I Respond to Brett Kimberlin’s Motion and Subpoenas (Part 4 of a 4 PartSeries) (Update: Instalink and Other Links! Sweet!)

Update: Thanks for the Instalink and the link from The Crying Wolfe, and all the people who have been tweeting about it.

Update (II): Thanks for links from long time blogging ally Blazing Cat Fur, and from um...  since I am trying to keep the cursing to a minimum, I will just link to this second blog without naming it, and give you a language warning about the link.  Also we have “donkeytale” at myFDL who has covered this dustup before..  And the kindest link was from Gabriel Malor at Ace of Spades who writes: “Aaron is a great legal blogger and that brief is an awesome legal take-down.”  Sweet and back atcha.  Gabriel is great for following the legal geek stuff.


Update (III): Thanks to Legal Insurrection for designating this the post of the day.

Parts one through three are here, here and here.  The short version is that Bret Kimberlin, a convicted terrorist (bomber, specifically) and perjurer is attempting to obtain my real name by the use of legal process, by claiming I am a witness in an unrelated matter.  This post contains the responsive pleading I have filed today.

Hopefully by the time you read this I will have written a post explaining the procedural hoops I had to jump through to file this.  [Update: That post was written afterward, here.] Frankly it was a nightmare, and I am going to suggest that the Maryland Courts clarify the rules so that a lay person has a reasonable chance of navigating this process.  But I wanted to put the post in the can and schedule it to appear right away, so that even if something goes wrong on the other post, it will definitely go out.

But let me preface a few things.  First, there are a lot of exhibits attached to this.  I will try to create a post sharing most of the exhibits in one way or another, but that is a secondary task.  I will update this post with a link to the exhibits post when it exists.  [Update: Here's that link.]

Second, I mention a Comcast subpoena.  Since writing my response, local counsel did verify that the Comcast subpoena is indeed about obtaining my identity just as I thought.

Third, yes, I did ultimately need local counsel to file the motion to file anonymously or file under seal.  It’s a long story, but literally the courts forced me to do this.  And hopefully by the time 10 p.m. rolls around, I will have told you that story.

Fourth, you will notice very quickly I shift to talking about myself in the third person.  This is not a sign of an inflated ego, so much as the fact it sounded weird to say "I" 300 times in this kind of pleading.  Its a matter of style and that is the stylistic choice I made.

Anyway, without further ado, here’s my response:

[caption omitted]

MOTION TO QUASH SUBPOENAS OF GOOGLE.COM AND COMCAST AND OPPOSITION TO MOTION TO COMPEL GOOGLE.COM AND/OR ITS SUBSIDIARY BLOGGER.COM TO DISCLOSE THE IDENTITY AND ADDRESS OF BLOGGER WHO USES THE PSEUDONYM AARON WORTHING

            Now Comes, John Doe, an anonymous blogger who writes under the names “Aaron Worthing,” and “A.W.” and files this motion to quash the Plaintiff’s Subpoenas of Google, Inc. and Comcast, and his opposition to the Plaintiff’s motion to compel.  From here on in, I will refer to myself in the third person as “Mr. Worthing.”  Mr. Worthing files this Opposition under this pseudonym in order to maintain the very anonymity he is asking this court to preserve.

            As a preliminary matter, we respectfully move this court to grant a limited exception to Maryland Rule §1-311 requiring that all documents be signed, since signing this document with Mr. Worthing’s true name will have the effect of breaching Mr. Worthing’s anonymity before he has a chance to defend it.  Mr. Worthing recognizes however that he is still bound to all of the other provisions of Maryland Rule §1-311, including but not limited to the certification that Mr. Worthing has read this document; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not being interposed for improper purpose or delay.

            In the alternative, Mr. Worthing moves to file a second copy of this Motion and Opposition under seal and to sign it under his true name and contact information, if the court deems it appropriate.  This would allow the court to ensure that a real person who can be located made the certifications required by Maryland Rule §1-311, without piercing Mr. Worthing’s right to anonymous speech McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-342 (1995) before he has a chance to defend it.

Facts

1.                  Mr. Worthing is an attorney in good standing in two foreign (U.S.) jurisdictions. Mr. Worthing is not admitted into practice in Maryland.

2.                  He has blogged[1] at Patterico’s Pontifications, Big Government, Big Journalism, Allergic to Bull and [redacted].  Those blogs can be found at http://patterico.com/, http://biggovernment.com/, http://bigjournalism.com/, http://allergic2bull.blogspot.com/, [redacted] respectively.

3.                  At all times Mr. Worthing has maintained his anonymity by the use of the pseudonyms “A.W.” and “Aaron Worthing.”

4.                  “Patterico’s Pontifications” is, upon information and belief, a blog created by John Patrick Frey, a Los Angeles Deputy District Attorney.  Mr. Worthing has been allowed to post “guest posts” at that blog, from October, 2010, to December 2011.  Mr. Worthing no longer has active posting privileges at this site.

5.                  “Big Government” and “Big Journalism,” are group blogs that upon information and belief were founded by Andrew Breitbart.  Mr. Worthing has been allowed to post a few times on each site.

6.                  “Allergic to Bull,” originally entitled “Allergic to Bull****” (curse word omitted), is Mr. Worthing’s own creation using Blogger’s free blogging tools.  The tag line of the site is “[l]aw, life and the local spectator sport called politics.”  It is a general interest blog with some emphasis on legal issues.

7.                  [redacted] will be discussed in detail momentarily, but it was founded by Mr. Worthing using Blogger’s free tools and today is also administered by two of Mr. Worthing’s friends, known anonymously as “Dustin” and “J.D.”

8.                  Mr. Worthing was born with three learning disabilities, and has faced discrimination most of his life because of them.  At one point in his life, the discrimination was so severe he dropped out of high school, although the fact that he went on to graduate from law school suggests he was able to overcome that discrimination.  Because of those acts of discrimination and indeed more than he can recount in this limited space, he has a real and rational fear of discrimination based on his disabilities.

9.                  Mr. Worthing has spoken openly at Patterico’s Pontifications and Allergic to Bull about his disabilities and his experiences with discrimination.  In a post at Allergic to Bull entitled The American Bar Association Calls Out the LSAC for Its Disability Discrimination, he discusses a news item in which the ABA took the Law School Admissions Council (LSAC) to task for its systematic discrimination against the disabled and in that context Mr. Worthing discusses the discrimination he personally faced at the hands of this same company.  In a post at Patterico’s Pontifications entitled A Declaration of Independence: “I have firearms and I’m willing to use them if necessary,” Mr. Worthing examines an article that discusses the disparate impact that gun control legislation has on handicapped persons and lays out a “conservative argument for laws such as the ADA[.]”  These posts prominently mention the fact he is learning disabled and therefore any person who learns of Mr. Worthing’s true identity will also be able to determine that he is disabled.  True and correct copies of both posts are attached as Exhibits A and B, respectively, with the comments omitted.

10.              [redacted]

13.              Mr. Worthing does not face the threat of these consequences alone.  He is a married man, bound to a woman we shall call Mrs. Worthing.  If he should lose his job due to disability discrimination, or simply because he has written something unpopular with his employer, about half the Worthings’ household income would be lost.  If he should be subject to violence, Mrs. Worthing is likely to be endangered as well.  She has not consented to these risks.

14.              Further, the motion to compel may have the unintended consequence of exposing the identities of “Dustin” and “J.D.” even though they are not a party to this case or even alleged witnesses, because of their connection to the  [redacted] blog.

15.              The Plaintiff, Mr. Brett C. Kimberlin, is a convicted terrorist (bomber, specifically) (Kimberlin v. White, 7 F.3d 527 (1993)) and perjurer (Kimberlin v. White, 798 F.Supp. 472 (1992)).  Upon information and belief he has not been exonerated and to this day his criminal record reflects both convictions in addition to convictions for several other crimes including impersonating a federal officer, conspiracy to possess 10,000 pounds of marijuana with intent to distribute (Kimberlin v. White, 798 F.Supp. 472 (W.D. Tenn., 1992)), illegal use of a Department of Defense insignia, and illegal use of the Presidential Seal, and receipt of explosives by a convicted felon.

16.              On or about August 22, 2011, Mr. Worthing became aware that Mr. Allen was seeking legal aid in the present case.  While Mr. Worthing has a regular job that keeps him busy as well as an active hobby in blogging, he has been known to help other people on the side pro-bono.  With the recognition that because he was not licensed to practice in Maryland and therefore he could offer Mr. Allen very little legal help, Mr. Worthing suggested publicly that Mr. Allen contact him and he did.  Upon that day, Mr. Worthing and Mr. Allen entered into a limited attorney-client relationship.

17.              There are only five emails Mr. Worthing has exchanged with Mr. Allen that are not subject to attorney-client privilege.  They have been reproduced as Exhibits C, D, E, F and G.  If authentication of these emails is necessary, there are multiple non-anonymous witnesses the Plaintiff can subpoena.  Mr. Worthing has had no other non-privileged email communication with Mr. Allen and indeed has never set eyes on the man.  Further, prior to December 15, 2011, Mr. Worthing had not spoken verbally with Mr. Allen, and all verbal exchanges Mr. Worthing has had with Mr. Allen are covered under attorney-client privilege.  Further, upon information and belief, there have has had a number of exchanges made publicly in the comments to various blog posts at Patterico’s Pontifications.  These have been reproduced as excerpts in Exhibit H (see comments 41 and 43), and I (see comment 3, 4, 7, 8, 9, and 10).

