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NANCY E. O'MALLEY District Attorney of Alameda County MATTHEW BELTRAMO, SBN 184796 Deputy District Attorney 7677 Oakport Drive, Suite 650 Oakland, California 94621-1934 Telephone: (510) 383-8600 Facsimile: (510) 383-8615 e-mail: Matthew. l>eltratno(a),acgov. org JEFF F. ROSEN District Attorney of Santa Clara County TINA NUNES OBER, SBN 162750 Deputy District Attorney 70 West Hedding Street, West Wing San Jose, California 95110 Telephone: (408) 792-2598 Facsimile: (408) 299-8440 e-mail: tmmes@da.sccgov.org Attorneys for Plaintiff, The People of the State of California

ALAMEDA COUNTY

FILED
O C T 1 9 2012

CLERK OF THE SUPERIOR COURT

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALAMEDA PEOPLE OF THE STATE OF CALIFORNIA, ) CaseNo.:RG10-546833 ASSIGNED FOR ALL PURPOSES TO THE HONORABLE JUDGE WYNNE CARV1LL DEPARTMENT 21 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR PROTECTIVE ORDER; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION IN SUPPORT Hearing Date: Time: Dept.: Reservation Trial Date: Date of First Filing: November 1, 2012 8:30 a.m.
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Plaintiff,
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vs.
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OVERSTOCK..COM, INC. et al.

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Defendants.
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No. 1324313 September 9, 2013 November 17, 2010

People's Response to Dercndant's Motion for Protcclivc Order, H RGIO-54'5833-

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INTRODUCTION

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Throughout this litigation, Defendant Overstock.com, Inc., ("Defendant" or "Overstock") has
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belittled the People's case on the grounds that it is allegedly based on "one consumer complaint" (regarding the comparison pricing of a patio set sold to a consumer in Shasta County). Now, in a stunning reversal, Overstock acknowledges that there are apparently a multitude of other consumers who voiced the same or similar complaints, while simultaneously attempting to keep these witnesses 1 contact information a secret on the grounds that revealing their identities would lead to a "parade of customers as witnesses" or otherwise result in a privacy rights violation. Overstock's attempt to have its cake and eat it too, should be rejected. Moreover, this is now the second time in this case that Overstock has tried to prevent the People from obtaining basic contact information for potential witnesses. The first involved former employees and implicated virtually the same set of issues involved in thin motion. This Court rejected Overstock's efforts to withhold identifying information then, and it should do so again. The disclosure of contact information of complaining consumers- like the contact information of former employees - "is a routine and essential pan of pretrial discovery" (Crab Addison, Inc. v. Superior Court (2008) 169 Cal. App. 4th 958, 966) that should be upheld in this case.' II. STATEMENT OF FACTS

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This is a law enforcement action brought by the People of the State of California under Business
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and Professions Code sections 17200 and 17500. Defendant is an internet retailer. For many of the
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products advertised on its web site, Defendant includes a comparison price that purportedly represents the
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In addition, this is actually the second Motion for a Protective Order brought by Overstock with respect to the Third Set of Interrogatories. In the first, it sought to limit the number ofinlcrrogatoiies to which it was required to respond. The Court effective!} denied this Motion on January 31, 2012, rejecting Overstock's refusal to answer all the interrogatories and criticizing Overstock's method of voluntarily selecting those interrogatories which it had answered to that point. See Declaration of Tina Nunes Ober 1)4, Ex. A (People v. Overstock (Docket #10546833) January 31, 2012 Order).
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price at which the item in question can be purchased from other merchants. The Complaint alleges, among other things, tlmt Defendant routinely and systematically made untrue and misleading advertising claims regarding these comparison prices. More specifically, it alleges that Defendant set misleading comparison prices by, for example: failing to ascertain the prices at which

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People's Response to Defendant's Motion for Protective Order, ft RGIO-5-((i833-

other merchants were actually selling the items in question; adopting the highest sales price at which other

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merchants were selling the items in question; and when: no comparable items were being sold by other merchants, creating a fictitious comparison price through the use of mathematical pricing formulas. As a result of this conduct, California consumers were misled into believing that purchasing a product from Overstock would result in an inflated amount of savings.

