Case 8:15-cv-00723-GJH Document 85 Filed 10/29/15 Page 1 of 5

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
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Brett Kimberlin,
Plaintiff,
v.
Hunton & Williams LLP, et al.,
Defendants.

OPPOSITION TO PLAINTIFFS MOTION TO ALLOW DISCOVERY

BY DEFENDANTS HUNTON & WILLIAMS LLP, JOHN WOODS,
RICHARD WYATT, AND ROBERT QUACKENBOSS
On September 18, 2015, Plaintiff served a first request for production of documents and a
first set of interrogatories on Defendants Hunton & Williams LLP, John Woods, Richard Wyatt,
and Robert Quackenboss (collectively the H&W Defendants). See Ex. 1, Plaintiffs First
Request for Production of Documents; Ex. 2, Plaintiffs First Set of Interrogatories. Plaintiff
requested a response within 30 days. Because no scheduling order has been entered in this
action, the H&W Defendants responded by advising Plaintiff that they would object to his
discovery requests under Local Rule 104.4, which states that discovery shall not commence and
disclosures need not be made until a scheduling order is entered. See also Fed. R. Civ. P.
26(d)(1). Despite Plaintiffs attention having been called to Local Rule 104.4, he declined to
withdraw his discovery requests, and instead filed a Motion to Allow Discovery on October 14,
2015. D.I. 75. On October 15, 2015, the H&W Defendants notified the Court that they objected
to Plaintiffs discovery requests as premature under Local Rule 104.4. D.I. 76.
In his Motion to Allow Discovery, Plaintiff acknowledges that he was advised that Local
Rule 104.4 states that a party shall not commence discovery until the Court issues a scheduling
1

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order. D.I. 75 3. Plaintiff concedes that the Court has not issued the requisite scheduling
order, id. at 1, 3, and does not dispute that under Local Rule 104.4 discovery requests that are
served before the entry of a scheduling order are defective and unenforceable. Keller v.
Edwards, 206 F.R.D. 412, 415 (D. Md. 2002).
Notwithstanding the plain import of Local Rule 104.4 and the fact that motions to dismiss
the Complaint are pending, Plaintiff contends that the Court should permit him to conduct a
fishing expedition to search for evidence that might allow him to properly plead his claims under
Federal Rule of Civil Procedure 12(b)(6). D.I. 75 2, 5. But that is manifestly not a reason to
allow discovery because, insofar as Plaintiffs Complaint fails to state a claim without discovery,
he is armed with nothing more than conclusions and thus cannot unlock the doors of
discovery. Ashcroft v. Iqbal, 556 U.S. 662, 67879 (2009). The Court should reject Plaintiffs
attempt to sidestep Local Rule 104.4 and deny his motion accordingly.1
The cases Plaintiff cites for supportRotella v. Wood, 528 U.S. 549 (2000) and Corley v.
Rosewood Care Center, Inc., 142 F.3d 1041 (7th Cir. 1998)are unavailing. Neither case
addresses a plaintiffs request to begin discovery prior to the entry of a scheduling order and thus
neither applies here. Moreover, in Rotella, the U.S. Supreme Court noted that Federal Rule of
Civil Procedure 9(b)s requirement that fraud be pleaded with particularity may bar civil RICO
plaintiffs who cannot plead sufficient facts, and cautioned that discovery in those circumstances
should only be permitted when pleadings [are] based on evidence reasonably anticipated after
further investigation or discovery. 528 U.S. at 560. Here, Plaintiff has alleged in his Complaint
no specific evidence that he reasonably anticipates finding in discovery and submits enormously
1

In the event the Court grants Plaintiffs Motion to Allow Discovery, the H&W Defendants
reserve their right to request a stay of discovery in light of their pending Motion to Dismiss
Plaintiffs Complaint. D.I. 58.
2

