Case 8:13-cv-03059-GJH Document 344 Filed 02/11/16 Page 1 of 5

FILED
U.S. OISTRICT COURT
UNITED STATES DISTRICT COURlfiSTRICT
OF MARYLAND
DISTRICT OF MARYLAND
SOllther" Dil'ilioll

lDlb FEBI I A II: 40

CII.UIRtR!'i 01
C;t:ORGt: J.\RROD 11.\1.t:L

r:"oHH) S'I'A I t:s IHHHICT Jl'HGt:

February

II. 2016

RE: Kimberlin \'. I'i'ey.

GJH-13-3059
LETTER ORDER
Dear Counsel and Mr. Kimberlin:
This letter addresses

several motions presently

beli)re the Cmll1: Kimberlin's

Motion to

File In Camera Motion Under Seal (ECF No. 31 X): Fre~"s Motion to Quash Subpoenas
320); Hoge's

Motion to Strike. Motion li)r Sanetions

Compel (lOCI' No. 324): Kimberlin's

Motion for Sanctions

(ECF No. 321); Kimberlin's

Motion to Lin Protective

(lOCI' No. 329): and. Kimberlin's

(ECF No.

Motion to

Order (lOCI' No. 327): Walkcr's

Motion fiJr Lea\'e to Amend Complaint

(ECF No. 334).

Kimberlin's

Motion to File In Camera Motion Under Seal (ECF No. 31 Xl

Kimberlin
eurrently
exhibits

has submitted

tiled in camera.

lOCI' No. 318. Kimberlin

contain inliltlllation

1"-

Order"').

The Protective

confidential

\,hen "preparing
were disclosed

asserts that the motion and the attached

covered by the October

("Protective
documents

a motion to be allowed to file a motion under seal that is

for and conducting

(including

5.2015

Protective

Order (ECF No. 312)

Order allows the parties to use documents

appeals)."'

the litigation

in which the inliltlllation

ECF No. 312 at 3. However.

Order requires that any filing that discloses documents

subject to the Protective

motion to tile under seal. Kimberlin

is instructed

is further instructed

to provide Hoge with a copy of the Protecti\'e

Letter Order. which hereby instructs

Hoge that he is bound by the provisions

or

Order be filed

the in camera motion. the Court will GRANT

to properly serve third-party

as

the Protecti\'e

under seal. Id at 4. Alier reviewing

Kimberlin

designated

Plaintiff-s

William I-/oge.
Order and this
of the Protecti\'e

Order as it relates to his receipt of ECF No. 319.

Frev"s Motion to Quash Subpoenas
Next. the Court considers
argues that he has standing
Office ("LADA")

(ECF No. 320)

Frey's Motion to Quash Subpoenas

to quash the subpoenas

and Google.

(ECF No. 320). Frey

served on the Los Angeles

Inc. because of his legitimate

interests.

District Attorney's

ECF No. 320 at

'il

I. I fc

Case 8:13-cv-03059-GJH Document 344 Filed 02/11/16 Page 2 of 5

,j

also argucs that CaiifiJrnia law has "a prima facic right to and expectation
oflicial's

pcrsonal rccords:'

ECF No. 320 at

2 (citing

(J1i\"(!rt1

U.S. Dist. LEXIS 125083. at *15 (E.D. Cal. Nov. 15.2010)).

to movc to quash a subpoena

providc at this time:'

of privileged

privileged.
withheld

or other protectcd

Whcn withholding

documents.

regarding

itself privileged

The LADA's

any invcstigation

"protected

fi'om disclosure

and the Deliberative

3. Kimberlin

at thc LA
thcy should

or ,,'aiver applics ...

informationundcr

:. Fcd. R.

a claim that it is

will enable the parties to assess the claim:'

Fcd. R.

of Records statcs that "[alny and all documents

by thc Los Angeles County DA's Ofticc into Plaintiffs

are indced part of Plaintitrs

by the Official Information

internal personncl
Cali/ilm/a

Privilege.

file:' which is
El"ilience Colie

Cali/ill"n/a GOl"{'mll/['nl Colie Section 6254.

