Case 8:13-cv-03059-GJH Document 301 Filed 08/14/15 Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
BRETT KIMBERLIN,
Plaintiff,
v.
PATRICK FREY,
Defendant.

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Case No. 13-3059 GJH

ACE OF SPADES MOTION FOR LEAVE TO FILE RESPONSE TO

INTERMARKETS MOTION TO RECONSIDER OR IN THE ALTERNATIVE FOR
PROTECTIVE ORDER AND MOTION FOR PROTECTIVE ORDER
Non-party Ace of Spades (Ace), by counsel and pursuant to Federal Rules 26 and 45,
respectfully moves the Court for leave to file the attached Response to Non-party Intermarkets,
Inc.s Motion To Reconsider or in the Alternative for Protective Order (Response to
Intermarkets Motion), ECF No. 296, and the attached Motion for Protective Order, and as
grounds therefor states as follows:
1.

Ace was dismissed as a defendant in this action on March 17, 2015. On or about

May 21, 2015, Plaintiff Brett Kimberlin issued a subpoena duces tecum to an online advertising
firm that contracts with AceIntermarkets, Inc.for the purpose, as Kimberlin has stated, of
discover[ing] the identity of Ace. Kimberlin Opposition, ECF No. 288, at 2. Kimberlin has
further declared that he seeks Aces identity because he need[s] to get discovery, documents,
and testimony from Ace. Kimberlin Declaration (attached to ECF No. 288), 6.
2.

Under Federal Rule of Civil Procedure 45(d)(3)(B), this Court is empowered to

quash or modify a subpoena [t]o protect a person subject to or affected by a subpoena if the

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subpoena requires disclosing . . . confidential . . . commercial information. (Emphasis added.)

Because Aces privacy interests are threatened by Kimberlins subpoena against Intermarkets,
Ace is clearly affected by the subpoena, and the Court has the power to protect Aces interests.
See Loubser v. Pala, No. 04-cv-75, 2007 WL 3232136, at *1, 8 (N.D. Ind. Oct. 29, 2007)
(granting motion of former defendant to quash subpoena, directed to his telephone-service
provider, seeking former defendants phone records).
3.

Moreover, because Kimberlin is effectively seeking discovery from Ace, Ace is

entitled to move for a protective order. See Fed. Rule of Civil Pro. 26(c)(1) (any person from
whom discovery is sought may move for a protective order). Indeed, the Court expressly
invited the submission of a proposed protective order for the discovery relating to Ace that
Kimberlin seeks. See Letter Order, ECF No. 294, at 4 n.2.
For these reasons, Ace respectfully requests that the Court grant this motion and order
that the Response to Intermarkets Motion (attached as Exhibit A) and Motion for Protective
Order (attached as Exhibit B) be filed in the case docket.
Dated: August 14, 2015

Respectfully submitted,
BAKER & HOSTETLER LLP
By:
/s/ Mark I. Bailen
Mark I. Bailen (13805)
Washington Square, Suite 1100
1050 Connecticut Avenue, N.W.
Washington, DC 20036
Tel:202-861-1500
Fax:202-861-1783
mbailen@bakerlaw.com
Counsel for Non-party Ace of Spades

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CERTIFICATE OF SERVICE
I hereby certify that on August 14, 2015, a true and correct copy of the foregoing
Response will be filed using the Courts ECF system, which will then send a notification of such
filing to all counsel of record. Further, I hereby certify that on August 14, 2015, a true and
correct copy of the foregoing Response will be sent via first-class mail, postage prepaid, to
Brett Kimberlin
8100 Beech Tree Road
Bethesda, MD 20817

/s/ Mark I. Bailen

Mark I. Bailen (13805)
Washington Square, Suite 1100
1050 Connecticut Avenue, N.W.
Washington, DC 20036
Tel: 202-861-1500
Fax: 202-861-1783
mbailen@bakerlaw.com
Counsel for Non-party Ace of Spades

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EXHIBIT A

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
BRETT KIMBERLIN,
Plaintiff,
v.
PATRICK FREY,
Defendant.

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Case No. 13-3059 GJH

ACE OF SPADES RESPONSE TO INTERMARKETS MOTION TO

RECONSIDER OR IN THE ALTERNATIVE FOR PROTECTIVE ORDER
Non-party Ace of Spades (Ace), by and through the undersigned counsel and pursuant
to Federal Rules 26 and 45, respectfully submits this Response to Non-party Intermarkets, Inc.s
Motion to Reconsider or in the Alternative for Protective Order, ECF No. 296, and in support
thereof, states as follows:
1.

