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)

Heartland Recreational Vehicles LLC v. Forest River Inc

Doc. 149 Att. 8

R an Fountain
From: Matt Zimmerman < [e-mail]> Wednesday, December 22, 20104:59 PM [e-mail] Fwd: Re: Subpoena in Heartland Recreational Vehicles v. Forest River, lase No. 3:08cv-490

Sent:
To:

Subject:

FYI... haven't received any kind of substantive response yet from Heartland re: the unenforceability -------- Original Mlsage ~~~~~~:d~::~~~r2~al~n -------l~~~:~~n-~:;~reational Vehicles v. Forest River, Case No. 3:08-cv-490

0'

the subpoena.

From: Matt Zimmerman <[e-mail]> To: Irmscher, David P. <[e-mail]> CC: Brotherson, James R. <[e-mail]>, Meyer, Peter A. <[e-mail]>, Null, Robert D. <[e-mail]>, Powell, Diana V. <Diana.Powellipbakerd.com>, Marcia Hofmann <[e-mail]>, [e-mail] David, Thanks. As per our call (and as I indicated in my e-mail from last week), I was hoping to revisit the issue once you had several days to review the authority and briefing that I provided. As you know, we'll need to move for ard with objections and a motion to quash if Heartland is not willing to withdraw its subpoena. I'd like to avoid anV unnecessary use of our (and th1ecourt's) time if at all possible. I'm sure you would as well. With that in mind, are you in a position to at least give me an approximate schedule as to when Heartlard will be able to provide a substantive response to the concerns that I've raised -- namely (a) that the subpoena was sen after discovery closed in the case and (b) that we believe that Heartland has not met its First Amendment burden to obbin the identity of the anonymous poster? Best, Matt On 12/22/10 11:49 AM, Irmscher, David P. wrote: > We are in the process of reviewing it. If you would like to speak to > someone in Jim's absence, please feel free to give me a call.

>
> -----Original Message----> From: Matt Zimmerman [mailto:[e-mail]] > Sent: Wednesday, December 22, 20102:07 PM > To: Brotherson, James R. > Cc: Irmscher, David P.; Meyer, Peter A.; Null, Robert D.; Powell, > Diana V.; Marcia Hofmann; [e-mail] > Subject: Re: Subpoena in Heartland Recreational Vehicles > River, Case No. 3:08-cv-490

v. Forest

>
> Jim,

>
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Dockets.Justia.com

> I wanted to follow up with you about my request for an additional call > rJgarding the s bpoena sent to Greg Gerber. Have you had an > opportunttv to eview the authority that I provided?

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>
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> Matt

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>I > 0l~ 12/17/1012(27 » Jim,

PM, Matt Zimmerman

wrote:

»Thank

you for your time and the time of your colleagues today. Two

» floIiOW-UPitems as per your request: » » ~1) I have confirmed with my client that any material in his » possession responsive to your subpoena has been preserved. » ~2) The four most immediately relevant cases I can point you two » ~egarding the ~irst Amendment right to speak anonymously, and the » concurrent elevated discovery standard, are:

»I
»

» primary case cllted by u.s. courts re: the heightened discovery » ~tandard and anonymous online speakers); » Doe v. 2the1art.com, 140 F. Supp. 2d 1088 (W.O. Wash 2001) (a » similar cases regarding the application of a heightened discovery »~tandard and alnonymous (non-party) online speakers); Mobilisa, Inc v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007) (the » 1 » righest (state dourt) application of the standard in Arizona); and » USA Technolbgies, Inc. v. Doe, 713 F. Supp. 2d 901 (N.D. Cal. 2010)

iDedrite
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Int'll

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Doe No.3, 776 A.2d 756 (N.J. App. 2001) (the

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» ~the most recert federal court opinion on the subject that I am » i1mmediately afare of). » In addition, I have attached our most federal court briefing on the » subject, which Icame in the form of a motion to quash in the USA » technOlOgieS case cited above.

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» ts I mentione on the call, I would like to touch base again early » rext week to dliscuss this matter once you've had an opportunity to » ~eview the authority I've provided. To that end, once you have done »so, I'd ask thatlyou let me know when you would be available for the meantime, if you have any questions for me, » fnother call. » please feel free to contact me.

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» ~est, att 37 PM, Brotherson, James R. wrote: e fine. Indiana, or at least the part I'm in, is on

» On 12/15/103 »~ Hi, Matt. »1 »1 Friday would

Eastern time. I How about 2 PM Eastern? I'll need to ask Dave andjor
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»llrmscher

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I ter

II

» Meyer, litigatprs in our Fort Wayne office, to join the call.
Let me know if that works for you. Jim

» -----Original i'vj'essage----From: Matt Zirmmerman [mailto:[e-mail]] Sent: Wednesday, December 15, 2010 6:21 PM To: Brotherso1n, James R. Subject: Subpoena in Heartland Recreational Vehicles v. Forest

» River, Case N0. 3:08-cv-490
Dear Mr. BrJherson,

Please be ad0sed that the Electronic Frontier Foundation represents
Greg Gerber and RV Daily Report with respect to the subpoena delivered by ~ou to Mr. Gerber dated December 10,2010, regarding Heartland Redreational Vehicles v. Forest River, Case No. 3:08-cv-490. ~he subpoena seeks identifying information regarding a reader who posted a comment to the RV Daily Report web site. I'd like to sChLule a brief telephone call to discuss a number of questions I h~ve about the subpoena. I'm unavailable most of tomorrow until later in the afternoon (Pacific Time), but I am available this iafternoon and Friday. If you could please suggest a time when you would be available between now and Friday, I would appreciate it. Best, Matt
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» >

Ma thew Zimmerman Senior Staff Attorrey Ele tronic Frontier Foundation 45 Shotwell Street San Francisco, CAI94110 ph: (415) 436-933b x127 / fx: [phone] [e-mail] / www.eff.org

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