Case 8:13-cv-03059-GJH Document 377 Filed 05/02/16 Page 1 of 5

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

BRETT KIMBERLIN,

Case No. 8:13-cv-03059-GJH

Plaintiff,
v.
PATRICK FREY,
Defendant.
BERICO TECHNOLOGIES OPPOSITION TO
PLAINTIFFS MOTION TO COMPEL SUBPOENA
Non-party Berico Technologies (Berico) hereby opposes the April 15, 2016 Motion to Compel
Subpoena filed by Plaintiff Brett Kimberlin (ECF No. 363) because the subpoena seeks documents that
are not relevant to this litigation, is unduly burdensome, and improperly attempts to obtain discovery in
support of another litigation that has been dismissed. Accordingly, the subpoena to Berico violates
Rules 26 and 45 of the Federal Rules of Civil Procedure and should be quashed.
I.

BACKGROUND
Mr. Kimberlin sued Berico, Hunton & Williams LLP, the U.S. Chamber of Commerce, Palantir

Technologies, HB Gary Federal, and other defendants in a separate lawsuit before this Court, Kimberlin
v. Hunton & Williams, No. 8:15-cv-00723-GJH (D. Md.) (Hunton & Williams). The suit alleged that
the defendants in that case had engaged in a vast criminal enterprise to spread false and defamatory
stories about Mr. Kimberlin. In that complaint, Mr. Kimberlin alleged that as part of this conspiracy
Hunton & Williams provided some data to Team Themis on January 14, 2011. See Hunton & Williams,
Compl. 29, ECF No. 1 (Mar. 16, 2015).
While the defendants motions to dismiss were pending in that litigation, Mr. Kimberlin served

Case 8:13-cv-03059-GJH Document 377 Filed 05/02/16 Page 2 of 5

Berico and the other Hunton & Williams defendants with discovery requests. The requests to Berico
included, among other things all records related to Brett Kimberlin. See Hunton & Williams, Berico
Mot. to Stay Discovery, ECF No. 78-2 (Oct. 16, 2015). Berico, like the other defendants in that case,
moved to stay the discovery requests because they violated Local Rule 104.4 and the motion to dismiss
was likely to be dispositive of all of the claims in the case. Id., ECF No. 78. Nevertheless, Mr.
Kimberlin made repeated filings requesting both formally and informally that the Court allow him to
pursue discovery. None of those requests were granted.
Frustrated by his inability to get discovery in Hunton & Williams, Mr. Kimberlin has now tried
another tactic to get the same documents. Taking advantage of the open discovery period in this case,
Kimberlin v. Frey, Mr. Kimberlin issued Rule 45 third-party subpoenas for documents to the defendants
from the Hunton & Williams litigation. On or around March 21, 2016, Mr. Kimberlin served subpoenas
on Berico, Hunton & Williams, the Chamber of Commerce, Palantir Technologies, and HB Gary
Federal. Mirroring his document requests from Hunton & Williams, the subpoena to Berico requested
all documents . . . related to Brett Kimberlin. Ex. A at 2. The subpoena to Berico, like several others,
further specified that [t]his request includes a copy of the data disc or its contents referenced . . . in an
email dated January 14, 2011 that was transferred from Hunton and Williams to Team Themis. Id.
About a week after service of these subpoenas, the court dismissed all of the claims with
prejudice against Berico and the other defendants in Hunton & Williams, because they were time-barred
and insufficiently pled. Hunton & Williams, ECF No. 133 (Mar. 29, 2016). Despite the dismissal of his
case, Mr. Kimberlin has persisted in seeking discovery to support his claims through the use of these
subpoenas. Berico, like the other defendants from Hunton & Williams, objected to his requests. See Ex.
B. Without explaining why he needed the documents or how they related to the Frey litigation, Mr.
Kimberlin filed this Motion to Compel on March 15, 2016.
2

Case 8:13-cv-03059-GJH Document 377 Filed 05/02/16 Page 3 of 5

II.

ARGUMENT
Mr. Kimberlins subpoena and motion to compel violate both Rule 26(b), which limits discovery

to documents that are relevant to a partys claim or defense and proportional to the needs of the case,
and Rule 45, which prohibits a party from issuing a subpoena that imposes undue burden or expense on
a non-party.
The only remaining claim in the Frey case is that Defendant Frey, an Assistant District Attorney
for the Los Angeles County District Attorneys Office, allegedly violated 42 U.S.C. 1983 by
encouraging his office and other law enforcement officials to investigate Mr. Kimberlin in retaliation for
a complaint filed by Mr. Kimberlin. Nothing in this claim has any bearing on Berico, which has no ties
to the Los Angeles County District Attorneys Office. Mr. Kimberlin has notand cannotshow the
discovery he seeks from Berico has any relevance to the claims or defenses remaining in this case.
Rather, it is clear from the face of the subpoena that this is simply an attempt by Mr. Kimberlin
to get discovery in support of his claims in Hunton & Williams. The subpoena requests documents that
are specifically alleged to exist in his unsuccessful Hunton & Williams complaint and parrot the
unsuccessful discovery requests that Mr. Kimberlin served in that case. See Hunton & Williams, Compl.
29 (alleging the existence of the data provided by Hunton & Williams to Team Themis); Hunton &
Williams, Berico Mot. to Stay Discovery, ECF No. 78-2 (Oct. 16, 2015) (attaching Mr. Kimberlins
requests for all records related to Brett Kimberlin); Hunton & Williams, Dismissal Order, ECF No.
133 (dismissing claims with prejudice).
In short, the subpoena and this motion to compel have nothing to do with the Frey litigation.
They are a transparent and improper attempt to get discovery in support of a case that has now been
dismissed, and in which Mr. Kimberlin was never allowed to pursue discovery. Accordingly, they
exceed the limits of Rules 26 and abuse the privileges of Rule 45.
3

Case 8:13-cv-03059-GJH Document 377 Filed 05/02/16 Page 4 of 5

III.