Plaintiff Brett Kimberlin persists in his efforts to obtain the identity of Ace

purportedly in order to question [Ace] and seek documents from him to discover relevant
evidence in the instant case. 1 As noted in the motion by Intermarkets, Inc., Ace has broad
rights under the Constitution to speak anonymously, and as set forth in the attached Declaration,
he places the utmost importance on maintaining his anonymity. 2 Plaintiff has not met his burden
to overcome the protections afforded to an anonymous speaker such as Ace.
1

Plaintiffs Response to Intermarket/Ace of Spades Motion to Reconsider the Courts July 24,
2015 Order Denying His Motion to Quash, ECF No. 299, at 3 (Plaintiffs response). Despite
the title of Plaintiffs response, Intermarkets, Inc., as the recipient of the subpoena, moved to
quash the subpoena and then subsequently moved for reconsideration of this Courts order. Ace
was not a movant for either of those motions.
2

Ace is aware of numerous anonymous bloggers who have suffered negative repercussions after
having their identities revealed, and wishes to avoid that outcome for himself. Ace states that he
fears that if his identity is disclosed publicly or even to Plaintiff alone, he will suffer irreparable

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2.

However, Ace appreciates that the Court expressly invited Intermarkets to seek a

narrower and more tailored protective order to address specific privacy and confidentiality
concerns. Letter Order, ECF No. 294, at 4 n.2. Ace respectfully submits this response to
inform the Court that, although Plaintiff has not met his burden, Ace nonetheless is agreeable to
provide information to Plaintiff responsive to reasonable discovery requests under the protection
of a narrowly tailored protective order that precludes disclosure of his identity. A motion for
such a protective order, accompanied by a proposed order, is filed simultaneously herewith.
3.

Specifically, subject to such a protective order, Ace would be willing to produce

relevant documents (with redactions to identifying information or other information that raises
privacy concerns) and entertain appropriate written interrogatories that can be responded to
through counsel, subject, of course, to applicable privileges. See Ace Decl., 7. Courts have
approved such an approach where a non-partys privacy is at stake. See Marcella v. Brandywine
Hosp., 47 F.3d 618, 626 (3d Cir. 1995) (permitting anonymous discovery from blood donor in
case alleging negligence concerning blood transfusion infected with HIV); Moore v. Rees, No.
emotional, professional, and reputational injury. Declaration of Non-Party Ace of Spades (Ace
Decl.), 1-3, 6. Moreover, [i]ncluded within the panoply of protections that the First
Amendment provides is the right of an individual to speak anonymously. Independent
Newspapers, Inc. v. Brodie, 966 A.2d 432, 440 (Md. 2009) (reversing trial courts order to
identify anonymous online writers) (collecting cases). The tradition of anonymous political
writing extends back to this nations earliest days, most famously in the Federalist Papers
published under the pseudonym of Publius, and the historical evidence indicates that
Founding-era Americans opposed attempts to require that anonymous authors reveal their
identities. McIntyre v. Ohio Elections Commn, 514 U.S. 334, 360-61 (1995) (Thomas, J.,
concurring).
The authorities in Plaintiffs response are readily distinguishable from this case. In In re
Anonymous Speakers, 661 F.3d 1168, 1176 (9th Cir. 2011), the district court ordered disclosure
of some (but not all) of a set of anonymous speakers only after applying the most exacting
standard: that of summary judgment. Plaintiff here has made no evidentiary showing
supporting his demand for Aces identity that can meet that standard. The other cases cited by
Plaintiff refer to instances where, unlike here, the anonymous speakers identity was sought in
order to assert claims against that person. By contrast, this Court has already dismissed Ace as a
defendant because Plaintiff failed to state a claim against him.
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06-cv-22, 2007 WL 1035013, at *15 (E.D. Ky. Mar. 30, 2007) (permitting anonymous discovery
from execution team members in suit to prevent execution of prisoner). 3
4.

Furthermore, subject to such a protective order, Intermarkets has indicated that it

is willing to produce [the requested documents] provided that it can redact any information that
identifies Ace of Spades, including name, address, financial information and the like. ECF No.
296-1, at 11-12.
5.