18.              Mr. Worthing has also left a single encouraging comment on Mr. Allen’s blog on or about October 11, 2010.  This blog appears to have been deleted but a true and correct copy of that comment is attached as Exhibit J, extracted from a post at this address: http://justcallmelefty.blogspot.com/2011/11/conspiracy-of-turds-patrick-frey-aaron.html. Although Mr. Worthing disagrees with many of the factual assertions and conclusions at that page, they did accurately reproduce that comment.  While the exact contents of this post escapes Mr. Worthing’s memory, he does remember that it concerned the Plaintiff and his connection to Brad Friedman, the proprietor of The Brad Blog (http://bradblog.com/).  Mr. Worthing wrote in that comment as “A.W.”:

[T]his is Aaron Worthing, whom you actually quote here [in the post].  Thanks for finally clearing this up. The hints were WAAAAY too confusing.

And keep fighting for truth, justice and the [A]merican way!

The reference to confusing hints was alluded to a post at Patterico’s Pontifications where Mr. Frey had provided cryptic clues about a story set to debut at Big Journalism about the Plaintiff and his connection to Brad Friedman.  This post can be found at http://patterico.com/2010/10/07/andrew-breitbart-about-to-make-brad-friedmans-life-a-lot-more-difficult/.

19.              Further, in the interest of full disclosure, a person going by the nickname “Socrates”—a known alias of Mr. Allen—posted a number of comments on Allergic to Bull on December 14, 2011 starting at 4:41 a.m.  Every time a person comments on that site, Mr. Worthing receives an email containing the contents of that comment.  Approximately two hours later Mr. Worthing awoke to find that email in his smart phone.  The comment mentioned the litigation and Mr. Kimberlin.  Mr. Worthing knew that Mr. Allen was subject to an injunction but was unaware of its specific dictates.  So Mr. Worthing deleted Mr. Allen’s comment in an overabundance of caution and publicly requested a copy of the injunction for guidance.   A copy of this thread, as it appears today, is attached as Exhibit K.  A copy of the email containing the contents of the deleted comment is attached at Exhibit L.

20.              To the best of Mr. Worthing’s recollection, that is a complete accounting of the interactions between himself and anyone likely to be Mr. Allen.

21.              On or about December 6, 2011, Mr. Worthing revealed to the world that “Aaron Worthing” was a pseudonym while ending his stint as guest blogger for Patterico’s Pontifications.

22.              Just after midnight, technically on December 15, 2011, the Plaintiff wrote to Mr. Worthing, requesting for him to voluntarily give up his real identity to the Plaintiff.  This included a remarkable request to ask Mr. Allen to waive attorney-client privilege so that Mr. Worthing could testify about his discussions with Mr. Allen.  He asked Mr. Worthing to do this so that it would not be necessary to attempt to obtain his identifying information from Google or Blogger by a motion to compel.  See Exhibit M.

23.              On December 19, 2011, at 9:34 A.M. after two business days and the weekend before Christmas, Mr. Worthing received notice that Mr. Kimberlin had apparently decided he had waited long enough for his unusual request. This is in spite of the fact that by his own acknowledgement Mr. Worthing could not fully comply with his request without the consent of his client, Mr. Allen.  He filed the instant motion to compel and subpoena.  A copy of Mr. Kimberlin’s “cover” email and the motion to compel attached is included as Exhibit N.

24.              On December 22, 2011, the Plaintiff requested that the court issue a subpoena to Comcast, Inc. and a subpoena was issued.  Mr. Worthing believes it is highly probable that this subpoena is designed to find Mr. Worthing’s name and address.  The Plaintiff gave no notice to Mr. Worthing that this subpoena has been sought.

Argument

This court should quash the Plaintiff’s subpoenas, deny Plaintiff’s motion to compel and grant Mr. Worthing a protective order primarily because of the Plaintiff’s misconduct in this case generally, and specifically in seeking this discovery.  First, the Plaintiff, a convicted perjurer has lied to this court in this case twice in the hearing of November 14, 2011, and misled this court on a third point.  Specifically he falsely stated that he was never returned to prison following a parole violation, that he was never a suspect in the murder of Julia Scyphers, and suggested that he had been secretly exonerated of one or more of the crimes he was convicted of.  In light of the Plaintiff’s deception and this newly corrected understanding of the facts, the court should determine that the Plaintiff’s reputation is so poor that it had not been harmed by the defendant.  Second, in filing the motion to compel, the Plaintiff made four statements of fact that were either false or lacked any evidentiary support, and made two statements of fact that were so incomplete as to be misleading.  Further, there is powerful evidence that the Plaintiff seeks this information for an improper purpose, in violation of Maryland Rule §1-311.  Finally, the Plaintiff has committed violations of Mr. Worthing’s procedural rights..  Therefore this court should quash the subpoenas, deny the Plaintiff’s motion to compel and even dismiss the injunction in its entirety, either because it was obtained under false pretenses or because the Plaintiff’s hands are no longer clean.

            Further the Plaintiff in this instant matter proposes to infringe upon a most precious Constitutional right: the right to engage in anonymous expression, practiced even by three of the Founders (James Madison, John Jay and Alexander Hamilton) in authoring the Federalist Papers under the pseudonym “Publius”:

Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Great works of literature have frequently been produced by authors writing under assumed names. Despite readers' curiosity and the public's interest in identifying the creator of a work of art, an author generally is free to decide whether or not to disclose his or her true identity. The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry.  Accordingly, an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.

McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-342 (1995) (internal quoatations, citations and footnotes omitted).

While this right to engage in anonymous expression is not absolute, the Plaintiff should be required to demonstrate a substantial relationship between the information sought and an overriding and compelling interest before obtaining Mr. Worthing’s identity.  The Plaintiff has failed to make that showing.  Every single private, one-on-one communication between Mr. Worthing and Mr. Allen is protected by attorney-client privilege.  Meanwhile, with every single communication in the presence of third parties, Mr. Worthing’s testimony is not necessary.  Since all of these communications are written and thus speak for themselves and with multiple non-anonymous witnesses, Mr. Worthing’s testimony is not needed for authentication purposes.  Finally, the information in question is of little relevance and value.

            This court should also find that the Plaintiff’s need for this information should be balanced against Mr. Worthing’s right of anonymous free speech.  The Plaintiff’s need for Mr. Worthing’s testimony is virtually non-existent—as evidenced by his own failure to properly seek it until now—while the potential for harm that will be visited upon Mr. Worthing could be catastrophic.  Mr. Worthing stands a real chance of being targeted by terrorists, facing workplace discrimination when his disabilities are exposed to the world, or simply because he wrote something unpopular.  Worse than that, his wife will face many of these risks, without her consent.  Accordingly the Plaintiff’s subpoenas should be quashed and Plaintiff’s motion to compel should be denied, and a protective order should be put in place prohibiting Google, Blogger, and Comcast from revealing Mr. Worthing’s true identity and prohibiting the Plaintiff from engaging in further discovery calculated to determine Mr. Worthing’ identity.

I.

PLAINTIFF’S SUBPOENAS SHOULD BE QUASHED AND PLAINTIFF’S MOTION TO COMPEL SHOULD BE DENIED DUE TO PLAINTIFF’S MISCONDUCT

In the course of his conduct in this case, the Plaintiff, a convicted perjurer, has deceived this court.  As such this court should quash the subpoenas and dismiss the motion to compel as a sanction for his unethical and dishonest behavior and should put into place a protective order preventing Google, Blogger, and Comcast from releasing Mr. Worthing’s true name.  Further this court should even dismiss the present injunction against Mr. Allen as granted on false pretenses, and because the Plaintiff’s hands are not clean.  Finally, this court should consider referring Mr. Kimberlin’s conduct in this case to the appropriate state authorities in order to determine if he has committed perjury.

A.        The Plaintiff Obtained the Underlying Injunction Under False Pretenses and Therefore the Injunction Should Be Dismissed, Mooting the Plaintiff’s Motion and Subpoenas.

            Mr. Kimberlin, a convicted perjurer (Kimberlin v. White, 798 F.Supp. 472 (1992)), first obtained the injunction underlying these subpoenas and motion to compel by repeatedly lying to this court.  Mr. Worthing has standing to challenge the basis of this injunction since the Plaintiff’s entire motion is premised on that injunction.  The case law makes it clear that the courts should not pierce a person’s online anonymity unless it is in service of a viable action or suit.  See e.g. Independent Newspapers v. Brodie, 966 A.2d 432, 457 (2009) stating that in order to obtain discovery of the identifying information of an anonymous writer accused of defamation that the court must “determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters.”  With respect and no malice to his client, Mr. Allen is a poor advocate for his own cause and Mr. Worthing’s right to anonymous speech should not be breached simply because Mr. Allen was unable to stand up properly for himself—indeed he allowed a default judgment to be entered against him—and could not find affordable counsel in Maryland to stand up for him.  Mr. Worthing therefore should be granted standing to challenge the underlying injunction.

            In the process of obtaining the injunction against Mr. Allen, the Plaintiff was not candid with this tribunal.  Indeed he lied at least two times under oath, and appears to have intentionally misled the court a third time.  He has falsely stated that he was not returned to prison due to a violation of the conditions of his parole, he has falsely stated that he was never a suspect in Julia Scyphers’ murder, and he has falsely implied that he has received some sort of secret exoneration from his convictions arising out of the “Speedway Bombings.”  As such, this court may set aside the injunction as having been based on deceit; or alternatively, because the Plaintiff’s hands are not clean as required to obtain equitable relief.

            First, the Plaintiff lied in his November 14, 2011, hearing when asked about his parole violation.  In an exchange with Mr. Allen, the Plaintiff stated that he had not been sent back to prison after violating the terms of his parole:

SETH ALLEN: Were you released and then sent back to prison for a parole violation, for failure to pay compensation to the, Mrs. DeLong, the wife of Carl DeLong, who took his own life after those bombs tore off half his body?

