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2012 11-04 California vs Overstock.com - Motion for Protective Order Denied

2012 11-04 California vs Overstock.com - Motion for Protective Order Denied

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Published by Sam E. Antar
2012 11-04 California vs Overstock.com - Motion for Protective Order Denied
2012 11-04 California vs Overstock.com - Motion for Protective Order Denied

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

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06/12/2014

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District Attorney
of
Alameda County
Attn: Beltramo. Mattew
L.7677
Oakport
Street,
Suite
65
Oakland.
CA
94621
Quinn
Emanucl Urquhart Oliver &
Hedges
Attn: Feldman, Robert
P555
Twin Dolphin
Dr Stc 560
Redwood
City,
CA
94065
Superior
Court of
California, County
of
AlamedaReneC.Davidson Alameda County Courthouse
People
of
State
of
California
Plaintifl7Pelitioner(s)
VS.
Ovcrstock.com. Inc.
De
fendiin
I/Res wndcnt(s)(Abbreviated
Title)
No.
RG10546833
OrderMotion for Protective Order
Denied
The Motion for Protective Order
filed
for Ovcrstock.com.
Inc.
was set for hearing on
11/01/2012
at08:30 AM in
Department21
before the Honorable Wynne
Carvill.
The Tentative
Ruling
was published
andwascontested.The matter was
argued
and
submitted,
and
good
cause
appearing therefore.
IT IS
HEREBY
ORDERED
THAT:
The tentative
ruling
is
affirmed
as follows: The Motion of
defendant
Overstock.Com,
Inc.
("Defendant")
For Protective
Order
("Motion")
is ruled
on as follows:
Defendant
seeks a protective order in connection with the People of the
State
of
California's
("Plaintiffs")
Third Set of
Specially
Prepared
Interrogatories
and First
Set
of Requests for ProductionofDocumentsandThings, bothofwhich contain requestsfor thepersonal
identifying
informationofDefendant's customers
who
"complained
to
[Defendant]
or
questioned [Defendant]
or
made
astatement
to
[Defendant]
about any of the comparison prices for any of[Defendant's]products..." (Exhibit 1 toDeclaration
of
Dane
W.
Reinstcdt, number
159.)
Defendant
notes that
it has
already
agreed
to provide
Plaintiff
with the substance of each complaint in
spreadsheet
format and any accompanying emailcorrespondence,
but it
will
not
voluntarily provide personal
identifying
information, based
on
privacyconcerns.
Defendant
asserts
that the First Amendment rights of its customers are at issue, relying primarily onAmazon.com LLC
v.
Lay
(W.D.Wash.
2010)758
F.Supp.2d
1154
("Amazon.com").TheAmazon.comcourt
held
that the First Amendment protects a buyer
from
having the
expressive
content of herpurchase
of
books,
music
and
audiovisual materials disclosed
to the
government. (Amazon.com
at
1167-68.)Likewise
here.
Defendant'scustomersare
entitled
tomake their purchasing decisionsin
private,
includingDefendant'sproduct offerings such as books, movies, magazines, personal hygieneitems, adult toys
and
costumes,
tobacco
supplies,
gun
supplies,
religious jewelry,
clothing, handicapaccessibility items, and even medical supplies.
Defendant
also
argues
that
its
customers
have a
reasonable
expectation
of privacy in their personal
identifying
information,
particularly
in
light
of Defendant's
"Privacy
Policy",
a
link
to
which
is
available
at the
bottom
of
each Overstock page (Declaration
of
Dane
W.
Reinstcdt, paragraph
20 and
Exhibit
12).
and
that,
on
balance,
the constitutional right to privacyoutweighs
the
marginal utility (at best)
that
potential testimony of
individual
consumers would provide.
(Citing,
inter alia,
Pioneer
Electronics
Inc
v.
Sup.Ct. (2007)
40
Cal.4th 360,
370
("Pioneer").)Order
 
