ECF 299 Redacted

8/20/2019 ECF 299 Redacted

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BRETT KIMBERLIN,

Plaintiff,

PATRICK FREY,

Defendant.

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• ,iIJe!::ENSELt No. GJH 13 3059

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PLAINTIFF'S RESPONSE TO INTERMARKET/ACE OF SPADES' MOTION

TO RECONSIDER THE COURT'S JULY 24,2015 ORDER DENYING HIS MOTION

TO QUASH

Now comes Plaintiff Brett Kimberlin and responds in opposition to

Intermarkets/Ace of Spades' Motion to Reconsider this Court's July 24, 215 Order

denying his Motion to Quash. In short, the motion is without merit and in bad faith.

1. Counsel for Intermarkets/ Ace of Spades ("AOS") repeats the same arguments

rejected by this Court on July 24th, accusing the Court of "misapprehending" this and

that, and asserting that AOS' First Amendment rights trumps all. However, in Lefkoe

V. Jos. A. Bank Clothiers, Inc., 577 F. 3d 240 (4th Cir. 2009), the Court found that the

First Amendment does not protect a third party from having his identity disclosed

pursuant to a discovery request. In that case, the "Massachusetts district court,

having authority over the (third party) subpoena, denied the law firm's motion to

quash the subpoena and ordered the law firm to reveal the nonparty witness'

identity." Although there was a protective order in that case, the courts ordered that

the identity be disclosed to the parties.

2, Court after court has ordered that anonymous third parties be identified in

response to a valid subpoena. See e.g., In re Anonymous Speakers, 661 F.3d 1168 (9th

Cir, 2011) (District Court ordered several anonymous speakers identified and Court

of Appeals denied mandamus to overturn order). Judge Hollander, in In re Drasin,

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Civil Action No. ELH.13-1140 (July 24, 2013), followed Lejkoe and Anonymous

Speakers in refusing to quash a third party subpoena regarding the identity of

anonymous posters.

3. Incredibly, lntermarkets, a company that places advertisements on AOS'

blog, has argued that it will suffer if AOS the blogger is identified because other

anonymous bloggers may not use its services if they know that lntermarkets

complied with a lawful subpoena. This speculative argument is so meritless it does

not even deserve an extended response. Companies such as Google, Twitter and

Yahoo respond to these types of subpoenas every single day yet have not suffered a

single iota because of them.

4. Moreover, AOS is not anonymous. Many in the conservative community

including Defendant Frey know him. In fact, he has appeared publicly at the

Conservative Political Action Committee Conference where he gave the keynote speech.

His photos at that event are widely distributed on the Internet. Exhibit A. He has also

appeared live on national news programs, including Fox News, where his face has been

seen by millions of viewers. Exhibit B. Intermarkets is asking the Court to stop Plaintiff

from learning the name and address of a person known to thousands of people in the

conservative community and seen by millions of people worldwide. Clearly, AOS has

waived any First Amendment right to anonymity by his public appearances.

5. AOS is very close to Defendant Frey. In fact, according to Defendant Frey, AOS

traveled to California and met with Frey at a public event. Exhibit C. Defendant Frey and

AOS have linked to each other's blogs hundreds of times. Plaintiff believes, as he stated

in his previous declaration, that Defendant Frey corresponded by phone and by email

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with AOS, and devised a common plan to use AOS' top conservative blog to support

Defendant Frey's illegal scheme to deprive Plaintiff of his civil rights. As a result, AOS

demanded in his blog posts that Plaintiffbe imprisoned, and stated that iflaw

enforcement officials did not imprison Plaintiff, Plaintiff would "escalate his crimes" and

people would die. This fear mongering propaganda was part and parcel of Defendant

Frey's master plan to deprive Plaintiff of his civil rights. Clearly, Plaintiff has a right

under Federal Rules of Civil Procedure 45 and 26 to question AOS and seek documents

from him to discover "relevant" evidence in the instant case.

6. This Court, in it's previous order, urged the parties to agree on a protective order,

which is something that lntermarkets previously and now requests. Plaintiff pointed out

to counsel that he, unlike Defendant Frey and others, has never once published a single

post or tweet about any case, and has never published any document. Plaintiff told

counsel for lntermarkets that he would agree not to publish or share any information

provided by counsel outside of any court setting. Plaintiff asked counsel to work out an

acceptable protective order that would provide Plaintiff with AOS' identity while

protecting lntermarkets' data. However, counsel refused, and now asks this Court to

approve a protective order that provides no identifying information to Plaintiff. Such a

position makes a mockery of the Rules and this Court's prior order.

Wherefore, for all the above reasons and the reasons stated in this Court's July 24th

Letter Order, this Court should deny AOS' Motion to Quash and for Protective Order.

Respectfully submitted,

Brett I

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Certificate of Service

I certify that I emailed copies of this motion to Attorneys Steve Fowler and Ron

Coleman this l4,h day of August, 2015.

Brett Kimberlin

Amnesty Opponent Ace of Spades Wins CPAC Bragger Of The Year!

By Digger I February 11, 200811 :32 PM a SHARE I) "G ...

You can watch Ace of Spades, who has remained a shadowy figure in theblogging community for years (a real old man in the field), and his

acceptance SpeeChhere.

A good portion of the speech focuses on how the blogging community - along with

activist organizations and talk radio - defeated the back room illegal alien amnestybeing put through the Senate last year.

I am simply thrilled that he won! He is irreverent, outspoken and abjectly against

illegal immigration and for him to win the award from the Conservative Conferenceshows that this issue is not being ignored by real Conservatives.

In particular I'd note the applause received when mentioning the bills defeat.

EXHIBIT A

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Full video on You Tube https://www.youtube.com/watch?v=pCU9HsSsEyO

EXHIBIT B

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http://https//www.youtube.com/watch?v=pCU9HsSsEyOhttp://https//www.youtube.com/watch?v=pCU9HsSsEyO


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11/1/2007PAITERICO TO BE AT ACEAPALOOZA

Filed under; Slogging Matters,General.Morons - Patterico @ 9:09 pm

Blogger Ace of Spades is coming to the West Coast.

I, for one, plan to meet him.

How about you?

The event takes place this Saturday, in Santa Monica. I don't know if!can say more than that, but if you're

interested in coming, you should go to this post and e-mail the fellow whose e-mail address is published

there.

Baldilocks will be there, along with some of the morons who comment at Ace's site. Now who can argue

with that?

EXHIBIT C

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ECF 299 Redacted

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