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broad, invasive, and indiscriminate discovery requests. See Ex. 1, Plaintiffs First Request for
Production of Documents; Ex. 2, Plaintiffs First Set of Interrogatories.
In Corley, the Seventh Circuit considered an appeal by a plaintiff whose complaint had
been dismissed on summary judgment for failure to state a claim. 142 F.3d at 1051. The court
found that the particularity requirements in Rule 9(b) could be relaxed for a plaintiff seeking the
identities of other unknown alleged fraud victims, but only because the complaint generally
identifie[d] the content of allegedly fraudulent communications and detail[ed] the
circumstances of the alleged frauds [with respect to known victims] with sufficient particularity,
and where the plaintiff had been denied access in discovery to information that would identify
the other victims by the defendant. Id. at 105051. In this case, Plaintiff has not been denied
access to documents in discovery and, in any case, Plaintiffs Complaint alleges only conclusory
statements utterly devoid of content that cannot meet the requirements for relaxed pleading
standards set forth in Corley.
Because all of Plaintiffs claims are time barred or otherwise deficient as a matter of law,
it would be futile to permit him to engage in discovery. Discovery as to stale and invalid claims
makes no sense. The Court should deny Plaintiffs motion.

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Dated: October 29, 2015

Respectfully submitted,
/s/ John. J. Buckley, Jr.
John J. Buckley, Jr. (Bar No. 06249)
Barrett J. Anderson (Bar No. 13900)
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, N.W.
Washington, DC 20005
Telephone: (202) 434-5051
Facsimile: (202) 434-5058
Email: jbuckley@wc.com
Counsel for Defendants Hunton & Williams
LLP, John Woods, Richard Wyatt, and Robert
Quackenboss

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 29th day of October, 2015, a copy of the foregoing
Opposition to Plaintiffs Motion to Allow Discovery by Defendants Hunton & Williams LLP,
John Woods, Richard Wyatt, and Robert Quackenboss 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 objection was sent to Plaintiff Brett Kimberlin by Federal
Express at 8100 Beech Tree Road, Bethesda, MD 20817.

_/s/__________________________
Barrett J. Anderson (Bar No. 13900)

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EXHIBIT 1

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UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND
SOUTHERN DIVISION
BRETT KIMBERLIN,
Plaintiff,
v.

No. 8:15-cv-00723 GJH

HUNTON & WILLIAMS,

Defendants.
PLAINTIFFS FIRST REQUEST FOR PRODUCTION OF
DOCUMENTS
Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Plaintiff
Brett Kimberlin hereby requests that the Hunton & Williams Defendants produce
for Plaintiff each of the documents identified below within thirty (30) days from the
date of service of this Request, at the home of Brett Kimberlin, 8100 Beech Tree Rd,
Bethesda, MD 20817
INSTRUCTIONS
1.

Defendants responses should include all responsive documents in the

possession, custody or control of Defendant or any of his agents, servants,

representatives, and attorneys as well as his employer and related state agencies.
The requests include all documents and communications between Defendant and an
outside party.
2.

The documents requested are to be reproduced either as they are

kept in the usual course of business or shall be organized and labeled to correspond
with the categories in this request in accordance with Fed. R. Civ. P. 34(b).

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3.

In the event that any documents responsive to the requests set forth

in the numbered paragraphs below were, but not longer are, within Defendants
possession, custody, or control, state the circumstances and timing of the loss of
possession, custody, or control, and the name of the persons or entities to which
possession was transferred, if any.
4.

Each request for the production of documents is a request for the

original of the final version of such document(s), although an identical copy may be
produced when an original is not available, as well as any non-identical drafts or
non-identical copies of such document(s), including those that are non-identical by
reason of notations or markings on the copies.
5.

Proper safeguards against destruction of electronic/computer data,

including the destruction of back-up and archival data, must be followed pending
final resolution of this case.
6.

Where electronic data or information stored on any electronic media

is responsive to a request, the plaintiffs seek electronic copies of the information, as

well as instruction and programs necessary to search or retrieve such information,
including all attachments and enclosures, which should not be separated from the
items to which they are attached or with which they are enclosed.
7.

If any one of the requests for documents contained herein is claimed

to be objectionable, state the portion of such request that is claimed to be

objectionable, and the nature and basis of the objection.
8.

If Defendant contends that any responsive document is protected

from disclosure by virtue of a privilege, supply a description of the information in

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question which shall provide, with respect to each such writing as part of such
description thereof: (a) each privilege whereby Defendant contends the contents of
such writing are protected from disclosure; (b) each and every fact upon which the
defendant relies on to support the claim of privilege; (c) the type of writing (e.g.
letter, memorandum, telegram, telefax, notes or memoranda of telephone
conversations, etc.); (d) the date of each such writing; (e) the author(s) of each such
writing; (f) the person(s) to whom each such writing was directed; (g) the person(s)
to whom copies of each such writing were supplied; and (h) the general subject
matter of each such writing.
9.

