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Case 8:13-cv-03059-GJH Document 364 Filed 04/15/16 Page 1 of 4

U.S../

DISTRICT OF
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

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2016 AP" I S PH 2: I 7
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BRETT KIMBERLIN,
Plaintiff,

No. GJH 13305~

~,-~-OEPUTY

PARTICK FREY,
Defendant.
PLAINTIFF'S REPLY TO DEFENDANT FREY'S OBJECTION TO MOTIONS TO (1)
ALLOW PLAINTIFF TO USE DISCOVERY DOCUMENTS IN MOTION FOR
SUMMARY JUDGMENT AND (2) CONDUCT A REVIEW OF CONFIDENTIAL
DESIGNATION
Plaintiff hereby replies to Defendant Frey's response to his motions to allow
Plaintiff to use discovery documents

and transcripts

in his Motion for Summary

Judgment, and for this Court to conduct a review of the wholesale designation

of

more than 2500 pages of discovery as confidential.

1. In Rushford v. The New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th
Cir.1988), the Court held that the First Amendment

guarantee

applies to documents

filed in connection with a summary judgment motion. It noted that documents

as part of a dispositive

filed

motion, such as a summary judgment motion, "lose their

status of being 'raw fruits of discovery.' "Id. at 252 (quoting In re "Agent Orange"
Prod. Liability Litig., 98 F.R.D. 539, 544-45 (E.D.N.Y.1983)). It made this distinction
because "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." Id.
It also reasoned that the First Amendment

guarantee

"[b]ecause summary judgment adjudicates

substantive

substitute

lAND

for a trial." Id.

attached in Rushford
rights and serves as a

Case 8:13-cv-03059-GJH Document 364 Filed 04/15/16 Page 2 of 4

5. If Defendant Frey is embarrassed

by emails that show that he retaliated

against Plaintiff, so be it. Bill Cosby is certainly embarrassed

case too but that is a consequence

by the discovery in his

of misconduct

6. Defendant Frey argues that all of the 2500 plus documents

should retain

their confidential status because they consist of private emails.This

standard

required to designating

something confidential.

requires that it disclose "sensitive personal information."

documents

The Protective Order

Not a single one of those

includes anything close to sensitive personal information

security numbers, addresses,

is not the

such as social

medical data, children's names, trade secrets or bank

statements.
7. Plaintiff has submitted

some of the documents

in previous motions under

seal and will not do so here. However, Plaintiff will state that many of the
documents

are copies of documents

Plaintiff already possessed, and which this

Court relied on to deny Defendant Frey's Motion to Dismiss. There are also letters
that Defendant Frey wrote to public officials, and emails directing recipients
on information

to third parties.

to pass

There are emails discussing how to get a

"Republican" Sheriff and "Republican" States Attorney to seize Plaintiffs computers

and arrest him for multiple crimes. There are emails discussing how to create false
narratives
ofthese

about Plaintiff to smear him and destroy his employment.

emails meet the requirements

for confidentiality

Protective Order. Yet, they amply demonstrate

Clearly, none

as required by the

that Defendant Frey retaliated

against Plaintiff, which forms the basis for Plaintiffs civil rights complaint.

Case 8:13-cv-03059-GJH Document 364 Filed 04/15/16 Page 3 of 4

8. Plaintiff has a right under the Protective Order to "challenge" the confidential
designation

of any and all documents.

designation

of documents,

That Order also prohibits the wholesale

as has been done in this case. Plaintiff needs to use

several hundred documents

for his Motion for Summary Judgment, and is allowed to

do so publicly under Rushford.

9. According to Defendant Frey, Plaintiff would have to file his Motion for
Summary Judgment and all the accompanying

exhibits under seal because the

Motion would be quoting from the documents

and providing summaries

of them.

This would amount to a secret Motion for Summary Judgment in total violation of

Rushford and the First Amendment

10. Clearly, Plaintiff does not wanfthis
reviewing 2500+ documents

Court to have to spend untold hours

that never should have been labeled confidential.

Rather, Plaintiff only wants to use the relevant documents

in his Motion for

Summary Judgment and trial. Plaintiff is willing to provide the Court or counsel
with a complete list of Bates Numbers of the several hundred documents
to conduct "the litigation in which the information

or documents

he needs

were disclosed ...."

This Court can then issue an order allowing Plaintiff to use those documents.
Wherefore,

Plaintiff moves this Court to reject the arguments

and issue an order allowing Plaintiffto

of Defendant Frey

use all relevant discovery documents

Motion for Summary Judgment.

Respec

in his

Case 8:13-cv-03059-GJH Document 364 Filed 04/15/16 Page 4 of 4

Bethesda, MD 20817
(301) 320 5921
justicejtmp@comcast.net
CERTIFICATE OF SERVICE

this

I certify that I emailed a copy ofthis motion to Cou

day of April, 2016.
Brett Kimberlin

15th

DECLARATION
I Brett Kimberlin declare under penalty of perju
1746, thatthe above is true and correct.
Brett Kimbe

endant Frey