Case 8:13-cv-03059-GJH Document 373 Filed 04/28/16 Page 1 of 5

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Brett Kimberlin,
Plaintiff,
vs.
Patrick Frey,
Defendant.

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OPPOSITION OF NON-PARTY HUNTON & WILLIAMS LLP TO

PLAINTIFFS MOTION TO COMPEL
As the Court knows, Plaintiff Brett Kimberlin filed a complaint against Hunton &
Williams (H&W) and numerous other defendants in Kimberlin v. Hunton & Williams, et al., No.
8:15-cv-00723. The Court has since dismissed all claims in that action (the federal claims, with
prejudice). Hunton & Williams, No. 8:15-cv-00723, Dkt. Nos. 133, 134. Throughout those
proceedings, Mr. Kimberlin unsuccessfully sought discovery from H&W, first in a premature
discovery request that was improper under the Local Rules (id., Dkt. Nos. 75, 76, 85) and then
again in his opposition to the defendants motions to dismiss, in which he repeatedly asked the
Court to allow him discovery in order to cure the deficiencies in his Complaint (id., Dkt. No. 74).
Now that the Court has dismissed that action, Mr. Kimberlin has renewed his efforts in a
different forum. See Ex. 1 (Plaintiffs Subpoena).
Mr. Kimberlin makes no effort to justify seeking discovery against H&W, which is not a
party to this litigation and has no discernable connection to the sole remaining defendant, Patrick
Frey. H&W could not possibly have been involved in the alleged activities of the Los Angeles
County District Attorneys Office that give rise to the only claim remaining in this case. Mr.

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Kimberlin alleges nothing to the contrary. Accordingly, H&W should not be put to the burden
and expense of complying with his overly broad subpoena.
The subpoena is procedurally deficient in all events. The Court therefore should deny the
motion to compel.
*

Rule 45 governs subpoenas to nonparties and permits the same scope of discovery as
Rule 26. Brown v. Meehan, No. 3:14-CV-442, 2014 WL 4701170, at *2 (E.D. Va. Sept. 22,
2014). As recently amended, Rule 26(b)(1) requires a showing that the requested material not
only be relevant to the requesting partys case, but also that it be proportional to the needs of the
case, considering the importance of the issues at stake in the action, the amount in controversy,
the parties relative access to relevant information, the parties resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit. Fed. R. Civ. P. 26(b).
Mr. Kimberlin has alleged no direct connection between H&W and Mr. Frey; there is
none. Moreover, the only remaining claim in this matter is based on Mr. Kimberlins allegation
that Mr. Frey, acting in his capacity as an Assistant District Attorney for Los Angeles County,
encouraged his supervisors to launch criminal investigations of Kimberlin. Kimberlin v. Nat'l
Bloggers Club, No. GJH-13-3059, 2015 WL 1242763, at *14 (D. Md. Mar. 17, 2015). There is
no allegation that H&W, a private law firm, had any involvement in launching the alleged
investigations. Accordingly, there is no reason to believe that Mr. Kimberlins fishing
expedition would yield evidence of sufficient probative value to justify the expense and burden
he would impose on H&W.

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Indeed, it appears that Mr. Kimberlins true motivation here has nothing to do with his
claims against Mr. Frey and everything to do with his now defunct lawsuit against H&W. Mr.
Kimberlins Motion to Compel in this matter came shortly before he filed a Motion for Relief
from Judgment in the Hunton & Williams case, in which he makes an improper request that he
be allowed to proceed with discovery, despite the fact that the Court has dismissed all claims.
Dkt. No. 137 in Case No. 8:15-cv-00723 at 11. Perhaps anticipating that this request will be
denied (as it should be), Mr. Kimberlin apparently hopes that he can obtain discovery from
H&W in this action and then use it to revive his dismissed claims in the other action. This
constitutes an inappropriate and abusive use of a third-party subpoena that the Court must not
sanction.
Even if Mr. Kimberlin had plausibly alleged some involvement by H&W in the actions of
Mr. Frey, the subpoena would remain vastly overbroad. Kimberlin makes a sweeping request for
H&W to produce any information in its possession (or within the possession of former
employee[s]) that is in any way related to Brett Kimberlin. Ex. 1 (Plaintiffs Subpoena).
This patently overbroad request would be inappropriate even if directed to a party with an
interest in this litigation. The fact that Mr. Kimberlin has directed such a request to a non-party
provides all the more reason for the Court to deny his motion. See Cook v. Howard, 484 F.
Appx 805, 812 (4th Cir. 2012) (per curiam) (holding that it was appropriate for a District Court
to consider the subpoenaed entitys status as a non-party in granting a motion to quash).
In all events, the subpoena is procedurally deficient for at least two reasons.
First, the subpoena was not properly served. Federal Rule of Civil Procedure 45(b)(1)
plainly states that a subpoena may be served only by someone who is not a party. See Dkt. No.
344 (denying Mr. Kimberlins subpoena to Defendant Aaron Walker because Mr. Kimberlin

