Download - ECF 232 Redacted

7/26/2019 ECF 232 Redacted

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DEPUTY

BRETT KIMBERLIN,

Plaintiff,

v.

FILEDU.S. DISTRICT COURT

DISTRICT OF /1' RYUNITED STATES DISTRICT COURT ,\. LAND

FOR THE DISTRICT OF MARYLAND201~DEC 12 PH 3: 33

GREENBELT DIVISION CL,I)"'" -_.\/\ S Ot FICE

AT GREENBELT

BY

{;)UNo. GJH 133059

NATIONAL BLOGGERSCLUB, et al

Defendants.

MOTION TO IDENTIFY DEFENDANT ACE OF SPADES, THE PERSON

Now comes Plaintiff Brett Kimberlin, pursuant to this Court's December 8,2014

letter order, and moves this Court to issue an order to counsel for Defendant Ace of

Spades the person ("AOS"), to identify him.

1. As Judge Hollander ruled recently in another case of anonymous Internet

blogging, Plaintiff has a right to the identity of an anonymous blogger defendant

who has engaged in tortious conduct against him. In re Subpoena of Daniel Drasin.

Case 1:13-cv-01140-ELH 07/24/13. Judge Hollander's nine-page decision effectively

states the prevailing law and is attached for the Court's consideration. In the instant

case, Plaintiff also needs that information to effectively respond to Defendant ADS's

Motion to Dismiss,

2, AOS has notice that Plaintiff has sought his identity. Plaintiff has repeatedly

sought that identity him for the past 12 months, AOS has had an opportunity to seek

to keep his identity anonymous but all of his motions through two different

attorneys have been unsuccessful. On December 8, 2014, Plaintiff specifically but

without success asked counsel for AOS's identity in order to save time and judicial

resources. See Plaintiffs attached declaration,

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3. As stated in Plaintiffs Complaint and in his Global Response to Motions to

Dismiss, ADS engaged in wholesale and per se defamation against Plaintiff, not once,

but multiple times. See SACat 30-32, GR 45-6. For example, he falsely stated,

imputed and published in five articles that Plaintitf committed the crime of

"swattings," that he was involved with terrorism" and "murder," that he was trying

to "kill" people, that he is a "thug" and "nefarious,"Jhat he is running "scams," that

he is engaged in "lawless vigilantism," that he is involved with "ongoing crimes," that

he is engaged in "alarming harassments," that he is a "menace," that he is a "one-man

crime wave," that he is "escalating" his criminal activities, that he is engaged in a

"crime in progress," that he is "abusing and corrupting" the justice system, that his

life is one of "escalat(ing) risk taking." that he is "a dangerous man," that he is

engaged in "digital" and "real life terrorism," that he is a "malicious threat to

society," and that he is engaged in "Iawfare." Not only did ADS make these

defamatory statements and publications, he demanded action by others, including

Congress, to stop Plaintiff through various actions including imprisonment and

passing a bill of attainder. His publications were a call to arms against Plaintiff

based on defamatory hysteria-either stop Plaintiff or terrible things will happen.

ADS was using his defamatory statements to destroy Plaintiff by any means.

4. ADS's limited right to anonymous speech is greatly outweighed by Plaintiffs

right to know who has committed tortious conduct against him. Drasin, supra at 7-

8, and In re Anonymous, 661 F.3d at 1176 (recognizing "the great potential for

irresponsible, malicious, and harmful communication and that particularly in the

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age of the Internet, the speed and power of internet technology makes it difficult for

the truth to 'catch up' to the lie").

5. Plaintiff does not have AOS's identity and this handicaps him with regard to

his response to AOS's motion to dismiss. For example, if AOS'works for the

Government, Plaintiff could show that his actions also fell under 42 USC 1983. If

AOS's name is on documents already in Plaintiffs possession, such as emails,

Plaintiff could show that he committed overt acts in furtherance of the conspiracy

and RICO. If AOS is working for someone or some entity to target Plaintiff, that

would be a relevant factor in this case.

6. Moreover, AOS should not be given special treatment not given other

defendants in this case, all of whom are identified.

7. The only other anonymous defendant in this case, KimberinUnmasked, was

identified pursuant to an Order issued by Judge Algeo from the Montgomery County

Circuit Court, Case No. 380966 CVon November 4,2013.