BRETT KIMBERLIN: No, I wasn’t.

This is directly contradicted by publicly available court documents.  First, Mr. Kimberlin was convicted of numerous offenses related to a series of terrorist attacks known as the Speedway Bombings:

Kimberlin was convicted as the so-called "Speedway Bomber," who terrorized the city of Speedway, Indiana, by detonating a series of explosives in early September 1978. In the worst incident, Kimberlin placed one of his bombs in a gym bag, and left it in a parking lot outside Speedway High School. Carl Delong was leaving the high school football game with his wife when he attempted to pick up the bag and it exploded. The blast tore off his lower right leg and two fingers, and embedded bomb fragments in his wife's leg. He was hospitalized for six weeks, during which he was forced to undergo nine operations to complete the amputation of his leg, reattach two fingers, repair damage to his inner ear, and remove bomb fragments from his stomach, chest, and arm. In February 1983, he committed suicide.

After being convicted of the bombings and related offenses, Kimberlin was sentenced to a fifty-year term of imprisonment for manufacturing and possessing a destructive device, and malicious damage by explosives with personal injury in violation of 26 U.S.C. §§ 5861(d) and (f), and 18 U.S.C. §§ 844(f) and (i). He received a concurrent twelve-year sentence for impersonating a federal officer, illegal use of a Department of Defense insignia, and illegal use of the Presidential Seal in violation of 18 U.S.C. §§ 912, 701, and 713, respectively, and a five-year term for receipt of explosives by a convicted felon in violation of 18 U.S.C. § 842(i)(1). Finally, he was given a four-year sentence by the United States District Court for the Southern District of Texas on an earlier, unrelated conviction for conspiracy to distribute marijuana.

Kimberlin v. White, 7 F.3d 527, 528-29 (6th Cir. 1993).  In addition to these criminal convictions, Mr. Kimberlin was found civilly liable in state court to Sandra DeLong.  Specifically the court found that not only was he responsible for the physical injuries suffered by Ms. DeLong and her late husband, Carl, but he was also held liable for Mr. DeLong’s wrongful death by suicide—that is, Mr. DeLong was so grievously injured by Mr. Kimberlin that he chose to take his own life.  Kimberlin v. DeLong, 637 N.E.2d 121 (Ind., 1994).  However, at his parole revocation hearing, the examiner found that he had intentionally and by deception evaded payment of his debt to the DeLong widow:

[t]he examiner found that petitioner used "deceitful maneuvers to hide his ability to pay" and that his "relatives and friends are obviously acting to help him by filing claims and liens to protect his money and property from being available to satisfy the victim's judgment." The examiner further found that the "evidence against [petitioner] was provided by the subject himself," and that at no time did petitioner "indicate any concern or empathy for the victim." Finally, the examiner found that petitioner's settlement offers were not undertaken in good faith; concluded that petitioner had resisted parole supervision by Officer Ramsburg "in every way he can," and recommended revocation of parole with a presumptive parole date of two years....  Petitioner was taken into custody at the conclusion of the hearing.

On June 27, 1997 the Commission adopted the examiner's recommendation, revoking petitioner's parole and continuing him to a presumptive parole date of June 5, 1999.

Kimberlin v. DeWalt, 12 F.Supp.2d 487 (D. Md., 1998) (upholding the decision of the parole commission).  Therefore the Plaintiff’s statement before this court that he was never sent back to prison due to his failure to honor his obligations to the widow Ms. Delong is a flat-out lie.

            Further, this lie goes to the heart of the question of whether Mr. Allen had defamed the Plaintiff at all.  Indeed, once it is cognizant of these facts, this court might reasonably wonder if it is possible to harm the Plaintiff’s reputation at all.  See e.g. Jackson v. Longscope, 394 Mass. 577 (1985) (holding that a Plaintiff who had been convicted of multiple murders suffered no reputational harm due to false statements in the Boston Globe that he had raped his victims before killing them and had stolen a vehicle, because his reputation was so poor that it could not be further harmed).  Mr. Kimberlin has been convicted of a panoply of crimes including perjury, and setting bombs that terrified his community.  “Kimberlin committed a truly monstrous crime.  He planted a bomb in a high school parking lot—an act that was random, brutal and targeted at children.”  Editorial, The Friends of Brett Kimberlin, Washington Times, January 24, 1995, at A16.  In most ordinary persons’ minds, those bombings were acts of terrorism and especially after September 11, 2001, there is no person more despised in decent circles than the terrorist.  Further, he has denied compensation owed to a grieving widow—a woman who had been widowed by his own criminal conduct.  At its heart, defamation law is not about protecting the world from every inaccuracy, but only the inaccuracies that harm a person’s reputation.  Based solely on facts established in court records, Mr. Kimberlin’s reputation is so poor it would be difficult, if not impossible, to harm it.  If there is no harm to his reputation, then he has failed to prove any defamation occurred.  Even if this plain fact, obscured in part by the Plaintiff’s dishonesty before the tribunal, does not justify setting aside the default judgment against Mr. Allen, this court should dismiss the injunction against Mr. Allen as being obtained by deceit.

            In addition to that lie, the Plaintiff also stated that he was never a suspect in the murder of Julia Scyphers:

SETH ALLEN: You’re saying you weren’t a suspect in the murder of Julia Scyphers?

BRETT KIMBERLIN: I was never a suspect, no.

First, as a matter of fact, he was indeed a suspect in Ms. Scyphers’ murder according to the Indianapolis Star:

When police began looking for a motive in the Scyphers slaying, they found there'd been a recent family clash. Julia Scyphers' daughter, Sandra Barton, had become involved with a man who seemed to Mrs. Scyphers to be inordinately close to one of Barton's young daughters. Mrs. Scyphers told friends she was so concerned that she'd arranged for both of her granddaughters to come live with her. Whether or not Mrs. Scyphers' fears were correct (no charges were ever filed to that effect), this incident led investigators to start looking at Brett C. Kimberlin.

StarFiles: The Speedway Bombings, Part 2, The Indianapolis Star, October 6, 2010, attached as Exhibit O.  Further, not only was he in fact a suspect in her murder, but he knew he this to be the case according to journalist Mark Singer:

Early that afternoon, [Brett] Kimberlin went downtown to meet with Forrest Bowman.  Along the way, he said, he passed a newspaper vending machine and saw the Indianapolis News's proclamation BOMBING SUSPECT IS LINKED TO MURDER.

"I saw this headline about the bombing investigation and I bought a newspaper and started reading it," he told me [reporter Mark Singer].  "I think: Oh, this might be interesting.  And then I read the first couple of paragraphs--about a Broad Ripple business man--and I realize they're talking about me and I'm just floored.

Mark Singer, Citizen K: The Deeply Weird American Journey of Brett Kimberlin (1996), page 98.  It is worth noting that upon information and belief, Mr. Kimberlin has never won a judgment against either the Indianapolis Star, Mr. Singer or his publisher for defamation, making one wonder why he singled out a small time blogger and commenter for this litigation.

            Further, logic suggests that Mr. Kimberlin is likely to have deceived the court a third time.  In several exchanges, he has given the court the impression that he has been secretly exonerated:

SETH ALLEN: You deny setting the bombs that you were convicted of?

BRETT KIMBERLIN: Absolutely. Absolutely.

SETH ALLEN: And you admit you weren’t exonerated?

BRETT KIMBERLIN: Judge, Mr. Allen –

JUDGE: Just answer the question, because--

BRETT KIMBERLIN: Mr. Allen is trying to get into a, a lawsuit that was filed against the Department of Justice. It was settled under a confidentiality agreement, and I, I’m not gonna discuss it. And I’m going to object.

JUDGE: What was your question? Whether he contended he was a political prisoner?

SETH ALLEN: Um, well I don’t know how I can speak without getting into me testifying.

JUDGE: OK.

SETH ALLEN: But there is something that I wanted to, that I’m trying to get at. I, I, would like to do just a few examples. I don’t want to overburden –

JUDGE: Sounds like you’re asking him about a case that is subject to a confidentiality agreement. And so why don’t you move on to something else?

In doing so, the Plaintiff clearly implied that he had been exonerated by some kind of secret civil agreement with the Department of Justice, an impression he reinforced with this statement:

BRETT KIMBERLIN: And he talks about, you know, I haven’t been exonerated, well he doesn’t know what happened with the Justice Department lawsuit. He doesn’t know. And, but he goes out and says “I know that he’s never been exonerated” and all this stuff. Well, I’m not getting into that here. You know? But I can tell you for a fact and everybody here, I’m not on parole. I had a 50-year sentence. I’m no longer serving that sentence. So something happened. And that’s as far as I’m going to go with that.

Mr. Worthing would respectfully request that this court examine Mr. Kimberlin under oath and when appropriate, that this court ask Mr. Kimberlin point blank whether he has been exonerated or not.  If he refuses to answer in open court, Mr. Worthing respectfully asks this court to offer him the chance to answer in chambers and ex parte if necessary, while still under oath.  And if he claims some kind of secret exoneration, then Mr. Worthing respectfully requests that this court asks him to furnish proof that this exoneration exists.  However, logic dictates that Mr. Kimberlin is unlikely to have received some kind of secret exoneration, under which his criminal history still shows that he was a convicted felon.

            And even if we suppose that by some amazing set of circumstances he has received such double-secret exoneration, then it stands to reason that as far as the law of defamation is concerned, he can be treated as still being a convicted felon.  If his criminal record states that he has committed numerous crimes and he has been secretly exonerated but prohibited from sharing the fact he has been exonerated, then he should be estopped from claiming that he was exonerated if only to enforce this agreement.  The citizens of this republic should be free to speak of the criminal record of Mr. Kimberlin or any other person without fear that they might be haled into court because of an exoneration that they could not have known about.  Any other rule would inappropriately chill protected speech in that citizens would be afraid to discuss a person’s known criminal record, lest that person had been secretly exonerated.  And that is assuming that this agreement really exists and really says what the Plaintiff suggests it does.