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served it himself and it therefore does not comply with Rule 45(b)(1)); Mort. Info. Servs., Inc.
v. Kitchens, 210 F.R.D. 562, 565 (W.D.N.C. 2002) ([T]he drafters limited the type of person
eligible to serve a Rule 45 subpoena by stating in subsection (b)(1) that service may only be
accomplished by a person who is not a party and is over the age of eighteen.). Because Mr.
Kimberlin purported to effect service himself via an email, Ex. 2 (Email from Plaintiff), service
of the subpoena was deficient under Rule 45.1
Second, the Court previously ordered Mr. Kimberlin to obtain authorization from the
Court before issuing subpoenas in this matter. See Dkt. No. 313. There is no indication on the
docket that he has done so.
For these reasons, Mr. Kimberlins Motion to Compel should be denied.

Dated: April 28, 2016

Respectfully submitted,
/s/ C.J. Mahoney
C.J. Mahoney (Bar No. 18713)
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, DC 20005
Telephone: (202) 434-5253
Facsimile: (202) 434-5058
Email: cmahoney@wc.com
Attorney for Hunton & Williams LLP

On March 18, 2016, Mr. Kimberlin emailed a subpoena to counsel for H&W and requested that
counsel accept service on behalf of H&W. Counsel agreed to accept service as of March 21,
2016, but, in doing so, counsel explicitly reserved all objections both to the manner of service
and to the subpoena itself. Ex. 3 (Email from H&W Counsel). H&W then sent Mr. Kimberlin
timely objections, Ex. 4 (H&Ws Objections), and he filed a motion to compel (Dkt. No. 363).

Case 8:13-cv-03059-GJH Document 373 Filed 04/28/16 Page 5 of 5

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 28th day of April, 2016, a copy of the foregoing
Opposition of Non-Party Hunton & Williams LLP to Plaintiffs 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 opposition and supporting materials was sent by Federal Express to Plaintiff Brett
Kimberlin at 8100 Beech Tree Road, Bethesda, MD 20817.

_/s/ C.J. Mahoney___________

C.J. Mahoney (Bar No. 18713)

Case 8:13-cv-03059-GJH Document 373-1 Filed 04/28/16 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
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Brett Kimberlin,
Plaintiff,
vs.
Patrick Frey,
Defendant.

DECLARATION OF BARRETT J. ANDERSON IN SUPPORT

OF NON-PARTY HUNTON & WILLIAMS LLPS OPPOSITION
TO PLAINTIFFS MOTION TO COMPEL
I, Barrett J. Anderson, declare as follows:
1.

I am admitted to the Bar of this Court and am an associate at the law firm of

Williams & Connolly LLP, counsel for non-party Hunton & Williams LLP (H&W) in the abovecaptioned action. I submit this declaration in support of H&Ws opposition to plaintiffs Motion
to Compel. This declaration is made based on my personal knowledge.
2.

Attached as Exhibit 1 is a true and correct copy of the document emailed to me by

Plaintiff Brett Kimberlin on March 18, 2016.

3.

Attached as Exhibit 2 is a true and correct copy of an email I received from

plaintiff on March 18, 2016.

4.

Attached as Exhibit 3 is a true and correct copy of an email I sent to plaintiff on

March 18, 2016.

5.

Attached as Exhibit 4 is a true and correct copy of the letter containing H&Ws

objections to plaintiffs subpoena that were sent to plaintiff via Federal Express on April 1, 2016.

Case 8:13-cv-03059-GJH Document 373-1 Filed 04/28/16 Page 2 of 2

I declare under penalty of perjury that the foregoing is true and correct to the best of my
knowledge, information, and belief.
Dated: April 28, 2016

Respectfully submitted,
/s/ Barrett J. Anderson
Barrett J. Anderson (Bar No. 13900)
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, DC 20005
Telephone: (202) 434-5104
Facsimile: (202) 480-8253
E-Mail: banderson@wc.com

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EXHIBIT 1

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EXHIBIT 2

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Anderson, Barrett
From:
Sent:
To:
Subject:
Attachments:

justicejtmp@comcast.net
Friday, March 18, 2016 7:09 PM
Anderson, Barrett
Re: Subpoena for H&W
H&W Subpoena Frey.pdf

DearMr.Anderson,

Attachedpleasefindthesignedandclerksealedsubpoena.Letmeknowifyouwillacceptservicebyemail.Ifnot,Iwill
serveyourclientbypersonalserviceonMonday.

Thankyou,

BrettKimberlin

OriginalMessage
From:"BarrettAnderson"<BAnderson@wc.com>
To:justicejtmp@comcast.net
Cc:"JohnBuckley"<JBuckley@wc.com>,"C.J.Mahoney"<CMahoney@wc.com>
Sent:Thursday,March3,201612:30:48PM
Subject:RE:SubpoenaforH&W

DearMr.Kimberlin:

YouremailindicatesthatJudgeHazelhas"approved"asubpoenaforHunton&Williams.Pleaseprovidethecourtorder
inwhichhedidso.