11/04/2013 Docket

Number: 26

Docket Description:

Docket Type:

Ruling Judge:

Reference Docket(s):

Docket Text:

HEARING

Ruling Filed By: Court Status: Granted

ALGEO, MICHAEL J

Motion: 3 Opposition: 24

HEARING (ALGEO, J.) ON PlAINTIFF'S MOTION TO COMPEL PRE-

ACTION DISCLOSURE DIRECTING GOOGlE.COM AND/OR ITSSUBSIDIARY BlOGGER.COM TO TO DISCLOSE THE IDENTITY AND

ADDRESS OF DEFENDANT ANONYMOUS CYBERSTAlKER,

KlMBERLINUNMASKED (DE#3) -GRANTED. ORDER SIGNED.

PlAINTIFF APPEARED PRO SE. MR. DEL BIANCO APPEARED ONBEHALF OF THE DEFENDANT ANONYMOUS BlOGGER. MR.

REINGOLD APPEARED ON BEHALF OF THE DEFENDANT GOOGlEINC. DEFENDANT'S AARON WALKER, WILLIAM HOGE SR., AND

ROBERT MCCAIN NOT PRESENT.

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Once that identity was known, KimberlinUnmasked, aka Lynn Thomas, resolved that

state case and two federal cases Plaintiff filed against her.

8. In the case ofADS, his anonymity is hampering any possibility of Plaintiffs

resolving and settling this case with him.

Wherefore, for all these reasons, Plaintiff moves this Court to order counsel to

identify ADS.

Certificate of Service

I certify that I emailed a copy of this motion to Ron Coleman and all other

current attorneys in this case and Lee Stranahan and AliAkbar, and mailed a copy to

Defendants Walker, Hoge, McCainand attorney Michael Smith this 12'h day of

December, 2014.

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

GREENBELT DIVISION

BRETT KIMBERLIN,Plaintiff,

v.

NATIONAL BLOGGERSCLUB, et al

Defendants.

No. GJH 13 3059

DECLARATION OF PLAINTIFF BRETT KIMBERLIN RE ACE OF SPADES

I, Brett Kimberlin, declare, under penalty of perjury and pursuant to 28 USC

1746, that the following is true and correct.

1. I have been trying for the pastyearto learn the identity of Ace of Spades,

a defendant in this case. I sought subpoenas in both Virginia and

Maryland federal courts, 1 contacted business associates of his and his

website registrar, I asked his attorneys, and I followed tips that came to

me.

2. I have notified. Ace of Spades through his emails and his attorneys that I

need to know his identity to effectively prosecute this case.

3. I feel handicapped in my ability to respond to Ace of Spades' motion to

dismiss because I do not know his identity.

4. 1have filed motions in two other state cases involving anonymous

bloggers and in both cases the Montgomery County Circuit Court judges

granted my motions to identify the bloggers. In one case, after a trial, I

won a defamation suit against the blogger. In the other case, the

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defendant settled after being identified, That second defendant was also

a defendant in this federal case and she resol

time.

Dated this 12th day of December. 2014

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Case 1:13-cv-01l40-ELH Document 8 Filed07/24/13 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

In re SUBPOENA OF DANIELDRASIN

ADVANCED CAREER

TECHNOLOGIES, INC.,

Plaintiff,

v.

JOHN DOES 1-10, all whose true

names are unknown,

Defendants.

Civil Action No. ELH-I3-1140

(Related Case: Case No. I3-cv-00304 in

the United States District Court for theDistrict of Colorado)

MEMORANDUM

Advanced Career Technologies, Inc. ("ACT"), plaintiff, sued ten John Doe defendants in

federal court in Colorado, based on allegedly defamatory comments posted anonymously on

"Random Convergence," an internet blog administered by Daniel Drasin, located at

http://randomconvergcncc.blogspot.coml. In particular, ACT lodged claims for "trade IibcV

commercial disparagement," violations of Section 43(a) of the Lanham Act, IS U.S.C. ~ 1125(a),

and violations of the Colorado Consumer Protection Act, Colo. Rev. Stat. ~ 6-1-105. See

Verified Complaint ("Complaint," ECF I-I).

