IN THE UNITED STATES DISTRICT FOR THE

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

JASON LEE VAN DYKE, §

§

Plaintiff, §

§

v. § Case No. 1:20-MC-657-LY

§ 

THOMAS CHRISTOPHER §

RETZLAFF, a/k/a DEAN §

ANDERSON, d/b/a BV FILES, VIA §

FILES, L.L.C., and VIAVIEW §

FILES, §

§

Defendant. §

UNITED STATES’ AMENDED1 MOTION TO QUASH SUBPOENA OF 

FBI WITNESS JAMES MCGIBNEY AND MOTION TO TRANSFER

Nonparty United States moves to quash a subpoena for documents and deposition 

testimony of James McGibney in a civil defamation case pending before Judge Mazzant in the 

Eastern District of Texas (the Subpoena) and to transfer the motions to quash to that court. See 

Dkt. 1; Van Dyke v. Retzlaff, Case No. 4:18-CV-247ALM, ECF No. 182 (E.D. Tex. June 18, 

2020) (EDTX Case). McGibney is participating as a witness with the Federal Bureau of 

Investigation in an ongoing criminal investigation of Thomas Retzlaff, the defendant in the civil 

suit. Retzlaff now attempts to use this defamation case to subpoena information related to his 

own criminal investigation—information that is protected by the criminal investigation privilege 

and entirely irrelevant to the defamation suit. 

Both parties in the defamation suit have pursued information about criminal 

investigations by filing “notices” of subpoenas on ECF in the EDTX Case. See, e.g., id. at ECF 

Nos. 178, 182. While the defendant, Retzlaff filed the Subpoena to McGibney at issue here, the 

plaintiff, Jason Van Dyke, filed a subpoena directed to Paul Johnson, the district attorney of 

 1 This Amended Motion corrects and amends the original, Dkt. 3, and provides for service 

of a pro se party to McGibney’s Motion to Quash, Dkt. 1.

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Denton County. Johnson filed a motion to quash his subpoena on the grounds of the law 

enforcement privilege, and Judge Mazzant granted the motion. Id. at ECF Nos. 174, 180. 

Similarly, here, the United States moves for an order quashing the Subpoena as to McGibney and 

instructing McGibney not to disclose information protected by the law enforcement privilege. 

The United States’ motion is supported by the Declaration of FBI Special Agent Walker 

Wicevich, attached hereto as Exhibit 1. 

Because the notice indicates that McGibney’s deposition is to take place in Austin, Texas 

on June 23, 2020, the United States moves to quash the subpoena in this forum as required by 

Federal Rule of Civil Procedure 45.2 McGibney has filed his own Motion to Quash in this forum, 

Dkt. 1, and plaintiff Van Dyke has filed a brief in support, Dkt. 2. These motions are now ripe for 

transfer. According to Federal Rule of Civil Procedure 45(f), the Court may transfer a motion to 

quash where the subject of the motion consents, or where the court finds exceptional 

circumstances. Here, there are both. The United States has conferred with Mr. McGibney, who 

would prefer that the motion be adjudicated in EDTX. And the Court may determine that the 

complexity and history of this matter, as set forth below, presents exceptional circumstances such 

that transfer to Judge Mazzant in EDTX where the underlying case is pending is appropriate. 

BACKGROUND

The underlying lawsuit is part of an ongoing personal feud between Van Dyke and 

Retzlaff. Van Dyke’s claims revolve around allegedly harassing, false, and defamatory 

statements and publications allegedly made by Retzlaff about Van Dyke. Van Dyke v. Retzlaff, 

Case No. 4:18-CV-247-ALM, ECF No. 113 (E.D. Tex. June 18, 2020). 