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The People's Third Set of Interrogatories was served on August 18, 2011. (See Declaration of Dane Reinstedt in Support of Overstock's Motion (hereinafter "Rcinstedt Dec.")K3.) Among other things, the Third Set requests information relating to customer complaints and inquiries regarding Overstock's comparison pricing practices in general (see, e.g., Reinstedt Dec. ^]3, Ex. 1 (Special Interrogatory Nos. 159-

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168)) and specifically its use of the terms "List Price" (;re<? id. (Special Interrogatory Nos. 192-201)) and "Compare at." (See id (Special Interrogatory Nos. 226-235).) These interrogatories specifically call upon

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Overstock to "IDENTIFY" the customers who made such complaints (see, e.g., id (Special Interrogatory Nos. 159, 192, and 226), the term "IDENTIFY" being defined to require Overstock to "provide the name, and the last known mailing address, e-mail address, and phone number of the PERSON in question." (Id.) Approximately one month later, the People served their First Request for Production of Documents and Things ("RFP") on Defendant. See Reinstedt Dec. ^Jl.O, Ex. 5. The RFP includes a number of requests

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that require Defendant to produce documents regarding the consumer complaints it received with respect

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to: comparison pricing, the use of the terms "List Price" and "Compare at", the use of certain related

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hyperlinks and the patio set that is at the center of this action. See Reinstedt Dec., Ex. 5 (RFP 34-35, 40-41, 46-47, 77, and 102-103). Judging from Overstock's current filing and previous communications between the parties, a

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number of such complaints apparently exist in Overstock's databases. Overstock has agreed to provide the People with the substance of each complaint in spreadsheet format and any accompanying email correspondence, but has refused to provide the People with the identifying information of the complaining witnesses themselves. (See Reinstedt Dec. HI 6, Ex. 10 at 2 (email from counsel for Overstock: "We're not inclined to provide identifying information.")) Following this refusal, the People sent Overstock's

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Page 2 of 10
People's Response to Defendant's Motion for Proiective OrJcr, tl RG10-546833-

attorneys a two-page, single-spaced meet and confer email, detailing the legal reasons that supported the
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discovery request. (See id., at 1-2.) Overstock has steadfastly refused to provide this information. 2 This is not the first time Overstock has refused to comply with basic discovery requests seeking contact information of potential witnesses. In a previous set of discovery of interrogatories, the People had requested contact information regarding former Overstock employees who had a role in setting comparison prices or who worked as Overstock buyers. (See Declaration of Tina Nunes Ober ("Nunes Ober Dec.") ^|5, Ex. B (People v. Overstock (Docket #RG10546833), May 17, 2011, Order Granting People's Motion to Compel.)) Overstock refused to supply current contacl information for these individuals, asserting the same privacy rights arguments it now raises. (See id) Following a hearing, the Court granted the People's
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Motion to Compel, finding that "the importance to Plaintiff of obtaining contact information of Defendant's former employees, all of whom may be fairly characterized as potential witnesses in this case, outweighs the privacy interests that these persons have in this information." (Id.) (emphasis added.) The issue now facing the court is virtually identical to the one it was forced to decide last year.

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The consumers who complained to Overstock - like Overstock's former employees - are potential witnesses to the deceptiveness of its comparison pricing practices. These individuals likely have first-hand knowledge of specific instances when Overstock's comparison prices were misleading or simply incorrect,

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as well as the methods used by Overstock to redress these: errors. This information is relevant and material
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to prove disputed facts of consequence to the determination of this action and, at the very least, is
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calculated to lead to other admissible evidence. This Court should (again) compel Overstock to supply the requested information.

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III. MEMORANDUM OF POINTS AND AUTHORITIES A. Identifying Information re: Potential Percipient Witnesses is Discoverable

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Under Code of Civil Procedure section 2017.010, the People are statutorily entitled to witness contact information. 3 Section 2017.010 provides that "Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter..."