On March 11,2013, Magistrate Judge Kristin Mix of the United States District Court for

the District of Colorado authorized expedited discovery, and granted ACT's motion for leave to

serve third party subpoenas on Drasin, a resident of Maryland.1

Two subpoenas were issued to

Drasin by this Court, commanding him, in his individual capacity and as administrator of the

IACT was also granted leave to serve a subpoena on Google, Inc.

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http://randomconvergcncc.blogspot.coml./http://randomconvergcncc.blogspot.coml./


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Case 1:13-cv-01140-ELH Document 8 Filed 07/24/13 Page 2 of 9

Random Convergence blog, to produce the "true name, address, telephone number, e-mail

address, and Media Access Control address of each of the ten Doc Defendants," based on "the IP

[Internet Protocol] addresses from which they posted and edited posts about [ACT] and its

employees," as identified in "Motion [#11]." ECF 1-3 (brackets in original)2 ECF 1-3 (brackets

in original). "Motion [#11]" appears to refer to ACT's "Amended Motion for Expedited

Discovery," which is attached to the Motion to Quash, at ECF 1-2, and includes a computer

"screen shot" listing twelve IP addresses. See id. at 4.

On April 18, 2013, Drasin, who is self-represented, filed a third-party motion to quash the

subpoenas, pursuant to Fed. R. Civ. P. 45(c)(3)(A)(iii)-(iv) ("Motion," ECF 1), asserting that

they infringe on the Doc defendants' First Amendment right to anonymous speech. Fed. R. Civ.

P. 45(c)(3), titled "Quashing or ModifYinga Subpoena," states, in pertinent part:

(A) When Required. On timely motion, the issuing court must quash or modifYa

subpoena that:

(iii) requires disclosurc of privileged or other protected matter, if no

cxception or waiver applies; or

(iv) subjects a person to undue burden.

ACT opposes the Motion ("Opposition," or "Opp.," ECF 6), arguing that the subpoenas

provide the only feasible method for it to obtain the identities of the anonymous dcfcndants.

Drasin filed a reply ("Rcply," ECF 7).

2 An IP address is not really an "address" or physical "place" in the usual sense of the

word, and therefore the tcrm can be quite misleading. In fact, it is only an electronic "route" tothe internet assigned by an internet service providcr to a customer on a given date and hour to

providc access to the internet. The route can be assigncd to diffcrent customers on given dates orgiven hours. If a customer accesses the internct briefly and signs off, the IP address is assigned

to another customer. Additionally, "[d]ue to the prevalence of wireless routers, the actual devicethat performcd thc allegedly [unlawful] activity could have becn owned by a relative or guest of

the account owner, or even an interloper without the knowledge of the owner." Patrick Collins,

Inc. v. Doe 1, 288 F.R.D. 233, 237-39 (E.D.N.Y. 2012).

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Case 1:13-cv-01l40-ELH Document 8 Filed07/24/13 Page 3 of 9

The issues have been fully briefed, and no hearing is neeessary to resolve them. See

Local Rule 105.6. For the reasons that follow, 1 will deny the Motion.

Factual Background

ACT is a "career guidance service firm that assists job seekers throughout their job

search." See Compl. ~ 7. It "assist[s] clients in developing a marketing plan that acts as a road

map for the clients' job search, identirying the client's strengths and skills while providing

solutions for any weaknesses, and locating industry options and opportunities in an effort to

maximize the client's chances of securing gainful employment." ld.

As noted, Drasin is the administrator of a blog known as Random Convergence. See

Affidavit of Robert 1. Gcrberg, Jr., President & Chief Executive Officer of ACT, ~ 9 ("Gerberg

Aff.," ECF 6-4). According to ACT, Drasin exercises editorial control over the blog. ld.

Since approximately 2007, individuals have posted over 350 anonymous comments on

Random Convergence, many of which disparage ACT's services. See id. ~~ 1I, 17; Opp. Exh. C

at 16 (ECF 6-3) (screen prints of posts and comments about ACT on Random Convergence).

