ECF 324 Redacted
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Transcript of ECF 324 Redacted
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UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
BRETT KIMBERLIN,
Plaintiff,
v.
PATRICK FREY,
Defendant.
L •,~.
J.. '~.:,;~~LT
NoGJH13-3"~5~ --DEPUTY
MOTION TO COMPEL COMPLIANCE WITH SUBPOENA DUCES TECUM AND
REQUEST FORAN ORDER TO SHOW CASE BY NON-PARTY AARON WALKER
SHOULD NOT BE HELD IN CONTEMPT
Pursuant to Rule 45 of the Federal Rules' of Civil Procedure, Plaintiff respectfully
moves this Court for an order compelling non-party Aaron Walker ("Walker") to
immediately and fully comply with a subpoena duces tecum served upon him on or
about November 16, 2015, and to show cause why he should not be held in
contempt for his noncompliance.
1. This Court ordered the Clerk of the Court, on or about November 5, 2015, to
issue a subpoena duces tecum at Plaintiffs request to Walker. Exhibit A. 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. At the same time, Plaintiff served subpoenas on the FBI
and Los Angeles County District Attorneys Office. These subpoenas are seeking
information relevant to the matters at issue in the instant case.
2. Walker never responded in any way to the subpoena. He did not file any
objections, motion to quash or even contact Plaintiff to request additional time.
Instead, he willfully and intentionally refused to comply. In contrast, both the FBI
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and the LA County DA's Office did contact Plaintiff with regard to their subpoenas,
and Plaintiff is working with them to exact compliance as soon as possible.
3. The Federal Rules provide that litigants may obtain "discovery regarding any
non privileged matter that is relevant to any party's claim or defense" and that
"appears reasonably calculated to lead to the discovery of admissible evidence."
Rule 26(b)(1). Such discovery may be obtained for a non-party through service of a
subpoena commanding the production of documents. Rule 45(a). The district court
from which a subpoena is issued has the authority to enforce compliance and may
hold in contempt and sanction any "person who, having been served, fails without
adequate excuse to obey the subpoena." Rule 45(e).
4. Federal courts have held that a Rule 45 subpoena should be enforced unless
it is clear that the evidence sought can have no possible bearing on the issues. In the
instant case, Plaintiff has requested information from Walker that is highly relevant
to the issues in this case-I.e., emails to and from Defendant Frey regarding
swatting and attempts to retaliate against Plaintiff and have him arrested.
5. Walker's failure to respond in any way to the subpoena was "without
adequate excuse" and constitutes grounds for a finding of contempt. Rule 45(e). See
also 9A, Wright & Miller, section 2465 ("failure of a subpoenaed party to attend or
produce according to the terms of a subpoena is prima facie evidence of contempt").
6. Walker is an attorney and therefore is an officer of the Court. As such, he has
a complete understanding of the rules and of his obligation to comply with them.
His failure to do so provides sufficient grounds for imposing sanctions.
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Wherefore Plaintiff moves this Court to compel Walker to immediately and fully
comply with the subpoena, and require Walker to show cause why he should not be
held in contempt for failing to comply in the first place.
Respectfully submitte
Brett Kimberlin
8100 Beech Tree Rd
Bethesda, MD 20817
(301) 3205921
justicejtm [email protected]
Certificate of Service
1 certify that 1 mailed a copy of this motion to Aaron Walker and emailed a copy to
the attorneys for Defendant Frey this 28th day of December. ~
Brett Kimberlin \)
DECLARATION OF BRETT KIMBERLIN
I, Brett Kimberlin, declare under penalty of perjury pursuant to 28 USC 1746,
that on or about November 16, 2015 I served Aaron Walker with a copy of a court
ordered subpoena duces tecum by priority first class mail sent to 7537 Remington
road, Manassas, VA 20109
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Case 8:13-cv-03059-GJH Document 308-1 Filed 09/17/15 Page 1 of 7AD 8gB (Rev. 02114) Subpoena \0 Produce DocumentS. Information..or Objects or to Permit Inspection ofPremism in G Ci\'il At:tion
UNITED STATES DISTRICT COURTfor the
District of Maryland El
~' : ' ' ....• ,H,.', '... "
" i 7 i:; 2: r
Brett Kimberlin
Plaimiff
Patric"KFrey
Defendant ---_._--
))
)
)
)
)
Civil Action No. GJH 13 3059
To:
SUBPOENA TO PRODUCE DOCUMENTS, lNFORMA TION, OR OBJECTS
OR TO PERMIT INSPECTION OF PREMISES IN A CML ACTION
Aaron Walker, 7537 Remington Rd Manassas, VA20109
(Name o/person /0 whom (his subpoena is directed)
~ Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following
documentsl
electronicallY stored informati9.'1 pJ:obi~ts. and to permit inspection, CODyjnll.lestiOIl.or sarDolinJ/ofrhe. ,Al communlcalibns between you"" ,0 t'afncK J-tey concernmg !:lrenKimoennnram ~eptemper ~u,f mrougn
matenalMay 2013, Includingthose coneming alleged swallings of you and Mr. Frey
IPlace:B100 Beech Iree AdBethesda, MD20817
,
",
o Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party
may inspect. measure, survey, photograph, test, or sample the property or any designated object or operation on it.
te_: -':_D_a_te_an_d_Tim_e._: -----
Attorn~)' 'J signature
OR
Signature ole/uk (
CLERK OF COURT
The following provisions of Fed. R. eiv. P. 45 are attached - Rule 45(c), relating to the place of compliance;Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g). relating to your duty to
respond to this subpoena and the potential consequences of not doing so.
Date: 11/4/2015
The name, address, e-mail address, and telephone number of the attorney representing (Mme a/party) Bre,1tKimberlin
6100 Beech Tree Rd, Bethesda. MD208171301) 3205921 ,who issues or requests this subpoena, are:
Notice to the person who issues or requests this subpoena!fthis subpoena commands the production of documents, electronically stored information, or tangible things or tbe
inspection of premises before trial, a notice and a copy of the subpoena must be served on each party in this case beforeit is served on the person to whom it is directed. Fed. R. eiv. P. 45(a)(4).
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mailto:[email protected]:[email protected]