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Though interestingly, Overstock has provided the People with the names and contact information for California consumers \vho purchased the same palio set that was the subject of the Shasta County complaint. (See Declaration of Tina Nunes Ober 1J 3.)
Page 3 of 10 People's Response to Defendant's Motion for Protective Order, U RG10-54>S833-

In Crab Addison, Inc. v. Superior Court (2008) 169 Cal. App. 4th 958, 966, a class action suit in which a dispute arose concerning disclosure of employees' contact information, the court stated: Central to the discovery process is the identification of potential witnesses. The disclosure of the names and addresses of potential witnesses is a routine and essential part of pretrial discovery. [Citation.} ... Indeed, our discovery system is founded on the understanding that parties use discovery to obtain names and contact information for possible witnesses as the starting point for further investigations. (Id; citing Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1249-1250.) "One glance at the form interrogatories approved by the Judicial Council, particularly the interrogatories in the 12.0 series, demonstrates how fundamentally routine the discovery of witness contact information is." (Puerto, supra, at 1250.)
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Address and telephone information, while personal, "is not

particularly sensitive, as it is merely contact information, not medical or financial details, political affiliations, sexual relationships, or personnel information. [Citations.] This is basic civil discovery." (Puerto, supra, at 1253-1254.) Likewise, date of birth information is considered "demographic." As such, "...[w]hile demographic data is personal information, it is hardly sensitive information." (Cecile Alch el al

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v. The Superior Court of Los Angeles County (2008) \6t> Cal,App.4n 1412, 1435, citing Puerto, .supra, at 1253.) Now, Overstock argues that all individual complaints are irrelevant since Business and Professions Code section 17500 deals with an objective standard and posits a "parade" of consumer

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witnesses who might be called to testify at trial.
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Setting aside the stark contrast between this

argument and Overstock's previous (and oft-repeated) assertion that this case is based on a "single
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consumer" complaint (see Reinstedt Dec., Par. 17, Ex. 1 I , at 4), the argument itself is misleading. Although evidence of individual deception is not necessary in a public prosecution under this section, this is a far cry from saying such evidence is irrelevant. More importantly, given that the

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As a procedural matter. Defendant failed to object on privacy grounds to the specific interrogatories at issue in this motion. See Reinstedt Dec. U9, Ex. 4 at 70-82, 88-100, and 104-116. Despite Overstock's claim to the contrary, the Code of Civil Procedure requires that "[e]ach objection must be stated separately (no objection;: to entire set), and must bear the same number or letter as ihe interrogatory to which it is directed. [CCP 2030.210{a)(3)] Objections must be specific. A motion to compel lies where objections are'too general.'" Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Ruttcr Group 2012)^ 8:1071. Tellingly, although Overstock did specifically include a privacy rights objection 10 other interrogatories (see, e.g., Reinstedt Dec. ^9, Ex. 4, at 44-45 (Interrogatory #126), it did not voice such an objection with rested to the interrogatories al issue here. This omission constitutes a waiver and provides a separate basis for denying this mot on, at least wilh respect to the interrogatories.
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Pugc4of 10 People's Response to Defendant's Motion for Protective Order, # RG10-5-16833-

parties are at the discovery phase of this case, it cannot reasonably be said that discovery of these witnesses' contact information is not reasonably calculated to lead to other potentially admissible and relevant evidence. The quantity and consistency of the comparison pricing complaints is

extremely probative as to whether a reasonable consumer would be misled. Furthermore, if there are consumers who have actually been mislead or deceived by Overstock's comparison pricing, it would tend to prove that the reasonable consumer would likely be deceived as well. These determinations require investigation, which requires Overstock to provide the People with personal contact information. 9
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B.

Overstock Fails To Meet Three Part Test Necessary To Establish Privacy I n te resist he C ourt Is Not Required To Undergo Balancing Test

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While Article I, Section 1, of the California Constitution recognizes an individual's right to privacy, that right is not absolute. The interplay between privacy rights and discovery rights was examined by the California Supreme Court in Pioneer Electronics (USA). Inc. v. Superior Court (2007) 40 Cal.4th 360, 370.

