Case 8:13-cv-03059-GJH Document 362 Filed 04/11/16 Page 1 of 6

UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND
BRETT KIMBERLIN
Plaintiff,

Civil Action No.: 8:13-CV-03059

(GJH)

vs.
PATRICK FREY
Defendant.

RESPONSE TO MOTION TO CONTEST CONFIDENTIAL DESIGNATION OF

DISCOVERY AND TO ALLOW PLAINTIFF TO USE DISCOVERY DOCUMENTS IN
MOTION FOR SUMMARY JUDGMENT (ECF 355)

Defendant Patrick Frey, through the undersigned counsel, respectfully responds in

opposition to Plaintiffs Motion to Review Withheld Documents (ECF 355) as follows.
1.

Plaintiff Brett Kimberlin avers, in his motion, that Defendant Patrick Frey has (a)
routinely designated virtually all of the documents as confidential but that Plaintiff, on
review of every single document . . . can find not one that contains the required
sensitive personal information necessary for a confidential designation.

2.

Kimberlin explains that in his opinion none of the materials are confidential because,
They are simply emails to and from dozens of people, articles, letters and drafts of blog
posts.

3.

Kimberlin does not explain why he personal emails, letters and unpublished writings
should not be presumptively entitled to confidentiality.

4.

Nor does Kimberlin explain why he is seeking this relief. He does not dispute that
notwithstanding the confidential designation, nothing is preventing him from utilizing

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the documents in connection with this litigation, including as support of a summary

judgment motion. As this Court has already ruled, the Protective Order allows the
parties to use the protected documents for preparing and conducting the litigation in
which the information or documents were disclosed (including appeals). ECF No. 312.
5.

The closest Kimberlin comes to enunciating a rationale for his application is in 4 of his
submission, where he states that if he does use confidential documents on his motion for
summary judgment, all of those documents will have a very large font
CONFIDENTIAL stamp across them.

6.

Kimberlin also complains in 4 that the undersigned counsel reminded him that
notwithstanding his right to use confidential documents in a motion for summary
judgment, the Protective Order does not grant him the right to unilaterally vitiate
confidentiality by attaching any and all documents designated as confidential to a
dispositive motion. He goes on to merely state, without argument, authority or appeal to
equity, that Therefore, Plaintiff needs an order from this Court allowing him to publicly
use the discovery documents in his Motion for Summary Judgment.

7.

While Defendant Frey appreciates Plaintiffs acknowledgment that such an order would
be needed if Kimberlin were to proceed as he wishes, he disputes the ipse dixit assertion
by Kimberlin that there is any need for Kimberlin to do so. The Courts skepticism
regarding this claim should especially be piqued by the fact that it is twinned with yet
another request that the Court merely dissolve all Mr. Freys confidentiality designations.

8.

The Court, of course, will be guided by the law here, and indeed noted its Letter Order
dated February 11, 2016 (ECF 344) that Rushford v. New Yorker Magazine, Inc., 846
F.2d 249 (4th Cir. 1988), cited inappositely by Kimberlin in connection with his earlier
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application to vitiate the protective order, does address the question of whether or not to
continue the terms of such an order in connection with a dispositive motion. Rushford
enunciated the factors that should be weighed by a District Court before that question
could be answered, explaining as follows in the context of a motion for access by a thirdparty press intervenor:
We certainly recognize that there may be instances in which discovery
materials should be kept under seal even after they are made part of a
dispositive motion. The mere existence of a First Amendment right of
access or of a common law right of access to a particular kind of document
does not entitle the press and the public to access in every case. . . .
Id. at 253. In contrast, the standard is different in a case where, as here, it is one
of the litigants who seeks to unwind the confidentiality provisions on which the
other has relied to produce documents, as the court explained in Longman v. Food
Lion, Inc., 186 F.R.D. 331, 334 (M.D.N.C. 1999):
[U]nlike the situation in Rushford, this case does not involve an intervenor
seeking to unseal the record based on the public's right of access. Instead,
this case involves a claim by Plaintiffs, who agreed to the provisions of the
confidentiality order, including the sealing of the documents, and who
now seek to escape their agreement based on access arguments that they
bargained away.
The Longman court refused to lift the protective order. Defendant acknowledges,
however, that this case differs from Longman because here the Plaintiff did not
voluntarily enter into the protective order, nor fail to object to its provisions. To
the contrary, Kimberlin has fought Mr. Freys right to keep private his private life,
and that of his correspondents, tooth and nail, though he has never once
enunciated a valid litigation rationale, including any coherent argument premised
on the discovery of potentially admissible evidence, for doing so.
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9.

