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William John Joseph Hoge,

Plaintiff,
v.
Brett Kimberlin, et al.,
Defendants.

IN THE

CIRCUIT COURT FOR CARROLL COUNTY


MARYLAND
Case No. 06-C-16-070789

PLAINTIFFS REPLY TO DEFENDANT BRETT KIMBERLINS RESPONSE TO


PLAINTIFFS EMERGENCY MOTION TO STRIKE (DOCKET ITEM 49/1)
COMES NOW William John Joseph Hoge and replies to Defendant Brett
Kimberlins Response to Plaintiffs Emergency Motion to Strike. In reply Mr. Hoge
states as follows:
I. KIMBERLIN HAS MISREPRESENTED THE FEDERAL COURTS PROTECTIVE
ORDER
Kimberlin asserts [t]he protective order1 referred to by Plaintiff only protects
sensitive personal information of the defendant in that case. Opposition, 4. The
emails which Kimberlin included as exhibits to Docket Item 44/2 were also included
as exhibits in a sealed motion he served on Mr. Hoge. Kimberlin v. Frey, Case No.
13-CV-03059-GJH, In Camera Motion to Impose Sanctions and.or Contempt on
Third Party Witness William Hoge for Violating Court Ordered Subpoena, ECF No.
319 (D.Md. Dec. 19, 2015). The emails are marked Confidential as presented by
Kimberlin in that motion. On information and belief, the confidential markings
were applied by either Mr. Frey or his counsel. Clearly, the emails are the fruits of

Exhibit A.

the discovery process in Kimberlin v. Frey, and Kimberlin represented them as such
and as being subject to the Protective Order when he included them in his sealed
motion.
When Mr. Hoge filed his Opposition2 to Kimberlins motion in the U.S.
District Court, he filed the portion dealing with the emails under temporary seal
because he had also been placed under the terms of the Protective Order.
Kimberlin is further instructed to provide Hoge with a copy of the
Protective Order and this Letter Order, which hereby instructs
Hoge that he is bound by the provisions of the Protective Order as it
relates to his receipt of ECF No. 319.
Kimberlin v Frey, Letter Order, ECF No. 313 (Oct. 15, 2015) at 1.3 In compliance
with the U.S. District Courts L.R. 105.11 and that courts Letter Order, Mr. Hoge
also filed a Motion to Seal 4 citing the fact that Kimberlin had represented the
emails as being subject to the Protective Order. In a recent Letter Order Judge
Hazel agreed with Mr. Hoge and granted his Motion to Seal.
Pursuant to Local Rule 105.11 and the Courts Protective Order,
non-party William Hoge has filed an unopposed motion seeking
leave to file five paragraphs of his Opposition to ECF No. 319 under
seal. The motion is GRANTED.
Kimberlin v. Frey, Letter Order, ECF No. 383 (June 2, 2016) at 4. 5

Exhibit B.

Exhibit C.

Exhibit D.

Exhibit E.
2

Further, when Kimberlin sought to have the U.S. District Court find that
documents should not subject to the Protective Order, Judge Hazel specified why
the materials Frey and his counsel had marked Confidential were covered.
The privilege log describes communication that occurred during
litigation and was legal in nature. See ECF No. 340-1. According
to Godfrey, the communications were among the various counsel
and parties (including employees of corporate defendants) within
that joint defense agreement or otherwise regard materials for their
joint strategic defense. ECF No. 353, 5. The Court finds that the
communication is protected by the common interest doctrine and
DENIES Plaintiffs Motion to Review Withheld Discovery
Documents (ECF No. 340).
Id. at 3. Mr. Bruce Godfrey is pro bono counsel to Mr. Frey in Kimberlin v. Frey.
A fair reading of the Protective Order shows that the discovery material
marked Confidential is subject to that Order and that Brett Kimberlin is one of
the parties to whom the U.S. District Court directed that Order. Mr. Hoges Motion
to Seal and Judge Hazels granting of that motion show that the emails in question
were discovery materials subject to the Protective Order. Kimberlins use of such
material in any other matter is explicitly forbidden by the Protective Order.
Information or documents designated as confidential under the
Order shall not be used or disclosed by the parties or counsel for the
parties for any purpose other than preparing for and conducting
the litigation in which the information or documents were disclosed
(including appeals).
Kimberlin v. Frey, Order, ECF No. 312 (Oct. 15, 2016) at 2, 3. Judge Hazel has had
to remind Kimberlin that the use of the Frey discovery is restricted to that case
only. Kimberlin sought permission to attach confidential discovery from Frey to

filings in Kimberlin v. Hunton & Williams LLP, et al. He was told in no uncertain
terms:
The Court will not amend the protective order in Kimberlin v. Frey,
GJH-13-3059 for the purpose of allowing Plaintiff to attach
confidential discovery documents from that case to an amended
complaint in this case.
Kimberlin v. Hunton & Williams LLP, et al., Case No. 15-CV-00723-GJH,
Supplemental Letter Order, ECF No. 119 (D.Md. Feb. 4, 2016) at 1.6
Finally, Kimberlin knows that he isnt allowed to use the Frey discovery in
any way that exposes it to public view. As he told Judge Hazel last week:
I have been getting regular inquiries from the press to discuss this
case and the discovery but cannot do so because I am gagged by the
protective order.
Kimberlin v. Frey, Miscellaneous Correspondence, ECF No. 385 (June 3, 2016) at 1.7
On information and belief, the press inquiries have come from Defendant Matt
Osborne in his capacity as editor of Defendant Breitbart Unmasked and Defendant
William Schmalfeldt. 8 Kimberlins statement that he knows he is gagged by the
Protective Order demonstrates that Kimberlin knew that it was improper to use the
sealed emails as exhibits in the instant lawsuit.
Thus, it is obvious from the public record of Kimberlin v. Frey and Kimberlin
v. Hunton & Williams LLP, et al. that Kimberlin has misrepresented the nature
6

Exhibit F.

