Heartland Recreational Vehicles LLC v. Forest River Inc

Filing 149

MOTION for Protective Order [Motion for Enforcement of Scheduling Order and for Protective Order to Prevent Enforcement of Heartland's Post-Discovery Subpoena to RV Daily Report] by Counter Claimant Forest River Inc. (Attachments: # 1 Affidavit Certificate under Rule 26(c)(1) and L.R. 37.1, # 2 Exhibit Ex. A - Oct 15 RV Daily Report article and blog, # 3 Exhibit Ex. B - Oct 19 RV Daily Report article and blog, # 4 Exhibit Ex. C - Subpoena, # 5 Exhibit Ex. D - Dec. 10 RV Daily Report article and blog, # 6 Exhibit Ex. E - Dec 13 RV Daily Report article and blog, # 7 Exhibit Ex. F - USPTO Decision, # 8 Exhibit Ex. G - RV Daily Report email, # 9 Exhibit Ex. H - RV Daily Report Notice of Objections)(Fountain, Ryan)

Hear land receives Heartland RV subpoena > RV Daily Report | RV Daily tReport Recreational Vehicles LLC v. Forest River

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December 23, 2010

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RV Daily Report receives Heartland RV subpoena
Greg Gerber posted on December 13, 2010 13:46

SUN CITY, Ariz. -- RV Daily Report today acknowledged receipt of a subpoena issued by the United States District Court for the District of Arizona on behalf of Heartland Recreational Vehicles. A copy of the subpoena can be seen by clicking here. The subpoena was signed, dated Dec. 10, 2010, and sent via express mail by Peter Meyer, an attorney with the law firm of Baker and Daniels in Fort Wayne, Ind., who is admitted to practice law before the U.S. District Courts for the northern and southern districts of Indiana, according to the law firm's website. The subpoena demands that RV Daily Report turn over "all documents, electronically stored information or objects related to the following: The actual name and identity of 'The Thinker,' a commenter on the RV Daily Report story "Forest River files fourth suit against Heartland RV," dated Oct. 15, 2010; The e-mail address for 'The Thinker;' The IP address for 'The Thinker.'" The legal document demands that RV Daily Report Editor Greg Gerber "produce all responsive documents and make them available for inspection and/or copying at the offices of Coash & Coash," a law firm located in Phoenix. Gerber must deliver the material at 10 a.m. Jan. 12, or submit them by mail to Baker and Daniels before that date. In a letter also submitted with the subpoena, James Brotherson, another attorney with Baker and Daniels, did offer to reimburse Gerber for "reasonable expenses related to coping and/or postage." Gerber said his firm is now going through the expense of consulting attorneys specializing in First Amendment and website issues. "Not only is Heartland RV seeking to create a chilling effect on how people involved in the RV industry can discuss critical issues impacting companies within the industry, the firm is also seeking to force RV Daily Report into some type of prior restraint in which the firm hopes we'll think twice before posting any negative story pertaining to Heartland RV," said Gerber. "This seems to be a tremendous waste of the court's time," he added. "I know the issue has already been raised as to how a comment posted by The Thinker on an industry website is relevant to the case in which Heartland RV is accusing Forest River of violating a patent. "However, now that RV Daily Report is an active participant in the case, I've downloaded the legal documents filed with the court and will seek not only to update the industry on the case's progress, but also attempt to ascertain whether the comment is, in fact, relevant," said Gerber. "We certainly don't want to be party to any libel claims that Heartland may feel it has against RV Daily Report. Because other than a potential libel claim, I cannot see why Heartland would give a single comment to a single story so much time, effort, attention and resources." To read the original story that generated the controversy, click here. Posted in: RV Industry Actions: E-mail | Permalink | Comments (23) | Kick it! | DZone it! | del.icio.us

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D http://www.rvdailyreport.com/News/tabid/56/ctl/ArticleView/mid/370/articleId/9804/RV-Daily-Report-receives-Heartland-RV-subpoena.aspx[12/23/2010 6:35:05 PM]ockets.Justia.com