Such a protective order serves the interests of all involved. Plaintiff will obtain

discovery he believes he needs for his case, while both Intermarkets and Ace will have the
assurance that the anonymity of Ace will be protected. Maintaining the anonymity of its
blogger-clients is central to Intermarkets business, id. at 11, and it is critical to Ace, whose First
Amendment rights and safety concerns are at stake. Ace Decl., 3, 6.
6.

Counsel has conferred with Plaintiff, pursuant to Local Rule 104.7, and Plaintiff

stated that he opposes the relief requested.

7.

To the extent that such a protective order is not entered, before the anonymity of a

non-party is disclosed, the party seeking disclosure must establish that: (1) the subpoena seeking
the information was issued in good faith and not for any improper purpose; (2) the information
sought relates to a core claim or defense; (3) the identifying information is directly and
materially relevant to that claim or defense; and (4) information sufficient to establish or to
disprove that claim or defense is unavailable from any other source. See Doe v. 2TheMart.com,
Inc., 140 F. Supp. 2d 1088, 1095 (W.D. Wash. 2001) (quashing subpoena issued to internet
service provider seeking identification of anonymous speakers). As an anonymous speaker, Ace

The United States District Court for the District of Columbia entered a similar protective order
in Sherrod v. Breitbart, No. 11-cv-00477 (D.D.C. Sept. 16, 2013), ECF No. 67, that protected
from disclosure the identity of a confidential source.
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is entitled to test Kimberlins evidence as to these factors before he is stripped of his anonymity,
which is not only constitutionally protected but is also of great value to him.
CONCLUSION
For the foregoing reasons, Ace respectfully requests that the Court reconsider its denial of
Intermarkets motion to quash and quash the subpoena entirely, or in the alternative, grant the
motions for a protective order by Intermarkets and Ace that prevents disclosure of Aces identity.

Dated: August 14, 2015

Respectfully submitted,
BAKER & HOSTETLER LLP
By:
/s/ Mark I. Bailen
Mark I. Bailen (13805)
Washington Square, Suite 1100
1050 Connecticut Avenue, N.W.
Washington, DC 20036
Tel:202-861-1500
Fax:202-861-1783
mbailen@bakerlaw.com
Counsel for Non-party Ace of Spades

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
BRETT KIMBERLIN,
Plaintiff,
v.
PATRICK FREY,
Defendant.

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Case No. 13-3059 GJH

DECLARATION OF ACE OF SPADES

I, Ace of Spades, under oath and through my counsel, declare under penalty of perjury that
the following is true and correct to the best of my personal knowledge pursuant to 28 U.S.C.
1746:
1.

I am an anonymous blogger who writes using the pseudonym Ace of Spades. I

have posted under this name on a blog that I operate titled Ace of Spades HQ for over a
decade. This is a group blog featuring content, written by myself and others posting under other
names, that offers a range of political, social, and cultural commentary.
2.

The blog has been widely recognized and is a recipient of several awards.

3.

I blog anonymously in order to express my opinions and views, and contribute to

online debate on matters of public concern, while also protecting my privacy. I am personally
aware of numerous instances in which anonymous bloggers were outed and suffered harsh
reputational and professional consequences, harassment, and fear for their personal security. I
am careful to protect my anonymity and I have turned down multiple offers of employment
because the positions offered would have required me to publicly disclose my identity. In June

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2011, I received a death threat that I considered credible enough to refer to law enforcement, as a
result of my blogging on a matter unrelated to Mr. Kimberlin and this case. This incident
redoubled my sense that maintaining my anonymity continues to be of utmost importance.
4.

My blog is my only occupation and my sole source of income. I receive income

through my commercial relationship with Intermarkets, Inc., an advertising company that

specializes in protecting its clients anonymity.
5.

My understanding of the records Intermarkets holds related to me is that they

include my name, address, and bank account, as well as matters such as automatic tallying of
page views for purposes of advertising compensation. Crucially, none of these business records
bear any possible relevance to Mr. Kimberlins allegations concerning my alleged relationship
and communications with Patrick Frey. My only communications with Intermarkets relate to the
placement of ads, compensation for such placement, and related technical issues. Intermarkets
also contacted me to inform me of Mr. Kimberlins attempts to obtain records from the company.
6.

If my identity is exposed as a result of Mr. Kimberlins subpoena to Intermarkets

or otherwise, I will suffer not only emotional distress, but also irreparable professional and
reputational injury. As noted above, I fear for my safety as I have received death threats in the
past. In addition, the success of my website in attracting readers is in large part due to the
anonymous nature of the posts by Ace of Spades. This would be irreparably lost if my identity
is disclosed.
7.

