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2012 10-19 California vs Overstock.com - Plaintiff's Opposition to Defendant's Motion For Protective Order

2012 10-19 California vs Overstock.com - Plaintiff's Opposition to Defendant's Motion For Protective Order

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Published by Sam E. Antar
2012 10-19 California vs Overstock.com - Plaintiff's Opposition to Defendant's Motion For Protective Order
2012 10-19 California vs Overstock.com - Plaintiff's Opposition to Defendant's Motion For Protective Order

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Categories:Business/Law
Published by: Sam E. Antar on Nov 13, 2012
Copyright:Attribution Non-commercial

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•10855712*
NANCY
E.O'MALLEY
District
Attorney
of
Alameda CountyMATTHEW BELTRAMO, SBN 184796
Deputy
District Attorney7677 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 CountyTINA
NUNES
OBER,
SBN
162750
Deputy
District
Attorney
70
West Hedding Street, West Wing
San
Jose,
California
95110
Telephone:
(408)
792-2598Facsimile: (408) 299-8440e-mail:
tmmes@da.sccgov.org
Attorneysfor
Plaintiff,
The
People
of
the
State
of
California
FILED
ALAMEDA
COUNTY
OCT1
9
2012
CLERK
OF THE
SUPERIOR
COURT
PEOPLEOF THESTATEOF
CALIFORNIA,
Plaintiff,
SUPERIOR
COURT OF THE
STATE
OF
CALIFORNIA
COUNTY OF ALAMEDA
)
CaseNo.:RG10-546833
vs.
OVERSTOCK..COM,
INC.
et
al.
Defendants.
ASSIGNED
FOR ALLPURPOSESTO THEHONORABLEJUDGE WYNNE CARV1LL
DEPARTMENT
21
PLAINTIFF'S
OPPOSITION
TO
DEFENDANT'S
MOTION
FOR
PROTECTIVEORDER; MEMORANDUM
OF
POINTS
AND
AUTHORITIES; DECLARATION INSUPPORT
Hearing
Date:
Time:
Dept.:
Reservation
Trial
Date:
Date
of First
Filing:
November
1,
2012
8:30
a.m.
21
No. 1324313
September
9,
2013
November17,
2010
People's
Response
to
Dercndant's Motion
for
Protcclivc Order,
H
RGIO-54'5833-
 
1
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IS
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I.
INTRODUCTION
Throughout this
litigation,
Defendant
Overstock.com,
Inc.,
("Defendant" or
"Overstock")
has
belittled
the
People's
case
on the
grounds that
it is
allegedly
based
on
"one consumer complaint" (regardingthe 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
ofother
consumers
whovoicedthe 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
berejected.
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
andimplicated
virtually
the
same
set of issues involved in
thin
motion.
This
Court rejected
Overstock's
effortsto 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
This
is a law
enforcement
action
brought
by the People of the
State
of
California
under Business
and
Professions
Code
sections
17200
and
17500. Defendant
is an
internet retailer.
For
many
of the
products advertised
on its web
site, Defendant includes
a
comparison price that purportedly represents
the
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
1
Inaddition, thisisactuallythe
second
Motion
for
aProtective Order broughtby
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 MotiononJanuary
31,
2012, rejecting Overstock's
refusal
toanswerall
the
interrogatories
andcriticizing
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).
i
of
n
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
1
merchants were selling the items in question; and when: no comparable items were being sold by other2merchants, creating a
fictitious
comparison price
through
the use of mathematical pricing formulas. As aresult of this conduct, California consumers
were
misled
into
believing that purchasing a product fromOverstock would result
in an
inflated
amount
of
savings.
6
7
10
12
Nos.159,192,and226),theterm "IDENTIFY"
being defined
torequire Overstockto"providethename,Overstock to "IDENTIFY" the customers who made
such
complaints
(see, e.g., id
(Special Interrogatory
13
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24
2526
27
28
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
ThirdSetrequests
information
relatingtocustomer complaintsand
inquiries
regarding
Overstock's
comparison pricing practices
in
general
(see, e.g.,
Reinstedt
Dec.
^]3,
Ex. 1
(Special Interrogatory Nos.
159-
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
14
and
the
last known
mailing
address,
e-mail
address,
and
phone number
of the
PERSON
in
question."
(Id.)
15
Approximately one
month
later, the
People served
their
First Request
for
Production
of
Documents
16
and Things
("RFP")
on Defendant.
See
Reinstedt Dec.
^Jl.O,
Ex. 5. The RFP
includes
a number of requests
17
that
require Defendant
to
produce documents regarding
the
consumer complaints
it
received with respect
18
to:
comparison
pricing,
the use of the
terms "List Price"
and
"Compare
at",
the use of
certain related
19hyperlinks
and the patio
set
that is at the center of
this
action.
See
Reinstedt
Dec.,
Ex. 5 (RFP 34-35,
40-41,
20
46-47,
77, and
102-103).
21
Judging
from
Overstock's
current filing and
previous communications
between
the parties, a
number
of such complaints apparently exist in Overstock's
databases.
Overstock has agreed to provide thePeople
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
complainingwitnesses 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
Page
2
of
10
People's Response
to Defendant's Motion for Proiective
OrJcr,
tl
RG10-546833-

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