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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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