RV Daily Report receives Heartland RV subpoena > RV Daily Report | # little fish Monday, December 13, 2010 3:34 PM Sure does make one hesitant about commenting on the state of our industry, or the terminally stupid decisions made by industry leaders who should know better. Oh, and by the way, I want the ip addresses of anyone who has ever responded negatively toward Freedom Roads or Camping World. Due to the volume, you have until Dec 2050 to comply. # BETHIGH555 Monday, December 13, 2010 3:43 PM http://hnn.us/articles/11233.html

# Bob Zagami Monday, December 13, 2010 3:59 PM Let's use the collective resources of the readers and contributors on thi ssite to fina a lawyer that would represent Greg pro bono against Heartland. This is a multibillion dollar corporation coming after a small business prefessional reporting on the RV industry here! Am I the only person that sees something distasteful in all of this? For what, a simple comment on one person's view of a story reported on these pages? # Sydney Bean Monday, December 13, 2010 4:40 PM Actually. I don't see where the subpoena was issued by the "court". Where is the signature of the clerk of the court or the Presiding Judge? There is no court seal or date and time stamp to indicate that the court, per se, has ever even seen this document.

# david Monday, December 13, 2010 5:14 PM Yes I agree with Sydney, it looks like a "let's send a scare letter" to me, they would probably be suprised if you show up with the information. Maybe we should all be the "thinker" now, might get pretty messy if every one of the comments posted on here now are from the "thinker".

# JAMES Monday, December 13, 2010 9:38 PM What a silly bunch of cry babies in our industry. When in Louisville in 2010 I observed all can kind of companies looking @ other companies product. I have no way of knowing what % of personnel in a RV mfg. that has prior experience to their present employment , however I would guess for management positions it would exceed 70 %. They are parting, changing business cards ,talking trade secrets ,patting each other on the backs, and the owners of the RV Companies are Fat,Dumb & Happy. I,m not the "THINKER", however they wouldn't want to call me for jury duty. For the record ,I'm not a Heartland dealer or a Forest Rivers dealer. # Mike in Maine Monday, December 13, 2010 11:32 PM Pathetic. I would not recommend the Heartland brand to anyone strictly on my protest of Heartlands attempts to quash free speach. I have frequently recommended their products in the past and sent friends to a dealership that sells them locally. Not anymore.

# Art Tuesday, December 14, 2010 7:55 AM You can't imagine how this pisses me off - and I don't even care about the issue involved, only your rights as a publisher and of the rights of "The Thinker" I would fight to quash the subpeona under the first amendment of the Constitution and I would sue Heartland for civil rights violations. Further, if you could, I would do so PRO SE, and in your counter-suit, start hitting THEM with discovery. Seek information about the issue, about any other correspondence they've had regarding the issue and further elevate the costs to Heartland for this litigation. This whole affair is an infringement on Freedom of the Press! # Art Tuesday, December 14, 2010 7:58 AM How ironic would it be if Greg contacted the ACLU to assist him in this matter? They'd love it!

# RV Guy

http://www.rvdailyreport.com/News/tabid/56/ctl/ArticleView/mid/370/articleId/9804/RV-Daily-Report-receives-Heartland-RV-subpoena.aspx[12/23/2010 6:35:05 PM]

RV Daily Report receives Heartland RV subpoena > RV Daily Report |

Tuesday, December 14, 2010 8:33 AM Doesn't appear to be actually from the court. Don't submit to it Greg! Force them to get a judge to sign off on it before you do anything.

# PhredStoner Tuesday, December 14, 2010 9:13 AM Sigh I wonder who is sillier, Heartland or the amateur lawyers here. Hopefully Greg is getting legal advise from someone smarter then us posters here. Art, actually who Greg might want to talk to is the Electronic Freedom Foundation (www.eff.org) # Andy Tuesday, December 14, 2010 9:29 AM Well, isn't this just pretty. I am far from being a conspiracy theorist, but I sense that a larger power might be behind this. Heartland is a company that many of us have had great respect for over the last five or so years, but things have changed . . .

