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Case 8:13-cv-03059-GJH Document 327 Filed 01/12/16 Page 1 of 3

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UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

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BRETT KIMBERLIN,
Plaintiff,

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. 12 111,-:45

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No GJH 13-30~'9

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MOTION TO LIFT PROTECTIVE ORDER

Now comes Plaintiff Brett Kimberlin and moves this Court to lift the protective
Plaintiff from disclosing documents

provided by Defendant Frey, discussing them with anyone, sharing them with the
media, or filing them in open court in any case. As will be shown below, Defendant
Frey misled the Court regarding the documents.
violates the First Amendment

Moreover, the protective

order

and is contrary to the recent Fourth Circuit decision in

In Re Wall Street Journal, et ai, No 15-1179, (Mach 5, 2015), where the Court
invalidated a similar protective/gag

order as violative of the First Amendment.

The

Fourth Circuit has also held that protective orders should be narrowly tailored and
that the First Amendment

guarantees

the public and the press the right to access in

both civil and criminal trials. Rushford v. New Yorker Magazine Inc., 846 F.2d 249,
253 (4th Cif. 1988).
1.
documents

Defendant Frey moved for the protective

order on the grounds that the

to be disclosed would place him in danger and violate his privacy rights.

The Court granted a blanket protective

order that was not "narrowly tailored."

.\... ..

,-.:.-LT-

PATRICK FREY,
Defendant

order issued in this case in October prohibiting

0'

",

Case 8:13-cv-03059-GJH Document 327 Filed 01/12/16 Page 2 of 3

2.

Defendant Frey has provided more than 2000 pages of documents

to

Plaintiff and not a single one of them would place him in any danger or violate any
privacy rights of his. There are no social security numbers or any other personal
information

about Defendant Frey that is not known to the public. Most of the

emails were to and from multiple parties, sometimes
3.
publicity.

This is a case of national importance
Several reporters

have contacted

as many as a dozen.

that has generated

a great deal of

Plaintiff to review the discovery but

Plaintiff has told them that he cannot provide the discovery to them because of the
protective

order. See Exhibits A and B. As the Fourth Circuit held, the press has a

First Amendment
4.

right to discovery in these types of cases. Id.

The protective

order imposes a gag order on Plaintiff that has restrained

him from discussing the discovery with the press. This also violates his First
Amendment
5.

right to free speech.

Plaintiff needs to file some of the discovery in open court and provide it to

other attorneys

but he cannot do so because of the protective

lawyers representing

other defendants

order. Several

being sued by Plaintiff have asked to see

discovery related to their clients but Plaintiff cannot provide it to them. In Rushford,
supra, the Fourth Circuit noted that discovery documents

attached to motions

should be freely accessible to the press and public.
6.

Plaintiff filed a motion in this case re William Hoge, and had to file it under

seal because of the protective

order. Mr. Hoge has asked this Court to unseal the

motion because it violates his right to due process.

Case 8:13-cv-03059-GJH Document 327 Filed 01/12/16 Page 3 of 3

7.

In the related case of Kimberlin v. Hunton & Williams, pending before this

Court, Plaintiff has requested

discovery which several of the defendants

is not necessary because Plaintiff has shown no connection
defendants

and Defendant Frey's associates

between the H&W

in the instant case.

However, the Frey

discovery proves many instances of direct and indirect connections
parties.

Being able to palce that information

have argued

between those

before this Court is imperative

for the

truth finding process. See Rushford.
8.

Defendant Frey is a public official and as such documents

shining light on

his his actions should be available to the public. As the United States Supreme Court
has noted, one way to deter a misbehaving
prosecutor

prosecutor

is to "publicly chastiser] the

by identifying him in the court's opinion." United States v. Hasting, 461

U.S. 499, 506 n.5 (1974).]."