I appreciate that this Court has dismissed me as a defendant from this case. I wish

nothing more than to put this entire matter behind me. Accordingly, through counsel, I am
willing to provide to Mr. Kimberlin information responsive to his discovery requests provided a

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protective order is in place to protect against the disclosure of my identity. I am also willing to
entertain appropriate written interrogatories that can be responded to through counsel.

/s/ Ace of Spades

Executed on August 14, 2015

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EXHIBIT B

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
BRETT KIMBERLIN,
Plaintiff,
v.
PATRICK FREY,
Defendant.

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Case No. 13-3059 GJH

ACE OF SPADES MOTION FOR PROTECTIVE ORDER

Non-party Ace of Spades (Ace), by counsel and pursuant to Federal Rules 26 and 45,
respectfully moves the Court to grant the attached proposed Protective Order, and as grounds
therefor, refers to and incorporates herein Aces Response to Intermarkets Motion To
Reconsider or in the Alternative for Protective Order, submitted simultaneously herewith.
Pursuant to Local Rule 104.7, the undersigned counsel certifies that he conferred with
Plaintiff Brett Kimberlin by telephone on Friday, August 14, 2015, at approximately 3:30 PM.
Plaintiff stated that he opposes the relief requested.
WHEREFORE, Ace respectfully requests that the court grant the motion and enter the
attached proposed Protective Order.

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Dated: August 14, 2015

Respectfully submitted,
BAKER & HOSTETLER LLP
By:
/s/ Mark I. Bailen
Mark I. Bailen (13805)
Washington Square, Suite 1100
1050 Connecticut Avenue, N.W.
Washington, DC 20036
Tel:202-861-1500
Fax:202-861-1783
mbailen@bakerlaw.com
Counsel for Non-party Ace of Spades

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
BRETT KIMBERLIN,
Plaintiff,
v.
PATRICK FREY,
Defendant.

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Case No. 13-3059 GJH

(PROPOSED) ORDER GRANTING MOTIONS FOR PROTECTIVE ORDER BY

INTERMARKETS AND ACE OF SPADES
THIS MATTER has come before the Court on non-party Intermarkets, Inc.s
(Intermarkets) Motion to Reconsider, or in the alternative, for Protective Order, and non-party
Ace of Spades Response thereto and non-party Ace of Spades Motion for Protective Order, as
well as any opposition thereto. Upon consideration thereof, it is this ______ day of ______,
2015, hereby ORDERED as follows:
1.

Intermarkets Motion for Protective Order is GRANTED;

2.

Ace of Spades Motion for Protective Order is GRANTED;

3.

Intermarkets, in producing documents responsive to Plaintiff Kimberlins

subpoena duces tecum, shall redact any information that identifies Ace of Spades, including
name, address, financial information, and the like;
4.

Any discovery sought from Ace of Spades shall be directed to Ace of Spades on

an anonymous basis through his counsel;

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5.

Ace of Spades is permitted to redact identifying information or otherwise protect

against disclosure of his identity in response to any discovery from the parties; and
6.

Plaintiff Kimberlin shall cease efforts to compel disclosure of non-party Ace of

Spades identity through process of law.

_______________________________
Hon. George J. Hazel
United States District Judge
United States District Court for the District of Maryland

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
BRETT KIMBERLIN,
Plaintiff,
v.
PATRICK FREY,
Defendant.

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Case No. 13-3059 GJH

(PROPOSED)
ORDER GRANTING ACE OF SPADES MOTION FOR LEAVE TO FILE RESPONSE
TO INTERMARKETS MOTION TO RECONSIDER OR IN ALTERNATIVE FOR
PROTECTIVE ORDER AND MOTION FOR PROTECTIVE ORDER

Upon consideration of non-party Ace of Spades Motion for Leave To File Response, and
any opposition thereto, it is this ______ day of ______, 2015, hereby
ORDERED that non-party Ace of Spades Motion for Leave is GRANTED; and it is
further
ORDERED that the clerk is directed to file the Response to Intermarkets Motion To
Reconsider or in the Alternative for Protective Order (attached as Exhibit A to the Motion for
Leave) and the Motion for Protective Order (attached as Exhibit B to the Motion for Leave).

_______________________________
Hon. George J. Hazel
United States District Judge
United States District Court for the District of Maryland