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Case 1:10-cv-00897-RJL Document 84 Filed 11/22/10 Page 1 of 7

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

)
DANIEL PARISI, et al., )
)
Plaintiffs, )
v. ) Civil Action No. 10-0897-RJL

et
)
LAWRENCE W. SINCLAIR a/k/a “Larry Sinclair”, et al., )
)

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Defendants. )
)

PLAINTIFFS’ OPPOSITION TO SINCLAIR’S

or
MOTION TO STRIKE CERTAIN EXHIBITS

Plaintiffs’ Daniel Parisi, Whitehouse.com Inc., Whitehouse Network LLC, and White
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House Communications Inc. (collectively “plaintiffs”), oppose the motion of pro se defendant

Lawrence W. Sinclair (“Sinclair”) to strike certain exhibits filed by plaintiffs in response to


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dispositive motions filed by other defendants. (Dkt. No. 83). Specifically, Sinclair seeks to
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strike exhibits that plaintiffs have cited in opposition to dispositive motions by defendants

Books-A-Million, Inc.’s (BAM”) (Dkt. No. 43 Exs. 4-7, 18), Amazon.com, Inc. (“Amazon”)

(Dkt. No. 61, Ex. 20), and Barnes & Noble, Inc. and Barnesandnoble.com LLC (collectively
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“B&N”) (Dkt. No. 77 Exs. I, J, L, M).

ARGUMENT
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None of the ten exhibits should be stricken. Sinclair’s moves to strike Exs. 4-7 from

plaintiffs’ opposition to BAM’s motion to dismiss, but gives no reason why. Those four exhibits

are articles from the Globe tabloid and were cited in support of the argument that “Sinclair’s

preposterous allegations have been the subject of significant media attention (e.g., Oparil Decl.

Exs. 3-8, 17, 19, 21).” (Dkt. No. 43 at 6). Newspapers or periodicals are self-authenticating.

FRE 902(6). Moreover, the articles are not offered for the truth of their contents, but simply for

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Case 1:10-cv-00897-RJL Document 84 Filed 11/22/10 Page 2 of 7

the fact that they reflect public attention on Sinclair’s story for notice purposes. Thus, they are

not hearsay (FRE 801(c)) and there is no reason to strike them. To the extent necessary,

plaintiffs request that the Court take judicial notice that the articles appeared. FRE 201.

(Declaration of Richard J. Oparil (“Decl.”) ¶ 5).

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The remaining exhibits at issue all go to the fact that plaintiffs have not yet obtained any

discovery from any party or non-party to this case, and plaintiffs have invoked Fed. R. Civ. P.

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56(f) in opposing the dispositive motions filed by the non-Sinclair defendants. (Decl. ¶ 6). That

Rule provides:

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If a party opposing the motion shows by affidavit that, for
specified reasons, it cannot present facts essential to justify its
opposition, the court may:

(1) deny the motion;


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(2) order a continuance to enable affidavits to be obtained,
depositions to be taken, or other discovery to be undertaken; or
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(3) issue any other just order.

See, e.g., Woods v. City of Chicago, 234 F. 3d 979, 990 (7th Cir. 2000) (“Rule 56(f) authorizes a

district court to refuse to grant a motion for summary judgment or to continue its ruling on such a
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motion pending further discovery if the nonmovant submits an affidavit demonstrating why it

cannot yet present facts sufficient to justify its opposition to the motion.”). Summary judgment
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is proper only after the non-moving party has been given “adequate time for discovery.” 1443

Chapin St., LP v. PNC Bank, Nat’l Ass’n, 258 F.R.D. 186, 187 (D.D.C. 2009) (internal quotation

marks omitted); see also Committee for First Amendment v. Campbell, 962 F.2d 1517, 1521

(10th Cir. 1992) (“After the nonmovant has had a full opportunity to conduct discovery, this

burden falls on the nonmovant”).

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Case 1:10-cv-00897-RJL Document 84 Filed 11/22/10 Page 3 of 7

It is well recognized that an “important aspect of a Rule 56(f) affidavit is that it need not

contain evidentiary facts going to the merits of the case; rather, it is merely a sworn statement

explaining why these facts cannot yet be presented.” 10B C. Wright, A. Miller, and M. Kane,

FED. PRAC. AND PROC. § 2740 (1983). “[T]he affidavit need not contain evidentiary facts ….”