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There, the Court applied the following three-part test to determine whether a cognizable privacy right has been asserted: (1) the party on whose behalf a privacy claim is asserted must have a legally recognized privacy interest; (2) the expectation of privacy must be reasonable under the particular circumstances; and (3) "the invasion of privacy complained of must be 'serious' in nature, scope, and actual or potential impact to constitute an 'egregious' breach of social norms, for trivial invasions afford no cause of action." (Pioneer, supra, at 370-371, quoting Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, at 37.) If the three-part test is satisfied, the asserted privacy interest must then be measured against other competing or countervailing interests in a "balancing test." (Pioneer, supra, at 371, quoting Hill, supra, at
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1. Disclosure of Witness Contact Information Docs Not Implicate Privacy Rights Under Puerto, supra, and Cecils Alch, supra, while information such as addresses and telephone numbers might be "personal" and dates of birth "demographic," such information is "hardly sensitive." Rather, it is "basic civil discovery." (Puerto, supra, at 1253-1254; Cecils Alch, supra, at 1435.)

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Page 5 of I'D People's Response to Defendant's Motion for Protective Order, tt RG 10-5<lli833-

Overstock cannot meet the first element of the three-part test, since no legally protected privacy interest exists with respect to witness contact information. Overstock attempts to distinguish this case from every other privacy rights case on the grounds that its customers have a right to keep the government from learning about their individual buying habits. Citing Amazon.com LLC v. Lay (W.D. Wash. 2010) 758 F.Supp.2d 1154, Overstock asserts that the protections of the First Amendment extend to the disclosure of purchasing decisions being turned over to the government. In Amazon.com, the North Carolina Department of Revenue sought customer contact and purchase information to calculate Amazon's potential tax liability. (Id. at 1169.) Amazon had already provided all of the data necessary to determining its tax liability, and the Department of Revenue conceded

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that it had no legitimate need or use for having details as to North Carolina Amazon customers' literary, music, and film purchases. (Id.} Under these circumstances, the court held that the Department of

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Revenue's request was overbroad in violation of the First Amendment. (Id.} The government received identifying information and product purchase history for every Amazon customer residing in North

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In this case, by contrast, the People do not seek Defendant's entire California customer list nor their entire product purchase history. The People are seeking specific and limited information for a subset of Overstock customers who made specific complaints. Moreover, it is inconsistent at best that Overstock

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seeks to protect the identity of these complaining customers while it previously revealed the contact
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information of California customers who purchased the patio set at issue in this case. It defies reason that

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the customers who made no complaints do not deserve privacy protection while those who took the affirmative steps to complain are deserving of protection. Here, the People's discovery requests are not simply to learn about consumers' buying habits for

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some unauthorized reason or "big brother" impulse; instead, the People are seeking to learn about consumers who have complained about the very things (hat are at the center of this lawsuit, comparison pricing and the use of comparison pricing terminology. The Amazon.com customers merely completed an online purchase. In contrast, the Overstock customers whose contact information the People seek have self-identified as potential witnesses by lodging complaints about Overstock's comparison pricing policy.
Tagc6 of 10 People's Response to Defendant's Motion for Protective Order, # RG 10-54(1833-

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As discussed below, if anything, these consumers could reasonably expect that their grievances would be heard and addressed by Overstock and the consumer protection agencies to which it is responsible. 2. There is No Reasonable Expectation of Privacy of Witness Contact Information In Pioneer, supra, California Supreme Court addressed the extent to which California's right to privacy provision (Cal. Const., art. I, 1) protects purchasers from having their identifying information disclosed to the plaintiff during civil discovery proceedings in a consumers' rights class action against the seller. (Id. at p. 363.) In Pioneer^ purchasers of possibly defective DVD players communicated with

Pioneer, expressing their discontent and relating their identifying information (names, addresses, etc.). The named plaintiff in the class action requested this contact information from the seller to facilitate
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communication with potential class members. Pioneer produced redacted documents relating to complaints it received from approximately 700 to 800 consumers regarding the DVD players. The Plaintiff moved to