For example, one post stated: "Scam Scam Scam - 1 just wrote 60 minutes and put out a news

release and wrote the major job search sites. These guys arc toilet slime bags. STAY AWAY

FROM THESE FRAUDS." ld. at 24. Commenters have also listed the names and phone

numbers of ACT executives, which, according to ACT's Complaint, arc not otherwise publicly

available. Compl. ~ 14. ACT "has been unable to veriry or confirm any of the complaints

discussed on the blog." Gerberg Aff. ~ 36.

According to ACT, the anonymous postings are "a sophisticated and coordinated

campaign" intended to "damage ACT's business and reputation." Opp. at 4. It believes that

"[t]he entries on Random Convergence are designed to maximize the effect of the blog by

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Case 1:13-cv-01l40-ELH Document8 Filed 07/24/13 Page 4 of 9

sending spam and driving up the blog's rankings and visibility in the search cnginc Google."

Gcrberg Aff. ~ 15. ACT reports that it has "reccived numcrous emails from potential or current

clients stating that because of the blog, they will no longer be using ACT services." Id. ~ 27.

Additionally, ACT claims that it has "asked to post comments on the Random Convergence Blog

to rebut some of the false statements, but Mr. Drasin refused these rcquests." Id. ~32.

Discussion

Drasin's primary contention is that ACT's subpoenas infringc on the First Amendment

rights of the John Doe defendants to engage in protected, anonymous speech.3

To be sure, "an

author's decision to remain anonymous ... is an aspect of the frcedom of speech protected by

the First Amendment." McIntyre v.Ohio E/ecs. Comm 'n,514 U.S. 334, 342 (1995). "The right

to anonymous speech, however, is not unlimited," Lefkoe v.Jos. A. Bank Clothiers, Inc., 577

F.3d 240, 249 (4th CiT.2009), and the identity of an anonymous speaker may be disclosed during

discovery to protect a litigant's legitimate interest in vindicating his or her legal rights in court.

See, e.g., id. (upholding disclosure of third-party witness's identifying information because there

was a "substantial governmental interest in providing [defendant] a fair opportunity to defend

itself in court ... by requiring the Doe [witness] to reveal its identity and provide the relevant

information," which outweighed the witness's right to anonymous commercial speech); In re

Anonymous Online Speakers, 661 F.3d 1168, 1177 (9th Cir. 2011) (upholding disclosure with

3 Drasin has standing to assert these rights on behalf of the John Doe defendants.

Schaumberg v. Citizensfor a Beller Environment, 444 U.S. 620, 634 (1980) ("Given a case orcontroversy, a litigant whose own activities are unprotected may nevertheless challenge a statute

by showing that it substantially abridges the First Amendment rights of other parties not before

the court."); see, e.g., Enterline v.Pocono Med. Crr.,751 F. Supp. 2d 782, 786 (M.D. Pa. 2008)

(finding that newspaper had standing to assert First Amendment rights of anonymous websitecommenters in challenging subpoena seeking disclosure of commenters' names becausc

commenters "face[d] practical obstacles to asserting their own First Amendmcnt rights" while

retaining anonymity; disclosure would "compromise the vitality of the newspaper's online

forums, sparking rcduced reader interest and a corresponding dccline in revenues"; and

newspaper would "zealously argue and frame the issues").

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Case 1:13-cv-01l40-ELH Document 8 Filed07124/13 Page 5 of 9

respect to identity of three non-party anonymous speakers who allegedly made defamatory

statements about plaintiff. which formed predicate of plaintiffs claims against a business

competitor for tortious interference).

Where a discovcry request impinges on First Amendment rights. courts will "'balance the

burdens imposed ... against thc significance of the ... interest in disclosure,' to determine

whether the 'interest in disclosure ... outweighs the harm .Perry v. Schwarzenegger. 591 F.3d

1141. 1161 (9th Cir. 2010) (citations omitted). With respect to a speaker's anonymity. the

protection accorded "varies depending on thc circumstances and the type of speech at issue." In

re Anonymous. 661 F.3d at 1173. For cxample. courts "typically" protect anonymity in literary,

religious or political speech, whcreas "commercial speech ... 'enjoys a limited measure of

protection. commensurate with its subordinate position in the scale of First Amendment values,'''

Lefkoe. 577 F.3d at 249 (quoting Bd. ofrrs. ofSUNYv. Fox. 492 U.S. 469. 477 (1989)). Further.

