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BRETT KIMBERLIN,
Plaintiff,
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v.
No GJH13-3059
PATRICK FREY,
Defendant.
MOTION TO CONTEST CONFIDENTIAL DESIGNATION OF DISCOVERY AND
ALLOW PLAINTIFF TO USE DISCOVERY DOCUMENTS IN MOTION FOR
SUMMARY JUDGMENT
Now comes Plaintiff Brett Kimberlin and moves this Court to (1) review the
confidential
designation
this case, and (2) direct Defendant Frey's counsel to allow him to use discovery in
Plaintiffs Motion for Summary Judgment.
1. Defendant Frey has provided more than 2600 pages of discovery in this case.
99.9 percent of those documents
Frey. This violates paragraph
confidential
designation
information
research, development,
or
as confidential.
Plaintiff has reviewed every single document and he can find not one that contains
the required "sensitive personal information"
designation.
They are simply emails to and from dozens of people, articles, letters
of confidentiality,
...
marked "CONFIDENTIAL."
Plaintiff wants to use as exhibits for his soon to be filed Motion for
Summary Judgment.
lc ofthe Protective
Plaintiff also advised counsel that the Fourth Circuit has held that
produced
pursuant
status once
(4th
Cir. 1988),
"discovery, which is ordinarily conducted in private, stands on a wholly
different footing than does a motion filed by a party seeking action by the
court. See Bank of America Nat'l Trust and Say. Ass'n v. Hotel Rittenhouse
Assoc., 800 F.2d 339, 343 (3d Cir. 1986). The counsel for The New Yorker
even acknowledged that if the case had gone to trial and the documents were
thereby submitted to the court as evidence, such documents would have
been revealed to the public and not protected under the Order. Because
summary judgment adjudicates substantive rights and serves as a substitute
for a trial, we fail to see the difference between a trial and the situation
before us now. See Anderson v. Cryovac, Inc., 805 F.2d 1,13 (1st Cir. 1986)
(recognizing that documents submitted as a part of motions for summary
judgment are subject to public right of access); In re Continentall/linois Sec.
Litig., 732 F.2d 1302, 1308-10 (7th Cir. 1984) (presumption of public right of
access applies to motion to terminate derivative c1aims);Joy v. North, 692
F.2d 880, 893 (2d Cir. 1982) ("documents used by parties moving for, or
opposing, summary judgment should not remain under seal absent the most
compelling reasons").
See also In re Agent Orange" Product Liability Litigation, 98 F.R.D. 539, 54445 (E.D.N.Y. 1983) ("Once the documents
motion,
such as a summary judgment motion, they "lose their status of being 'raw fruits of
discovery.''')
4. In the instant case, Plaintiff believes that under the protective
under Rushford et ai, he can simply attach the discovery documents
Summary Judgment.
order and
to his Motion for
CONFIDENTIAL stamp across them. Moreover, counsel for Defendant Frey has
stated in an email dated March 22, 2016, the following:
"We are not consenting to any diminution in the confidentiality level of
anything. Moreover please be clear that nothing authorizes you to violate
that confidentiality unilaterally, including motion submissions."
Therefore,
Plaintiff needs an order from this Court allowing him to publicly use the
discovery documents
below asserts.
from the Frey discovery and issue an order allowing Plaintiff to publicly use that
discovery in his Motion for Summary Judgment.
Respectfully submi
Brett Kimberlin
8100 Beech Tree Rd
Bethesda, MD 20817
(301) 320 5921
e9'
Certificate of Service
I certifY that I mailed a copy of this motion to William Hoge and emailed a copy to
the attorneys for Defendant Frey this 23rd day of March ~~/
Brett Kimb rlinp
DECLARATION
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