Van Dyke alleges that on or around December 20, 2017, Retzlaff filed a frivolous 

grievance against him with the State Bar of Texas. Id. Van Dyke states that on or around March 

8, 2018, the website “BV Files” located on www.viaviewfiles.net (BV Files) publicly posted 

 2 While the notice lists June 23, 2020 (the date of the instant filing) for the deposition, the 

United States has conferred with counsel for Retzlaff and understands that no logistics have been 

arranged for the deposition to take place today. 

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confidential information. Id. Van Dyke alleges Retzlaff received this information in a letter from 

the Board of Disciplinary Appeals (BODA) regarding Van Dyke’s bar grievance. Id. Van Dyke 

also alleges that Retzlaff posted content on BV Files accusing Van Dyke of being a Nazi, white 

supremacist, pedophile, drug addict, having a criminal record involving abusing women, and that 

he was involved in revenge pornography and unwanted sexual solicitations. Id. Van Dyke alleges 

Retzlaff emailed his employers at Karlseng, Leblanc & Rich, LLC, claiming Van Dyke was a 

Nazi, a white supremacist, and that he had a criminal record involving abuse of women. Van 

Dyke alleges his employer subsequently terminated his position because of Retzlaff’s emails. Id. 

Van Dyke alleges that Retzlaff and BV Files frequently target attorneys and other individuals 

who have previously assisted victims of revenge pornography, including the target of this 

subpoena, James McGibney. Id. Retzlaff, in turn, denies the claims and alleges Van Dyke plotted 

to assassinate him. Id. at ECF No. 139. Neither Van Dyke’s claims nor Retzlaff’s defenses allege 

that James McGibney is involved in any way in the civil suit.3 

The FBI has an independent ongoing criminal investigation against Retzlaff involving 

allegations of computer-related crimes, including cyberstalking and online harassment. Ex. 1, 

Wicevich Decl. ¶ 2. McGibney is a cooperating FBI witness in the ongoing criminal 

investigation. Id. ¶ 3. The communications, information and materials exchanged between 

McGibney and the FBI, requested by this subpoena, relate to criminal investigations against 

Retzlaff and others. Id. ¶ 4. The FBI’s ongoing investigation of Retzlaff includes 

communication, information and materials exchanged between McGibney and various state law 

enforcement agencies. Id. The communications and materials exchanged between McGibney 

and the FBI include a host of nonpublic information about the FBI’s activities related to Retzlaff 

and other individuals. Id. ¶ 5. The FBI indicates that disclosure would jeopardize FBI 

investigations into Retzlaff and others, and assist in evasion, by providing insight into law 

enforcement activities; how the investigations are being conducted and by whom; what 

information the FBI has in relation to the investigations; the techniques being used to gather the 

 3 Retzlaff and McGibney were involved in a separate, unrelated civil lawsuit in Tarrant County, Texas. See McGibney 

v. Thomas Retzlaff, Cause No. 067-270669-14. 

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information; the identities and personal information concerning sources, witnesses, victims, and 

law enforcement agents; and more. Id. ¶ 5. And disclosure would subject the individuals 

identified in the materials to potential harassment and reprisal, and hinder the FBI’s 

investigations. Id. ¶ 6. 

On June 12, 2018, the FBI executed a search warrant at Retzlaff’s residence in El 

Mirage, Arizona. Id. ¶ 7. While executing the search warrant, the FBI seized numerous pieces of 

evidence including a computer. Retzlaff was present while the FBI searched his residence. 

During execution of the search warrant, Retzlaff asked an FBI agent if McGibney was behind the 

search warrant. The agent did not share any details of the investigation with Defendant. Id. ¶ 9. 

On June 18, 2020, in connection with the unrelated civil defamation action, Retzlaff filed 

this Subpoena on ECF. See Van Dyke v. Retzlaff, ECF No. 182. The Subpoena commands 

McGibney to produce records and attend a deposition on June 23, 2020. The Subpoena 

encompasses law enforcement investigations of Retzlaff; investigative methods and techniques, 

the identities and PII of nonparty victims, witnesses and law enforcement officials, and law 

enforcement activities: 

All communication, emails and material exchanged between Mr. 

