MARYLAND: IN THE CmCUIT COURT FOR MONTGOMERY COUNTY BRETT KIMBERLIN, Plaintiff

v.
SETH ALLEN, Defendant

Case No. 339254V

MOTION TO FILE ANONYMOUSLY OR TO FILE UNDER SEAL

Now COMES, John Doe, an anonymous blogger who writes under the names "Aaron Worthing," and "A.W." (hereinafter "Mr. Worthing"), by and through his counsel, Elizabeth Kingsley, , and moves this Court to allow him to

file his ''Motion to Quash Subpoenas of Google.com and Corncast and Opposition to Motion to Compel Google.com andlor Its Subsidiary Blogger.com to Disclose the Identity and Address of Blogger Who Uses the Pseudonym Aaron Worthing" anonymously as John Doe and/or under seal. A copy ofthat Motion, signed by Mr. Worthing with his pseudonym as we request the Court to accept, is attached hereto. 1. PlaintiffKimberlin has filed a Motion to Compel Google.com and/or its

Subsidiary Blogger.com to disclose identifying infonnation regarding Mr. Worthing and has sought a subpoena of Google.com in connection with that motion. Mr. Worthing seeks to oppose this Motion and to move the quash the subpoena issued to Google.com and Blogger.com, without disclosing the very infonnation sought by that subpoena .

REC~~liED
IJ£Cl9ZUll
Clerk of the GIli;UIl Court Montgomery County, Md.

2.

The pJajntiffhas also obtained a subpoena for Comcast, Inc. Mr. Worthing

attempted to view the file to verify whether the subpoena is for the pmpose of determining Mr. Worthing's true identity, but was told the file was in Hon. Nelson Rupp Jr.'s chambers and none ofthe documents would be available until December 29. Because only one day. would remain between that time and the return date of the subpoena, we include it in this request and Mr. Worthing has included it in his Motion to Quash, based on the belief that the Corncast subpoena was issued for a purpose similar to the one issued to Google. 3. Under Independent Newspapers v. Brodie, 966 A.2d 432 (M.D. 2009) and Lubin

v. Agora 882 A.2d 833 (2005), Mr. Worthing has a right to anonymous speech on the Internet

protected by the First Amendment to the United States Constitution. To secure this right, he therefore has the right to challenge beforehand any attempt to discover his true identity. For instance in Brodie, the Court of Appeals declared that: when a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should... withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application. 966 A.2d at 457. 4. This state recognizes Mr. Worthing' s right to appear on his own behalf and not

through counsel. See Maryland Ru1e 16-813, Maryland Code of Judicial Conduct Rule 2.6(a) ("A judge shall accord to every person who has a legal interest in a proceeding,. or to that person's lawyer, the right to be heard according to law." (emphasis added). 5. Further, in Farretta v. California, 422 U.S. 806 (1975), Supreme Court held that a

criminal defendant has a right to proceed pro se. The Farretta Court held that a state may not "hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense" 422 U.S. at 807. In the instant case, denying Mr. Worthing's motion to file anonymously wou1d effectively tell Mr. Worthing that he cannot

2

mount any defense at all without the assistance of counsel-and unlike the defendant in Farretta, the state is not obligated to provide him counsel free of charge. 6. Unfortunately, the Legislature has not provided guidance for the courts ofthis

state to allow pro se litigants to make filings seeking to protect their anonymity without waiving that very anonymity in doing so. However, the neighboring state of Virginia has adopted a detailed statutory provision specifically addressing civil proceedings where identifying information ofpersons communicating anonymously over the Internet is sought. Va. Code Ann.

§ 8.01-407.1. As the Court weighs mechanisms to allow Mr. Worthing to mount a complete
defense of his right to retain anonymity, the Virginia provisions may provide a useful roadmap. Specifically, it allows the person whose identity is sought to file an objection anonymously, as a John Doe, identified only with e~mail nickname or other alias used for online communications without identifying his or her true name. This court should follow the same procedure. 7.

In order to protect both Mr. Worthing's right to defend his anonymity and his

right to represent himself, this Court should waive Maryland Rule §1-311 to the extent it requires

all documents be signed, since signing the document with his true name would obviate its
purpose. Mr. Worthing should be pennitted to file his Motion to Quash anonymously, using his Internet pseudonym. 8. . In the alternative, he should be permitted to serve an anonymous (or

pseudonymous) motion on the other parties hereto, and to file a duplicate signed copy with the Court under seal. This would provide the Court with the information necessary to identify the person filing the Motion with it, and responsible for the certifications required by Maryland Rule §1-311, without making waiver of Mr. Worthing's anonymity a precondition to asserting the legal protection due that status.

3

We therefore move the Court to permit Mr. Worthing to file his Motion to Quash under anonymously or under seal, pending a ruling thereon.

Dated: December 29,2011

~Z_d'-=--._
Elizabeth Kingsley Attorney for John Doe aka Aaron Worthing Washington, DC 20036

4