ECF 352 Redacted

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    ',1.: .

    [:STi\.u.   L ..   j,

    'C   '':'-''? 2   I'   O. I   Ir. '-   t.".,'    I

    Brett Kimberlin,

     Plaintiff,

    v.

    Patrick Frey,

     Defendant.

    I

    I"

    1 __ ,

    "LT   U~;ED STATESDISTRICTCOURT

    , -"" FO~THE DISTRICTOF MARYLAND,   ,SOUTHERNDIVISION

    Case No. 13,CV.03059.GJH

     NON-PARTYWILLIAM ROGE'S OPPOSITION TO PLAINTIFF'S MOTION TO IMPOSE

    SANCTIONSAND/ORCONTEMPTON THIRD PARTYWITNESS WILLIAM ROGE FOR VIOLATINGCOURT ORDERED SUBPOENA(ECF NO. 319)

    REDACTED VERSION

    COMESNOWNon-Party William Hoge and opposes Plaintiffs Motion to Impose

    Sanctions and/or Contempt on Third Party Witness William Hoge for Violating Court

    Ordered Subpoena (ECF No. 319). In opposition to said motion Mr. Hoge states as follows

    INTRODUCTION

    1. As will be shown below, Plaintiff did not properly serve his subpoena on Mr.

    Hoge. However, Mr. Hoge elected to voluntarily provide the information Plaintiff sought

    in order to avoid the additional drama that would be caused by ignoring the improperly

    served subpoena and a resulting motion to compel. In fact, Mr. Hoge has voluntarily given

    Plaintiff copies of all the responsive documents in his possession that were sought by the

    subpoena, and there is nothing else he could have provided.

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    MR. HOGE RESPONDED IN GOOD FAITH, TREATING PLAINTIFF'S IMPROPER SUBPOENA

    AS A REQUEST FOR INFORMATION

    2. Simply put, Mr. Hoge has given Plaintiff all of the documents he had that

    were sought by the subpoena, and nothing in Plaintiffs motion demonstrates anything to

    the contrary. Mr. Roge's cooperation was purely voluntarily and solely motivated his

    desire to avoid unnecessary rounds of motions and briefing over a handful of innocuous

    documents with no substantive connections to the   Kimberlin v. Frey   lawsuit. Basically,

    Plaintiff is unhappy because his subpoena was a dry hole rather than a gusher of 

    information that he could use play "gotcha" games by comparing responses from Messrs

    Frey, Walker, and Roge.

    3. Plaintiff seems to believe that the fact that   .LvII'.   Frey has retained copies of 

    emails Mr. Roge has not kept proves spoliation or some such. In addition to being

    conclusory, that's nonsensical. The fact that Mr. Frey might have kept emails which Mr.

    Roge has not should not have been a surprise to Plaintiff. Re might remember from the

    discovery process in his previous lawsuit against fvlr.Roge, Kimberlin v. Waliler, et al.,

    Case No. 380966V (Md. Cir.Ct. Mont. Co. 2014), that Mr. Roge does not keep most emails

    longer than six months. Because of the very high volume of email he receives (about

    100,000 per year), Mr. Roge does not retain emails on his online server for more than

    seven days. At that point, they are downloaded to an onsite server and deleted online.

    Junk email and mail with only transient value are deleted immediately. Any emails that

    are specifically saved after being read are maintained, but emails which are not

    2

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    specifically saved are not kept for longer than six months. As a result of that policy, Mr.

    Hoge had not kept any emails to or from Mr. Frey sent or received prior to August, 2013,

    when privileged communications began in expectation oflitigation from Plaintiff. Fed. R.

    Civ. P. 45(e)(I)(D) contemplates that some electronically stored information may not be

     provided if it is not reasonably accessible because of undue burden or cost. Mr. Hoge is

    unaware of how he can provide information he no longer possesses because it was disposed

    of in the normal course of business in accordance with his long established email retention

     policy.

    4. Additionally, Plaintiffs subpoena sought "[a]l1communications   between   you

    and Patrick Frey concerning Brett Kimberlin from May 2012 through May 2104[.]"