In the instant case, Plaintiff cannot even file public

motions discussing the discovery, which allows Defendant Frey to cover up his
misconduct

while continuing his false narratives

Wherefore,

about Plaintiff.

for all the above reasons, Plaintiff moves this Court to lift the

protective order.
Resp

<l

Bret K~ erli
8100 eech Tree Rd
Bethesda, MD 20817
(301) 320 5921
j usti ce j tm p@comcast.net
Certificate of Service
I certify that I mailed a copy of this motion to Willia Hoge and emailed a copy to
the attorneys for Defendant Frey this 12th day oflan
ry

Case 8:13-cv-03059-GJH Document 327-1 Filed 01/12/16 Page 1 of 1

sealed Records
Sent By: Bill Schmalfeldt

On: Jan 0'/10/1610:24

PM

To: Brett

Dear Mr. Kimberlin:
As you know, I have been intensely interested in the ongoing legal case between yourself and Los Angeles Deputy District Attorney Patrick Frey. I have been writing
a series of stories that I would like to compile into a book at some point, and would like to review the document~ Mr. Frey submitted in his discovery, especially
where they may have anything to do with his conversations he may have held with other parties who have been. in my opinion, conspiring to stop me from writing a
counter-story to their right-wing blogger-approved version of events.
If you have any luck in getting the seal on those documents unsealed, I would be very interested in reviewing
have an opportunity to write a narrative of eventB that does not bear the right wing seal of approval.
I appreciate

your attention

Sincerely,
william H. Schmalfeldt
3209 S. Lake Dr. Apt. 108
St. Francis, WI S3235

to this request and wish you luck in the process.

Please keep me informed.

them. Someone on the .other side of the aisle. should

Case 8:13-cv-03059-GJH Document 327-2 Filed 01/12/16 Page 1 of 1

Sent By: Matt Osborne

On: Jan 01112/16 6:53!WJ

To: Justice
To Jul.lgc Georgc

HaLeI

1 ha\'c obscnicd and repunClJ on the al:ti ••ilics of Lu!> Ang.cb
A!>!>i!liiantDi!>tr11:1Anomey John Patrick. Frey !>ioc'C2011. flOt at m)' indcpc,'ndt."fIl blog. <hbumc Ink.mm and !!.inec lOt3 III Brcitbart Unmaskcd.(,:On1. Hi!> actions uOOcrcokK"oflaw
durin~ that timc p...Tiud arc ;an important mattcr of public inlcTC!>t. and lhc cum:nt prutccli\'c urdL.1' on di!iCOvcJ)' malt.TiIl1 nampcn. any discu!>sioo of this Lrial or Fn..,i'!Ii hiMur)'. Frc)' is nul being protcctc."tl from any ~an!-'l> by your onkT. Rathcr.lhc
prutcc.1i'lr"c order merely St..'TVI.'S
10 kl.-cp c\'idcncc of his behavior l:ont ..""Calcdfmm thc pc.."Oplcof lo!> An~lcs.
For Ihe tx.1lcr part of II\"\: )'CUN. Fre)' has cOfUbtcnlly
u!>Cdhis positicm and hi!!. SOCilil media al"counls tu wage a campai~n of pcr!>Onal dC!>lnll1.ion again!!.t un)'C)f)C who conlrdcJictcd hiI' nlUrdli\'c. including !.hi!!.v.ntcr. Tnnnpcun~
\'lt~ue al"Cu!>alion!>
of criminalit)'
in his Twittl."J stream W'KIhis blog.. Frey ha.••never been toll shy to make loud indktmenhi
ufhi!> pc.'T"CCin:dcnernic!>~' n04. unlil he was hauled inlo )'oor cuurtroom.
whcn:upon he !l.uddcnl)' dcc.:iUcd \he whole lrial OUghl1LJ take plat'e
in privale. Thi!l. arTtl1lgcmcnt is paLcntl)' unfair lind contr.uy to lhc public inlcrcsl.
Plellse rcmo\'c

thr.- prulCC1h'c ordt.'T amlliIlo

.•••.\\-Titers 0100 juumali!!.b

who are iJllcrc~tcd

in thi!> 1'101)' to tkl uur jllbofiJlfurmin~

the public.