Exhibit G.

See Kimberlin v. Frey, Motion to Lift Protective Order, ECF No. 327 (Jan. 12,
2016), Exs. A and B attached to this filing as Exhibit H.
4

and extent of the Protective Order in the Frey case. He has also misrepresented
whether the emails he filed as exhibits to Docket Item 44/2 were subject to that
Protective Order. Even without seeing the sealed versions of the emails, there is
sufficient evidence to conclude that their use in the instant lawsuit is improper and
that Mr. Hoges Motion to Strike should be granted.
II. KIMBERLIN HAS MISREPRESENTED MR. HOGES WILLINGNESS TO HAVE THE
EMAILS MADE PUBLIC
Reading Kimberlins Opposition, one might get the mistaken impression that
Mr. Hoge is trying to suppress the emails in question because they are
incriminating. That is not true. Mr. Hoge views them as quite benign. Indeed, he
told the U.S District Court:
None of these appear [to] relate in any way to [Kimberlins]
remaining 42 U.S.C. 1983 claim against Mr. Frey, and none of
them implicate either Mr. Hoge or anyone else in any conspiracy
against [Kimberlin]. If Mr. Hoge had had copies, he would have
provided them. He didnt, so he couldnt.
Kimberlin v. Frey, Non-Party William Hoges Opposition to Plaintiffs Motion to
Impose Sanctions and/or Contempt on Third Party Witness William Hoge for
Violating Court Ordered Subpoena (ECF No. 319) REDACTED VERSION, ECF No.
352, (Feb. 22, 2016), 10. Also, Mr. Hoge has asked Judge Hazel for permission to
show the emails as served on him by Kimberlin to this Court under seal. ECF Nos.
381 and 382.9 That is not an act calculated to prevent the Court from seeing them.

Exhibits I and J.
5

If it were up to Mr. Hoge, hed prefer that Docket Item 44/2 remain in the
record. He believes that it demonstrates Kimberlins bad faith. However, Mr. Hoge
is bound by the Protective Order and believes that he is obliged to assist in
enforcing the Order against Kimberlin. Therefore, he has moved to strike Docket
Item 44/2.
III. ADDITIONAL MATTERS
Mr. Hoge respectfully asks the Court to take note that Kimberlin has filed
yet another court paper full of ad hominem personal attacks against Mr. Hoge
which are completely unsupported by evidence and not germane to the facts or law
of the matter before the Court. Also, Kimberlin has again refused to provide a
current address, telephone number, or email address with his signature block. In
fact, the envelope used to mail service of Kimberlins Opposition to Mr. Hoge does
not have a return address.10
CONCLUSION
While Kimberlin is correct in saying that this Court does not have any
specific jurisdiction relating to federal court orders, the principle of comity should
lead this Court to assist the U.S. District Court in enforcing its Protective Order.
Moreover, this Court should not allow itself to be used as the billboard upon which
Kimberlin publishes confidential discovery material from the Frey case in violation
of the Protective Order.

10

Exhibit K.
6

It is obviously improper for Kimberlin to have included the confidential


discovery material in Docket Item 44/2. Rule 2-322(e) provides for such an
improper filing to be stricken. The Court should strike Docket Item 44/2.
Mr. Hoges Emergency Motion to Strike Docket Item 44/2 is now fully briefed.
Mr. Hoge respectfully requests the Court for an expedited ruling.
WHEREFORE, Mr. Hoge asks the Court to STRIKE Defendant Brett Kimberlins
Reply to Plaintiffs Opposition to His Motion to Quash and Stay Discovery (Docket
Item 44/2) and for such other relief as it may find just and proper.
Date: 6 June, 2016

Respectfully submitted,

William John Joseph Hoge, pro se


20 Ridge Road
Westminster, Maryland 21157
(410) 596-2854
himself@wjjhoge.com

CERTIFICATE OF SERVICE
I certify that on the 6th day of June, 2016, I served copies of the foregoing on
the following persons:
William M. Schmalfeldt by First Class U. S. Mail to 3209 S. Lake Drive, Apt. 108,
St. Francis, Wisconsin 53235
William Ferguson by First Class U. S. Mail to 10808 Schroeder Road, Live Oak,
California 95953
Brett Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817 (last known address)
Tetyana Kimberlin by First Class U. S. Mail to 8100 Beech Tree Road, Bethesda,
Maryland 20817 (last know address)

William John Joseph Hoge

AFFIDAVIT
I, William John Joseph Hoge, solemnly affirm under the penalties of perjury
that the contents of the foregoing paper are true to the best of my knowledge,
information, and belief.
Date: 6 June, 2016
William John Joseph Hoge

Exhibits A through J are redacted in this version


because the documents they contain are available
elsewhere.

Exhibit K
Envelope received by Mr. Hoge which contained service of Docket Item 49/1.