Case 8:13-cv-03059-GJH Document 232 Filed 12/12/14 Page 1 of 4

FILED

U.S. DISTRICT COURT

DISTRICT OF /1' RY
UNITED STATES DISTRICT COURT
,\. LAND
FOR THE DISTRICT OF MARYLAND201~DEC 12 PH 3: 33
GREENBELT DIVISION
CL,I)"'"
_.\/\ S Ot FICE

AT GREENBELT

BRETT KIMBERLIN,
Plaintiff,

BY

v.

{;)U

DEPUTY

No. 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
blogging, Plaintiff has a right to the identity of an anonymous

Internet

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.
case, Plaintiff also needs that information

In the instant

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 keep his identity anonymous
attorneys

to seek

but all of his motions through two different

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,

Case 8:13-cv-03059-GJH Document 232 Filed 12/12/14 Page 2 of 4

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 SAC at 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"
life is one of "escalat(ing)

the justice system, that his

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

passing a bill of attainder.
based on defamatory

His publications

hysteria-either

ADS was using his defamatory

were a call to arms against Plaintiff

stop Plaintiff or terrible things will happen.

statements

4. ADS's limited right to anonymous

right to know who has committed

to destroy Plaintiff by any means.

speech is greatly outweighed

by Plaintiffs

tortious conduct against him. Drasin, supra at 7-

8, and In re Anonymous, 661 F.3d at 1176 (recognizing

irresponsible,

and

malicious, and harmful communication

"the great potential for

and that particularly

in the

Case 8:13-cv-03059-GJH Document 232 Filed 12/12/14 Page 3 of 4

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
his response to AOS's motion to dismiss.
Government,

him with regard to

For example, if AOS'works for the

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
defendants

not given other

in this case, all of whom are identified.

7. The only other anonymous

identified pursuant

defendant

in this case, KimberinUnmasked,

was

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:

HEARING

Docket Type:

Ruling Filed By: Court Status: Granted

Ruling Judge:

ALGEO, MICHAEL J

Reference Docket(s):

Motion: 3 Opposition: 24

Docket Text:

HEARING (ALGEO, J.) ON PlAINTIFF'S

MOTION TO COMPEL PREACTION DISCLOSURE DIRECTING GOOGlE.COM AND/OR ITS
SUBSIDIARY 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 ON
BEHALF OF THE DEFENDANT ANONYMOUS BlOGGER. MR.
REINGOLD APPEARED ON BEHALF OF THE DEFENDANT GOOGlE
INC. DEFENDANT'S AARON WALKER, WILLIAM HOGE SR., AND
ROBERT MCCAIN NOT PRESENT.

Case 8:13-cv-03059-GJH Document 232 Filed 12/12/14 Page 4 of 4

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 of ADS, 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 Ali Akbar, and mailed a copy to
Defendants Walker, Hoge, McCainand attorney Michael Smith this 12'h day of
December, 2014.

Case 8:13-cv-03059-GJH Document 232-1 Filed 12/12/14 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
GREENBELT DIVISION
BRETT KIMBERLIN,
Plaintiff,

v.

No. GJH 13 3059

NATIONAL BLOGGERSCLUB, et al
Defendants.

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

a defendant

learn the identity of Ace of Spades,

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
need to know his identity to effectively prosecute
3. I feel handicapped

that I

this case.

in my ability to respond to Ace of Spades' motion to

dismiss because I do not know his identity.

4. 1 have 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.
won a defamation

In one case, after a trial, I

suit against the blogger. In the other case, the

Case 8:13-cv-03059-GJH Document 232-1 Filed 12/12/14 Page 2 of 2

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

Case 8:13-cv-03059-GJH Document 232-2 Filed 12/12/14 Page 1 of 9

Case 1:13-cv-01l40-ELH

Document 8 Filed 07/24/13

Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
In re SUBPOENA OF DANIEL

DRASIN

ADVANCED CAREER
TECHNOLOGIES, INC.,

Civil Action No. ELH-I3-1140

(Related Case: Case No. I3-cv-00304 in
the United States District Court for the
District of Colorado)

Plaintiff,
v.
JOHN DOES 1-10, all whose true
names are unknown,
Defendants.

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

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

Case 8:13-cv-03059-GJH Document 232-2 Filed 12/12/14 Page 2 of 9

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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" to
the 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 or
given 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 device
that 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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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
search."

their job

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

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

As noted, Drasin is the administrator

in an effort to

ld.

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.
FROM THESE FRAUDS."

ld. at 24.

Commenters

STAY AWAY

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

po stings are "a sophisticated

campaign" intended to "damage ACT's business and reputation."

"[t]he entries on Random Convergence

and coordinated

Opp. at 4. It believes that

are designed to maximize the effect of the blog by

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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. Citizens for a Beller Environment, 444 U.S. 620, 634 (1980) ("Given a case or
controversy, 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 website
commenters 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

respect to identity of three non-party

statements

Document 8 Filed 07124/13

anonymous

Page 5 of 9

speakers who allegedly made defamatory

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.
1141. 1161 (9th Cir. 2010) (citations omitted).

With respect to a speaker's

591 F.3d

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.
"there can be no constitutional

objection"

Fox. 492 U.S. 469. 477 (1989)). Further.

to thc regulation

of commercial

speech that is

Central Hudson Gas & Elec. Corp. v. Pub. Servo

"misleading" or "related to unlawful activity."

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.

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See id.

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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 of
notification of the identity discovery request on the message board; (2) withhold
action to afford the anonymous posters a reasonable opportunity to file and serve
opposition 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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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)). Citing Lefkoe 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 under Brodie, 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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by anonymous online tortfeasors to discover the tortfeasors'

Page 8 of 9

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
Amendment

interest

In disclosure

right of anonymity.

clearly

outweighs

the Doe defendants'

See In re Anonymous, 661 F.3d at 1176-77.

limited

First

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 in Brodie, 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"

comments were not rcmoved.

Opp. at 13; Gerberg Aff.

'\I 34.

if the defamatory

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."
Opp. at 15-16.

Nevertheless,

ACT has provided voluminous

See

exhibits that dctail the many

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

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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., GregoryPortland 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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