            Further, at most, this alleged agreement could only exonerate him for criminal purposes—and indeed for federal criminal purposes only.  That doesn’t necessarily mean that this agreement would declare him innocent, only that there were not sufficient grounds to convict him—proof beyond a reasonable doubt.  The Department of Justice simply doesn’t have the power to declare him innocent so that this judgment binds all courts, even the Indiana courts in which he was found liable to the widow DeLong.  As such, even if such a secret exoneration exists, Mr. Kimberlin should be prevented by principles of collateral estoppel from denying in this court that he committed the crime of setting the bomb that exploded near Carl and Sandra Delong which led eventually to Mr. Delong’s suicide.  He had his day in court on that point, and he lost.  He should not be able to obtain a judgment in this court inconsistent with the outcome in the DeLong case and an ordinary man such as Mr. Allen, who might not be the best advocate for himself, should not be forced to prove facts such as this already determined by a competent court of record under these circumstances.

            Mr. Allen is alleged to be in contempt of this court’s November 14, 2011 injunction.  However as the facts demonstrate above, the Plaintiff’s deception before this court justifies dismissal of that injunction, either because it was obtained due to that deception, or because the Plaintiff’s deceptions have rendered his hands unclean.  Further we reiterate our request that Mr. Kimberlin’s conduct be referred to appropriate authorities in order to determine if he has committed perjury.

            Further, as will be outlined momentarily, Mr. Kimberlin’s conduct in seeking this motion to compel justifies dismissal of the underlying injunction as well.  Those who seek equity must do equity, and the Plaintiff’s conduct with respect to this motion to compel has been inequitable.  In filing this motion he has committed serial violations of Maryland Rule §1-311, by making false statements in his motion to compel, by making statements without evidentiary support, and by making misleading statements.  See infra, I.B.1.  Further his conduct evinces an improper purpose to use this court as a tool to aid him and others in harassing Mr. Worthing. See infra, I.B.2.  Indeed, he has filed this motion and the Comcast subpoena in blatant violation of Mr. Worthing’s right to reasonable notice.  The Plaintiff has filled his motion with misleading statements and deliberate deceit, with hyperbolic, conclusory allegations of conspiracy apparently based on the “sin” of giving legal advice pro bono to the Plaintiff’s opponent, all in an apparent attempt to use this court’s process to terrify another person into silence or to punish Mr. Worthing for his constitutionally protected speech.  Therefore we respectfully ask this court to dismiss the underlying injunction against Mr. Allen, rendering the instant subpoena and motion to compel moot, as well as any other sanctions that this court considers to be appropriate.

            B.        The Plaintiff Has Violated Maryland Rule §1-311 and Therefore Should be Sanctioned by Having His Motion to Compel Dismissed, His Subpoenas Quashed and “Aaron Worthing’s” Motion for Protective Order Granted in Addition to Any Other Relief This Court Deems Appropriate.

In proceeding pro se, the Plaintiff is as bound as any attorney to the requirements of Maryland Rule §1-311(b), and as such is required to pledge in relevant part that 1) “to the best of [his] knowledge, information, and belief there is good ground to support” the instant motion and 2) that the instant motion “is not interposed for any improper purpose.”  The Plaintiff has violated both promises, and as such, his motion to compel should be denied, his subpoenas should be quashed, and the motion to issue a protective order should be granted, in addition to any other sanctions that this court considers appropriate.

1.         Plaintiff Has Made Repeated False and Misleading Assertions, And Assertions of Fact Without Any Support.

            The Plaintiffs have made the following false assertion of fact:

Paragraph 2: “Mr. Worthing has been conspiring with Defendant Seth Allen to defame Plaintiff for over a year[.]”

Indeed, Mr. Worthing has barely communicated with Mr. Allen in the period described, let alone conspired with him.  As such this author states with absolute certainty that the Plaintiff has no factual basis upon which to make that assertion, because it is not true.  He can show communication, and even that Mr. Allen received legal advice from Mr. Worthing, activities that one would expect in an attorney-client relationship.  But he doesn’t have a single scintilla of evidence showing conspiracy.

            The Plaintiff has also made this false assertion of fact.

Paragraph 9: “Mr. Worthing refused to answer interrogatories sent to him on or about September 26, 2011.”

In fact, no interrogatories were sent to Mr. Worthing as the Defendant admits in the following line.  They were allegedly sent to John Patrick Frey whom the Plaintiff mischaracterizes as Mr. Worthing’s “supervisor.”  Mr. Worthing is not Mr. Frey’s employee and they have entered into no agency relationship.  Mr. Worthing is just a person who has been allowed to put up “guest posts” for a while on the blog Mr. Frey owns (“Patterico’s”) for no compensation except for the pleasure of doing so.  As it happens, Mr. Worthing had no idea that Mr. Frey had been served with such interrogatories and in any case he was under no obligation to pass them on to Mr. Worthing.

            What is curious, however, is that the Plaintiff didn’t bother to simply email those interrogatories to Mr. Worthing or even tell him directly that such interrogatories exist.  Mr. Worthing’s email addresses have not been a secret.  He posts his AaronJW72@gmail.com address prominently at his Allergic to Bull blog.  He posts his edmd5.20.10@gmail.com address prominently at his  [redacted] blog  [redacted]—the same address at which the Plaintiff eventually did email Mr. Worthing on December 15, 2011.  Further, just about every single guest post he has placed at Patterico’s Pontifications included a link to his edmd5.20.10@gmail.com address.  For instance, on that very day the Plaintiff was allegedly sending Mr. Frey interrogatories, Mr. Worthing published a post entitled Palinageddon!!! Sarah Sicks Her Lawyers on Crown Publishing/Random House!  (excerpted at Exhibit P) and the very first line of the post stated the following:

[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

At the word “here” was a hyperlink allowing one to send email to his edmd5.20.10@gmail.com email address.  So that very day the Plaintiff was given two ways to correspond with Mr. Worthing—by this email, and by Twitter—and instead he apparently chose to send the documents to a third party without even informing Mr. Worthing that he had done so.  One wonders if he was intentionally “bricking” that discovery request so he could falsely claim that Mr. Worthing was ducking it later.

            Meanwhile the following claim is not true and could not possibly have a basis in evidence:

Paragraph 11: “Mr. Worthing not only read all of Mr. Allen’s defamatory posts and comments, but he advised Mr. Allen on how he could defame and harass Plaintiff by using various legal strategies.  Defendant Allen relied on Mr. Worthing’s assistance, advice and support.”

(Emphasis added.)  How could Mr. Kimberlin possibly know what posts on the internet Mr. Worthing has read, and which he has not?  This assertion, stated as certain fact, cannot possibly have “good ground to support it.”  And for the record, Mr. Worthing has not read all of Mr. Allen’s posts, defamatory or not.  Prior to December 15, 2011, he believes he has only visited a blog written by Mr. Allen once.  And while Mr. Worthing cannot disclose privileged communications to dispute the Plaintiff’s factual claims, Mr. Worthing respectfully requests that this court ask the Plaintiff what non-privileged communications is he aware of, with specificity, that would constitute Mr. Worthing advising Mr. Allen on how to defame and harass the Plaintiff.

            It is also worth noting that if he is accusing Mr. Worthing of reviewing proposed communications and providing an opinion on whether they constitute defamation, that such conduct is non-actionable, and indeed routine when one wishes to avoid defamation suits.  For instance, CBS News stated that it goes through the following steps when vetting a story before it airs:

At a minimum, the vetting of all stories entails a review by Executive Producer Howard and Senior Broadcast Producer Murphy, a review by Senior Producer Kartiganer of the excerpts of interviews that are to be used in stories to ensure that they reflect a fair edit from the full interviews and a final fairness and accuracy screening by West. Sternberg and Altabef, who have been in-house counsel for CBS for over 20 years each, also may become involved in the vetting process depending on the type of story and issues involved.

Thornburgh, Dick, and Boccadri, Louis, The Report of the Independent Review Panel on the September 8, 2004, 60 Minutes Wednesday Segment “For the Record” Concerning President Bush’s Texas Air National Guard Service, January 5, 2005, page 13 (2005) available at http://www.cbsnews.com/htdocs/pdf/complete_report/CBS_Report.pdf.

            While Mr. Worthing cannot disclose the contents of any advice given to Mr. Allen, the language the Plaintiff has chosen suggests that his charge of “conspiracy” is based on nothing more than the belief that Mr. Worthing helped Mr. Allen to perform such due diligence.

He also makes the following silly assertion of fact:

[F]or over a year... Defendant Allen corresponded with Mr. Worthing dozens of times via email and through various blog posts.

Again, he seems to be asserting psychic knowledge of what blog posts Mr. Worthing has read.  He doesn’t know this and cannot know, but he still asserts it as fact.  And while Mr. Worthing cannot disclose the contents of any privileged communication, the claim that they have corresponded dozens of times by email is simply not true, and this court should ask with what factual basis he makes that assertion.

            And those are simply the provably untrue or unsupported statements the Plaintiff has made.  Then there are the statements that are so incomplete as to give the court a wholly inaccurate impression:

Paragraph 10: “When Defendant Allen told Mr. Worthing that he wanted to murder Mr. Kimberlin, Mr. Worthing did not report this to law enforcement officials[.]”

