Case 8:13-cv-03059-GJH Document 360 Filed 04/06/16 Page 1 of 9

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND
SOUTHERN DIVISION

BRETT KIMBERLIN,
Plaintiff,
v.

Civil Action No. GJH 13-3059

PATRICK FREY.,
Defendant.
MOTION TO QUASH SUBPOENA DUCES TECUM
DIRECTED TO NONPARTY THE U.S. CHAMBER OF COMMERCE
Pursuant to Fed. R. Civ. P. 26 and 45, nonparty the U.S. Chamber of Commerce moves to
quash plaintiffs subpoena purportedly issued to the Chamber. The grounds for this Motion are
set forth in the accompanying Memorandum in Support.

April 6, 2016

Respectfully submitted,
/s/ Bobby R. Burchfield___________
Bobby Burchfield, Esq. (Bar No. 02325)
bburchfield@kslaw.com
KING & SPALDING LLP
1700 Pennsylvania Avenue, NW
Washington, District of Columbia 20006
Telephone: 202 626 5524
Facsimile: 202 626 3737
Attorney for the U.S. Chamber of Commerce

Case 8:13-cv-03059-GJH Document 360 Filed 04/06/16 Page 2 of 9

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND
SOUTHERN DIVISION

BRETT KIMBERLIN,
Plaintiff,
v.

Civil Action No. GJH 13-3059

PATRICK FREY.,
Defendant.
MEMORANDUM IN SUPPORT OF MOTION TO QUASH SUBPOENA
DUCES TECUM DIRECTED
TO NONPARTY THE U.S. CHAMBER OF COMMERCE
On March 22, 2016, Plaintiff or someone on his behalf hand-delivered a copy of a
subpoena to the U.S. Chamber of Commerces mailroom (the Chamber subpoena, attached
hereto as Exhibit A). The Chamber subpoena demands that the Chamber produce by April 7,
2016 all documents relating to Plaintiff in the Chambers possession or the possession of any
employee or former employee.
Plaintiff brought the underlying action against numerous Defendants, but not the
Chamber, for their alleged involvement in a criminal enterprise, the purported purpose of which
was to spread false stories about Plaintiff. See Second Am. Compl. (Dkt. No. 135).
As background, the complaint alleges that, in 2009, nonparties HB Gary, Berico Technologies,
and Palantir created Team Themis to destroy Plaintiff including through disinformation
campaigns. Id. 33-34. The complaint also states that the operation to destroy Plaintiff was
ordered by the Chamber, and that Hunton & Williams was the conduit between the Chamber
and Team Themis. Id. 34. The complaint does not allege that Team Themis was part of the

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criminal enterprise set forth in the complaint, but rather that one of the named Defendants
Andrew Breitbartdecided to take up a parallel campaign started by Team Themis to destroy
Plaintiff and his livelihood. Id. 37.1
On March 17, 2015, the Court granted the Defendants motions to dismiss except for a
single claim against Frey. March 17, 2015 Mem. Op. (Dkt. No. 263). That claim alleges that
Frey deprived Plaintiff of his legal rights under the color of law in violation of 42 U.S.C. 1983.
Second Am. Compl. 206-12. The gist of [Plaintiffs] 1983 claim is that Frey, an Assistant
District Attorney for the Los Angeles County District Attorneys Office, chilled [Plaintiffs] First
Amendment right to free speech by retaliating against [Plaintiff] after [Plaintiff] reported to
Freys supervisors his belief that Frey had been defaming him through various blog and internet
postings. March 17, 2015 Mem. Op. at 25. The Court allowed discovery to proceed on this
claim only. Id. at 37.
Meanwhile, Plaintiff pursued claims against the Chamber and several other Defendants
relating to Team Themis in a case styled as Kimberlin v. Hunton & Williams, et al., No. 8:15cv-00723. Unable to obtain discovery from the Chamber or other defendants in the Hunton &
Williams case, Plaintiff purported to serve subpoenas on several of those defendants, including
the Chamber, in this case. On March 29, 2016, this Court dismissed all claims in the Hunton &
Williams case. Kimberlin v. Hunton & Williams, et al., 8:15-cv-00723-GJH (Dkt No. 133)
(March 29, 2016 Mem. Op.).
The Chamber urges this Court to quash Plaintiffs subpoena for five separate and
independent reasons: first, the subpoena is untimely; second, the subpoena was not properly
served; third, the subpoena was not properly issued; fourth, the subpoena is facially defective;
1