In
opposition, Plaintiff argues that Amazon.com is
distinguishable.
The court
agrees.
In Amazon.com,
the
North Carolina Department
of
Revenue ("DOR"),
as
part
of an
investigation
of
Amazon's
sales
tax
liability,
sought
identifying information
for
Amazon's
customers that could readily
be
correlated withspecificproduct
information,
all of which was
fell
within
the
category of "expressive material," e.g.
literary,
music and film purchases, which together would result in a complete statewide (NorthCarolina) product purchase history for all of Amazon.coin's
customers.
Here,
in contrast,
Plaintiff
arc
seeking
specific
and
limited
information
for a
subset
of
Defendant'scustomers
who
made specificcomplaints
about
the
very
things that
arc at thecenterof
Plaintiffs
claims
in
this
case,
i .e.
comparison
pricing
and the use of
comparison pricing terminology.
The
purchasing
patterns
and
practices
of
these
individuals
is not necessarily disclosed but rather the
substance
of their complaints to Defendant. The
latter
are notshielded
from
discoveryin anaction challenging Defendant's conductasopposedto theconduct
of the
individuals
who
have complained.The
court
agrees
with
Plaintiff
that this factual scenario
falls
squarely
within
theparameters
of Pioneerand its
progeny.
In
Pioneer,
thecourt appliedathree part test
(citing
Hill
v.National Collegiate AthleticAssn. (1994)
(Hill)
7 Cal.4th 1,
35-37),
finding
that only if that test was satisfied would the
assertedprivacy interests
be
balanced
against other
competing
interests. (Pioneer
at
370-371.) While
the first
part
of
thetest,a
legally
recognized
privacy
interest,is
arguably
met,inthat contact
information
deserves
some level
of
privacy protection
(sec,
e.g. Belairc-Wcst Landscape, Inc.
v.
Sup.
Ct.
(2007)
149
Cal
App 4th
554, 561).
the
third part, invasion
of
privacy "serious"
in
nature,
clearly
is
not. (Sec, e.g.,Puertov. Sup. Ct. (2008) 158 Cal.App.4th 1242, 1253-54
[address
and
telephone
information, while
personal,
is not particularlysensitive.].)
Most
important
in
this
context, however,
is
the
second part
of
the
test,
an expectation of privacy reasonable under
the
particular
circumstances. Here, as in Pioneer,Defendant'scomplaining
customers,
who have
voluntarily
disclosed
their identifying
information
toDefendant in the hope of obtaining some form of
relief,
arc
unlikely
to have a reasonable
expectation
that such information would be kept private. (Pioneer at 372.)
In
reaching
the
above
cnclusions, the court considered several alternatives,
including
the following: (a)
requiring
Plaintiff
to first review the
underlying
complaints,
identifying;
those
that might
justify
a follow-upinterviewand
then
addressingthedisclosureof thecontact informationforthat subsetofindividuals;(b) first sending an opt-out notice such as that frequently
used
in class action litigation; and (c) sendingan opt-in notice
as
urged
by
Defendant.
The
court rejectsthelast
of
these alternatives
as too
burdensome and not according
sufficient
weight
to
Plaintiffs
legitimate
discovery
interests. The opt-outnotice is also rejected
given
that
same interest
and the
trend
of appellate decisions emphasizing
the
importance
of
that
interest.
The first
option
is
also rejected
as
potentially
too
time-consuming
and an
undue
burden
on
Plaintiffs
discovery
interests.
As to Defendant's Privacy Policy, as correctly pointed out by
Plaintiff,
said policy specifically indicatesthat disclosureofpersonal
identifiable information
mayhappento"comply with...court orders."
The
MotionisDENIED.
Defendant
shall
producethe
personal
identifying information
of
those
of
its
customers
who
complained
to
Defendant
or questioned
Defendant
or made a
statement
to
Defendantabout any of the comparison
prices
for any of
Defendant's
products during
the
applicable time period.Such information
shall
be treated as confidential,
subject
to the existing protective order in this case.An examination of the record in this
case
reveals
that
the parties
submitted a "Stipulation To ProtectiveOrder
Governing
The Use AndDisseminationOf
Certain
Materials Produced During Discovery" on
July
8,
2011
("Protective Order").
However,
due to a
clerical
error,
that stipulation was apparently
never
directed
to the court for review and entry. The
now
HEREBY APPROVES the Protective Order,
mine
pro
tune
to the
date
of its
submission,
and
orders
that
the
parties
abide
by its
terms.
Dated: 11/04/2012Judge Wynne
Carvill
Order

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