# Sydney Bean Tuesday, December 14, 2010 9:32 AM Re my comment above, "I don't see where the subpoena was issued by the "court".. ....There is no court seal or date and time stamp to indicate that the court, per se, has ever even seen this document. " I didn't meant to imply that the subpoena was not valid, I only took issue with the statement that it was "issued by the ****** court." It was issued by an attorney who, as a party to an ongoing lawsuit, and an "officer of the court" can issue a subpoena. This is not just a "scare letter". I should have been more clear and apologize for the confusion. # krb Tuesday, December 14, 2010 12:04 PM how silly and out of hand this got. Why in the world are they pursuing this stupid post. I think someone at Heartland may think they know who "the thinker" is and they are looking to bring it out in public...but it is foolish. I know some of the people who comment on here do work in the industry and its likely "the thinker" does . I have read his post several times and it sounds like he could, I said COULD, work for forest river . Mostly because it sounds like alot of the statements I heard from FR . BUT he could be a dealer or a sales rep from a competing brand !! But I don't thinks it fair to try to hurt Heartland dealers because of this as someone above commented. Before we are get carried away with everything remember this is Greg's business and he will have to keep dealing with all the manufacturers involved # RVMAN Tuesday, December 14, 2010 3:07 PM I will gladly contribute to Greg Gerber Legal Assistance Fund. Anybody else? Lets come up with some help for Greg! Lets put Heartland in its place! # Greg Gerber Tuesday, December 14, 2010 3:35 PM Thanks for all the support folks. It means a lot. But, based on the advice I am getting now, it won't be a big deal -- certainly one that won't require a legal defense fund. I have, however, used my journalist's hotline to the North Pole and Santa has assured me some executives at Heartless RV will be getting coal this Christmas. GREG GERBER Editor, RV Daily Report # West Wednesday, December 15, 2010 10:31 AM I hope Heartland is reading these comments. I am a Heartland dealer and I'm not liking what they're trying to do. It's another example of frivolous lawsuits that are bringing this country down. The US has 80% of the worlds attorneys, this is another example of why. These kind of actions frustrate me to the core. Heartland needs to realize their actions could have reactions with dealers like myself that consider dropping their products because of their poor judgement. There are other products available that are just as good for the consumers and dealers.

http://www.rvdailyreport.com/News/tabid/56/ctl/ArticleView/mid/370/articleId/9804/RV-Daily-Report-receives-Heartland-RV-subpoena.aspx[12/23/2010 6:35:05 PM]

RV Daily Report receives Heartland RV subpoena > RV Daily Report | # Sydney Bean Wednesday, December 15, 2010 11:14 AM Wouldn't it have been easier, and wouldn't it have elicited more respect from readers, if Heartland had merely responded to, and rebutted, the original post with which they took exception? It's not too late and I think most of us here would like to hear what they have to say in the matter? # Bob Zagami Thursday, December 16, 2010 11:15 AM I truly yhope Keystone is monitoring this site and these comments, but that probably isn't the case because they have chosen not to respond. I would suggest that somebody at Keystone, or Thor, pick up a copy of David Meerman Scott's new book - an international best seller - REAL TIME MARKETING AND PR! The world of marketing and responding to our customers has changed dramatically, and it appears that Keystone coulde learn quite a bit from David's insightful business book. One thing is for sure, this is certainly not the way a company should be addressing these issues. # steven S in Terlingua Sunday, December 19, 2010 6:28 PM Hope Greg feels that he is not alone and knows he has support for standing up to what appears to becoming more common these days. Making much out of very little. I really agree with Zagami's comments, showing maturity and strength along with humility would have made this whole thing be a non-issue and set the tone for real company leadership from the start. # ed Sunday, December 19, 2010 7:34 PM Greg, we all realize that this situation is just a witch hunt attempting to silence you. You have many friends on this web. I feel most of us will dip into our pockets to assist in any future defense. Dont let this bother you during the holidays. Have a wonderful MERRY CHRISTMAS.

# JAMES Monday, December 20, 2010 9:08 PM Greg, keep this in the RVdaily, ever issue. It will show your readers just how we the readers can express our feelings as to how we are treated rather it be good or bad. Your reader ,"The Thinker" must have struck a never or their would be no worry. Remember ,the more this is in the RVDaily the more heat the parties involved will receive. We read other rv publications that we can't comment on like when a RV mfg. reports a 300% increase in sales and what they didn't tell you is last year they shipped 100 rv's and this year they shipped 300. I think your fair & balanced. # Jaimie Hall Bruzenak Tuesday, December 21, 2010 4:03 PM I have to agree with Bob Zagami's comments on PR. Heartland will find this works against them when they could have made it a positive.

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