Case 8:13-cv-03059-GJH Document 345 Filed 02/12/16 Page 1 of 2

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UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
BRETT KIMBERLIN,
Plaintiff,

I "

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v.

No. GJH 13-3059

PATRICK FREY,
Defendant.

PLAINTIFF'S SUPPLEMENTAL RESPONSE TO LOS ANGELES COUNTY AND

DEFENDANT FREY'S MOTIONS TO QUASH SUBPOENA
Now comes Plaintiff Brett Kimberlin and files a supplemental

response

to non-

party Los Angeles County and Defendant Frey's motions to quash the LA County
subpoena

duces tecum. In a prior response, Plaintiff advised the Court that LA

County had agreed with Plaintiff to narrow the scope of the subpoena,
agreement

but after that

was reached, LA County notified Plaintiff that it would not comply other

than providing him with a copy of the County's "Social Media Policy." Exhibit A.
Today Plaintiff has filed a Reply to Los Angeles County's opposition

to his Motion

to Amend. He attached more than a dozen emails that implicate Los Angeles County
and Defendant Frey's supervisor,

Anne Ingalls, in the scheme to retaliate against

Plaintiff for filing complaints against Defendant Frey. These underscore

Plaintiff needs the discovery he requested

why

from LA County. It will support Plaintiffs

claims in this case.

Moreover, LA County states that it will not provide any information
complaints or disciplinary

about other

actions involving Defendant Frey, which is clearly

relevant to the instant case. Plaintiff is aware of at least four official complaints
against Defendant Frey by Bill Schmalfeldt, Neal Rauhauser, Nadia Naffe and

filed

Case 8:13-cv-03059-GJH Document 345 Filed 02/12/16 Page 2 of 2

Plaintiff. Clearly, these show a pattern of unethical and rogue behavior by

Defendant Frey, which is important

to show that he acted intentionally

in the instant

case.
Plaintiff believes that there have been other complaints
Attorney's

made to the District

Office against Defendant Frey because of his defamatory

smears against

various people on his blog. Yet without discovery about how these complaints were
handled, Plaintiff can only conclude that LA County determined
condoned

Defendant Frey's false narratives

that it approved and

and that his smears constitute

the "best

practices" and "good judgment" as set forth in their August 15, 2013 Social Media
Policy, attached.
Wherefore,
subpoena

Plaintiff moves this Court to deny the motions to quash the LA County

and order LA County to produce the requested

documents.

Respectfully submitted,
Brett Ki~
in ~
8100 Beech T
Rd
Bethesda,
20817
j\l51ig!jtmp~mmc<!sJ,!leJ
(301) 320 5921

CERTIFICATE OF SERVICE
I certify that I served a copy of this motion on attorneys
on attorneys

for LA County this 12th day of February, 2016.

for Defendant Frey and

Case 8:13-cv-03059-GJH Document 345-1 Filed 02/12/16 Page 1 of 6

SPECIAL DIRECTIVE

13-03

TO:

ALL DISTRICT ATTORNEY PERSONNEL

FROM:

SHARON J. MATSUMOTO~
Chief Deputy District Attorney'

SUBJECT:

SOCIAL MEDIA POLICY

DATE:

AUGUST 15,2013

This Special Directive supercedes Special Directive 12-03.

Technology has fundamentally changed the way we do our jobs and live our lives. Flip charts,
cardboard boxes, and paper subpoenas have given way to PowerPoint, flash drives, and
e-subpoenas. Deputies now carry mobile electronic devices with them at all times which can be
used to contact witnesses, prepare exhibits, and access the internet in WiFi-enabled courtrooms.
These devices are ollen used for dual purposes-business
and personal. This overlap has been
increasing as technology continues to blur the line between the professional and private lives of
deputies, at times compromising the security, privacy, and reputation of the individuals and
institutions that make up the criminal justice system. It is this phenomenon that gives rise to the
need for a clear and concise office policy on the use of the internet and social media among
District Attorney employees.
The attached policy covers all use of social media sites or other means of electronic
dissemination of information, including, but not limited to: posting by an individual user on an
internet site; blogging; posting comments, photos, links to any website; and posting status
updates, comments, or any sharing on social media sites. See Glossary of related terms.
This policy provides both standards and guidelines to District Attorney employees, whether or
not employees are posting under their own names or anonymously. Where no specific policy
exists, employees should exercise good judgment and, if necessary, consult with their supervisor.
Deputy District Attorneys may also consult with the Professional Responsibility Committee.
In summary, employees should use good judgment in the use of social media, whether at work or
at home. By following these simple guidelines, employees will protect the integrity ofthe office
and the criminal justice system as well as their own personal and professional reputation.

mb
Attachment

Case 8:13-cv-03059-GJH Document 345-1 Filed 02/12/16 Page 2 of 6

Los Angeles County District Attorney

Internet and Social Media Policy

I.