This is not literally untrue, but he leaves out so much context that he gives this court a wholly false impression.  What he leaves out of that statement is that several other persons were cc’ed on the same email and that one of them, Mandy Nagy, upon information and belief, did report about this email to the police although those efforts were hampered by the rare earthquake that struck the D.C. metro area on that day.  She informed Mr. Worthing and Mr. Frey ahead of time that she would make such a report, and informed Mr. Worthing afterward that she had done so—all within hours of Mr. Allen making this remark.  It is elementary that whenever a duty to report misconduct arises—and that is assuming one arose in those circumstances—that duty is satisfied when one knows that another person has reported it.

Paragraph 3: “Following this Court’s judgment and permanent injunction of November 14, 2011, Defendant Allen continued to correspond with Mr. Worthing.”

This is wholly deceptive.  The only “correspondence” was in public comments on three posts.  The first was in a post John Patrick Frey posted on Patterico’s about the Kimberlin/Allen litigation and the nominal damages Mr. Kimberlin was awarded.  Mr. Worthing wrote at comment 41 (see Exhibit H, constituting relevant excerpts from this post):

Well, Socrates, although this was pretty cool, let me say, don’t screw around.  [P]ay it. [T]he last thing you want is to be seen blowing that amount off.

Mr. Worthing wrote that having no certainty that Mr. Allen would even see that, but believing Mr. Allen was logically likely visit that site and see it.  And it is worth noting that in that “communication” Mr. Worthing is specifically telling him to comply with this court’s decisions.  A person identifying himself as one of Mr. Allen’s known aliases (which Mr. Worthing cannot authenticate, see infra II.B.) wrote in response at comment 43:

Aaron, I hear you. It’ll get taken care of. I do know that I’m allowed to have a payment plan if necessary. It really isn’t that much, so it should be ok.

This court can only speculate whether it is actually Mr. Allen’s words unless it obtains additional evidence from other witnesses.  The remaining communications were previously covered supra paragraphs 16-18, and including Exhibits I, J, K and L.  Each of these communications were slight and barely qualified as correspondence.  And it is worth noting that mere “correspondence” is not actionable.

            So it is not literally a lie to say that we have corresponded, but that statement gives such a wholly mistaken impression that this court can see in Mr. Kimberlin’s words a clear intent to deceive.

            Thus within the instant motion alone, the Plaintiff has lied to this court on four different occasions, including two instances where the Plaintiff made assertions that could not possibly be based in fact, and twice left out so much context as to give this court a wholly mistaken impression about a particular topic.  As such the Plaintiff’s motion has repeatedly violated Maryland Rule §1-311(b).  Therefore this court should quash the instant subpoenas, deny the Plaintiff’s motion to compel, and Mr. Worthing’s motion for a protective order should be granted.

            Further, we will remind this court that such conduct is also grounds for dismissing the injunction as a whole.  Those who seek equity must do equity.  In attempting to obtain this motion to compel while making false statements, statements without factual basis, and statements plainly designed to deceive, in addition to the lies and dubious statements at the November 14, 2011 hearing, this convicted perjurer has behaved inequitably.  As such, this court should declare that Mr. Kimberlin has unclean hands and dismiss the injunction against Mr. Allen, rendering the instant subpoenas and motion to compel moot.

2.         The Plaintiff Is Likely to Have An Improper Purpose In Filing This Motion And Seeking These Subpoenas.

            As noted previously the Plaintiff has made absolutely no attempt to communicate with Mr. Worthing personally until December 15, 2011.  This was the case even though Mr. Worthing placed his email address on almost every single post at Patterico’s Pontifications for over a year, and his twitter address was added to each post several months before this date.  Instead, the Plaintiff obtained a Peace Order on October 13, 2011, apparently based on Mr. Allen’s email to Mr. Worthing and others, without contacting Mr. Worthing and seeking his testimony.  He obtained a judgment and the current injunction on November 14, 2011, all without contacting Mr. Worthing.  But now over month later, he suddenly, desperately, needs Mr. Worthing’s testimony?  It raises the question of what has changed.

            However, additional events suggest an explanation.  On December 12, blogger Ron Brynaert sent an unhinged email to numerous officials at Yale University attempting to enlist their aid in outing Mr. Worthing’s true identity (Mr. Worthing had identified himself as an alumni of Yale Law School) attached as Exhibit Q.  Mr. Worthing and Mr. Frey wrote emails imploring the University to respect Mr. Worthing’s privacy.  Mr. Worthing’s email is attached as Exhibit S.  To the best of Mr. Worthing’s knowledge, the university has not chosen to respond.

            The very next day, on December 13, Mr. Worthing was “blind carbon copied” (“bcc’ed”) on an email from [K.A.], Esq. in North Carolina to Mr. Brynaert.

[Let me break in here for a moment, folks.  I won’t be putting this man’s name out there for the entire world. So “[K.A.]” is my redaction of this real person’s name as is all subsequent mentions of a “Mr. [A.]”  –Aaron]

Mr. [A.] appears often on the internet as “Kman” and Mr. Worthing and Mr. [A.] have sparred on subjects related to the law and politics for quite some time, often rancorously.  Mr. Worthing has publicly stated that “Kman” knew his true name, and Mr. [A.] had inadvertently outed himself as “Kman.”  While Mr. Worthing never said specifically that Mr. [A.] was “Kman,” it would not have been difficult for any careful reader of Mr. Worthing’s posts at Patterico’s Pontifications to figure it out because of Mr. [A.]’s error.  In the email string, Mr. Brynaert apparently had asked Mr. [A.] to reveal Mr. Worthing’s true name and despite the numerous disagreements between Mr. Worthing and Mr. [A.], Mr. [A.] rebuffed Mr. Brynaert’s request.  That email is attached as Exhibit S.  On the very next evening, just past midnight, Mr. Kimberlin for the first time sent Mr. Worthing an email, requesting Mr. Worthing’s voluntary compliance with his request that he reveal Mr. Worthing’s true identity and testify in the instant case.  See exhibit M.

            The timing of this request suggests that Mr. Brynaert is coordinating with the Plaintiff in a campaign to reveal Mr. Worthing’s identity.  Further, Mr. Brynaert is only one degree of separation from Mr. Kimberlin.  Mr. Brynaert has guest blogged on occasion at The Brad Blog.  An example of one of his posts is attached as Exhibit T.  This blog is owned by Brad Friedman—indeed it is described on its front page as “Brad Friedman’s The BRAD BLOG.”  Mr. Friedman, in turn, is a business partner of Mr. Kimberlin:

Kimberlin posted on justicethroughmusic.org a $100,000 reward for any evidence that the [2004] election had been stolen. And things took off. First, the reward attracted blogger Brad Friedman, who then co-founded the netroots voting-reform website VelvetRevolution.us with Kimberlin and serves as his face man.

Massimo Calabresi, The Wizard of Odd, Time Magazine (January 5, 2007), attached as Exhibit U.  Further,, upon information and belief, Mr. Brynaert forwarded an email string to Mandy Nagy that contained an email from Mr. Kimberlin.  That email is attached as Exhibit V.

            More importantly when significant events occur in Mr. Kimberlin’s life, Mr. Brynaert always seems to know very quickly afterward.  For instance, when Mr. Allen was arrested on September 14, 2011, Mr. Brynaert was mentioning it on Twitter the very next day—even though the arrest record has never appeared in any database generally available to the public.  See Exhibit W.  Further when this very motion to compel was filed, Mr. Brynaert had a post at his website discussing it the very next day, attached as Exhibit X.  Taken together, it strains credibility to believe that Mr. Brynaert and Mr. Kimberlin are not engaged in a coordinated effort to obtain Mr. Worthing’s identity.

            And information disclosed in these proceedings have a habit of appearing on the internet.  For instance, upon information and belief, a person named Neal Rauhauser placed a long document on the document publishing site Scribd at http://www.scribd.com/doc/70554371/Seth-Allen-Libel.  This document, attached as Exhibit Y, includes numerous images of documents related to this suit, including letters addressed specifically to Brett Kimberlin.  Exhibit Z is a screencap of part of the site itself, showing that Mr. Rauhauser uploaded this document on October 27, 2010.  The document also contains wild accusations that Mr. Allen was being paid by one of a number of persons, including Mr. Worthing, to engage in the conduct at issue in this case.  Unsurprisingly, Mr. Rauhauser has publicly admitted that “I ma[d]e contact with Velvet Revolution.”  See Exhibit AA comment 4 (representing a post and selected comments at http://qritiq.wordpress.com/2011/10/04/the-conversation).  Further, on December 21, 2011, Mr. Rauhauser contacted Mr. Worthing directly by email, falsely portraying himself as a potential friend who could help protect Mr. Worthing if he was only naïve enough to give him his true name, writing:

I think you knew at the outset that your  [redacted] site was offensive to Muslims, but there are some other things happening in the world that will likely make for an even more dangerous situation when your name comes out.

You are going to need someone that does the sort of things I do, someone you can trust completely with your name and other details of your life, and you've got a window of opportunity to clean things up before your name turns up in civil or criminal documents, and then on jihadi web sites not long after that.

Exhibit BB.  Upon information and belief Mr. Rauhauser sent a similar email to Mr. Allen at an address known only to litigants in this case ([email address omitted.  --Aaron]) falsely representing himself as a potential ally, Exhibit CC, while Ron Brynaert sent a similar email to Mr. Allen, Exhibit DD.