CONCLUSION
For these reasons, as well as the objections stated in Bericos April 4, 2016 letter (Exhibit B to

this Opposition) and the reasons stated in the oppositions and motions to quash filed by Bericos fellow
non-parties who have received similar subpoenas, 1 this Court should deny Plaintiffs Motion to Compel.

May 2, 2016

Respectfully submitted,
By: /s/ Mark B. Sweet
Jennifer S. Zucker
Mark B. Sweet
Wiley Rein LLP
1776 K Street NW
Washington, DC 20006
Tel: (202) 719-7000
Fax: (202) 719-7049
msweet@wileyrein.com
Attorneys for Berico Technologies

Berico adopts and incorporates the arguments made by its fellow non-parties who have moved to quash Mr. Kimberlins
subpoenas and/or opposed Mr. Kimberlins motion to compel the subpoenas. See ECF Nos. 360, 361, 372, 373, and 374.

Case 8:13-cv-03059-GJH Document 377 Filed 05/02/16 Page 5 of 5

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 2, 2016 a copy of the foregoing Opposition to the Motion to
Compel and supporting materials was filed electronically with the Courts electronic filing system,
which provided electronic notice to all counsel of record in this matter. In addition, a copy of the
foregoing motion and supporting materials was sent by overnight delivery to Plaintiff Brett Kimberlin at
8100 Beech Tree Road, Bethesda, MD 20817.

/s/ Mark B. Sweet

Mark B. Sweet
Wiley Rein LLP
1776 K Street NW
Washington, DC 20006
Tel: (202) 719-7000

Case 8:13-cv-03059-GJH Document 377-1 Filed 05/02/16 Page 1 of 6

EXHIBIT A

Case 8:13-cv-03059-GJH Document 377-1 Filed 05/02/16 Page 2 of 6

Case 8:13-cv-03059-GJH Document 377-1 Filed 05/02/16 Page 3 of 6

Case 8:13-cv-03059-GJH Document 377-1 Filed 05/02/16 Page 4 of 6

EXHIBIT B

Case 8:13-cv-03059-GJH Document 377-1 Filed 05/02/16 Page 5 of 6

177 6 K STREET NW

Mark B. Sweet

April 4, 2016

202.719. 4649
MSwee t@wileyrein. com

WA SHINGTO N, DC 20 00 6
PHO NE

202 .7 19 .7 00 0

www.wileyrei n.com

VIA E-MAIL
Brett Kimberlin
8100 Beech Tree Road
Bethesda, MD 20817
justicejtmp@comcast.net
Re:

Kimberlin v. Frey, No. 8:13-cv-03059-GJHSubpoena for Documents

Dear Mr. Kimberlin,

We have received the subpoena to produce documents that you emailed to Wiley
Rein LLP on March 18, 2016 and served on Berico Technologies (Berico) on or
around March 21, 2016. Berico is not a party to the case from which this subpoena
originates, Kimberlin v. Frey, No. 8:13-cv-03059-GJH.
On April 1, 2016, we sent you an email asking whether you intend to pursue the
subpoena in light of the dismissal of the case in which Berico is a defendant,
Kimberlin v. Hunton & Williams, et al., No. 8:15-cv-00723-GJH, and we asked for
a record of the authorization by the court for this subpoena to be issued. We also
reserved our right to make objections. In response, you confirmed that you were
continuing to pursue this subpoena, but did not provide any record of the court
authorization.
Accordingly, Berico objects to the subpoena on the following grounds:

The subpoena is invalid. Federal Rule of Civil Procedure 45(a)(3)

and District of Maryland Local Rule 102.3 require court approval
before pro se parties can serve subpoenas on third parties. It does
not appear either on the face of the subpoena or the docket that the
court has authorized the issuance of this subpoena. When we
requested a copy of the authorization, you did not provide one.

The subpoena is overly broad. The subpoena requests documents

that are not relevant to the claims in Kimberlin v. Frey and not in the
possession of Berico. For example, the subpoena broadly requests
all documents related to Brett Kimberlin. It also requests all
documents in the possession of . . . former employees of your
company. Additionally, the subpoena has no time limit.

Case 8:13-cv-03059-GJH Document 377-1 Filed 05/02/16 Page 6 of 6

Brett Kimberlin
April 4, 2016
Page 2

The subpoena is an improper attempt to gather evidence for a case

that has already been dismissed. In addition to broad requests
discussed above, the subpoena specifically requests copies of data
transferred from Hunton and Williams to Team Themis, an
obvious reference to the claims that were alleged in Kimberlin v.
Hunton & Williams. We can only conclude that the true purpose of
this subpoena is to gather evidence for a case that has been
dismissedand for which the court never authorized discovery in
the first place.

The subpoena imposes an undue burden on Berico. A search for

documents responsive to this subpoena would be expensive and
time-consuming for Berico. Because of that, and for the reasons
discussed above, this subpoena imposes an undue burden and
expense on Berico in violation of Rule 45(d)(1).

The subpoena does not provide a reasonable time for responding.

This subpoena was served on or around March 21, 2016 and requests
all documents be produced by April 7, 2016, providing less than
three weeks to comply.

The subpoena is untimely. The subpoena was issued before

discovery opened in Kimberlin v. Hunton & Williams (and the case
has now been dismissed, in any event) and requests documents be
produced after the close of discovery in Kimberlin v. Frey.

Berico reserves its right to raise additional objections as this matter develops.
Sincerely,
/s/ Mark Sweet
Mark B. Sweet
Jennifer S. Zucker