Case 8:13-cv-03059-GJH Document 283 Filed 06/09/15 Page 1 of 2

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND
(Baltimore Division)
____________________________________
BRETT KIMBERLIN,
)
)
Plaintiff,
)
)
v.
) Civil Action No. 13cv3059-GJH
)
NATIONAL BLOGGERS CLUB, et al.,
)
)
Defendants.
)
____________________________________)
MOTION TO QUASH SUBPOENA DUCES TECUM
SERVED ON INTERMARKETS, INC., OR IN THE ALTERNATIVE
FOR PROTECTIVE ORDER
Non-Party Intermarkets, Inc. (Intermarkets), by counsel, and pursuant to Federal Rules
of Civil Procedure 26 and 45, requests that this Court quash the Subpoena Duces Tecum served
on Intermarkets, Inc. by the Plaintiff, Brett Kimberlin, or in the alternative, issue a Protective
Order preventing the production or disclosure of the documents requested by the Subpoena
Duces Tecum. The basis for this Motion is set forth in a memorandum being filed concurrently
herewith.

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Case 8:13-cv-03059-GJH Document 283 Filed 06/09/15 Page 2 of 2

Dated: June 9, 2015

Respectfully submitted,
INTERMARKETS, INC.
By Counsel

REED SMITH LLP

/s/ Stephen T. Fowler

Stephen T. Fowler, Esq. (Md. Bar No. 16881)
3110 Fairview Park Drive Suite 1400
Falls Church, Virginia 22042
(703) 641-4200
(703) 641-4340 FAX
sfowler@reedsmith.com
Counsel for Intermarkets, Inc.

CERTIFICATE OF SERVICE
I hereby certify that on June 9, 2015, a true and correct copy of the foregoing will be filed
using the Courts ECF system, which will then send a notification of such filing to all counsel of
record.

/s/ Stephen T. Fowler

Stephen T. Fowler, Esq.(Md. Bar No. 16881)
3110 Fairview Park Drive Suite 1400
Falls Church, Virginia 22042
(703) 641-4200
(703) 641-4340 FAX
sfowler@reedsmith.com
Counsel for Intermarkets, Inc.

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Case 8:13-cv-03059-GJH Document 283-1 Filed 06/09/15 Page 1 of 8

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND
(Baltimore Division)
____________________________________
BRETT KIMBERLIN,
)
)
Plaintiff,
)
)
v.
) Civil Action No. 13cv3059-GJH
)
NATIONAL BLOGGERS CLUB, et al.,
)
)
Defendants.
)
____________________________________)
MEMORANDUM IN SUPPORT OF
MOTION TO QUASH SUBPOENA DUCES TECUM
SERVED ON INTERMARKETS, INC. OR IN THE ALTERNATIVE
FOR PROTECTIVE ORDER
Non-Party Intermarkets, Inc. (Intermarkets), by counsel, and pursuant to Federal Rules
of Civil Procedure 26 and 45, submits its Memorandum in Support of Motion to Quash
Subpoena Duces Tecum Served on Intermarkets, or in the alternative, for Protective Order
(Motion).
INTRODUCTION
Plaintiff Brett Kimberlin served a subpoena duces tecum on Intermarkets on June 3, 2015
that requested any documents relating to now-dismissed Defendant, Ace of Spades, in order to
ascertain the identity of any blogger associated with the now-dismissed Defendant Ace of
Spades. On March 17, 2015, the Court dismissed Plaintiffs claims against Ace of Spades and
all other defendants, with the exception of Assistant District Attorney Patrick Frey. Plaintiffs
remaining civil rights claim against Defendant Frey, a government actor, have no relevance to
the records related to Ace of Spades sought by Plaintiffs subpoena. Plaintiff, of course knew
that Ace of Spades had been dismissed when he requested the issuance of the subpoena at issue

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Case 8:13-cv-03059-GJH Document 283-1 Filed 06/09/15 Page 2 of 8