In the 82-page, 284-paragraph Second Amended Complaint, the Chamber is mentioned

only in the first two paragraphs of the background section. Second Am. Compl. 33-34.
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and, fifth, the subpoena seeks information that is not relevant to the only claim remaining in this
case.
I.

The Chamber Subpoena Is Untimely.

The subpoena to the Chamber is untimely. The Scheduling Order in this case also

provides that [a]ll discovery requests must be served in time to assure that they are answered
before the discovery deadline, and [a]n extension of the deadline will not be granted because
of unanswered discovery requests. See April 27, 2015 Scheduling Order (Dkt. No. 279)
(incorporating Local Rule 104). After several extensions, the discovery period in this case ended
on April 1, 2016. See Feb. 8, 2016 Paperless Order (Dkt. 342) (extending close of discovery to
April 1, 2016). Plaintiff waited until nine (9) days before the close of discovery to attempt to
serve the Chamber subpoena, and then provided a return date six (6) days after the close of
discovery. See Ex. A. Plaintiff cannot circumvent the discovery deadline with a Rule 45
subpoena, especially when he could have served the subpoena with a return date well before the
close of discovery. See FED. R. CIV. P. 45(d)(3)(A)(i) (requiring court to quash subpoena that
fails to allow a reasonable time to comply); 476 K Street, LLC v. Seneca Specialty Ins. Co.,
2015 WL 3464459, *2 (D. Md. May 28, 2015) (quashing nonparty subpoena in part as untimely,
because the subpoena was served on the last day of discovery with a return date one week later);
see also Goldstein v. FDIC, 494 B.R. 82, 87 (D.D.C. 2013) (If a discovery deadline has passed,
a party may not employ a subpoena to obtain materials from a third party that could have been
procured during the discovery period. (quoting 9-45 Moores Federal Practice-Civil 45.03)).
II.

The Chamber Subpoena Was Not Properly Served.

Rule 45 requires that subpoenas be personally served. See Benford v. Am. Broadcasting

Companies, Inc., 98 F.R.D. 40, 41 n.5 (D. Md. 1983); but see Hall v. Sullivan, 229 F.R.D. 501,

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502-06 (D. Md. 2005) (rejecting the majority rule that Rule 45 requires personal service of
subpoenas.). When a subpoena is directed to a corporation, it must be served on a corporate
officer or agent as authorized under Fed. R. Civ. P. 4(h). See In re Motorsports Merchandise
Antitrust Litig., 186 F.R.D. 344 (W.D. Va. 1999) (noting that courts look to Fed. R. Civ. P. 4 for
determining what constitutes proper service of a subpoena on a corporation). Hand-delivery of
the subpoena to the Chambers mailroom was not proper service because it was not served on an
appropriate agent. See FED. R. CIV. P. 4(h) (service on a corporation can be accomplished
pursuant to FED. R. CIV. P.4(e)(1)(C), by following applicable state law, or by delivering a copy
to an officer, a managing or general agent, or any other agent authorized by appointment or
by law to receive service); D.C. SUPER. CT. R. CIV. P. 4(h) (service must be delivered to an
officer, a managing or general agent, or any other agent authorized by appointment or by law to
receive service of process). Delivery to the mailroom is not personal service.
III.

The Chamber Subpoena Was Not Properly Issued.

This Court has previously recognized that Plaintiff may not receive stamped copies of
subpoenas from the Clerk without first obtaining an order from the Court authorizing the
issuance of such subpoenas. Oct. 15, 2015 Letter Order (Dkt. No. 313) (citing Local Rule 102.3).
Plaintiff moved for authorization to issue the Chamber subpoena, but there is no record on the
docket indicating that the Court granted this request. Feb. 8, 2016 Request for Subpoenas (Dkt.
No. 343).2 Thus, the subpoena appears not to have been properly issued.