If no documents exist that are responsive to a particular request,

please state that no documents exist.

10.

These document requests are deemed to be continuing so as to

require the service of supplemental responses and supplemental document

productions in the event that Defendant (including counsel) locate additional
documents not previously disclosed.
11.

Unless otherwise stated, these document requests are limited to

documents created and/or dated between August 2010 and the present.
DEFINITIONS
All definitions as set forth in Fed. R. Civ. P. 34(a) are incorporated by
reference including in particular, but without limitation, the definitions therein as to
document, communication, person, and concerning.

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1.

Defendant, you, or your means Hunton & Williams and any

employee, past or present, who was involved with the matters set forth in the
Complaint.
(a)

The term document shall include, without limitation, any

writing, whether handwritten, printed, typed or otherwise made, of any kind

or nature, however produced or reproduced, including drafts thereof, and
including copies bearing notations or marks not found on the original.
(b)

This definition shall further include, without limitation,

agreements, letters, correspondence, memoranda, e-mail, notes, analyses,

appraisals, valuations, reports, studies, bills, statements, work papers, books,
records, journals, ledgers, logs, messages of any nature (including reports,
notes, notations, and memoranda of or relating to telephone conversations
and conferences), agenda, minutes or transcripts or tapes of communications
or meetings, desk calendars, appointment books, diaries, lists,
questionnaires, surveys, tapes or other recordings from which information
can be obtained.
(c)

This definition shall include documents stored, maintained, or

transmitted as electronic data.

2.

The term electronic data includes writings of every kind and

description whether inscribed by mechanical, facsimile, electronic, magnetic, digital,

or other means, and means the original, or identical duplicate when the original is
not available, and any non-identical copies, whether non-identical because of notes
made on copies or attached comments, annotations, marks, transmission notations,

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or highlighting of any kind. Electronic data includes, but is not limited to, activity
listings of electronic mail recipients and/or transmittals, output resulting from the
use of any software program, including word processing documents, spreadsheets,
database files, charts, graphs and outlines, electronic mail, any and all items stored
on electronic media, including, but not limited to, computer memories, hard disks,
floppy disks, CD-ROMs and removable media. Electronic data also includes the file,
folder tabs and/or containers and labels appended to, or associated with, any
physical storage device associated with each original and/or copy.
3.

The phrase provided or providing means any service or treatment

offered, authorized, funded, or approved by the defendant, the Partnership, or the

Medicaid HMOs.
4.

The term State means the State of California and its agencies.

5.

And and or shall be construed conjunctively or disjunctively,

whichever makes the particular Interrogatory more inclusive, and any shall mean
each and every.
6.

The singular form of a word shall be deemed to include the plural, and

the masculine or feminine, whenever appropriate in order to bring within the scope
of these Interrogatories any information which otherwise might be considered to be
beyond their scope.
7.

To the extent that any request, or interrogatory, or any subpart

thereof, that is incorporated into a request by reference, refers to a statute or

regulation, terms used in the request or interrogatory shall have the same meaning
as used in the statute or regulation.

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DOCUMENT REQUESTS
Request No. 1.
All documents concerning, reflecting or referring to any and all matters
related to the matter and matters outlined in this case, including all communications
with the members of Team Themis and others.
Request No. 2.
All documents identified, referenced, or relied upon in Defendants Answers
to Plaintiffs First Set of Interrogatories and/or concerning the subject matter of said
Interrogatories, and all documents requested in said Interrogatories.
Request No. 3
All documents not referenced in Plaintiffs Interrogatories but related in any
way to the subject matter of this case, corporate spying and espionage, and Brett
Kimberlin that may be relevant to the claim in the complaint.
Request No. 4.
All documents related to any financial transactions related to the allegations
made in the complaint, including those on and off the books, and bills and invoices
associated with your activities during the time frame set forth in the complaint.
Request No. 5.
All records relating to the any remuneration any employee received as a
result of any termination or resignation from from Hunton & Williams, and any
confidentiality agreements you entered into, in any way related to this matter.

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Request No 6.
All records related to Brett Kimberlin, Justice Through Music, Velvet
Revolution, Stop the Chamber, Kevin Zeese and Brad Friedman in any form
including data discs. This request includes communications that occurred after
February 4, 2011 related to the matters set forth in the complaint.
Request No. 7.
All records that Defendant Richard Wyatt or any other Defendant removed
from the premises of H&W following the exposure of the activities set forth in the
complaint. If any of those records were destroyed, a list of those records and a
description of them.
Request No 8.
All billing records regarding the Chamber of Commerce from September
2010 through May 2011.