Internet

Use

Prior to logging onto the County Internet, all District Attorney employees must click on
an acknowledgment, certif'ying that they will comply with the County's Internet policy,
which states: "County information technology resources, including Internet access, are
established 10 be used/or County business purposes." (Board of Supervisors Policy
(BOSP) #6.105 (emphasis added); See also BOSP #6.101, PPH 7.05.00-7.05.01.) Use of
County internet and computers to post on social media sites or for any other private use is
inconsistent with the intent behind the above policies. Note that internet usage is
monitored and logged.
II.

Use of Social Media Sites

District Attorney employees should be mindful that they are personally responsible for
the contcnt they publish on any form of user-generated social media. Although it may
appear that posting on a social media site will remain private, far too often a post is
transmitted beyond its original, intended audience. The following policies should be
adhered to when using social media.
A. Be conscious of your online identity.
District Attorney employees are free to express opinions as individuals on matters
of public interest. This includes posting an opinion on a social media site.
However, ifan employee has identified himself or herself as a member of the
District Attorney's Office on a matter related to the Office, the employee must
include a statement that they are speaking as an individual. (See PPH 7.16.00.)
District Attorney employees may not use official badges, identification, business
cards or other items bearing the seals of Los Angeles County or the District
Attorney's Office for purposes other than the employees' official duties. (See
PPH 7.04.00; LPM 26.10.02.) This includes the use of these images and symbols
on any social networking sites.
District Attorney employees should be aware that "friending" or "following"
witnesses, bench officers, victims or jurors may violate ethical rules. (See CA
Rules of Prof. Conduct, Rules 2-100, 5-300(B) & (C) (ex parte contact with
judges); CA Rules of Prof. Conduct, Rules 5-320(A), (B), and (C) (contact with
jurors); LPM 26.08.)

Case 8:13-cv-03059-GJH Document 345-1 Filed 02/12/16 Page 3 of 6

B. Bc respectful.
District Attorney employees are required to maintain respect for courts of justice
and judicial officers, even when posting on social media sites. (Bus. & Prof.
Code 6068(b).) District Attorney employees must also take care when posting
comments about other parties in the criminal justice system, including defense
attorneys, bench officers and law enforcement agencies. District Attorney
employees must treat witnesses and parties with courtesy and respect, evcn during
non-working hours. (See PPH 7.15.00; Bus. & Prof. Code 6068(b); LPM 24.01;
See also PPH 13.05.00, 8.00.00.)
Starting in July of2011, every employee was required to complete the Los
Angeles County Policy of Equity which prohibits "discrimination, unlawful
harassment, retaliation, and inappropriate conduct toward others based on a
protected status in the work place or in other work-related settings." Postings to
blogs, websites, etc., under certain circumstances, may constitute a violation of
the Policy of Equity and may subject the cmployee to discipline. All District
Attorney employees are bound by the Policy of Equity. (See Personnel Policies
Memorandum I 1-04.)
C.

Keep confidential information confidential.

District Attorney employees may not reveal confidential information, including
information regarding any criminal case or law enforcement investigation on
either closed or open cases on any social media site or by mass dissemination via
any means of electronic distribution (e.g., Twitter). (PPH 7.12.00, Bus. & Prof.
Code section 6068(e).)
Caution should be exercised when using WiFi without an office-issued VPN
(Virtual Private Network) at a library, coffee shop, or even in the courthouse.
These networks may not be secure and your information could be subject to
interception.
Digital communication (e-mail, text messages, etc.) between employees and
witnesses, including victims and investigators, is always retrievable and may be
subject to discovery through Penal Code section 1054 et seq. and/or a Public
Records Act request. Such communication should be limited to matters
concerning scheduling and other logistics, rather than substantive, case-related
conversations. (See GOM 11-053.)

D.

Remember rules regarding pretrial publicity.

District Attorney employees arc obligated to follow State Bar rules regarding
pretrial publicity when posting on social media sites. (See CA Rules of Prof.
Conduct, Rule 5-120; Media Relations Policy; LPM 25.03; See also PPH

Case 8:13-cv-03059-GJH Document 345-1 Filed 02/12/16 Page 4 of 6

13.05.00,8.00.00
Prof. Conduct].)