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compel Pioneer to provide unredacted copies of any consumer complaints it had received about the allegedly defective DVD players. The motion also as'ted Pioneer to disclose the names and contact

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information (addresses and telephone numbers) of each complainant. Pioneer refused to comply, citing Cal. Const., art. I, 1, and asserting a right of privacy on behalf of these purchasers. The Court found that customers who file complaints against a company have no expectation that those complaints will be kept confidential, noting:

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it seems unlikely that these customers, having already voluntarily disclosed their identifying information to that company in the hope of obtaining some form of relief, would have a reasonable expectation that such information would be kept private and withheld from a class action plaintiff who possibly seeks similar relief... If anything, these complainants might reasonably expect, and even hope, that their names and addresses would be given to any such class action plaintiff. (Id. at p. 372 (emphasis added).) The same rationale applies here. Consumers who complained about Overstock's comparison pricing practices have no reasonable expectation of privscy under the circumstances of the present case. There is no reason to believe that Overstock customers would object to disclosure of their contact information, especially under these circumstances, where they have specifically taken issue with Overstock's practices. These customers have some interest that their grievances be addressed, or else they

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Page 7 of 10
I'eoplc'i Response lo Defendant's Motion for Protective Order, tt RG10-546833-

would not have bothered complaining in the first place. They took the positive action in filing a complaint with Overstock because they sensed some unfairness or had some concern about Overstock's comparison pricing. It is expected that most complaining customers would strongly support this action and be willing to assist by providing relevant evidence. Additionally, as members of the public, the complaining consumers stand to benefit from the People's enforcement of statutes, laws and regulations designed to protect online shoppers. (See Puerto, supra, 1253) Many of the consumers whose information we seek are likely repeat customers of online retailers, if not Overstock itself. These individuals have a demonstrated interest in accurate comparison prices (by complaining in the first place), and likely continue to rely on Overstock's price comparison
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tools. This litigation does not involve a dispute between private litigants; it is a law enforcement action brought by public prosecutors on behalf of the People of the State of California. These consumers have an

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expectation that their grievances will be redressed, if not by Overstock, then by the regulators who oversee internet advertising. Overstock's customers, like the public at large, stand to benefit from the People's enforcement action.

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Overstock's attempts to distinguish this case from those cited above on the basis of its "privacy policy" is misguided, at best. First, establishing a "privacy policy" cannot shield a private

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litigant from basic discovery obligations. Indeed, it would be absurd to allow the terms of private 18 litigant's "privacy policy" to override the People's right to obtain relevant evidence that is solely in

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that litigant's possession. This is especially true in this case, given that Overstock has already

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provided the People some customers' contact information. (See Tina Nunes Ober Declaration

("Nunes Ober Dec.") ^|3.) Overstock cannot be allowed to selectively withhold evidence that may not be favorable to their defense while turning over similar information in the context of other
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discovery requests. Moreover, even if the Court were to give some credence to Overstock's privacy policy, the policy actually put its customers on notice that their personal contact information may be revealed in order to comply with the law. (Reinstedt Dec. Par. 20, Ex. 12) Thus, a complaining customer who did, in fact, read

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Page 8 of! 0 People's Response to Defendant's Motion for Protective Order, tt RG10-54C833-

and rely upon Overstock's privacy policy would recognize that, under the very terms of that policy, his or her complaint would be revealed in the context of court proceedings. 3. No Serious, Egregious Breach of Social Norms Will Occur The limited discovery the People seek does not, as a matter of law, constitute a "serious" invasion of privacy rights much less an "egregious breach of social norms," Pioneer, supra, at 371. Thus, Overstock is unable to satisfy the third prong of the Pioneer test. As to this third prong, the Pioneer case is highly instructive. As discussed above, the California Supreme Court held that California's right to privacy provision (Cal. Const., art. I, 1) does not prevent purchasers from having their identifying information disclosed to tlie plaintiff during civil discovery