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Campbell, 962 F.2d at 1522.

The questioned exhibits all pertain to – and establish why – the dispositive motions

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should be denied or continued pending appropriate discovery. The declaration accompanying

plaintiffs’ opposition to the B&N summary judgment motion express averred that:

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Plaintiffs have not yet obtained any discovery from any party or
non-party to this case. B&N’s motion is based on broad and
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conclusory generalities. Plaintiffs should have the opportunity to
obtain discovery, including the deposition of B&N’s declarants,
Sinclair, and Sinclair’s “print on demand” companies before any
summary judgment motion should be considered by the Court.
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(Dkt. No. 77 Decl. ¶ 29).
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Sinclair’s motion complains about five exhibits from plaintiffs’ opposition to B&N’s

motion for summary judgment. (Dkt. No. 77 Exs. I, J, L and M). Sinclair argues that the

exhibits include postings on a website, www.theregulator.net. Those exhibits were included


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solely to support the argument that a bookseller can be held liable for its own conduct after it had

reason to know that that the book it sold was false and defamatory and that there were issues of
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fact as whether B&N had such knowledge. (Decl. ¶ 7). Plaintiffs’ complaint alleges that prior to

the filing of this action, B&N knew or had reason to know of the defamatory statements at issue

but continued to publish, offer for sale and/or sell Sinclair’s book. (Dkt. No. 1 ¶¶ 47, 49, 58, 67,

72). B&N’s summary judgment motion did not provide any evidentiary facts disputing these

allegations or that it lacked such knowledge. Plaintiffs’ opposition then stated that: “Without

having had any discovery, plaintiffs have come forward with facts showing that there were such

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Case 1:10-cv-00897-RJL Document 84 Filed 11/22/10 Page 4 of 7

communications with B&N. (See, e.g., Decl. Exs. I-N).” (Dkt. No. 77 at 14). The opposition

emphasized that: “Whether B&N had constructive notice and, if so, when is a question of fact

that should not be decided without providing plaintiffs with an opportunity to obtain discovery

from defendants B&N, Sinclair and SPI and third-parties.” (Dkt. No. 77 at 13-14).

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The declaration by plaintiffs’ counsel filed with the exhibits did not assert that the

www.theregulator.net postings were true, only that he found and printed them. The postings

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show that there is evidence of an issue of fact on which plaintiffs have not had any discovery

from Sinclair, the other defendants, or third-parties. (Decl. ¶ 8). There is no reason to strike Exs.

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I, J, L and M.

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Another exhibit targeted by Sinclair is a quotation of a posting by him dated February 15,

2009, relating to communications with B&N (Ex. I). Sinclair does not dispute that he posted the
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message. (Decl. ¶ 9). Also, Sinclair’s motion fails to point out that Ex. X is a an audio recording

of a conversation that Sinclair had with B&N employees in Georgia on or about February 15,
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2010. The telephone conversation is authentic. (Dkt. No. 77, Decl. Ex. X ¶ 27 (“Ex. X is a true

and correct copy of an audio recording of a conversation that Sinclair had with B&N employees
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in Georgia on or about February 15, 2010.”)). Plaintiffs’ counsel has had numerous telephone

conversations and voice messages from Sinclair and recognizes that it is Sinclair’s voice on Ex.

X. (Decl. ¶ 9). Sinclair does not dispute that the conversation with B&N took place. (Id.). The
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quotation and audio are authentic. FRE 901(6). The evidence goes to B&N’s knowledge, not

the truth of the statements, and does not come within the definition of hearsay. FRE 801(c).

Sinclair’s motion also seeks to strike two exhibits pertaining to the undisputed fact that a

self-publishing/publish on demand company, Aardvark, refused to publish Sinclair’s book. (Dkt.

No. 43 Ex. 18; Dkt. No. 61 Ex. 20). The specific reasons why Aardvark did not print Sinclair’s

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Case 1:10-cv-00897-RJL Document 84 Filed 11/22/10 Page 5 of 7

book is an issue of fact on which plaintiffs have had no discovery. Exhibit A to Sinclair’s

motion, an unsigned and unsworn statement is not competent evidence that resolves the issue.