It is for this very reason, however, that the rationale in Longman denying the request to
dissolve the protective order is even stronger here. Thus Mr. Frey respectfully submits
that the Court should deny Kimberlins request that his anticipated summary judgment
motion be permitted to act as a rationale to, in one fell swoop, undo everything that was
achieved by the Court when it recognized that a protective order was needed in this case,
considering this Plaintiff, under these circumstances, in this time and place.

10.

Moreover, while it is true that the burden on maintaining confidentiality lies with the
party asserting it, it has not failed to meet that burden because an adversary makes, as
Kimberlin does here, the blunderbuss claim that, on his review, he has failed to find one
that contains the required sensitive personal information necessary for a confidential
designation. As the court noted in Longman,
Defendants would normally be given an opportunity to raise
confidentiality arguments in favor of sealing sensitive information in the
record. However, Defendants did not have the opportunity to make these
arguments when the documents were released to Plaintiffs or when they
were submitted by Plaintiffs to the Court, because Defendants relied on
the protective order that Plaintiffs had agreed to. . . . Plaintiffs cannot now
request such a document-by-document review because Plaintiffs failed to
exercise their rights under the confidentiality order to challenge
confidentiality designations during the course of discovery.
Here, too, Kimberlins refusal to apply to the Court for relief concerning
confidentiality designations concerning specific documents on motion during
discovery, and to enunciate either a litigation, common law or First Amendment
rationale for lifting the confidentiality designation in connection with that
document, bars him from requesting that the Court merely trash the entire
exercise of confidentiality under the rubric of a dispositive motion and make a
mockery of all efforts that have gone before.
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11.

This reasoning would stand by itself as grounds for denying Kimberlins request. When
coupled, however, with the history of this litigation, as well the Plaintiffs own litigation
history and his oft-stated goal of using this litigation as a tool for embarrassing Defendant
and those with whom he associates i.e., Plaintiffs political rivals it is respectfully
submitted that the direction in which the Court should exercise its discretion under the
rule of Rushford and in the interest of justice is self-evident.

WHEREFORE Defendant respectfully requests that this Honorable Court deny Plaintiffs
request per ECF 355.
Respectfully submitted,
_______/s/_____________________
T. Bruce Godfrey #24596
JEZIC & MOYSE LLC
2730 University Blvd. West, #604
Silver Spring, MD 20902
240-292-7200
facsimile: (888) 241-3135
godfrey@jezicfirm.com
ARCHER & GREINER
A Professional Corporation
By:_____/s/___________________________
Ronald D. Coleman (Pro Hac Vice)
Court Plaza South
21 Main Street, Suite 353
Hackensack, NJ 07601
201- 342-6000
rcoleman@archerlaw.com
Attorneys for Defendant Patrick Frey
Dated: April 11, 2016
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CERTIFICATE OF ELECTRONIC FILING AND REGARDING WAIVER OF

MAILINGS
I, T. Bruce Godfrey, hereby certify that I have filed a copy of this document with the
United States District Court electronically and by so doing have provided compliant notice to
those parties who are registered with ECF through counsel as of this filing consistently with
Local Rule 102.1(c) on April 11, 2016. All parties, including pro se parties, have agreed to
accept service by electronic mail only and an electronic copy has been distributed to all parties.
/s/
_________________________________
T. Bruce Godfrey #24596