    Subpoena to Mr. Hoge, Sept. 17,2015, ECF No. 308-1 at 2. Emphasis added.

    Communications   between   Messrs. Frey and Hoge would be messages originated by one of 

    them and addressed to the other. That would not include messages originated by third

     parties. That also would not include messages sent by one but not the other to third

     parties where either Mr. Roge or 1\11'.Frey were sent copies. Thus, Mr. Roge believes that

    messages originated by or sent to third parties are not subject to the subpoena unless the

    fall under the demand for "[a]ll communications with any other person during that time

    frame regarding those alleged swattings."   Id.

    Paragraphs 5 through 9, inclusive, are redacted in this version pursuant to the

    Court's Protective Order (ECF No. 312). An unreacted version has been submitted

    under a temporary seal together with an accompanying Motion to Seal pursuant to L.R.

    105.11 and   Doe v. Citizen,   749 F.3d 246 (4th Cir. 2013).

    3

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    Redacted from the public version of this document.

    4

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    Redacted from the public version of this document.

    10. None of these appear relate in any way to Plaintiffs remaining 42 U.S.C. ~

    1983 claim against Mr. Frey, and none of them implicate either Mr. Roge or anyone else in

    any conspiracy against Plaintiff. If rvlr.Roge had had copies, he would have provided

    them. Re didn't, so he couldn't.

    11. Mr. Roge gave Plaintiff all the responsive documents he had that Plaintiffs

    subpoena sought--- !ven though Plaintiff wasn't entitled to anything. Plaintiffs motion

    should be denied because there is nothing further that Mr. Roge could have provided.

    CONTEMPT IS NOT AVAILABLE   IF   A SUBPOENA RAS NOT BEEN SERVED

    12. Plaintiff did not properly serve his subpoena on Mr. Roge. Plaintiff mailed it

    himself, following the same procedure he used to attempt to serve a subpoena on Aaron

    Walker. This Court denied Plaintiffs motion to compel Mr. Walker's compliance with that

    subpoena beca use Plaintiff had mailed it himself. "This does not comply with Rule

    45(b)(1). Because Plaintiff failed to properly serve Walker, he cannot compel compliance

    5

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    with the subpoena." Letter Order, Feb. 11, 201G,ECF No. 344 at 3. While Mr. Roge could

    have ignored such an improperly served subpoena, he decided to voluntarily provide the

    information sought in order to avoid just the sort on wrangling, dueling motions that have

    occurred anyway.

    13. As the Court noted in its Letter Order, Plaintiff is not entitled to compel

    compliance with an improperly served subpoena. Indeed, Rule 45(g) makes it clear that

    contempt is only available in the case of a person "who, having been served,   fails without

    adequate excuse to obey the subpoena or an order related to it."   Id.   Emphasis added. If 

    service by a party is inadequate as the Court found with respect to the subpoena for Mr.

    Walker, then Mr. Roge has not been served. Since Mr. Roge has not been served,

    contempt is not available. Therefore, Plaintiffs motion should be denied.

    PLAINTIFF SUBPOENA IS DUPLICATIVE AND AN UNDUE BURDEN ON MR. HOGE

    14. Whether properly served or not, Plaintiffs subpoena is improper because it is

    duplicative. As can be seen by from the exhibits accompanying Plaintiffs motion and the

    spreadsheet he filed along with his Supplemental Response (ECF No. 332), the

    information Plaintiff was hoping to obtain from Mr. Roge was covered by his discovery

    from Patrick Frey.l Additionally, it was duplicative of discovery sought in a previous state

    lawsuit,   Kimberlin v. Walker, et at.   Rule 45(d)(I) directs parties such as Plaintiff to "take

    1  See   Reply to Plaintiffs Opposition, Jan. 4, 201G,(ECF No. 325) at G-8.

    6

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    reasonable steps to avoid imposing undue burden or expense on a person subject to the

    subpoena[.]"   Id.   Clearly, the subpoena improperly delivered to Mr. Roge would impose an

    undue burden to the extent that it is duplicative of document requests to Mr. Frey or 

    discovery from the previous lawsuit.