McGibney and all law enforcement, including the F.B.I and Special 

Agent Walker Wicevich. See (Dkt. 182-1, ¶ ¶ 11, 12, & 13). 

All communication, emails and material exchanged between Mr. 

McGibney and the F.B.I concerning Mr. Van Dyke. See (Dkt. 182-1, ¶ ¶ 

12 & 13). 

All communication, emails and material exchanged between Mr. 

McGibney and the F.B.I showing how Defendant was associated with 

the BV Files blog. See Dkt. (182-1, ¶ ¶ 2, 3, 12 & 13). 

All documents pertaining to any technical, scientific, or investigative 

methods used to determine Defendant is associated with the “BV Files” 

blog located at www.ViaViewFiles.net. See (Dkt. 182-1, ¶ 4). 

All communication, emails and material reflecting any surveillance 

activities performed or supported by Mr. McGibney on Defendant or any 

of his family members. See (Dkt. 182-1, ¶ 15). 

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All communication, emails and material exchanged between Mr. 

McGibney and Philip Klein, Brittany Retzlaff, and Collin Retzlaff. See

(Dkt. 182-1, ¶ ¶ 8-10). 

All communication, emails and material exchanged between Mr. 

McGibney and all law enforcement. See (Dkt. 182-1, ¶ 13). 

The Subpoena was filed three business days before the discovery deadline in the EDTX 

Case and allowed only three business days for compliance. 

STANDARDS

Under 28 U.S.C. § 517, “The Solicitor General, or any officer of the Department of 

Justice, may be sent by the Attorney General to any State or district in the United States to attend 

to the interests of the United States in a suit pending in a court of the United States, or in a court 

of a State, or to attend to any other interest of the United States.” The government files this 

motion to protect its substantial interests implicated by the Subpoena. 

“On timely motion, the court for the district where compliance is required must quash or 

modify a subpoena that ... requires disclosure of privileged or other protected matter, if no 

exception or waiver applies,” Fed. R. Civ. P. 45(d)(3)(A)(iii); Whole Woman's Health v. Smith, 

896 F.3d 362, 374 (5th Cir. 2018), as revised (July 17, 2018), cert. denied sub nom. Whole 

Woman's Health v. Texas Catholic Conference of Bishops, 139 S. Ct. 1170, 203 L. Ed. 2d 198 

(2019) (citing Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 817–18 (5th Cir. 2004)). In 

addition, subpoenas are subject to the relevance and proportionality standards set forth in Fed. R. 

Civ. P. 26. See, e.g., MetroPCS v. Thomas, No. 3:18-MC-29-K-BN, 2018 WL 2933673, at *9 

(N.D. Tex. June 12, 2018); Whitley v. Pinnacle Entm't, Inc., No. CV 15-595-BAJ-RLB, 2016 WL 

6154938, at *2 (M.D. La. Oct. 21, 2016). Rodriguez v. Bryan Truck Line, Inc., SA-17-CV1103-

XR, 2018 WL 7348032, at *2 (W.D. Tex. Sept. 18, 2018). 

Discovery is limited to non-privileged matters that are both relevant to the claims or 

defenses and, additionally, proportional to the needs of the case, taking into account, inter alia,

the importance of the discovery in resolving the issues and whether the burden of the proposed 

discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(1). And the Government's discovery 

obligations in a criminal case are limited to those required under Fed.R.Crim.P 16, 18 U.S.C. 

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§3500 (Jencks Act). See, e.g., Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 

405 U.S. 150 (1972). There is no general constitutional right to discovery in a criminal case, and 

Brady did not create one. Whetherford v. Bursey, 429 U.S. 545, 559 (1977). 

Where good cause exists, a court may enter an order to “protect a party or person from 

annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(l). The 

Court may, inter alia, forbid the discovery, limit the scope of discovery, and/or require the 

discovery to be taken in a different manner than that chosen by the party seeking discovery. See 

Fed.R.Civ.P. 26(c)(l)(A-H); see also Robinson v. City of Philadelphia, 233 F.R.D. 169, 171 (E.D. 