Respectfully,

Brett Kimberlin
September 8, 2015

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EXHIBIT 2

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UNITED STATES DISTRICT COURT

DISTRICT OF MARYLAND
SOUTHERN DIVISION
BRETT KIMBERLIN,
Plaintiff,
v.

No. 8:15-cv-00723 GJH

HUNTON & WILLIAMS,

Defendants.
PLAINTIFFS FIRST SET OF INTERROGATORIES TO HUNTON&WILLIAMS,
RICHARD WYATT, JOHN WOODS, AND ROBERT QUACKENBOSS
Defendants Hunton&Williams, Richard Wyatt, John Woods, and Robert
Quackenboss should answer these interrogatories separately.
1. Provide with specificity and particularity all communications you had with
any party regarding the matters at issue in this case, including the mode of
communication, such as US Mail, email, or private mail service, and the date of the
communication.
2. Provide the gist of those communications and copies of them in digital or
hard copy form.
3. Provide the dates of all internal and external communications you have had
about Brett Kimberlin, Justice Through Music, Stop The Chamber, Brad Friedman,
Kevin Zeese and Velvet Revolution, including notes, memos, emails and letters, and
provide copies of them.
4. State the names, dates and companies and people that you shared
information with regarding those named in #3 above, and what the substance of
those communications were and what you asked or paid those parties to do.

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5. State whether you have had any communications with law enforcement
officials investigating any member of the Chamber of Commerce or anyone
associated with the Chamber of Commerce from 2009 through 2013. If so, provide
the dates and substance of those communications and any documents related
thereto.
6. State whether you are aware of any fund that is considered off the books
and whether any payments were made from that fund or any other fund to any
Defendant in this case or anyone associated with any Defendant between 2009 and
2013, and if so state the date, time, place and to whom.
7. John Woods--state whether you were terminated from Hunton&Williams and
if so whether you received any severance pay and if so whether that termination
was related to the matters at issue in this case.
8. Richard Wyatt-state whether you removed any documents, data or material
from the premises of Hunton&Williams following the Anonymous hack and if so
what you did with that data, and provide a copy of it. Also, state the correlation
between the matters set forth in the complaint and the dissolution of your marriage.
State whether the publication of photos of your ex-wife and children, which had
been scraped by Aaron Barr from your ex-wifes social media accounts, caused you
or her serious emotional distress or was a contributing factor in the dissolution of
your marriage. State whether you or your ex-wife considered that scraping and
publication to constitute an unwanted invasion of privacy.
9. State who your contact person was at the Chamber of Commerce during the
time frame set forth in the Complaint.

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10. State whether you responded to the bar complaints filed against you in the
District of Columbia and if so please provide copies of those responses.
11. State whether you had any direct contact with The Chamber of Commerce or
lawyers from Hunton & Williams and if so please state the substance of those
communications, the dates, and provide copies of them.
12. State whether, during the time set forth in the complaint, you communicated
with any Defendants in any way other than email and if so state how and provide
copies of those communications. Also, please provide any other emails other than
those attached to the complaint or released by Anonymous that have a bearing on
the matters in this case.
13. State whether you have documents related to meetings, communications and
memos about the campaigns by Stop the Chamber and Chamber Watch and others
to seek investigations of the Chamber of Commerce and its members and senior
staff, and to convince companies to quit the Chamber of Commerce for various
reasons, and if so, provide copies of the documents.
14. State whether you have had communications with others about this case
following the leak of the Anonymous expose of Team Themis on February 4, 2015,
and provide copies of those communications.
15. State whether you have continued investigating Chamber of Commerce
opponents, including Plaintiff Brett Kimberlin, after March 2011, and if so, provide
copies of those investigations.
16. State whether any other people contacted you seeking to use the blueprint
you set out for Team Themis or a similar blueprint after February 4, 2011.

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17. State whether you have used the Team Themis template in any other way or
against any other person or entity, or whether you shared it with any other person
or entity.
18. State whether the software or software programs you discussed with Team
Themis was funded by any government agencies, and if so, which ones.
Dated this 8th day of September, 2015

Brett Kimberlin