The Chamber subpoena attached to Dkt. No. 343 does not include the seal for the U.S.
District Court for the District of Maryland affixed near the Clerks signature line, but the
subpoena hand-delivered to the Chambers mailroom includes that seal and appears to be a
genuine subpoena.
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IV.

The Chamber Subpoena Is Facially Defective.

Rule 45(a)(1)(A)(iv) requires that the subpoena set out the text of Rule 45(d) (provisions

relating to protecting a person subject to a subpoena) and (e) (duties in responding to a

subpoena). Because the Chamber subpoena does not include this required information, the
subpoena must be quashed. See Ex. A; Anderson v. Govt of V.I., 180 F.R.D. 284, 290 (D.V.I.
1998) (quashing subpoena, in part, because it failed to include the required text).
V.

The Chamber Subpoena Seeks Information That Is Not

Relevant to the Remaining Claim In This Case.
The grounds for quashing a Rule 45 subpoena are coextensive with the general rules

governing all discovery under Rule 26. Cook v. Howard, 484 Fed. Appx. 805, 812 (4th Cir.
2012). Under Rule 26(b)(1), discovery must seek information that is relevant to any partys
claim or defense and proportional to the needs of the case[.] The Chamber subpoena is
exceedingly broad. It seeks all documents relating to plaintiff, has no time limit, is not limited
to information within the applicable statute of limitations, and has no connection to whether Frey
deprived Plaintiff of his rights under the color of law. See Cook, 484 Fed. Appx. at 812-13
(district court did not abuse discretion by quashing subpoena because [t]he overwhelming
majority of the materials sought were directed at matters related to the dismissed claims
against the BCPD). The Chamber subpoena also calls for information within the possession of
former employees. Information in the possession of former employees is not in the possession,
custody, or control of the Chamber. With its breadth and lack of relevance to the Frey case, the
subpoena appears to be a mere fishing expedition to obtain material Plaintiff might use in other
litigation. For that reason, it is improper.

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For the foregoing reasons, the Chamber respectfully requests that the Court quash the
subpoena.
. April 6, 2016

Respectfully submitted,
/s/ Bobby R. Buchfield
Bobby R. Burchfield, Esq. (Bar No. 02325)
bburchfield@kslaw.com
KING & SPALDING LLP
1700 Pennsylvania Avenue, NW
Washington, District of Columbia 20006
Telephone: 202 626 5524
Facsimile: 202 626 3737
Attorney for the U.S. Chamber of Commerce

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UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND
SOUTHERN DIVISION

BRETT KIMBERLIN,
Plaintiff,
v.

Civil Action No. GJH 13-3059

PATRICK FREY.,
Defendant.
PROPOSED ORDER
UPON CONSIDERATION of the U.S. Chamber of Commerces Motion To
Quash Subpoena Duces Tecum Directed To Nonparty The U.S. Chamber of Commerce,
it is herby
ORDERED that plaintiffs U.S. Chamber of Commerces Motion To Quash
Subpoena Duces Tecum Directed To Nonparty The U.S. Chamber of Commerce is
QUASHED.
ENTERED this _____ day of ________ 2016.

Judge Georg J. Hazel

U.S. District Court
for the District of Maryland

Case 8:13-cv-03059-GJH Document 360 Filed 04/06/16 Page 9 of 9

CERTIFICATE OF SERVICE
I hereby certify that on April 6, 2016, I caused a copy of the foregoing Motion To
Quash Subpoena Duces Tecum Directed To Nonparty The U.S. Chamber of
Commerce to be filed via the Courts CM/ECF system, which will automatically serve a copy
on all registered participants.
I also caused a copy to be sent via first-class mail and e-mail to the following:
Brett Kimberlin
8100 Beech Tree Road
Bethesda, Maryland 20817
Pro Se Plaintiff

/s/_Bobby R. Burchfield___
KING & SPALDING LLP