip charts,

cardboard boxes, and paper subpoenas have given way to PowerPoint, flash drives, and

e-subpoenas. Deputies now carry mobile electronic devices with them at all times which can be

used to contact witnesses, prepare exhibits, and access the internet in WiFi-enabled courtrooms.

These devices are ollen used for dual purposes-business and personal. This overlap has been

increasing as technology continues to blur the line between the professional and private lives of

deputies, at times compromising the security, privacy, and reputation of the individuals and

institutions that make up the criminal justice system. It is this phenomenon that gives rise to the

need for a clear and concise office policy on the use of the internet and social media among

District Attorney employees.

The attached policy covers all use of social media sites or other means of electronic

dissemination of information, including, but not limited to: posting by an individual user on an

internet site; blogging; posting comments, photos, links to any website; and posting status

updates, comments, or any sharing on social media sites. See Glossary of related terms.

This policy provides both standards and guidelines to District Attorney employees, whether or

not employees are posting under their own names or anonymously. Where no specific policy

exists, employees should exercise good judgment and, if necessary, consult with their supervisor.

Deputy District Attorneys may also consult with the Professional Responsibility Committee.

In summary, employees should use good judgment in the use of social media, whether at work or

at home. By following these simple guidelines, employees will protect the integrity ofthe officeand the criminal justice system as well as their own personal and professional reputation.

mb

Attachment

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


4/8

Los Angeles County District Attorney

Internet and Social Media Policy

I. Internet Use

Prior to logging onto the County Internet, all District Attorney employees must click on

an acknowledgment, certif'ying that they will comply with the County's Internet policy,

which states: "County information technology resources, including Internet access, are

established 10 be used/or County business purposes." (Board of Supervisors Policy

(BOSP) #6.105 (emphasis added); See also BOSP #6.101, PPH 7.05.00-7.05.01.) Use of

County internet and computers to post on social media sites or for any other private use is

inconsistent with the intent behind the above policies. Note that internet usage is

monitored and logged.

II. Use of Social Media Sites

District Attorney employees should be mindful that they are personally responsible for

the contcnt they publish on any form of user-generated social media. Although it may

appear that posting on a social media site will remain private, far too often a post is

transmitted beyond its original, intended audience. The following policies should be

adhered to when using social media.

A. Be conscious of your online identity.

District Attorney employees are free to express opinions as individuals on matters

of public interest. This includes posting an opinion on a social media site.

However, ifan employee has identified himself or herself as a member of the

District Attorney's Office on a matter related to the Office, the employee must

include a statement that they are speaking as an individual. (See PPH 7.16.00.)

District Attorney employees may not use official badges, identification, business

cards or other items bearing the seals of Los Angeles County or the District

Attorney's Office for purposes other than the employees' official duties. (See

PPH 7.04.00; LPM 26.10.02.) This includes the use of these images and symbols

on any social networking sites.

District Attorney employees should be aware that "friending" or "following"witnesses, bench officers, victims or jurors may violate ethical rules. (See CA

Rules of Prof. Conduct, Rules 2-100, 5-300(B) & (C) (exparte contact with judges); CA Rules of Prof. Conduct, Rules 5-320(A), (B), and (C) (contact with

jurors); LPM 26.08.)

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


5/8

B. Bc respectful.

District Attorney employees are required to maintain respect for courts of justice

and judicial officers, even when posting on social media sites. (Bus. & Prof.

Code 6068(b).) District Attorney employees must also take care when postingcomments about other parties in the criminal justice system, including defense

attorneys, bench officers and law enforcement agencies. District Attorney

employees must treat witnesses and parties with courtesy and respect, evcn during

non-working hours. (See PPH 7.15.00; Bus. & Prof. Code 6068(b); LPM 24.01;

See also PPH 13.05.00, 8.00.00.)