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proceedings in a consumers' rights lawsuit. (Id. at p. 363.) Addressing whether disclosure of identification information breached social norms, the California Supreme Court noted: the proposed disclosure was not "particularly sensitive," as it involved disclosing neither one's personal medical history or current medical condition nor details regarding one's personal finances or other financial information, but merely called for disclosure of contact information already voluntarily disclosed to Pioneer. (7J.atp.372.) Similarly, in Puerto, supra, the California Court of Appeals noted: Nothing could be more ordinary in discovery than finding out (he location of identified witnesses so that they may be contacted and additional investigation performed.... As the Supreme Court pointed out in Pioneer, the information sought by the petitioners here-the location of witnesses-is generally discoverable, and it is neither unduly personal nor overly intrusive.... (Id. at pp. 1253-1254, citations and internal quotations omitted; emphasis added.) The holdings in Pioneer and Puerto control in this case. The individuals whose names and contact information are requested likely have first-hand knowledge of errors in the comparison prices and Overstock's correction and response. Moreover, these witnesses specifically complained about

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Overstock's comparison pricing policy, so contacting them is not only socially acceptable but expected. They are percipient witnesses to the primary issue in this litigation, and as such, we must be allowed to contact them.

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Page 9 or 10 People's Response to Defendant's Motion for Protective Order, fl KG 10-5-1(833-

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C. A Balancing Test Also Favors Disclosure Of The Requested Information As Overstock is unable to meet the Pioneer Court's three-part privacy test, it is not necessary for this Court to engage in a balancing test. Were the Court to engage in such a test, however, it would only reinforce the conclusion that the requested contact information should be provided. Like Pioneer, which involved a consumer class action against defective products, this case involves the fundamental public policy underlying California's consumer protection and false advertising laws. Evidence obtained from potential percipient witnesses regarding the consumer violations committed by Overstock is material and primary to this litigation and fairness demands disclosure of the identifying information the People are requesting. While a protective order is not necessary, the parties have already entered into a protective order sufficient to prevent any misuse of the consumers' information. (See Nunes Ober Dec. ^6, Ex. C.) IV. CONCLUSION

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For the reasons set forth above, the People respectfully request the Court deny Overstock's Motion for Protective Order and order it to provide the People with the percipient witness contact information to which they are entitled. Dated: October 19,2012 Respectfully submitted, JEFF F. ROSEN, DISTRICT ATTORNEY SANTA CLARA COUNTY

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By:. TINANUNESOBER Deputy District Attorney

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People's Response to Defendant's Motion for Protective Order, ft RG10-546833-

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PROOF OF SERVICE The undersigned deposed and says: That I am a citizen of the United States and an employed in the County of Alameda; that I am over the age of eighteen years and not a party to within action; that my business address is the Office of the District Attorney, 7677 Oakport Street, Suite 650, Oakland, CA 94621; That I served a true copy of the following documents: PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR PROTECTIVE ORDER (MEMORANDUM OF POINTS AND AUTHORITIES); DECLARATION OF TINA NUNES OBER, DEPUTY DISTRICT ATTORNEY, IN SUPPORT OF THE PEOPLE'S OPPOSITION TO OVERSTOCK'S MOTION FOR PROTECTIVE ORDER (with attachments)

on the interested parties in this action as follows: Robert Feldman Dane Reinstedt Quinn Emanuel Urquhart & Sullivan LLP 555 Twin Dolphins Drive, 5 th Floor Redwood Shores, CA 94065-2139 Telephone: (650) 801-5000 Fax:(650)801-5100 Email: bobfeldman@quinnemanuel.com danereinstedt@quinnemanuel.com

i BY ELECTRONIC MAIL TRANSMISSION: By electronic mail transmission from

matt.beltramofg'.acgov.ore on October 19, 2012 (with consent of opposing counsel), by transmitting a PDF format-copy of such document(s) to each such person at the email address(es) listed below their address. The document was transmitted by electronic transmission and such transmission did not result in an error message. I declare under penalty of perjury that the foregoing is true and correct. DATED: October 19, 2012, at Oakland, California.

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Matthew Beltramo