Pa. 2005) (denying deposition of plaintiff regarding her conversations with the FBI); Cofield v. 

City of LaGrange, Ga., 913 F. Supp. 608, 611-618 (D.D.C. 1996) (denying access to sensitive 

governmental information). 

POINTS & AUTHORITIES

1. The Subpoena should be quashed. 

The Subpoena should be quashed for three reasons: 

First, the information subject to the Subpoena is nonpublic protected law enforcement 

information, the disclosure of which would cause substantial harm. The federal common-law 

law-enforcement privilege is derived from Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 

L.Ed.2d 639 (1957). In Roviaro, the Supreme Court first recognized a qualified privilege 

allowing the government to withhold the identities of confidential informants. Id. at 59. Since 

Roviaro, the Fifth Circuit has concluded that the law-enforcement privilege protects more than 

just the identities of confidential informants and extends to ongoing criminal investigations. See, 

e.g., In re Eisenberg, 654 F.2d 1107, 1111 n. 5 (5th Cir. 1981). The privilege protects, for 

example, “(1) information pertaining to “law enforcement techniques and procedures,” ... (2) 

information that would undermine “the confidentiality of sources,” ... (3) information that would 

endanger “witness and law enforcement personnel,” ... (4) information that would undermine “the 

privacy of individuals involved in an investigation,” ... or (5) information that would seriously 

impair “the ability of a law enforcement agency to conduct future investigations[.]” In re the City 

of New York, 607 F.3d 923, 948 (2d Cir.2010) (internal citations omitted). See also F.T.C. v. 

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Timeshare Mega Media & Mktg. Grp., Inc., No. 10-62000-CIV, 2011 WL 6102676, at *4 (S.D. 

Fla. Dec. 7, 2011) (granting FBI’s nonparty motion to quash testimony of FBI agent in a civil 

enforcement action).

As a result, the Fifth Circuit prohibits the disclosure of information relating to pending 

law enforcement investigations in civil matters as this one. In re United States Dep’t of 

Homeland Sec., 459 F.3d 565, 570 (5th Cir. 2006). And the Fifth Circuit has further held that a 

subpoena cannot be used as a fishing expedition to obtain information that is not otherwise 

discoverable to a defendant in a criminal case. United States v. Arditti, 955 F.2d 331, 345 (5th 

Cir.), cert denied, 506 U.S. 998 (1992). 

Here, the Subpoena seeks materials and information that fall squarely within the 

privilege. These materials were generated in connection with FBI investigations of Retzlaff and 

others. They offer a picture of information received by the FBI in connection with investigations; 

steps taken in the investigations; how the investigations are being conducted and by whom; what 

information the FBI has in relation to the investigations; the techniques being used to gather the 

information; and the identities and personal information of sources, witnesses, victims, and law 

enforcement agents. Disclosure would provide the target of an FBI investigation unprecedented 

insight, would jeopardize the FBI’s activities, and would subject individuals to potential 

harassment and reprisal. The harm in disclosure is substantial, and the motion should be quashed 

for this reason alone. 

Second, and in any event, the information subject to the Subpoena is not relevant to the 

matters in issue in the EDTX Case. The defamation action has nothing to do with McGibney or 

the FBI, McGibney’s work as a witness with the FBI, or any law enforcement investigations of 

Retzlaff or others. None of the requested information in the Subpoena bears on the claims or 

defenses in that action. Instead, the subpoena seeks information concerning the FBI’s criminal 

investigation of Retzlaff, the FBI’s execution of a search warrant upon Retzlaff, what Retzlaff 

believes is McGibney’s role in that investigation and search warrant, McGibney’s role in other 

criminal and civil matters, and identities and related information of victims, witnesses and law 

enforcement agents. The Subpoena is directed to apparent personal matters between Defendant 

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Retzlaff and McGibney unconnected to the factual and legal issues in this action, and to 

obtaining protected information about the FBI’s activities and ongoing investigation of 

Defendant Retzlaff and others. The Subpoena should be quashed for this second reason as well.

