Case 8:13-cv-03059-GJH Document 355 Filed 03/23/16 Page 1 of 4

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UNITED STATES DISTRICT COURT-iS h.v '.

DISTRICT OF MARYLAND
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BRETT KIMBERLIN,
Plaintiff,
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v.

No GJH13-3059

PATRICK FREY,
Defendant.
MOTION TO CONTEST CONFIDENTIAL DESIGNATION OF DISCOVERY AND
ALLOW PLAINTIFF TO USE DISCOVERY DOCUMENTS IN MOTION FOR
SUMMARY JUDGMENT

Now comes Plaintiff Brett Kimberlin and moves this Court to (1) review the
confidential

designation

of discovery as allowed by the Protective Order issued in

this case, and (2) direct Defendant Frey's counsel to allow him to use discovery in
Plaintiffs Motion for Summary Judgment.
1. Defendant Frey has provided more than 2600 pages of discovery in this case.
99.9 percent of those documents
Frey. This violates paragraph
confidential

designation

have been labeled "CONFIDENTIAL" by Defendant

1a of the Protective Order which only allows a

when a party "in good faith believes it contains sensitive

personal information, trade secrets or other confidential

commercial

information

which is in fact confidential.

research, development,

A party shall not routinely

designate material as "CONFIDENTIAL"...." (emphasis added).

Defendant Frey routinely designated

or

In the instant case,

virtually all of the documents

as confidential.

Plaintiff has reviewed every single document and he can find not one that contains
the required "sensitive personal information"

necessary for a confidential

Case 8:13-cv-03059-GJH Document 355 Filed 03/23/16 Page 2 of 4

designation.

They are simply emails to and from dozens of people, articles, letters

and drafts of blog posts.

2. Under paragraph
designation

4 of the Protective Order, a party can "challenge" the

of confidentiality,

and the "burden of proving the confidentiality

remains with the party asserting such confidentiality."

the designation

of all the documents

...

Plaintiff hereby challenges

marked "CONFIDENTIAL."

3. Moreover, for the past two weeks, Plaintiff has repeatedly

asked counsel for

Defendant Frey to remove the "CONFIDENTIAL" stamp from several hundred

documents

Plaintiff wants to use as exhibits for his soon to be filed Motion for

Summary Judgment.

Plaintiff advised counsel that paragraph

Order, Plaintiff can use those documents

litigation.
documents

lc ofthe Protective

to prepare and conduct the instant

Plaintiff also advised counsel that the Fourth Circuit has held that
produced

pursuant

to a protective order lose their protected

status once

they are used in a motion for summary judgment.

As the court stated in Rushford v. New Yorker, Magazine, 846 F.2d 249,252,

(4th

Cir. 1988),
"discovery, which is ordinarily conducted in private, stands on a wholly
different footing than does a motion filed by a party seeking action by the
court. See Bank of America Nat'l Trust and Say. Ass'n v. Hotel Rittenhouse
Assoc., 800 F.2d 339, 343 (3d Cir. 1986). The counsel for The New Yorker
even acknowledged that if the case had gone to trial and the documents were
thereby submitted to the court as evidence, such documents would have
been revealed to the public and not protected under the Order. Because
summary judgment adjudicates substantive rights and serves as a substitute
for a trial, we fail to see the difference between a trial and the situation
before us now. See Anderson v. Cryovac, Inc., 805 F.2d 1,13 (1st Cir. 1986)
(recognizing that documents submitted as a part of motions for summary
judgment are subject to public right of access); In re Continentall/linois Sec.
Litig., 732 F.2d 1302, 1308-10 (7th Cir. 1984) (presumption of public right of
access applies to motion to terminate derivative c1aims);Joy v. North, 692

Case 8:13-cv-03059-GJH Document 355 Filed 03/23/16 Page 3 of 4

F.2d 880, 893 (2d Cir. 1982) ("documents used by parties moving for, or
opposing, summary judgment should not remain under seal absent the most
compelling reasons").
See also In re Agent Orange" Product Liability Litigation, 98 F.R.D. 539, 54445 (E.D.N.Y. 1983) ("Once the documents

are made part of a dispositive

motion,

such as a summary judgment motion, they "lose their status of being 'raw fruits of
discovery.''')
4. In the instant case, Plaintiff believes that under the protective
under Rushford et ai, he can simply attach the discovery documents
Summary Judgment.

However, all of those documents

order and
to his Motion for

will have a very large font

CONFIDENTIAL stamp across them. Moreover, counsel for Defendant Frey has
stated in an email dated March 22, 2016, the following:
"We are not consenting to any diminution in the confidentiality level of
anything. Moreover please be clear that nothing authorizes you to violate
that confidentiality unilaterally, including motion submissions."
Therefore,

Plaintiff needs an order from this Court allowing him to publicly use the

discovery documents

in his Motion for Summary Judgment.

5. Plaintiff has attempted

Frey as his declaration
Wherefore,

to resolve these matters with counsel for Defendant

below asserts.

Plaintiff moves this Court to remove the Confidential designations

from the Frey discovery and issue an order allowing Plaintiff to publicly use that
discovery in his Motion for Summary Judgment.

Respectfully submi
Brett Kimberlin
8100 Beech Tree Rd
Bethesda, MD 20817
(301) 320 5921

e9'

Case 8:13-cv-03059-GJH Document 355 Filed 03/23/16 Page 4 of 4

Certificate of Service
I certifY that I mailed a copy of this motion to William Hoge and emailed a copy to
the attorneys for Defendant Frey this 23rd day of March ~~/
Brett Kimb rlinp
DECLARATION

\3

I Brett Kimberlin declare under penalty of perjury, pursuant to 28 USC1746, that

I have consulted with counsel for Defendant Frey on the matters stated above and
that we have not been able to resolve the issue. I advised counsel that if the issues
were not resolved by yesterday, I would file this motion.
March 23, 2016