Information).

Process Privilege:'
is privileged

that ... (iii) requires

make the claim: and (ii) dcscribc the nature of the

Custodian

Governmcnt

sought by the subpoena

45. "[o]n timely motion. the court for thc

or tangible things in a manner that. without revcaling

performcd

against Dcfendant

1040 (Ofticial

subpocnaed

or protected.

complaints
Section

("Rule")

mattcr. ifno cxccption

must "(i) exprcssly

communications.

Civ. P. 45(e)(2)(A).

on what documents

is requircd must qucstion or modifY a subpoena

the custodian

information

attorneys

'i

has standing

lOCI' No. 322 at ,; 2.

district wherc compliance

Civ. P. 45(d)(3)(A).

ECF No. 320 at

"contacted

Officc and came to an agrcemcnt

Under Federal Rule of Civil Procedure

disclosure

/'/::::IIS/. NO.2: I 0-1747. 20 I0

and that a dctendant

seeking rccords Irom an cmploycr.

argues that the motion should bc denicd bccausc Kimbcrlin

County District Attorncy's

\"

of privacy to a public

ECF No. 328 at I. The Court finds that the information

and GRANTS

Frcy's motion to quash the Los Angeles

District Attorney subpoena.

Regarding

the Google.

Inc. subpoena.

Frey argues that the subpoena

the Stored Communications

Act. ECF No. 320 at
Communications
Act does not allow "enf(,rcement
In re SlIbpoena Duces Tecllllllo

provider."

..101..

'I'i

6-7. Thc Court agrces. The Stored

of a civil subpoena issued to an e-mail service

uc. 550

2008); see also Finkle \". Il00l"<lrli CIY.. No. SAG-13-3236.

n.3 (D. Md. Dec. 2.2014)

("'The Stored Communications

the contents of electronically

enumerated

cxception

noted by Kimbcrlin.
with a subpocna.
serve Google.
thereforc
Iloge's

applies.

stored communications

Act ("'SCA") unambiguously

shall not be discloscd

'i 3.

states that

to parties unless an

is not an cxception:").

As

rcqucst to scrve Googlc. Inc.

Based on the forcgoing.

thc rcqucst to

is DENIED and thc Motion to Quash the Supocna is

as moot.

Motion to Strikc. Motion for sanctions

Non-party

2014 U.S. Dist. LEXIS 166636. at *5

the Court has not yct ruled on Kimbcrlin's

See ECF No. 315: ECF No. 322 at

DENIED

F. Supp. 2d 606. 6 II (E.D. Va.

18 LJ.S.c. ~ 2702. A civil subpoena

Inc. with a subpoena

is unlawful under

(ECF No. 321)

William Iloge requests that the Court strikc ECF No. 319 and sanction

PlaintitT for not providing

propcr service on Hogc. ECF No. 321 at I. Ilowever.

motion has not bcen tiled. Rather. Kimbcrlin

submittcd

the in camcra

the motion liJr rcview by the Court along

Case 8:13-cv-03059-GJH Document 344 Filed 02/11/16 Page 3 of 5

with his motion to tile under seal. See ECF No. 31 S. In Kimberlin's

motion, he notes that the

"information

absent an express order of

in the In Camera Motion cannot be publicly disclosed

this Court" ECF No. 318, Thus, Kimberlin

did not fail to serve Hoge: the in camera motion was

submitted

to the Court to determine

instructed

to serve the Motion on Hogc. Hoge's motion to strike ECF No. 319 and to sanction

Kimberlin

is DENIED.