"there can be no constitutional objection" to thc regulation of commercial speech that is

"misleading" or "related to unlawful activity." Central Hudson Gas & Elec. Corp. v. Pub. Servo

Comm 'n of N. Y., 447 U.S. 557. 563-64 (1980). Accordingly. courts have recognizcd that "the

nature of the speech" is "a driving force in choosing a standard by which to balancc the rights of

anonymous speakers in discovery disputes," In re Anonymous. 661 F.3d at 1177.

According to Drasin. ACT has not demonstrated that its intercsts in disclosure outweigh

the John Doe defendants' rights to anonymous speech. He relics primarily on the decision of the

Maryland Court of Appeals in Independent Newspapers, Inc. v. Brodie. 407 Md. 415. 966 A.2d

432 (Md. 2009). In Brodie. thc plaintiff brought a defamation action against a newspaper and

several anonymous defendants who posted comments on the newspaper's online discussion

forum. and then subpoenaed the newspaper to obtain the identities of the Doc defendants. See id.

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Case 1:13-cv-01l40-ELH Document 8 Filed 07/24/13 Page 6 of 9

at 431-39,996 A.2d at 442-47. The court held that the newspaper was not obligated to comply

with the subpoena because the plaintiff had not made out a prima facie case of defamation. Id. at

440,966 A.2d at 447.

The Brodie Court articulated a five-part test to "balanc[e) an individual's First

Amendment right to speak anonymously on the Internet against a plaintiff's right to seek judicial

redress for defamation." /d. It said:

[W)hen a trial court is confronted with a defamation action in which anonymous

speakers or pseudonyms arc involved, it should, (I) require the plaintiff to

undertake efforts to notify the anonymous posten; that they arc the subject of a

subpoena or application for an order of disclosure, including posting a message ofnotification of the identity discovery request on the message board; (2) withhold

action to afford the anonymous posters a reasonable opportunity to file and serveopposition to the application; (3) require the plaintiff to identify and set forth the

exact statements purportedly made by eaeh anonymous poster, alleged to

constitute actionable speech; (4) determine whether the complaint has set forth a

prima facie defamation per se or per quod action against the anonymous posters;

and (5), if all else is satisfied, balance the anonymous poster's First Amendment

right of free spcech against thc strength of the prima facie case of defamation

presented by the plaintiff and the necessity for disclosure of the anonymous

defendant's identity, prior to ordering disclosure.

Id. at 456, 966 A.2d at 457 (citing Dendrite Int'/, Inc. v. Doe No.3, 775 A.2d 756, 760-61 (N.J.

Super. Ct. App. Div. 2001)).

Drasin argues that ACT has failed to satisfy the Brodie test. Fin;t, Drasin asserts that

ACT did not undertake to notify the anonymous posten; that they are the subject of a subpoena

by posting a notification on the blog. Motion at 6-7. Second, he claims that ACT has not

identified the particular comments made by the John Doc defendants that it alleges are unlawful,

and therefore this Court cannot "weigh the posten;"] [F)irst [A)mendment right to remain

anonymous against Plaintiffs right to seek judicial redress." Id. at 7. Third, he contends that

ACT cannot make out a prima facie case on any of its claims, because ACT has failed to identify

the actionable comments on which its lawsuit is based. Id. at 7-10.

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Case 1:13-cv-01l40-ELH Document8 Filed07/24/13 Page 7 of 9

In response, ACT claims that, under "under principles of comity," this Court should

"defer" to Magistrate Judge Mix's authorization of the subpoenas in this case. Opp. at 7-8

(citing Ulmet v. United States, 888 F.2d 1028, 1031 (4th Cir. 1989)). CitingLefkoe and In re

Anonymous Online Speakers, supra,ACT also argues that the Doe defendants' comments are not

protected under the First Amendment becausc they constitute false and misleading commercial

statements. Opp. at 9-11. Additionally, ACT contends that, even underBrodie, the subpoenas

arc valid because ACT attempted to give notice to the anonymous posters through posts on

Random Convergence; identified the anonymous posts at issue; alleged a prima facie case; and

its interests in vindicating its rights outweigh the First Amendment rights of the John Doc

defendants. See id. at 11-17. ACT adds that it "is willing to enter into a protective order which

limits disclosure of the anonymous posters' identities to just the parties in this lawsuit or just to

their attorneys." Id. at 17.