Starting in July of2011, every employee was required to complete the Los

Angeles County Policy of Equity which prohibits "discrimination, unlawful

harassment, retaliation, and inappropriate conduct toward others based on a

protected status in the work place or in other work-related settings." Postings to

blogs, websites, etc., under certain circumstances, may constitute a violation of

the Policy of Equity and may subject the cmployee to discipline. All District

Attorney employees are bound by the Policy of Equity. (See Personnel Policies

Memorandum I 1-04.)

C. Keep confidential information confidential.

District Attorney employees may not reveal confidential information, including

information regarding any criminal case or law enforcement investigation on

either closed or open cases on any social media site or by mass dissemination via

any means of electronic distribution (e.g., Twitter). (PPH 7.12.00, Bus. & Prof.

Code section 6068(e).)

Caution should be exercised when using WiFi without an office-issued VPN

(Virtual Private Network) at a library, coffee shop, or even in the courthouse.

These networks may not be secure and your information could be subject to

interception.

Digital communication (e-mail, text messages, etc.) between employees and

witnesses, including victims and investigators, is always retrievable and may be

subject to discovery through Penal Code section 1054 et seq. and/or a Public

Records Act request. Such communication should be limited to matters

concerning scheduling and other logistics, rather than substantive, case-related

conversations. (See GOM 11-053.)

D. Remember rules regarding pretrial publicity.

District Attorney employees arc obligated to follow State Bar rules regarding

pretrial publicity when posting on social media sites. (See CA Rules of Prof.

Conduct, Rule 5-120; Media Relations Policy; LPM 25.03; See also PPH

2

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


6/8


7/8

• Always consider the possibility that information posted on the intemet may

become accessible to unintended viewers.

• Remember that members of the defense and media increasingly use the internet

to investigate the personal lives of adverse parties and witnesses, including

prosecuting attorneys.

• All employees should assume their speech and related activities on social media

sites will reflect upon this office. Do not post anything on the internet that you

would not want to read on the front page of the newspaper under your byline.

• Content posted on the internet is public and permanent.

• Use common sense before posting information about promotional exams,

transfers, personnel issues, and other office-related subjects.

• When in doubt, seek guidance from your supervisor or the Professional

Responsibility Committee.

4

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


8/8

Glossary

B10g - Website where entries are commonly displayed in reverse chronological order. "Blog"

can also be used as a verb, meaning to maintain or add content to a blog.

Facebook - A social networking website where users can add "friends" and send them

messages and update their personal profiles to notify friends about themselves. (Sec "Friend"

below.)

Follow/Following - A term used on "Twitter" when following the "tweet" or message ofthe

user. (See "Twitter" below.)

Friend/Friending - The term used when adding an associate on Facebook to your network.

Like - A term used on Facebook to give positive feedback or to connect with content you

endorse. You can "like" content that your friends post or pages that you want to connect with

on Faccbook.

Online Identity - An online identity or persona is a social identity that an internet user

establishes in online communities and websitcs.

Social Bookmarks - A method for internet users to store, search, organize and share web

pages.

Social Media - The tool set (including blogs) which people can use to publish content to the

web. This can include audio, video, photos, texts, files, etc.

Social Networking - A term for the tools and platforms used to publish, converse and share

content online. The tools include blogs, "wikis," podcasts, and sites to share photos and

bookmarks.

Twitter - Twitter is a social networking and microblogging service that enables its users to

send and read messages known as "Tweets." Tweets are text-based posts of up to 140

characters displayed on the author's profile page. They are visible to the public and also

delivered to the author's subscribers who are known as "followers."

Virtual Private Network (VPN) - Allows a private network, such as Lotus Notes or

LADAnet, to be remotely connected over the internet. VPNs allow only authenticated remoteaccess and use encryption to provide security.

Wikis - A website developed collaboratively by a community of users, allowing any user to

add or edit content.

5

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

ECF 345 Redacted

Documents

Transcript of ECF 345 Redacted