two months later. With Ace of Spades no longer a defendant in this action, Plaintiffs subpoena
is an obviously improper attempt to access Intermarkets confidential business records and use
this litigation as a vehicle to identify any blogger associated with Ace of Spades.
That the subpoena is improper is further demonstrated by the fact that on March 17,
2015, the Court denied Plaintiffs Motion to Identify any blogger associated with Ace of Spades
as moot because the Court dismissed Ace of Spades from this action. With full knowledge that
this Court had already ruled that information relating to Ace of Spades was no longer relevant to
this case, Plaintiff nonetheless caused the subpoena to be issued thereby engaging in a clear
end-run around the Courts decision. The Court should not countenance such conduct and
should quash Plaintiffs subpoena.
BACKGROUND
On June 24, 2014 Plaintiff Brett Kimberlin (Plaintiff) filed his Second Amended
Complaint naming Ace of Spades as a defendant. (Dkt. 135.) On or about October 24, 2014
Defendant Ace of Spades filed a motion to dismiss, a corrected version of which was filed on
October 27, 2014. (Dkts. 213, 216.) Every other defendant in the action filed motions to dismiss.
(Dkts. 136, 140, 147, 148, 149, 152, 156, 180, 184, 190, 213, 216, 238, 255.) On or about
December 12, 2014, Plaintiff filed a Motion to Identify Defendant Ace of Spades seeking to
identify the blogger associated with defendant Ace of Spades. (Dkt. 232.)
On or about March 17, 2015, the Court granted Defendant Ace of Spades Motion to
Dismiss holding that Plaintiff failed to state a claim against Ace of Spades. (Dkts. 263, 264.) On
that same day, the Court also granted every other motion dismiss except for Assistant District
Attorney Patrick Freys motion to dismiss, which the Court granted in part and denied in part.
(Id.) As a result, only Defendant Frey remained in the case after March 17, 2015, and only

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Plaintiffs 42 U.S.C. 1983 claim against Defendant Frey remained in the case after March 17,
2015. (Id.) Furthermore, having dismissed Defendant Ace of Spades from the case on March 17,
2015, the Court denied Plaintiffs Motion to Identify Defendant Ace of Spades as moot. (Dkt.
264.) Then, on May 21, 2015, four days after the Court dismissed Defendant Ace of Spades
from the action, Plaintiff

requested the subpoena duces tecum seeking documents from

Intermarkets related to the dismissed Defendant Ace of Spades. See Subpoena to Intermarkets
(attached as Exhibit A.) Given this factual backdrop, Plaintiffs subpoena must be quashed or a
protective order precluding the disclosure of any documents must be issued because (1) Ace of
Spades is no longer a defendant in this action; (2) the only remaining claim in this action is a
civil rights claim against a government actor, and this claim has no relevance to Ace of Spades;
(3) Plaintiffs subpoena seeks Intermarkets confidential information; and (4) Plaintiffs
subpoena is an end-run around the Courts denial of Plaintiffs Motion to Identify Defendant Ace
of Spades.
Accordingly, for the reasons more fully stated below, Plaintiffs subpoena must be
quashed or a protective order must be issued precluding the disclosure of any documents.
ARGUMENT
I.

Ace of Spaces is No Longer a Defendant in this Action

Plaintiffs subpoena must be quashed or a protective order issued because the subpoena

seeks irrelevant documents related to Ace of Spades a defendant who the Court dismissed
from this action on March 17, 2015. (Exhibit A.) A party only may obtain discovery regarding
any nonprivileged matter that is relevant to any partys claim or defense Fed. R. Civ. P.
26(b). On March 17, 2015, the Court granted Ace of Spades Motion to Dismiss the Second
Amended Complaint. (Dkt. 264.) In doing so, the Court held that Plaintiff failed to state a claim

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against Ace of Spades (Dkt. 263), and consequently, the Court dismissed defendant Ace of
Spades from the action.
Plaintiffs subpoena seeks:
[a]ll documents related to the blog Ace of Spades, or person associated with the
blog Ace of Spades, and the person responsible for billing for the blog called Ace
of Spades, which has a url at http://www.ace.mu.nu/.
(Exhibit A.) Plaintiffs subpoena unquestionably seeks documents regarding a defendant no
longer in the action, and therefore, seeks irrelevant information.

Accordingly, Plaintiffs

subpoena must be quashed or a protective order must be issued because the subpoena seeks
irrelevant information.
II.

The Only Claim Remaining in This Action is a 1983 Claim Against A

Government Actor
Further, Plaintiffs subpoena must be quashed or a protective order issued because the

only remaining claim in this action is a civil rights claim under 42 U.S.C. 1983 against a
government actor. As noted above, a party may only obtain discovery on relevant information.
Fed. R. Civ. P. 26(b). The civil rights claim remaining in this action has no relationship to Ace
of Spades, whose records Plaintiff seeks. The only remaining defendant in this action is Patrick
Frey, who is an Assistant District Attorney for the Los Angeles County District Attorneys
Office. (Dkt. 263 at 25.) Plaintiff alleged in his Second Amended Complaint that Mr. Frey
violated his civil rights. (Id.) This civil rights claim is unique to Patrick Frey and is completely
separate from the dismissed allegations against Ace of Spades.1 Having only a civil rights claim
remaining against a government actor, Plaintiff has no reason or need to subpoena records
relating to now-dismissed claims against a separate and distinct defendant.