I agree that ACT has a strong interest in protecting itself from unlawful online speech.

According to ACT, it has suffered harm to its reputation as a result of the blog's extensive

commentary on its business practices that are, according to ACT, false and misleading. For

example, potential and current clients have allegedly declined to use ACT's services because of

the comments on Random Convergence. Gerberg Aff. '\127;see In re Anonymous, 661 F.3d at

1176 (recognizing "the great potential for irresponsible, malicious, and harmful communication

and that particularly in the age of the Internet, the speed and power of internet technology makes

it difficult for the truth to 'catch up' to the lie") (internal quotation marks and citation omitted).

Moreover, ACT is in need of the identities of these eommenters to pursue its legal claims

concerning the online speech. See Lefkoe, 577 F.3d at 249; e.g., Columbia Ins. Co. v.

seescandy.com, 185 F.R.D. 573, 577-78 (N.D. Cal. 1999) (rccognizing need for parties injured

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Case 1:13-cv-01l40-ELH Document 8 Filed 07/24/13 Page 8 of 9

by anonymous online tortfeasors to discover the tortfeasors' identities in order to permit service

and obtain relief); see also Gerberg Aff. '\137 ("The only way to veritY the identity of anonymous

posts is by the Internet Protocol address that individual used to post on the Random Convergence

blog.").

ACT's interest In disclosure clearly outweighs the Doe defendants' limited First

Amendment right of anonymity. See In re Anonymous, 661 F.3d at 1176-77. Given that the

speech in question is of a commercial nature, and allegedly false and misleading, it "enjoys less

First Amendment protection." Lejkoe, 577 F.3d at 248; see Central Hudson, supra, 447 U.S. at

563-64 (discussing commercial speech); see also Ashcroft v. Free Speech Coalition, 535 U.S.

234, 245-46 (2002) (explaining that First Amendment protection "docs not embrace certain

categories of speech, including defamation").

ACT has also satisfied the procedural requirements set forth inBrodie, although they are

not binding on this Court. In particular, ACT avers that Drasin posted a letter from ACT on the

blog, "putting all posters on notice that ACT would seek a subpoena" if the defamatory

comments were not rcmoved. Opp. at 13; Gerberg Aff. '\I 34. Additionally, ACT claims that it

attempted to address the defamatory comments by posting directly to Random Convergence, but

Drasin deleted its posts. Opp. at 13; Gerberg Aff. '\1'\132,34.

Further, I reject Drasin's argument that ACT has not identified adequately the allegedly

unlawful posts. To be sure, not all of the comments in the exhibits submitted by ACT arc

offensive, and thus the identities of those who made those remarks would be irrelevant to ACT's

claims that commenters "published disparaging, false, defamatory and harmful statements." See

Opp. at 15-16. Nevertheless, ACT has provided voluminous exhibits that dctail the many

offensive comments made on the Random Convergence blog which form the basis of its suit.

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Case 1:13-cv-01140-ELH Document 8 Filed 07/24/13 Page 9 of 9

See generally Opp. Exh. 3 (ECF 6-3). Judge Mix determined that ACT is entitled to expedited

discovery as to these comments, see Opp. at 1, and I will not second-guess that determination.

See Ulmet, supra, 888 F.2d at 1031 (discussing principles of judicial comity); e.g., Gregory-

Portland Ind Sch. Dist. v.Texas Educ. Agency, 576 F.2d 81, 83 (5th Cir. 1978) (concluding that

comity precluded one district court from issuing an order that conflicted with an injunction

issued by another district court in the same matter).

Although I cannot be certain that each IP address corresponds to an offensive comment,

absolute certainty is not required. Moreover, plaintiff has agreed to a protective order, and the

Doe defendants' privacy concerns will be addressed adequately by a protective order limiting

disclosure of the defendants' identifying information to the parties and their counsel.

Conclusion

For the foregoing reasons, I will deny the Motion. An Order follows.

Date: July 24, 2013 lsi

Ellen L. Hollander

United States District Judge

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