Sincerely,
BarrettAnderson

BarrettJ.Anderson
Williams&ConnollyLLP
725TwelfthStreet,N.W.,Washington,DC20005
(P)2024345104|(F)2024808253
banderson@wc.com|www.wc.com/banderson

OriginalMessage
From:justicejtmp@comcast.net[mailto:justicejtmp@comcast.net]
Sent:Tuesday,March01,201610:11AM
To:Anderson,Barrett<BAnderson@wc.com>
Cc:Buckley,John<JBuckley@wc.com>;Mahoney,C.J.<CMahoney@wc.com>
Subject:SubpoenaforH&W

Gentlemen,

Case 8:13-cv-03059-GJH Document 373-3 Filed 04/28/16 Page 3 of 3

JudgeHazelapprovedsubpoenasfortheChamber,H&W,Berico,HBGary,PalantirandPNNL.Willyouacceptserviceof
theoneforyourclient?

Thanks,

BrettKimberlin(301)3205921

________________________________

Thismessageandanyattachmentsareintendedonlyfortheaddresseeandmaycontaininformationthatisprivileged
andconfidential.Ifyouhavereceivedthismessageinerror,pleasedonotread,use,copy,distribute,ordisclosethe
contentsofthemessageandanyattachments.Instead,pleasedeletethemessageandanyattachmentsandnotifythe
senderimmediately.Thankyou.

Case 8:13-cv-03059-GJH Document 373-4 Filed 04/28/16 Page 1 of 3

EXHIBIT 3

Case 8:13-cv-03059-GJH Document 373-4 Filed 04/28/16 Page 2 of 3

Anderson, Barrett
From:
Sent:
To:
Cc:
Subject:

Anderson, Barrett
Friday, March 18, 2016 8:33 PM
justicejtmp@comcast.net
Buckley, John; Mahoney, C. J.
RE: Subpoena for H&W

DearMr.Kimberlin:

WewillacceptserviceofthesubpoenaonbehalfofHunton&WilliamsLLPasofMonday,March21,2016.Beadvised
thatbyacceptingserviceonthatdaywedonotwaiveanyobjectionsthatwehavetotheserviceofthesubpoenaorthe
subpoenaitself.

Sincerely,
BarrettAnderson

BarrettJ.Anderson
Williams&ConnollyLLP
725TwelfthStreet,N.W.,Washington,DC20005
(P)202 434 5104|(F)202 480 8253
banderson@wc.com|www.wc.com/banderson

OriginalMessage

From:justicejtmp@comcast.net[mailto:justicejtmp@comcast.net]
Sent:Friday,March18,20167:09PM
To:Anderson,Barrett<BAnderson@wc.com>
Subject:Re:SubpoenaforH&W

DearMr.Anderson,

Attachedpleasefindthesignedandclerksealedsubpoena.Letmeknowifyouwillacceptservicebyemail.Ifnot,Iwill
serveyourclientbypersonalserviceonMonday.

Thankyou,

BrettKimberlin

OriginalMessage

From:"BarrettAnderson"<BAnderson@wc.com>
To:justicejtmp@comcast.net
Cc:"JohnBuckley"<JBuckley@wc.com>,"C.J.Mahoney"<CMahoney@wc.com>
Sent:Thursday,March3,201612:30:48PM
Subject:RE:SubpoenaforH&W

DearMr.Kimberlin:

Case 8:13-cv-03059-GJH Document 373-4 Filed 04/28/16 Page 3 of 3

YouremailindicatesthatJudgeHazelhas"approved"asubpoenaforHunton&Williams.Pleaseprovidethecourtorder
inwhichhedidso.

Sincerely,
BarrettAnderson

BarrettJ.Anderson
Williams&ConnollyLLP
725TwelfthStreet,N.W.,Washington,DC20005
(P)202 434 5104|(F)202 480 8253
banderson@wc.com|www.wc.com/banderson

OriginalMessage

From:justicejtmp@comcast.net[mailto:justicejtmp@comcast.net]
Sent:Tuesday,March01,201610:11AM
To:Anderson,Barrett<BAnderson@wc.com>
Cc:Buckley,John<JBuckley@wc.com>;Mahoney,C.J.<CMahoney@wc.com>
Subject:SubpoenaforH&W

Gentlemen,

JudgeHazelapprovedsubpoenasfortheChamber,H&W,Berico,HBGary,PalantirandPNNL.Willyouacceptserviceof
theoneforyourclient?

Thanks,

BrettKimberlin(301)3205921

________________________________

Thismessageandanyattachmentsareintendedonlyfortheaddresseeandmaycontaininformationthatisprivileged
andconfidential.Ifyouhavereceivedthismessageinerror,pleasedonotread,use,copy,distribute,ordisclosethe
contentsofthemessageandanyattachments.Instead,pleasedeletethemessageandanyattachmentsandnotifythe
senderimmediately.Thankyou.

Case 8:13-cv-03059-GJH Document 373-5 Filed 04/28/16 Page 1 of 5

EXHIBIT 4

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