Plaintiffs subpoena acknowledges on its face that the now-dismissed Defendant Ace of Spades is a blog, not a
government actor.

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Accordingly, Plaintiffs subpoena must be quashed or a protective order must be issued

because Intermarkets records related to Ace of Spades have no relevance to the remaining
1983 claim against Defendant Frey.
III.

Plaintiffs Subpoena Seeks Intermarkets Confidential Information

Plaintiffs subpoena also must be quashed or a protective order must be issued because

Plaintiffs subpoena seeks Intermarkets confidential commercial information. Federal Rule of

Civil Procedure 45 requires a court to quash a subpoena when the subpoena requires disclosure
of privileged or other protected matter Fed. R. Civ. P. 45(3)(A)(iii). Further, Rule 45 permits
a court to quash a subpoena if it requires disclosing a trade secret or other confidential research,
development, or commercial information. Fed. R. Civ. P. 45(d)(3)(B). Likewise, under Rule
26(c), a court may, for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including[by] forbidding the
disclosure or discovery.
Intermarkets enters into business transactions with websites and internet blogs that value
anonymity, and it is central to Intermarkets business that the identity of the website owners or
internet blogs remain anonymous. As a result, Intermarkets agrees to keep its agreements and
records with website owners or internet blogs confidential. If Intermarkets is forced to reveal
documents which disclose the identity of anyone associated with the blog Ace of Spades, it
will be forced to disclose confidential records. Furthermore, websites and internet blogs will be
less likely to use Intermarkets in the future resulting in damage to Intermarkets future business.
Accordingly, under Rules 26 or 45, Plaintiffs subpoena must be quashed or a protective order
must be issued because Plaintiffs subpoena seeks confidential information.

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IV.

Plaintiffs Subpoena is an End-run Around His Motion to Identify Ace of Spades

Finally, Plaintiffs subpoena must be quashed or a protective order issued because

Plaintiff is using the subpoena as an end-run around the Courts decision to deny Plaintiffs
Motion to Identify Defendant Ace of Spades. Before the Court granted Ace of Spades Motion
to Dismiss, and dismissed Ace of Spades from this action, Plaintiff filed a Motion to Identify
Defendant Ace of Spades (Dkt. 232). When the Court determined that Plaintiff failed to state a
claim against Ace of Spades and dismissed Ace of Spades from this action (Dkts. 263-64), the
Court denied Plaintiffs Motion to Identify Defendant Ace of Spades as moot. (Dkt. 264.)
Plaintiff requested the subpoena seeking records related to Ace of Spades well after
Defendant Ace of Spades was dismissed from this action. See Exhibit A (noting a subpoena issue
date of May 21, 2015). Plaintiff unquestionably knew on May 21, 2015 that the Court dismissed
Ace of Spades from the action two months prior. Consequently, Plaintiffs subpoena merely is
an improper attempt to discover the identity of the blogger associated with Ace of Spades. The
Court already denied Plaintiffs Motion to Identify as moot presumably because the claims
against Ace of Spades had been dismissed. The subpoena must be quashed because the identity
of Ace of Spades is now moot, and Intermarkets should not be forced to disclose any confidential
documents that will disclose the identity of anyone associated with Ace of Spades. Accordingly,
Plaintiffs subpoena must be quashed or a protective order must be issued because Plaintiff is
using the subpoena as an end-run around the Courts denial of Plaintiffs Motion to Identify.
CONCLUSION
For the foregoing reasons, Intermarkets, Inc. respectfully requests the Court to enter an
Order quashing Plaintiffs subpoena duces tecum, or in the alternative, for the Court to issue a
protective order.

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Dated: June 9, 2015

Respectfully submitted,
INTERMARKETS, INC.
By Counsel

REED SMITH LLP

/s/ Stephen T. Fowler

Stephen T. Fowler, Esq. (Md. Bar No. 16881)
3110 Fairview Park Drive Suite 1400
Falls Church, Virginia 22042
(703) 641-4200
(703) 641-4340 FAX
sfowler@reedsmith.com
Counsel for Intermarkets, Inc.

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Case 8:13-cv-03059-GJH Document 283-1 Filed 06/09/15 Page 8 of 8

CERTIFICATE OF SERVICE
I hereby certify that on June 9, 2015, a true and correct copy of the foregoing will be filed
using the Courts ECF system, which will then send a notification of such filing to all counsel of
record.

/s/ Stephen T. Fowler

Stephen T. Fowler, Esq.(Md. Bar No. 16881)
3110 Fairview Park Drive Suite 1400
Falls Church, Virginia 22042
(703) 641-4200
(703) 641-4340 FAX
sfowler@reedsmith.com
Counsel for Intermarkets, Inc.

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