            Another example of information from this litigation finding its way onto the world wide web can be found on a website called “Just Call me Lefty,” which posted clips from various hearings involving Mr. Allen in a post entitled Seth Allen, Socrates: Internet Tough Guy, located at the following internet address: http://justcallmelefty.blogspot.com/2011/11/seth-allen-socrates-internet-tough-guy.html in order to mock him.  Upon information and belief, such recordings cannot be obtained unless the recipient promises not to disseminate the recordings and thus these recordings were almost certainly posted on this site illegally.  Mr. Worthing has preserved an electronic copy of the webpage as it existed back then, in the event it is suddenly removed.  Likewise, at Occupy for Accountability’s website, they have posted photographs of the home of Mr. Frey.  See Exhibit EE.  Occupy for Accountability is plainly affiliated with Velvet Revolution, given that as of this writing if one goes to Occupy’s donation page and presses the “donate” button, one is immediately taken to the Velvet Revolution website.  Upon information and belief, Mr. Frey is a Deputy District Attorney in Los Angeles’ Hardcore Gang Unit, and thus such posting will increase the likelihood that Mr. Frey and wife and his family would be subject to violence in retaliation for his work as a prosecutor.

            More than likely the Plaintiff will deny any ulterior motive in seeking this information.  As a convicted perjurer who has been shown to have lied under oath in this very case, his word is not credible.  Further, he has no innocent, credible explanation for why he chose to contact Mr. Worthing seeking this information now, at this point in time.

            Likewise, there are reasonable grounds to believe that if the Plaintiff obtains this information, that this information will be abused.  For instance, after [K.A.] refused to divulge Mr. Worthing’s identity, upon information and belief Mr. Brynaert threatened retaliation against Mr. [A.] for refusing to do so, and indeed did attempt to retaliate against him.  Mr. Brynaert threatened to report Mr. [A.] to the state bar association based on some hallucinated violation of the Rules of Professional Conduct.  See Exhibit FF.  Upon information and belief, he further threatened to email every single employee of the firm Mr. [A.] worked for about Mr. [A.]’s supposed misconduct and eventually did call his firm’s human resources department.  See Exhibit GG and HH.  Meanwhile, at the site “Just Call me Lefty” they have developed an unhealthy fixation upon Mr. Worthing and his true identity.  These ironically anonymous bloggers and commenters have imagined that no learning disabled person could make it through law school (see Aaron Worthing: Con Artist And Outright Fraudster, http://justcallmelefty.blogspot.com/2011/12/aaron-worthing-con-artist-and-outright.html comment 3), and have spun this dubious premise into a conspiracy theory by which Mr. Worthing is alleged to be a government agent out to lure people into drawing pictures of Mohammed so that they can be arrested for engaging in free expression (see Aaron Worthing: Government Operative, http://justcallmelefty.blogspot.com/2011/12/aaron-worthing-government-operative.html).  In a particularly unhinged post, this anonymous author wrote, apparently disapproving of Mr. Worthing’s participation in the  [redacted] protest (with apologies for the coarse language):

You Sir are one sick and twisted piece of total shit. You are garbage. You smell so bad I want to vomit when you come near. You want or believe we should have the right to offend? I am sure you are the light at any party. You remind me of that offensive guy everyone tries to run from when he walks in the door at a party. The guy who wears shit on his shoes so he can make people sick from the smell. Or the guy who shits in his pants so others will get sick of smelling it as you walk by. You set up a blog to offend people in the worst way, and you set it up as a coward would, unable and unwilling to stand up for yourself while doing it. In this man's army they call you what you are when you do such things, and that is that you are a COWARD, a stinking yellow belly, that is what you are Aaron (Fake Name) Worthing... A stinking coward. You probably got your ass beat at school like your good friend and butt buddy Patrick Frey. The both of you are stinking cowards who hide behind their computer screens and offend people for fun while you start fights with those who can't find you or even know who you are, and doing it all in the name of fun.

Aaron Worthing: Shovels the Bull, http://justcallmelefty.blogspot.com/2011/12/aaron-worthing-shovels-bull.html.  This would be the same blog that published recordings from Mr. Allen’s hearings, apparently illegally.

            Taken together, this court should find that the Plaintiff did not file the instant motion in a bone fide attempt to obtain discovery, but for the improper purpose of revealing Mr. Worthing’s identity so that Mr. Worthing can be subject to stalking, threats and violence, in violation of Maryland Rule §1-311 and therefore as a sanction, the Plaintiff’s motion should be denied, both subpoenas should be quashed and Mr. Worthing’s motion for a protective order should be granted.

            Further, this violation of Maryland Rule §1-311 is grounds for dismissing the injunction against Mr. Allen.  Once again, those who seek equity must give equity.  Instead, Mr. Kimberlin has attempted to commandeer this court into settling his internet vendettas, attempting to silence, or to retaliate against, those who have offended him for engaging in Constitutionally protected activity.  And he has shown himself to be an enthusiastic litigant, declaring to Mr.  Frey in an email that “I have filed over a hundred lawsuits and another one will be no sweat for me. On the other hand, it will cost you a lot of time and money[.]”  See Exhibit II.  As Canadian free-speech hero Ezra Levant once observed, sometimes the process is the punishment.  It seems reasonable to believe that the Plaintiff intends to use this court’s process to exact punishment on his “enemies,” real or perceived.  As such, if Mr. Kimberlin ever had clean hands, his hands are not clean today, and therefore he should be denied any and all equitable relief.  His injunction against Mr. Allen should be dissolved.

C.        The Plaintiff’s Failure to Give Mr. Worthing Notice of the Comcast Subpoena and Reasonable Time for Voluntary Compliance Constitutes Misconduct Justifying Dismissal.

            The Plaintiff first delivered his email seeking voluntary compliance with his request for discovery on December 15, 2011.  He then waited a total of two business days and one busy holiday weekend before deciding he had waited a reasonable time before filing the instant motion.  Further, his request for voluntary compliance was wholly deceptive.  In it, he merely presented himself as asking for the cooperation of a “potential witness.”  See Exhibit M.  However, when he filed before this court, suddenly Mr. Worthing was being portrayed a co-conspirator for doing nothing more than allegedly giving Mr. Allen legal advice the Plaintiff did not agree with.  See Exhibit N.  While Mr. Worthing cannot state whether he provided the advice the Plaintiff alleges that he has given, Mr. Worthing can state that nothing the Plaintiff has alleged that Mr. Worthing has said gives rise to any cause of action for conspiracy.

            The caselaw and logic suggest that that the Plaintiff should be required to give this notice as part of the process of demonstrating that he has no choice but to involuntarily pierce Mr. Worthing’s right of anonymous expression.  Further, common sense would tell this court that such consent should not be obtained under deception.  Finally, as Mr. Kimberlin is seeking to enforce an equitable injunction, he is bound to the principle that those who seek equity must do equity.  As such, as a sanction for his failure to provide a reasonable opportunity to voluntarily comply with the Plaintiff’s request and for his dishonesty in making this request, this court should deny the Plaintiff’s motion to compel and to grant a protective order preventing disclosure of Mr. Worthing’s true name and the court should consider this to be an additional justification for dissolving the underlying injunction.

            Meanwhile, the Plaintiff provided absolutely no notice of the subpoena he has sought for Comcast, Inc.  However, upon information and belief it is almost certain that this filing is calculated to uncover Mr. Worthing’s true identity (the courthouse has not allowed Mr. Worthing to examine this subpoena to verify this) and therefore he was obligated to provide Mr. Worthing with such notice.  Instead, Mr. Worthing had to check the Maryland judicial website to learn about this subpoena.  As such, if the Plaintiff wishes to claim today that the subpoena is aimed at determining a different person’s identity, Mr. Worthing respectfully requests that the court require the Plaintiff to specify under oath whose identity he is seeking to discover by subpoenaing Comcast and for the Plaintiff to provide evidence tying this person to the alleged IP addresses as well as to meet the legal standards set out in this motion to quash and opposition.  See infra II.  Further, because Mr. Kimberlin is a convicted perjurer who has lied to the court in this case, this court should not credit any evidence that relies solely on his veracity.

However, if the Comcast subpoena is calculated to discover Mr. Worthing’s identity as he believes, this is yet another example of the dishonesty and bad faith the Plaintiff has shown in this case, justifying a motion to quash and further justifying dismissal of the underlying injunction.

II.

PLAINTIFF’S SUBPOENAS SHOULD BE QUASHED AND HIS MOTION TO COMPEL DENIED BECAUSE THE PLAINTIFF HAS FAILED TO ESTABLISH A SUBSTANTIAL RELATION BETWEEN THE INFORMATION SOUGHT AND AN OVERRIDING AND COMPELLING INTEREST.

            The Plaintiff relies solely on Independent Newspapers v. Brodie, 966 A.2d 432 (2009) as authority for the motion to compel and this subpoena, but that reliance is misplaced.  Brodie concerned discovery of one of the most basic facts in any litigation—the name of the defendant.  If a plaintiff cannot even discover the names of the defendants in a case, there can be, practically speaking, no case.  By contrast if this Plaintiff is denied the opportunity to obtain Mr. Worthing’s testimony, this case can go on.

            While no case appears to be precisely on point, this court should look to Lubin v. Agora, 882 A.2d 833 (M.D., 2005) for guidance, cited favorably by Brodie, 966 A.2d at 441.  This case involved an investigation into potential violations of Maryland securities law by a company (Agora, Inc.) which sent an allegedly unlawful email newsletter to an anonymous list of subscribers.  The Maryland Securities Commissioner sought enforcement of an administrative subpoena requiring Agora, Inc. to divulge the list of all such subscribers.  While the court based its reasoning on the right to anonymously receive written expression and the instant case involves the right to anonymously engage in written expression, this court should find that this is a difference without distinction and follow that decision.