Discovery from Aardvark, Sinclair and others will be necessary. (Decl. ¶ 10).

Sinclair’s motion is also based on his assertion that plaintiffs’ counsel has been “asked to

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file the identity of the person authoring the internet post or comment and he has refused.” That

is simply not true. Plaintiffs’ counsel has repeatedly advised Sinclair that he does not know the

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true identity of the persons posting on www.theregulator.net. (Decl. ¶ 11). Moreover, under the

Federal Rules, Sinclair’s inquiry would properly be framed as an interrogatory. However, the

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discovery period has not yet commenced. Just as plaintiffs cannot now demand discovery from

defendants, Sinclair cannot demand that plaintiffs answer his questions.1


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Finally, attached to his motion are three separate declarations by Sinclair (Exs. B-D).
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They are not relevant to his motion to strike and should be disregarded. They also contain

factual assertions that, once again, would be the subject of fact discovery. (Decl. ¶ 14). By way
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of example, Sinclair avers that he has never received any payment from B&N for any sales of his

book. (Ex. B ¶ 11). However, B&N has indisputably sold copies of that book. (See, e.g., Dkt.
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No. E-H). BAM and Amazon have also sold Sinclair’s book. (Dkt. No. 43 Ex. 13; Dkt. No. 69

Exs. 2-9).

CONCLUSION
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For all the foregoing reasons, Sinclair’s motion to strike should be denied.

1
Sinclair complains that plaintiffs’ counsel has filed with the Court internet postings that
attack Sinclair and his family members. Counsel did not author the material. To the contrary,
they were written by third-parties and has been publicly available, readily located through
internet searches. (Decl. ¶ 12). Sinclair has no hesitation to use his motion to – again – accuse
plaintiffs’ counsel of lying to the Court and committing perjury. There is absolutely no basis for
such statements. (Decl. ¶ 13). While Sinclair is a pro se defendant, he nevertheless should treat
the Court, the litigants, and their counsel with a modicum of civility.

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Case 1:10-cv-00897-RJL Document 84 Filed 11/22/10 Page 6 of 7

Dated: November 22, 2010 Respectfully submitted,

/s/ Richard J. Oparil


Richard J. Oparil (D.C. Bar No. 409723)
PATTON BOGGS LLP
2550 M Street, NW
Washington, DC 20037
(202) 457-6000

et
(202) 457-6315 (fax)

Kevin M. Bell

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PATTON BOGGS LLP
8484 Westpark Drive
McLean, VA 22102
(703) 744-8000

or
(703) 744-8001 (fax)

Attorneys for Plaintiffs


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Case 1:10-cv-00897-RJL Document 84 Filed 11/22/10 Page 7 of 7

CERTIFICATE OF SERVICE

I hereby certify that on November 22, 2010, a copy of the foregoing was served on

counsel for the parties that have appeared in the case by the Court’s ECF system and on the

following by email:

et
Lawrence W. Sinclair
Sinclair Publishing, Inc.
P.O. Box 9222

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Chattanooga, TN 37412
larry@larrysinclair.org

or
s/ Richard J. Oparil
Richard J. Oparil (DC Bar No. 409723)

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Case 1:10-cv-00897-RJL Document 84-1 Filed 11/22/10 Page 1 of 5

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

)
DANIEL PARISI, et al., )
)
Plaintiffs, )
v. ) Civil Action No. 10-0897-RJL

et
)
LAWRENCE W. SINCLAIR a/k/a “Larry Sinclair”, et al., )
)

.n
Defendants. )
)

DECLARATION OF RICHARD J. OPARIL

or
I, Richard J. Oparil, declare under penalty of perjury that the following is true and

correct. at
1. I have personal knowledge of the facts stated herein and if called upon to do so, I
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could competently testify thereto.

2. I am a member of the Bar of this Court. I am a partner at Patton Boggs LLP and
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am one of the attorneys for Daniel Parisi, Whitehouse.com Inc., Whitehouse Network LLC, and

White House Communications Inc. (collectively referred to as “plaintiffs”).