Kimberlin's

how it should be Iiled. As discussed

above, Kimberlin

is

Motion to Compel rECF No. 324)

Next, the Court DENIES

properly served. According

for compliance'-'

Motion to Compcl because Walker was not

to Rule 45(b)( I), a person "who is at least 18 ycars old and not a

party may servc a subpocna'-'

served that subpocna

Kimberlin's

Fed. R. Civ. P. 45(b)( I). In Plaintiffs

on Walkcr via tirst class Priority Mai I \\'ith a date of December

Motion to Lift Protective

Kimberlin
Kimberlin

Order (ECF No. 327). In his motion,

Order violates his First Amendment

prevents him from sharing protected

documents

bcing sued by Plaintiff."' and prevents

with "lawyers

representing

him Irom using the information

\'. HUIlIoll & Irilliallls, G.JH.15.1173.

To support his argument,

with the subpoena.

Order (ECF No. 327)

has also filed a Motion to Lift Protective

argues that thc Protective

Kimherlill

16, 20 I 5

ECF No 324 at ,j 1. This docs not comply with Rule 45(b)( I). Bccause Plaintiff

failed to properly serve Walkcr, he cannot compel compliance

Kimberlin's

motion, he statcs, "Plaintiff

right to li'ee specch.

other detendants

to amend his complainl

in

ECF No. 327.

PlaintitT cites to

111

re IVall SI . .loul'llal, 60 I F. App 'x 215 (4th

Cir. 2015) and R/I.INlml

\'. New Yorker Mag<t=ille. !lIe .. 846 F.2d 249 (4th Cir. 1988). but ncither

case supports

position.

Plaintilrs

access to criminal trials.

whether attachments
is ordinarily

111

111

to a dispositive

conducted

re IVaI! SI . .loul'llal discusses

the public's

re IVaI! .'II. .loul'llal, 60 I F. App'x at 21 S. Rush/lml.

qualitied

right of

\\'hich discusses

motion should rcmain sealed. notes that "discovery.

in private, stands on a wholly different

by a party seeking action by thc court." Rush/lml.

which

footing than docs a motion tiled

846 F.2d at 252. According

to Rule 26(c), the

Court "may. tor good cause, issuc an order to protcct a party or pcrson trom annoyance.
embarrassment.
explained

oppression,

or undue burdcn or cxpense ...

in Rush/lu'd ... the First Amcndment

a protectivc

order limiting disclosurc

'-' Fed. R. Civ. P. 26(c). As

[does] not preclude thc district court ti'om entering

of the products of pretrial disco\'cry'-'

Rush/ill'll. 846 F.2d

at 252, which is thc case herc.

The Court tinds PlaintitTs

othcr conccrns

defcndants

to share the protccted

dismisscd.

See ECF No. 264 (dismissing

the Protective
conducting
appeals)"

documents

to be unpcrsuasivc.

with bccause all other Dctcndants

all Detcndants

except Detcndant

Order allows the parties to use thc protected documents

Ihe liligalioll

ill Il'hieh Ihe ili/lml/alioll

ECF No. 312 at 3 (emphasis

There arc no othcr

Frey). As noted above,

lilr "preparing

or doeullle11ls Il'ere disclosed

addcd). Allowing

PlaintilTto

havc been
Ii)!' and

(including

use thc protected

Case 8:13-cv-03059-GJH Document 344 Filed 02/11/16 Page 4 of 5

documents

in this case to pursuc dcfcndants

Protective

Ordcr. Accordingly.

Walker's

Motion for Sanctions

Plaintifrs

in a scparate case would dcfcat thc purposc ofthc

Motion to Lili Protcctivc

Order is DENIED.

Undcr Rulc 45(d)( I) (ECF No. 329)

Non-pal1y Aaron J. Walkcr has liled a motion for sanctions

No. 329). In his motion.
enforce a subpocna
Detendant

undcr Rulc -I5(d)( I) (ECF

Walkcr argues that Plaintiff should bc sanctioncd

that was I) wholly duplicative

Frey and 2) signilicantly

duplicativc

of two documcnt

ofa document

are to be tiled sparingly.'

papcrwork

and unncccssary

rcqucst scrved and complicd with

noted ... [m jotions for

and .[tlhc kcynotc is cooperation

and simple solutions.