    15. Moreover, Plaintiff increased the improper burden he laid on Mr. Roge by

    forcing him to defend himself from this motion for sanctions. Plaintiffs motion should be

    denied. The burden was compounded by Plaintifffailure to comply with L.R. 105.11 when

    he filed his sealed motion (ECF No. 319). It was further exacerbated by his sealing the

    entire motion rather than only the minimum items necessary.2   See Doe v. Public Citizen,

    749 F.3d at 272.

    16. Plaintiffs subpoena is defective under Rule 45(d)(1) and should not be

    enforced by the Court. Therefore, the Court should deny Plaintiffs motion.

    SUMMARY

    17. The Court should deny Plaintiffs motion for the following reasons:

    18. First, whether or not the subpoena is duplicative or the service was valid, Mr

    Roge's voluntarily delivered copies all the responsive materials in his possession to

    Plaintiff. Thus, sanctions are not warranted.

    2Mr. Roge finds it somewhat perplexing that Plaintiff interpreted the Court's Protective

    Order as requiring him to completely seal the motion for sanctions (ECF No. 319) but as

    allowing him to quote freely from discovery materials in his Motion to Reconsider, Feb. 18

    2016, ECF No. 348,  '1  6.

    7

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    19. Second, the subpoena, just as the one to Aaron Walker, was improperly

    served, so contempt is not available.

    20. Third, the subpoena is duplicative and burdensome. Therefore, compliance

    should not be compelled, and failure to comply (real or imagined) is not sanctionable.

    21. Perhaps the old saw that says no good deed will go unpunished is true. Mr.

    Hoge voluntarily cooperated with a subpoena he could have ignored in order to spare

    himself a round of motion, opposition, and reply, and he has been rewarded with multiple

    motions, oppositions, and replies. Mr. Hoge was dismissed from this lawsuit almost a year

    ago. He should be allowed go about his business without further encumbrance by this

    matter. The Court should spare Mr. Hoge-and itself-further aggravation and deny

    Plaintiffs motion.

    PRAYERFORRELIEF

    WHEREFORE,Mr. Hoge asks the Court to deny Plaintiffs Motion to Impose

    Sanctions and/or Contempt on Third Party Witness William Hoge for Violating Court

    Ordered Subpoena (ECF No. 319) and for such other relief as the Court may find just and

     proper.

    8

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    Date: 22 February, 2016 Respectfully submitted,

    William John oseph Roge, pro se

    20 Ridge Road

    Westminster, Maryland 21157

    (410) 596-2854

    [email protected]

    CERTIFICATE OF SERVICE

    I certify that on the 22nd day of February, 2016, I served a copy of the foregoing toBrett Kimberlin via First Class U. S. Mail to 8100 Beech Tree Road, Bethesda, Maryland

    20817, and to counsel for Patrick Frey via email by permission.

    VERIFICATION

    RogeDate: 22 February, 2016

    I certify under penalty of perjury that the foregoing is true and correct to the best of

    my knowledge and belief.

    9

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    mailto:[email protected]:[email protected]

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    Brett Kimberlin,

     Plaintiff,

    v.

    Patrick Frey,

     Defendant.

    UNITEDSTATESDISTRICTCOURT

    FORTHE DISTRICTOF MARYLANDSOUTHERNDIVISION

    Case No. 13-CV-03059-GJH

    PROPOSED ORDER 

    Upon consideration of Plaintiffs Motion to Impose Sanctions and/or Contempt on

    Third Party Witness William Hoge for Violating Court Ordered Subpoena (ECF No. 319),

    Mr. Hoge's Opposition thereto and any further oppositions and replies, this day

    of , 2016, Plaintiffs Motion to Impose Sanctions and/or  

    Contempt on Third Party Witness William Hoge for Violating Court Ordered Subpoena

    (ECF No. 319) is hereby DENIED.

    It is so ORDERED.

    George J. Hazel,

    United States District Judge

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