            In Agora, the Maryland Court of Appeals held that “[i]n order to compel production of the subscriber information, the Commissioner must therefore establish a substantial relation between the information sought and an overriding and compelling State interest.”  882 A.2d at 846.  Likewise the Plaintiff in this case should be required to establish a substantial relationship between the information sought and an overriding and compelling interest.  The Agora court also made it clear that a benefit that is merely speculative is not sufficient to establish such a compelling interest.  See e.g. id. at 847 “no substantial nexus exists between the Commissioner's investigation into Agora's alleged unregistered brokerage activities and the indiscriminate demand for the identities of countless newsletter subscribers who possibly might have been offered such services” and “[t]he fact that the Commissioner might possibly ferret out additional instances of securities fraud by contacting essentially every subscriber to every Agora investment newsletter does not establish a sufficient nexus[.]”  See also Exhibit M, an email from Brett Kimberlin to Mr. Worthing describing Mr. Worthing as a “potential witness.”  Instead, this court should require the Plaintiff to show at the very least a strong likelihood that Mr. Worthing has access to discoverable evidence that cannot be obtained by any other means.

            The Plaintiff has failed to make this showing and therefore the motion to compel should be denied.  The communications Mr. Worthing has had with Mr. Allen fall into two broad categories: (1) one-on-one communication with Mr. Allen, generally by email, and (2) communications involving additional non-anonymous third parties as witnesses, always carried out in writing, either by email or by placing comments on a post at a blog.   The Plaintiff does not have a compelling interest in the first category of communications because they are protected by attorney-client privilege.  Meanwhile the Plaintiff does not have a compelling interest in obtaining Mr. Worthing’s true identity in regard to the second set of communications because (1) the communications speak for themselves (because they were in writing only), (2) are not relevant to this proceeding, and (3) have numerous non-anonymous witnesses.  Therefore the Plaintiff has no compelling interest in determining Mr. Worthing’s identity.

            Further, while Brodie is not wholly controlling, it does provide guidance on a secondary point.  In Brodie the Court laid out a five pronged test before divulging the identity of an anonymous internet writer in a suit where such writings were part of a cause of action for defamation against the anonymous defendants.  The first four prongs are procedural, are specific to seeking the name of the defendant in a civil case, and are relatively black and white in their application, while the fifth step requires a more amorphous balancing test:

if all else is satisfied, balance the anonymous poster's First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant's identity, prior to ordering disclosure.

This court should apply the same approach to these circumstances, and hold that even if the Plaintiff demonstrates a compelling need for this disclosure—which he cannot—that this need must be weighed against the impact on Mr. Worthing’s freedom of speech.  If Mr. Worthing’s true name is known, he may be exposed to retaliation for unpopular speech, discrimination due to the fact that his disabilities are exposed and even physical violence—the last of which the Plaintiff himself implicitly acknowledged in his motion to compel, stating in paragraph 4 that Mr. Worthing has “inflame[d] [the] hostilities of Muslim hardliners.”  As such, even if the Plaintiff shows that he has a compelling interest in Mr. Worthing’s testimony, his request to reveal his identity should be denied due to the burden it places on Mr. Worthing’s freedom of anonymous expression.

A.        Mr. Worthing’s Testimony About Any Private, One-On-One Communication With Mr. Allen Is Not Discoverable Because It Is Protected Under Attorney-Client Privilege.

As stated above, Mr. Worthing is an attorney.  If this court requires proof of this fact, he is willing to provide sufficient proof, ex parte and in camera, of the following:

1.      His real name.

2.      His status as an attorney in good standing in the bar in jurisdictions outside of Maryland.

3.      The fact that he has written as Aaron Worthing.

Mr. Worthing did not have any significant interaction with Mr. Allen before becoming involved in this case on or about August 22, 2011.  Mr. Worthing was asked to contact Mr. Allen because he needed legal help and Mr. Worthing publicly suggested that he email him.  He entered into an limited attorney-client relationship with Mr. Worthing at that time and every single one-on-one communication between Mr. Allen and Mr. Worthing has been in relation to this suit, discussing strategy and Mr. Worthing’s recommendations.  Accordingly every such communication is privileged.

B.        Plaintiff Has Failed to Make Any Factual Showing That “Aaron Worthing” Is Likely To Have Access To Relevant Non-Privileged Evidence That Cannot Be Obtained By Any Other Means.

            Having established that every communication Mr. Worthing has had with Mr. Allen one-on-one is covered by privilege, the Defendant has no compelling interest in obtaining Mr. Worthing’s testimony on the remaining communications because they have always had additional non-anonymous witnesses.  These fall into two broad categories: 1) emails in which the recipients included persons other than Mr. Worthing and Mr. Allen, and 2) publicly placed comments on blog posts.  Because each of these conversations were made in the virtual presence of third parties, they cannot be considered privileged even when Mr. Worthing was giving Mr. Allen legal advice.

            However, each and every one of these communications were in written form, and thus they speak for themselves.  This closely parallels the circumstances the court faced in Agora where the court stated that:

The question of whether the Email [newsletter] or other Agora advertisements and publications contain false or misleading statements may be resolved by examining the text of these communications; resolution of this question does not require a list of every person who received them.

Agora, 822 A.2d at 847.  Likewise, the Plaintiff doesn’t need Mr. Worthing’s help to interpret the statements in those emails or blog comments; they speak for themselves.  This is true whether the email or comment is generated by Mr. Worthing or Mr. Allen.

            The only conceivable value to Mr. Worthing’s testimony, then, is in authenticating the communications in question.  However, the Plaintiff has made no showing that it is necessary to reveal Mr. Worthing’s true identity in order to accomplish that goal.  First, in regards to every communication that appears to have been written by Mr. Allen, the Plaintiff does not even allege that Mr. Allen has denied authoring them.  Second, it is not necessary to authenticate any communication written by Mr. Worthing.  He is not a party to this case and therefore there is no need to establish with any certainty that he has actually authored any of the emails or comments at issue.  At this point, this case is about Mr. Allen’s compliance with the injunction of November 14, 2011, and as such this case is about his state of mind and his words and deeds when confronted by communications that were apparently written by Mr. Worthing, whether or not Mr. Worthing actually authored them.  This is not to say that this author believes that any person is going around impersonating Mr. Worthing on the web.  Instead, this author is merely saying that whether Mr. Worthing wrote any of those non-privileged communications is beside the point; it is Mr. Allen’s state of mind that matters, not Mr. Worthing’s.

            Further, Mr. Worthing is not capable of authenticating any of the comments left at Patterico’s Pontifications but his own.  At Patterico’s a person granted sufficient administrative privileges can look at any comment and see the email address that its writer gave and the IP address associated with it.  However, since leaving Mr. Frey’s blog, Mr. Worthing has naturally lost all administrative privileges and he can no longer view such information.  Thus if the Plaintiff wishes to prove that Mr. Allen submitted a specific comment on a given date or time, he will have to subpoena someone with those same administrative privileges, such as Mr. Frey himself.

            At the same time Mr. Worthing is not able to authenticate any comments left at Allergic to Bull but his own.  This is because of the difference in blog publishing software.  Patterico’s uses Wordpress, while Allergic to Bull uses Blogger.  While Wordpress will allow one to see information such as email address and IP address, Blogger provides far less information to the owners of its blogs making it impossible to verify that the “Socrates” who left several comments at Allergic to Bull is in fact Mr. Allen.  But if the Plaintiff considers any of the comments left at Allergic to Bull to be actionable or relevant, the Plaintiff can obtain authentication from other sources.  The Plaintiff can try asking Mr. Allen, for instance; he might just own up to all of them.  Or failing that, the Plaintiff can subpoena Blogger for information identifying the “Socrates” who appeared at Allergic to Bull, without revealing Mr. Worthing’s identity.  The same would apply to any comments filtered or deleted at that site; Blogger can confirm the contents of any such posts including any information available about the identity of the author, without identifying Mr. Worthing’s true identity.

            Additionally, in relation to the emails that were simultaneously received by other persons, the Plaintiff has not shown that other, non-anonymous witnesses are unavailable to testify.  Upon information and belief, the Plaintiff has not properly subpoenaed John Patrick Frey or Mandy Nagy, for instance, and he makes no mention in his motion of a subpoena of Andrew Breitbart.

            Finally, he has made no showing that the emails or comments on blog posts are even relevant to the case.  For the most part, those emails that are not privileged deal with the mundane tasks of trying to obtain local counsel for Mr. Allen, and recommending that he take this court case seriously.  The same can be said for the public conversations that occurred in the comments at various blogs.  In one, Mr. Allen announced he had obtained “victory” in this suit and Mr. Worthing asked him a few basic questions about it (he was referring to the small award of damages as a “victory,” it turns out).  See Exhibit I.  In another thread, Mr. Worthing merely told him that he should diligently pay the damages awarded, even if they were nominal and a person posting under one of Mr. Allan’s known aliases agreed.  Exhibit H.  In another, he gave him some mild verbal encouragement.  Exhibit J.  And so on.  These comments and emails speak for themselves and ultimately don’t say very much.

            The only communications of any potential relevance relate to his statement that “maybe I should murder [Kimberlin].”  But upon information and belief, Mr. Kimberlin declared that this issue was not part of his case on November 14, so he cannot suddenly pretend that this is indeed part of the case now.  Further, since the court is presently only concerned with Mr. Allen’s compliance with the November 14, 2011 injunction, any words or conduct before that date are irrelevant.

            Therefore there is not one single communication that is discoverable and relevant.  In any case since these written communications speak for themselves, the only value in Mr. Worthing’s testimony is in authenticating such communications.  To the extent that any authentication is needed, it can be accomplished without revealing Mr. Worthing’s true identity.  Therefore the Plaintiff has failed to demonstrate a compelling need for Mr. Worthing’s testimony sufficient to overcome Mr. Worthing’s right of anonymous expression.