Mgl11/.Ass'n. Inc.. 158 F.R.D. 36-1. 366 (D. Md. 1994)). Contrary to Walkcr's
sanctions

are within thc discretion

ofthc

asscrtion.

It rcquircs that a sanction bc imposed.").

district court. Legal Voice ".

1178. 1185 (9th Cir. 2013). In its discrction.

SWrJllllIIS

thc Court DENIES Walkcr's

not

Tlwnws ,'. TreaslIIY

cxpense to c1icnts .... ECF No. 29-1 at 2 (quoting

329 at ~ 7 ("This rulc is not discretionary.

to

requcsts scrvcd on

in another casc'" ECF No. 329 at ~ 5. As thc Court has prcviously

sanctions

for "attcmpting

ECF No.

Rule -I5(d)( I)

Inc.. 738 FJd

Motion fill"Sanctions

Undcr Rule 45(d)(I).

Kimberlin's

Motion for Leave to Amcnd Complaint

Last. thc Court DENIES

Plaintiffs

Motion fill" Lcavc to Amcnd Complaint

334). This case has bcen pcnding since Octobcr

reminded

Plaintiff on two prior occasions

(ECF No. 334)

15.2013.

causc' means that schcduling

efforts. Carclessness
grant ofrelief

Thc

on the timeliness

is not compatible

lc Jourt

supervisors

Junc 15.2015

Plaintiffs
Frey ...

deadlines

cannot be mct dcspitc a pany's

with a linding of diligcncc

for Los Angcles.

in the Los Angelcs

Sccond Amendcd

of thc proposed amcndmcnt

Complaint

with the knowlcdge

District Attorncy's

LADA as a party in his Second Amcnded

Ofticc"').

Complaint

and morc
(citations and

indicates that hc was aware

'1 208

("As set forth abovc.

werc donc under color of statc law. specifically

California.

diligcnt

and ofTcrs no rcason fill' a

See ECF No. 100-1 at

dcfcndant.

deadlinc.

Alul11niAss 'n. 295 F.R.D. 104. 107 (D. Md.

focuscs Icss on the substancc

idcntity as a potential

thc actions of Defendant

District Attorney

motion docs not present

of the motion to amend and the rcasons flJr its tardy submission'"

marks omittcd)).

of LADA's

Plaintiffs

alicr thc cstablished

ECF No. 279 at 2: see "Iso Wonasue \'. Un"'. o(,lld

2(13) ('''Good

[to thc Complaint J wi II bc

that "no furthcr amcndments

good cause for moving to amend his Complaint

quotation

ECF No. I. and thc Court has

see ECF No. 88 at 5: ECF No. 133. Furthennorc.

pennitted,"

(ECF No.

and permission

as an Assistant
of his

Thus. Plaintiff could havc added

rather than attempting

to do so almost two

years later.
In summary.

the motions are resolvcd are follows:

Kimbcrlin's

Motion to Filc In Camcra Motion Undcr Scal (ECF No. 318) is GRANTED:

Frcy's Motion to Quash Subpoenas

(ECF No. 320) is GRAI'\TED.

in part. as moot:

in part. and DENIED.

Case 8:13-cv-03059-GJH Document 344 Filed 02/11/16 Page 5 of 5

Hoge's Motion to Strike, Motion for Sanctions (ECF No. 321) is DENIED;

Kimberlin's Motion to Compel (ECF No. 324) is DENIED;

Kimberlin's Motion to Lift Protective Order (ECF No. 327) is DENIED:

Walker's Motion for Sanctions (ECF No. 329) is DENIED; and,

Kimberlin's Motion for Leave to Amend Complaint (ECF No. 334) is DENIED.

Si&~_

Although informal, this is an Order of the Court and shall be docketed as such.

GEORGE J. HAZEL
United States District Judge