Last, the timing of the Subpoena is highly prejudicial. The Subpoena allowed three 

business days for compliance. Rule 45 provides that the district court shall quash or modify a 

subpoena where, as here, the subpoena does not allow a reasonable time to comply. Fed. R. Civ. 

P. 45(d)(3)(A)(i); Hamilton v. Ochsner Health Sys., Inc., CIV.A. 12-1398, 2012 WL 6725609, at 

*3 (E.D. La. Dec. 27, 2012). “[S]erving a subpoena for a deposition five calendar days before ... 

the commanded deposition fails to allow a reasonable time to comply.” Traut v. Quantum 

Servicing, LLC, 3:18-MC-14-D-BN, 2018 WL 1035134, at *9 (N.D. Tex. Feb. 23, 2018.). Here, 

Retzlaff filed the subpoena three business days before the commanded deposition on the last day 

set for discovery in the EDTX Case. The Subpoena should be quashed for this third and 

independent reason.

2. The Motions to Quash the Subpoena should be transferred to EDTX. 

The related motions to quash filed by McGibney, Dkt. 1, and by the United States should 

be transferred to EDTX. Federal Rule of Civil Procedure 45(f) provides that the Court may 

transfer a motion to quash where the subject of the motion consents, or where the court finds 

exceptional circumstances. This case presents both. McGibney has indicated his consent to 

transfer to EDTX. And there are exceptional circumstances, as Judge Mazzant has already 

adjudicated a similar motion brought by the district attorney in the underlying action. Given the 

facts described above, the history of the underlying case and criminal investigation, and 

Retzlaff’s inappropriate use of the judicial process, the Court may determine that this case 

presents exceptional circumstances such that transfer is appropriate. 

CONCLUSION 

For all the foregoing reasons, the United States asks that the Court quash the Subpoena 

and transfer this Motion, as well as McGibney’s Motion to Quash, Dkt. 1, to the Eastern District 

of Texas. 

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Respectfully submitted, 

John F. Bash 

United States Attorney 

By: /s/ Kristina S. Baehr 

Kristina S. Baehr 

Assistant United States Attorney 

Bar No. _ 24080780 _____________ 

903 San Jacinto, Suite 334 

Austin, Texas 78701 

(512) 916-5858 (phone) 

(512) 916-5854 (fax) 

Kristina.baehr@usdoj.gov 

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CERTIFICATE OF CONFERENCE

I hereby certify that on June 22, 2020, Assistant Aimee Cooper conferred with 

Defendant’s counsel, Jeffrey Dorrell who opposes the motion, at least in part. Counsel for the 

Defendant represented that he did not concur with the motion but, that he would “stipulate that 

we are not seeking documents relating to McGibney’s acting as a witness in matters unrelated to 

Retzlaff. But McGibney’s history of making false statements and using FBI complaints to 

retaliate against his hatred enemy Retzlaff are relevant to McGibney’s as a witness against 

Retzlaff.” Assistant Kristina Baehr also conferred with Mr. McGibney on June 23, and he 

indicated that he both consents to transfer and supports the motion to quash. 

By: /s/ Kristina S. Baehr 

Kristina S. Baehr 

Assistant United States Attorney 

CERTIFICATE OF SERVICE

I certify that on this 23rd day of June, 2020, a true copy of this motion with attachments 

was served on all counsel of record by way of the Court’s CM/ECF system and that service was 

made by certified mail to the pro se litigant:

James McGibney

4305 Ridgebend Dr.

Round Rock, TX 78665

By: /s/ Kristina S. Baehr 

Kristina S. Baehr 

Assistant United States Attorney 

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