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3. I make this declaration in opposition to the motion to strike certain exhibits filed

by pro se defendant Lawrence W. Sinclair (“Sinclair”) (Dkt. No. 83).

4. Sinclair’s motion seeks to strike certain exhibits that plaintiffs have cited in
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opposition to dispositive motions by defendants Books-A-Million, Inc.’s (BAM”) (Dkt. No. 43

Exs. 4-7, 18), Amazon.com, Inc. (“Amazon”) (Dkt. No. 61, Ex. 20), and Barnes & Noble, Inc.

and Barnesandnoble.com LLC (collectively “B&N”) (Dkt. No. 77 Exs. I, J, L, M).

5. Sinclair’s motion seeks to strike Exs. 4-7 from plaintiffs’ opposition to BAM’s

motion to dismiss, but gives no reason why. Those four exhibits are from the Globe tabloid and

were cited in support of the argument that “Sinclair’s preposterous allegations have been the
Case 1:10-cv-00897-RJL Document 84-1 Filed 11/22/10 Page 2 of 5

subject of significant media attention (e.g., Oparil Decl. Exs. 3-8, 17, 19, 21).” (Dkt. No. 43 at

6). Newspapers or periodicals are self-authenticating. FRE 902(6). Moreover, the articles are

not offered for the truth of their contents, but simply for the fact that they reflect public attention

on Sinclair’s story for notice purposes. Thus, they are not hearsay (FRE 801(c)) and there is no

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reason to strike them. To the extent necessary, plaintiffs request that the Court take judicial

notice that the articles appeared. FRE 201.

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6. The remaining exhibits at issue all go to the fact that plaintiffs have not yet

obtained any discovery from any party or non-party to this case, and plaintiffs have invoked Fed.

or
R. Civ. P. 56(f) in opposing the dispositive motions filed by the non-Sinclair defendants. The

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questioned exhibits all pertain to – and establish why – the dispositive motions should be denied

or continued pending appropriate discovery. My declaration accompanying the opposition to the


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B&N summary judgment motion express averred that:

Plaintiffs have not yet obtained any discovery from any party or
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non-party to this case. B&N’s motion is based on broad and


conclusory generalities. Plaintiffs should have the opportunity to
obtain discovery, including the deposition of B&N’s declarants,
Sinclair, and Sinclair’s “print on demand” companies before any
summary judgment motion should be considered by the Court.
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(Dkt. No. 77 Decl. ¶ 29).

7. Sinclair’s motion complains about five exhibits from plaintiffs’ opposition to


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B&N’s motion for summary judgment. (Dkt. No. 77 Exs. I, J, L and M). Sinclair argues that the

exhibits include postings on a website, www.theregulator.net. Those exhibits were included

solely to support the argument that a bookseller can be held liable for its own conduct after it had

reason to know that that the book it sold was false and defamatory and that there were issues of

fact as whether B&N had such knowledge. Plaintiffs’ complaint alleges that prior to the filing of

this action, B&N knew or had reason to know of the defamatory statements at issue but

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Case 1:10-cv-00897-RJL Document 84-1 Filed 11/22/10 Page 3 of 5

continued to publish, offer for sale and/or sell Sinclair’s book. (Dkt. No. 1 ¶¶ 47, 49, 58, 67, 72).

B&N’s summary judgment motion did not provide any evidentiary facts disputing these

allegations or that it lacked such knowledge. Plaintiffs’ opposition then stated that: “Without

having had any discovery, plaintiffs have come forward with facts showing that there were such

et
communications with B&N. (See, e.g., Decl. Exs. I-N).” (Dkt. No. 77 at 14). The opposition

emphasized that: “Whether B&N had constructive notice and, if so, when is a question of fact

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that should not be decided without providing plaintiffs with an opportunity to obtain discovery

from defendants B&N, Sinclair and SPI and third-parties.” (Dkt. No. 77 at 13-14).

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8. My declaration filed with the exhibits did not assert that the www.theregulator.net

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postings were true, only that I found and printed them. The whole point is that there is an issue

of fact on which plaintiffs have not had any discovery from Sinclair, the other defendants, or
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third-parties. There is no reason to strike Exs. I, J, L and M.

