Case 8:13-cv-03059-GJH Document 299 Filed 08/13/15 Page 1 of 3

BRETT KIMBERLIN,
Plaintiff,

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No. GJH 13 3059

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PATRICK FREY,
Defendant.

PLAINTIFF'S RESPONSE TO INTERMARKET/ACE
OF SPADES' MOTION
TO RECONSIDER THE COURT'S JULY 24,2015 ORDER DENYING HIS MOTION
TO QUASH
Now comes Plaintiff Brett Kimberlin and responds
Intermarkets/Ace

in opposition

to

of Spades' Motion to Reconsider this Court's July 24, 215 Order

denying his Motion to Quash. In short, the motion is without merit and in bad faith.
1. Counsel for Intermarkets/

Ace of Spades ("AOS") repeats the same arguments

rejected by this Court on July 24th, accusing the Court of "misapprehending"
that, and asserting that AOS' First Amendment
V. Jos.

this and

rights trumps all. However, in Lefkoe

A. Bank Clothiers, Inc., 577 F. 3d 240 (4th Cir. 2009), the Court found that the

First Amendment
pursuant

does not protect a third party from having his identity disclosed

to a discovery request.

having authority

In that case, the "Massachusetts

district court,

over the (third party) subpoena, denied the law firm's motion to

quash the subpoena and ordered the law firm to reveal the nonparty witness'
identity." Although there was a protective

order in that case, the courts ordered that

the identity be disclosed to the parties.
2, Court after court has ordered that anonymous
response to a valid subpoena.

See e.g., In re Anonymous Speakers, 661 F.3d 1168 (9th

Cir, 2011) (District Court ordered several anonymous
of Appeals denied mandamus

third parties be identified in

to overturn order).

speakers identified and Court

Judge Hollander, in In re Drasin,

Case 8:13-cv-03059-GJH Document 299 Filed 08/13/15 Page 2 of 3

Civil Action No. ELH.13-1140

(July 24, 2013), followed Lejkoe and Anonymous

Speakers in refusing to quash a third party subpoena

anonymous

regarding the identity of

posters.

3. Incredibly, lntermarkets,

a company that places advertisements

on AOS'

blog, has argued that it will suffer if AOS the blogger is identified because other
anonymous

bloggers may not use its services if they know that lntermarkets

complied with a lawful subpoena.

This speculative argument

not even deserve an extended response.

is so meritless

it does

Companies such as Google, Twitter and

Yahoo respond to these types of subpoenas

every single day yet have not suffered a

single iota because of them.
4. Moreover, AOS is not anonymous. Many in the conservative community
including Defendant Frey know him. In fact, he has appeared publicly at the
Conservative Political Action Committee Conference where he gave the keynote speech.
His photos at that event are widely distributed on the Internet. Exhibit A. He has also
appeared live on national news programs, including Fox News, where his face has been
seen by millions of viewers. Exhibit B. Intermarkets is asking the Court to stop Plaintiff
from learning the name and address of a person known to thousands of people in the
conservative community and seen by millions of people worldwide.

Clearly, AOS has

waived any First Amendment right to anonymity by his public appearances.
5. AOS is very close to Defendant Frey. In fact, according to Defendant Frey, AOS
traveled to California and met with Frey at a public event. Exhibit C. Defendant Frey and
AOS have linked to each other's blogs hundreds of times. Plaintiff believes, as he stated
in his previous declaration, that Defendant Frey corresponded by phone and by email

Case 8:13-cv-03059-GJH Document 299 Filed 08/13/15 Page 3 of 3

with AOS, and devised a common plan to use AOS' top conservative blog to support
Defendant Frey's illegal scheme to deprive Plaintiff of his civil rights. As a result, AOS
demanded in his blog posts that Plaintiffbe imprisoned, and stated that iflaw
enforcement officials did not imprison Plaintiff, Plaintiff would "escalate his crimes" and
people would die. This fear mongering propaganda was part and parcel of Defendant
Frey's master plan to deprive Plaintiff of his civil rights. Clearly, Plaintiff has a right
under Federal Rules of Civil Procedure 45 and 26 to question AOS and seek documents
from him to discover "relevant" evidence in the instant case.
6. This Court, in it's previous order, urged the parties to agree on a protective order,
which is something that lntermarkets previously and now requests. Plaintiff pointed out
to counsel that he, unlike Defendant Frey and others, has never once published a single
post or tweet about any case, and has never published any document. Plaintiff told
counsel for lntermarkets that he would agree not to publish or share any information
provided by counsel outside of any court setting. Plaintiff asked counsel to work out an
acceptable protective order that would provide Plaintiff with AOS' identity while
protecting lntermarkets' data. However, counsel refused, and now asks this Court to
approve a protective order that provides no identifying information to Plaintiff. Such a
position makes a mockery of the Rules and this Court's prior order.
Wherefore, for all the above reasons and the reasons stated in this Court's July 24th
Letter Order, this Court should deny AOS' Motion to Quash and for Protective Order.
Respectfully submitted,
Brett

I

Case 8:13-cv-03059-GJH Document 299-1 Filed 08/13/15 Page 1 of 1

Certificate of Service
I certify that I emailed copies of this motion to Attorneys Steve Fowler and Ron
Coleman this l4,h day of August, 2015.

Brett Kimberlin

Amnesty Opponent Ace of Spades Wins CPAC Bragger Of The Year!
By Digger

a

I February 11, 200811 :32 PM

SHARE

I) "G

...

You can watch Ace of Spades, who has remained a shadowy figure in the
blogging community for years (a real old man in the field), and his
acceptance SpeeChhere.
A good portion of the speech focuses on how the blogging community - along with
activist organizations and talk radio - defeated the back room illegal alien amnesty
being put through the Senate last year.
I am simply thrilled that he won! He is irreverent, outspoken and abjectly against
illegal immigration and for him to win the award from the Conservative Conference
shows that this issue is not being ignored by real Conservatives.
In particular I'd note the applause received when mentioning the bills defeat.

EXHIBIT

A

Case 8:13-cv-03059-GJH Document 299-2 Filed 08/13/15 Page 1 of 1

Full video on You Tube https://www.youtube.com/watch?v=pCU9HsSsEyO

EXHIBIT B

Case 8:13-cv-03059-GJH Document 299-3 Filed 08/13/15 Page 1 of 1

11/1/2007
PAITERICO TO BE AT ACEAPALOOZA
Filed under; Slogging Matters,General.Morons
Blogger Ace of Spades

- Patterico @ 9:09 pm

is coming to the West Coast.

I, for one, plan to meet him.
How about you?
The event takes place this Saturday, in Santa Monica. I don't know if! can say more than that, but if you're
interested in coming, you should go to this post and e-mail the fellow whose e-mail address is published
there.
Baldilocks
with that?

will be there, along with some of the morons who comment at Ace's site. Now who can argue

EXHIBIT C