C.        Plaintiff has Failed to Make Any Factual Showing That “Aaron Worthing” Has Conspired Against Him.

            The Plaintiff attempts to side-step these fatal flaws in his motion to compel by making a specious and unhinged claim that Mr. Worthing is involved in some kind of conspiracy to defame him—as though Mr. Allen ever needed any help to speak out about the Plaintiff or anyone else.  In making this claim, the Plaintiff has only made a conclusory allegation; he has made no attempt to allege that Mr. Worthing’s conduct meets any of the elements of such a claim.  “A conclusory pleading will never be sufficient[.]”  the Brodie court warned, 966 A.2d at 451 (quoting from Columbia Insurance Company v. seescandy.com, 185 F.R.D. 573 (N.D.Cal.1999)).  And that is precisely what we have in this case.

            Indeed his conclusory allegations of conspiracy become curiously uncertain in a critical part of his motion.  In paragraph 2, he states with certainty that “Mr. Worthing has been conspiring with Defendant Seth Allen to defame Plaintiff for over a year[.]”  We have already addressed the fact that this claim is false and accordingly has no basis in evidence.  In paragraph 10, he states with equal certainty that Mr. Worthing “has been conspiring with, advising, and aiding abetting [sic] Mr. Allen for over a year regarding Mr. Allen’s defamation, harassment, and stalking of Plaintiff.”  And yet when it comes to alleging that Mr. Worthing conspired with Mr. Allen to engage in conduct that constitutes contempt of court, the Plaintiff becomes suddenly unsure, writing in paragraph 8 that Mr. Worthing “may be a conspirator and aider and abettor of Mr. Allen’s intentional torts and contemptuous conduct.”  (Emphasis added.)  If the Plaintiff is uncertain of his allegations, why should the court consider them to be so compelling as to overwhelm Mr. Worthing’s right of anonymous internet speech?

            And that assumes that the Plaintiff even made out a prima facie case that Mr. Worthing has engaged in such conduct as required by Brodie and Agora.  He has not, and Mr. Worthing respectfully requests that this court require the Plaintiff’s to provide evidence of each element of a conspiracy claim.  Further, Mr. Worthing respectfully reminds the court that as a convicted perjurer and as a person who has lied to this court, this court should discount every piece of evidence that relies on Mr. Kimberlin’s personal veracity.

D. Plaintiff’s Motion to Compel Should Be Denied Because the Balance of Interests Clearly Favor Preserving the Anonymity of Mr. Worthing.

Finally, the subpoenas should be quashed, Plaintiff’s motion to compel should be denied and a protective order should be granted when the Plaintiff’s need for this information is balanced against Mr. Worthing’s right of anonymous free speech.  If Mr. Worthing’s identity is revealed, he might be subject to violence and workplace discrimination due to his disabilities or simply because he holds an unpopular view.  By contrast, the Plaintiff is not likely to derive any benefit from Mr. Worthing’s testimony that could not be obtained without piercing Mr. Worthing’s anonymity.  The balance of interests plainly favor the protection of Mr. Worthing’s anonymity.

A.        The Plaintiff’s Interest in Mr. Worthing’s Identity is at Best Ancillary.

As noted earlier, one of the chief differences between this case and Brodie is that Mr. Worthing is not a party to this suit.  And contrary to the Plaintiff’s hyperbolic claims, what the Plaintiffs’ claims really comes down to is that Mr. Worthing provided a man under threat of suit with a little pro bono legal help.  And in line with the principle that no good deed goes unpunished, this convicted bomber and perjurer believes that this gives him an excuse to learn Mr. Worthing’s true identity.

The Plaintiff in this case has made numerous false allegations, numerous allegations without sufficient basis in fact, and indeed has claimed to know facts that he could not possibly know, such as whether Mr. Worthing has read every blog post that Mr. Allen has written.  Those facts, taken together, demonstrate that this is not the case of a Plaintiff who has an “overriding and compelling interest” in the testimony of Mr. Worthing justifying a breach of his right to anonymous expression as required by Agora.

Indeed, his own conduct betrays how little value he placed on any potential testimony by Mr. Worthing.  As noted before, despite the fact that Mr. Worthing was the recipient of the August 23, 2011, email in which Mr. Allen stated he was considering murdering the Plaintiff, the Plaintiff didn’t attempt to contact Mr. Worthing directly before the Peace Order was issued on October 13, 2011.  And despite his conclusory allegation that Mr. Worthing definitely conspired with Mr. Allen to defame the Plaintiff, he didn’t make any attempt to contact Mr. Worthing directly before the November 14, 2011 hearing.  And yet when alleging that Mr. Allen is in contempt of court and uncertainly stating that Mr. Worthing “may be a conspirator and aider and abettor of Mr. Allen’s intentional torts and contemptuous conduct” (emphasis added), he decides suddenly that Mr. Worthing’s testimony is critical.  The Plaintiff has made it this far in his case against Mr. Allen without Mr. Worthing’s testimony and he has failed to present any reason why he has such a critical need for his testimony, now, when he clearly did not before.

B.        Revealing “Aaron Worthing’s” True Identity Might Expose Him to Violence and Discrimination

As the Plaintiff himself stated, the blog entitled  [redacted] was “designed to inflame hostilities of Muslim hardliners[.]”  Every citizen who has been minimally aware of world events knows how dangerous these hardliners can be, when offended.  Salman Rushdie had to go into hiding for years in fear for his life after the Ayatollah Khomeini put out a fatwa declaring that Mr. Rushdie should be murdered for writing The Satanic Verses.  Dutch filmmaker Theo Van Gogh was murdered for making a film critical of how Muslims treated women.  And Molly Norris, who first suggested an Everybody Draw Mohammed Day is today in hiding in fear for her life.  Fefer, Mark D., On the Advice of the FBI, Cartoonist Molly Norris Disappears from View, Seattle Weekly (September 15, 2010) attached as Exhibit JJ.  Indeed, it is reasonable to say that Mr. Worthing is himself in hiding much the same way Ms. Norris is, using his pseudonym to prevent others from determining his true identity.

Secondary to that concern is the simple fact that revealing his true identity might expose him to discrimination.  As Mr. Worthing wrote in his very first post at Allergic to Bull:

I have three learning disabilities.  In fact, that is why I write this blog anonymously.  I don’t usually tell my employers about my disabilities.  But I wanted to write freely here about those experiences.  So I post anonymously so I can speak more freely to you.

Mr. Worthing’s belief in his right to anonymous speech has indeed allowed him to speak more freely to world at large.  Exhibit B, for instance, is a print out of a post at Patterico’s Pontifications in which he made a conservative case for laws protecting disabled persons from discrimination.  Exhibit A is a print-out of a post in which he discussed his own experiences with discrimination at the hands of the Law School Admissions Council.  Mr. Worthing would not have written those posts if he did not believe the courts would vindicate his right to anonymous speech.  As it stands today, if Mr. Worthing’s true identity is revealed, it will have the effect of telling the entire world that he has these disabilities.  The question this court must ask is whether the speech he has engaged in is that which should be protected—and whether any persons like Mr. Worthing should have their voices chilled, silenced by the fear of being exposed to retaliation.

C.        The Disclosure of “Aaron Worthing’s” Identity Might Expose His Wife to Violence and Other Harms

Further, whatever justification there is for visiting those risks upon Mr. Worthing simply do not apply to his wife.  She has not consented to face the danger that “Muslim hardliners” might choose to suicide bomb their house.  Nor has she consented to the risk of financial hardship should Mr. Worthing lose his job due to disability discrimination or simply because he wrote something unpopular.  She has not even committed the “sin” of helping Mr. Allen with a legal problem.

How many people, being willing to risk their own lives or finances, would pause when considering the risk to their husbands, wives, partners, or families?  It is indeed Mrs. Worthing’s lack of consent that was critical to Mr. Worthing’s decision to remain anonymous in relation to the  [redacted] movement, even while understanding intellectually that the most powerful act of defiance was to identify oneself as he or she participated.

Mrs. Worthing should not be exposed to this danger without at least a strong showing that it is necessary to obtain testimony that has a high likelihood of providing relevant discoverable information.  The Plaintiff, in this “fishing expedition,” Agora, 882 A.2d at 839, has failed to make that showing.

Conclusion

WHEREFORE the Mr. Worthing requests that the court (1) dismiss the underlying injunction in this case either because it was obtained by deceit, or because Mr. Kimberlin’s hands are not clean, (2) quash any and all subpoenas calculated to discover Mr. Worthing’s true identity, or personal information, (3) dismiss any motion to compel by the Plaintiff calculated to reveal Mr. Worthing’s true identity, or personal information, (4) grant Mr. Worthing’s motion for a protective order preventing Google.com or Blogger from revealing Mr. Worthing’s identity or personal information and preventing Mr. Kimberlin from seeking any other discovery calculated to reveal such information and (5) grant any other relief that is appropriate.

Mr. Worthing also requests that this court refer Mr. Kimberlin’s conduct to the appropriate authorities to determine if he has committed perjury.

[Signature line omitted.]

--------------------------

So there you have it.  I hope you enjoyed it.

--------------------------

Follow me at Twitter @aaronworthing, mostly for snark and site updates.

---

[1] For the benefit of the court each “blog,” short for weblog, is composed of a series of posts which discuss various topics, sharing facts, opinion and analysis.  Then, with all of the blogs relevant to this motion, the post allows a broad swath of the public to compose and attach “comments” to each post, allowing for praise, criticism and even off-topic remarks.  Regular commenters often even communicate, in public, in this fashion.  For more discussion of how such features of the internet work, see Independent Newspapers v. Brodie, 966 A.2d 432 (2009), especially starting at 437.