Brett Kimberlin,

Plaintiff,

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MARYLAND
SOUTHERN DIVISION

v.

Case No. 13-CV-03059-GJH

Patrick Frey,
Defendant.

WILLIAM HOGES MOTION TO STRIKE PLAINTIFFS SUPPLEMENTAL

RESPONSE (ECF NO. 332)

COMES NOW William Hoge and moves this Court to strike Plaintiffs Supplemental
Response to William Hoges Objection to Sealed Motion, ECF 319 (ECF No. 332) pursuant
to L.R. 105.2(a). In support of his motion Mr. Hoge states as follows:

PLAINTIFFS SUPPLEMENTAL RESPONSE IS AN IMPROPER SURREPLY

The Court has received Mr. Hoges Objection and Motion relating to the Plaintiffs
improperly sealed filing (ECF No. 320). Plaintiff responded (ECF No. 323), and Mr. Hoge
has replied to Plaintiff (ECF No. 328). The matter is fully briefed, yet Plaintiff has now
filed a poorly disguised surreply without seeking the Courts leave. L.R. 105.2(a) clearly
states that [u]nless otherwise ordered by the Court, surreply memoranda are not
permitted to be filed. The Court should enforce its Rule and strike Plaintiffs
Supplemental Response (ECF No. 332).
1

Alternatively, the Court may consider Plaintiff Supplemental Response to be what

it claims to be, a supplement to Plaintiffs previous response to Mr. Hoges Objection and
Motion. If that be the case, ECF No. 332 should be stricken for Plaintiffs failure to follow
the Courts usual practice of seeking leave to file such a supplement as, for example,
Defendant Twitchy did in this case when it was styled Kimberlin v. National Bloggers
Club, et al. Miscellaneous Correspondence, Apr. 17, 2014, ECF No. 120. Also see, e.g.,
Randolph v. PowerComm Construction, Inc., Case No. 13-CV-1696-GJH, Memorandum
Opinion, n. 12 (D.Md. Aug. 21, 2015).

PLAINTIFFS SUPPLEMENTAL RESPONSE ACTUALLY SUPPORTS MR. HOGES MOTION

If the Court were to make exceptions to both Rules and thereby fail to strike ECF
No. 332, it should take careful notice of the spreadsheet that Plaintiff has attached to his
motion. It appears to be a list of discovery materials obtained from Mr. Frey. To the
extent that the spreadsheet might be a true and correct list of emails obtained from Mr.
Frey that were not found by Mr. Hoge, it demonstrates the duplicative nature of Plaintiffs
subpoena to Mr. Hoge, thus reinforcing Mr. Hoges argument that Plaintiff must be
sanctioned pursuant to Rule 45(d)(1).
Moreover, the fact that Mr. Frey might have kept emails which Mr. Hoge has not
shouldnt be a surprise to Plaintiff. He might remember from the discovery process in his

previous lawsuit against Mr. Hoge, Kimberlin v. Walker, et al. Case No. 380966 V (Md.
Cir.Ct. Mont. Co. 2014), that Mr. Hoge does not keep most emails longer than six months.
Because of the very high volume of email he receives (about 100,000 per year), Mr. Hoge
does not retain emails on his online server for more than seven days. At that point, they
are downloaded to an onsite server and deleted online. Junk email and mail with only
transient value is deleted immediately. Any emails that are specifically saved after being
read are maintained, but emails which are not specifically saved are not kept for longer
than six months. As a result of that policy, Mr. Hoge had not kept any emails to or from
Mr. Frey sent or received prior to August, 2013, when privileged communications began in
expectation of litigation from Plaintiff.
Additionally, Plaintiffs subpoena sought [a]ll communications between you and
Patrick Frey concerning Brett Kimberlin from May 2012 through May 2104[.] Subpoena
to Mr. Hoge, Sept. 17, 2015, ECF No. 308-1 at 2. Emphasis added. Communications
between Messrs. Frey and Hoge would be messages originated by one of them and
addressed to the other. That would not include messages originated by third parties .
That also would not include messages sent by one but not the other to third parties where
either Mr. Hoge or Mr. Frey were sent copies. Thus, Mr. Hoge believes that messages
originated by or sent to third parties are not subject to the subpoena unless the fall under
the demand for [a]ll communications with any other person during that time frame
regarding those alleged swatting. Id.

If there is a smoking gun revealed in Plaintiffs Supplemental Response, the

Plaintiff is the one holding it, and Plaintiffs evidence, such as it is, demonstrates the
duplicative nature of his subpoena to Mr. Hoge. While Plaintiffs Supplemental Response
is supportive of Mr. Hoges motion for sanctions against Plaintiff, Mr. Hoge believes the
Court should strike the Supplemental Response as improper.

PRAYER FOR RELIEF

WHEREFORE, Mr. Hoge asks the Court to STRIKE Plaintiffs Supplemental Response
(ECF No. 332) pursuant to L.R. 105.2(1) and/or Fed. R. Civ. P. 15(d) and for such other
relief as the Court may find just and proper.

Date: 19 January, 2016

Respectfully submitted,

William John Joseph Hoge, pro se

20 Ridge Road
Westminster, Maryland 21157
(410) 596-2854
himself @wjjhoge.com

CERTIFICATE OF SERVICE
I certify that on the 19th day of January, 2016, I served a copy of the foregoing on
Brett Kimberlin via First Class U. S. Mail to 8100 Beech Tree Road, Bethesda, Maryland
20817, and on counsel for Patrick Frey via email by permission.

William John Joseph Hoge

VERIFICATION
I certify that all the foregoing is true and correct to the best of my knowledge and
belief.

William John Joseph Hoge