[employees may be disciplined for not complying with Rules of

District Attorney employees subject to a "gag order" from the court may not post
anything regarding that specific case on the internet while the order is in effect.
Failure to adhere to the provisions of the "gag order" may lead to sanctions by the
court and discipline by the District Attorney's Office. Note that gag orders
typically extend to all employees of the District Attorney's Office.
E.

Deputies must investigate ethically.

Social media sites may provide valuable information to deputy district attorneys
during the investigation or pendency of their cases. However, deputies must not
violate ethical standards in their use of social media for investigative purposes.
Deputies are not permitted to use a ruse or false profile to "friend" a potential
defense witness, defendant, or juror. (See the Sixth and Fourth Amendments of
the United States Constitution; San Diego County Bar Assoc. Legal Ethics
Opinion 2011-2 [interpreting California Rule of Professional Conduct 2-100];
Office of Lawyer Regulation v. Hurley (2111/2009) 2007 AP4 78-D (Supreme
Court of Wisconsin); In the Maller of Poulter (Colo. 2002) 47 P.3d 1175 [DDA
impersonating a deputy public defender]; NY State Bar Assoc. Comm. on
Professional Ethics 402 (1975).)

Ill.

Social Media Best Practices

Following are suggested best practices for use of social media sites by District Anorney
employees:

Ensure that your privacy settings are as restrictive as possible. Review these
settings regularly, as social media sites are continuously evolving their user
account default security settings.

Enable HTIPS (Hypertext Transfer Protocol Secure). HTIPS provides

authentication between the web site and the web server and encryption of
communications. Activating HTIPS is one of the best things you can do to
enable secure browsing and minimize your account from being compromised.
Most social media sites and major personal e-mail services have a setting under
Account Security/Secure Browsing.

For your security, be careful when identifYing yourself as a District Attorney

employee on a social networking site.

Regularly screen postings to your blog or social media site to make sure that
there are no postings that would cause embarrassment to you or anyone else,
including co-workers, or put you in danger.

Case 8:13-cv-03059-GJH Document 345-1 Filed 02/12/16 Page 5 of 6

Always consider the possibility that information posted on the intemet may
become accessible to unintended viewers.

Remember that members of the defense and media increasingly use the internet
to investigate the personal lives of adverse parties and witnesses, including
prosecuting attorneys.

All employees should assume their speech and related activities on social media
sites will reflect upon this office. Do not post anything on the internet that you
would not want to read on the front page of the newspaper under your byline.

Content posted on the internet is public and permanent.

Use common sense before posting information about promotional exams,

transfers, personnel issues, and other office-related subjects.

When in doubt, seek guidance from your supervisor or the Professional

Responsibility Committee.

Case 8:13-cv-03059-GJH Document 345-1 Filed 02/12/16 Page 6 of 6

Glossary

B10g - Website where entries are commonly displayed in reverse chronological order. "Blog"
can also be used as a verb, meaning to maintain or add content to a blog.
Facebook - A social networking website where users can add "friends" and send them
messages and update their personal profiles to notify friends about themselves. (Sec "Friend"
below.)
Follow/Following - A term used on "Twitter" when following the "tweet" or message ofthe
user. (See "Twitter" below.)
Friend/Friending

- The term used when adding an associate on Facebook to your network.

Like - A term used on Facebook to give positive feedback or to connect with content you
endorse. You can "like" content that your friends post or pages that you want to connect with
on Faccbook.
Online Identity - An online identity or persona is a social identity that an internet user
establishes in online communities and websitcs.
Social Bookmarks
pages.

- A method for internet users to store, search, organize and share web

Social Media - The tool set (including blogs) which people can use to publish content to the
web. This can include audio, video, photos, texts, files, etc.
Social Networking - A term for the tools and platforms used to publish, converse and share
content online. The tools include blogs, "wikis," podcasts, and sites to share photos and
bookmarks.
Twitter - Twitter is a social networking and microblogging service that enables its users to
send and read messages known as "Tweets." Tweets are text-based posts of up to 140
characters displayed on the author's profile page. They are visible to the public and also
delivered to the author's subscribers who are known as "followers."
Virtual Private Network (VPN) - Allows a private network, such as Lotus Notes or
LADAnet, to be remotely connected over the internet. VPNs allow only authenticated remote
access and use encryption to provide security.
Wikis - A website developed collaboratively
add or edit content.

by a community of users, allowing any user to