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Brett Kimberlin,
Plaintiff,
v.
Patrick Frey,
Defendant.
I
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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
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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.
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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
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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.
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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.
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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.
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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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