9. Another exhibit targeted by Sinclair is a quotation of a posting by him dated


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February 15, 2009, relating to his communications with B&N (Ex. I). Sinclair does not dispute

that he posted the message. Also, Sinclair’s motion fails to point out that Ex. X is a an audio
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recording of a conversation that Sinclair had with B&N employees in Georgia on or about

February 15, 2010. The telephone conversation is authentic. (Dkt. No. 77, Decl. Ex. X ¶ 27

(“Ex. X is a true and correct copy of an audio recording of a conversation that Sinclair had with
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B&N employees in Georgia on or about February 15, 2010.”)). Plaintiffs’ counsel has had

numerous telephone conversations and voice messages from Sinclair and recognizes that it is

Sinclair’s voice on Ex. X. Sinclair does not dispute that the conversation with B&N took place.

(Id.). The quotation and audio are authentic. The evidence goes to B&N’s knowledge, not the

truth of the statements.

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Case 1:10-cv-00897-RJL Document 84-1 Filed 11/22/10 Page 4 of 5

10. Sinclair’s motion also seeks to strike two exhibits pertaining to the undisputed

fact that a self-publishing/publish on demand company, Aardvark, refused to publish Sinclair’s

book. (Dkt. No. 43 Ex. 18; Dkt. No. 61 Ex. 20). The specific reasons why Aardvark did not

print Sinclair’s book is an issue of fact on which plaintiffs have had no discovery. Exhibit A to

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Sinclair’s motion, an unsigned and unsworn statement is not competent evidence that resolves

the issue. Discovery from Aardvark, Sinclair and others will be necessary.

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11. Sinclair’s motion is also based on his assertion that I have been “asked to file the

identity of the person authoring the internet post or comment and he has refused.” That is not

or
true. I have repeatedly advised Sinclair that I do not know the true identity of the persons

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posting on www.theregulator.net. I cannot provide Sinclair with information that I do not

possess or control.
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12. Sinclair complains that plaintiffs’ counsel has filed with the Court internet

postings that attack Sinclair and his family members. Counsel did not author the material. To
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the contrary, they were written by third-parties and has been publicly available, readily located

through internet searches.


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13. However, Sinclair has no hesitation to use his motion to – again – accuse me of

lying to the Court and committing perjury. There is absolutely no basis for such statements.

While Sinclair is a pro se defendant, he should treat the Court, the litigants, and their counsel
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with a modicum of civility.

14. Finally, attached to his motion are three separate declarations by Sinclair. (Exs.

B-D). They are not relevant to his motion to strike and should be disregarded. They also contain

factual assertions that, once again, would be the subject of fact discovery. By way of example,

Sinclair avers that he has never received any payment from B&N for any sales of his book. (Ex.

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Case 1:10-cv-00897-RJL Document 84-1 Filed 11/22/10 Page 5 of 5

B ¶ 11). However, B&N has indisputably sold copies of that book. (See, e.g., Dkt. No. E-H).

BAM and Amazon have also sold Sinclair’s book. (Dkt. No. 43 Ex. 13; Dkt. No. 69 Exs. 2-9).

I declare under penalty of perjury under the laws of the United States of America that the

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foregoing statements are true and accurate.

Dated: November 22, 2010 /s/ Richard J. Oparil

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Richard J. Oparil

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Case 1:10-cv-00897-RJL Document 84-2 Filed 11/22/10 Page 1 of 1

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

)
DANIEL PARISI, et al., )
)
Plaintiffs, )
v. ) Civil Action No. 10-0897-RJL

et
)
LAWRENCE W. SINCLAIR a/k/a “Larry Sinclair”, et al., )
)

.n
Defendants. )
)

PROPOSED ORDER

or
Upon consideration of the motion of pro se defendant Lawrence W. Sinclair (“Sinclair”)

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to strike certain exhibits filed by plaintiffs in opposing other defendants’ dispositive motions

(Dkt. No. 83), and plaintiffs’ opposition thereto, it is hereby


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ORDERED that Sinclair’s motion is hereby DENIED.
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SO ORDERED this ________ day of ________________, 2010.


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UNITED STATES DISTRICT JUDGE


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5133891