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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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Published by: Sam E. Antar on Nov 13, 2012
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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 P 555 Twin Dolphin Dr Stc 560 Redwood City, CA 94065

Superior Court of California, County of Alameda Rene C. Davidson Alameda County Courthouse
People of State of California
Plaintifl7Pelitioner(s) VS.

No. RG10546833 Order Motion for Protective Order Denied

Ovcrstock.com. Inc.
De fendiin I/Res jwndcnt(s) (Abbreviated Title)

The Motion for Protective Order filed for Ovcrstock.com. Inc. was set for hearing on 11/01/2012 at 08:30 AM in Department 21 before the Honorable Wynne Carvill. The Tentative Ruling was published and was contested. 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 Production of Documents and Things, both of which contain requests for the personal identifying information of Defendant's customers who "complained to [Defendant] or questioned [Defendant] or made a statement to [Defendant] about any of the comparison prices for any of [Defendant's] products..." (Exhibit 1 to Declaration 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 email correspondence, but it will not voluntarily provide personal identifying information, based on privacy concerns. Defendant asserts that the First Amendment rights of its customers are at issue, relying primarily on Amazon.com LLC v. Lay (W.D.Wash. 2010) 758 F.Supp.2d 1154 ("Amazon.com"). The Amazon.com court held that the First Amendment protects a buyer from having the expressive content of her purchase of books, music and audiovisual materials disclosed to the government. (Amazon.com at 1167-68.) Likewise here. Defendant's customers are entitled to make their purchasing decisions in private, including Defendant's product offerings such as books, movies, magazines, personal hygiene items, adult toys and costumes, tobacco supplies, gun supplies, religious jewelry, clothing, handicap accessibility 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 privacy outweighs 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 with specific product 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 (North Carolina) 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's customers who made specific complaints about the very things that arc at the center of 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 not shielded from discovery in an action challenging Defendant's conduct as opposed to the conduct of the individuals who have complained. The court agrees with Plaintiff that this factual scenario falls squarely within the parameters of Pioneer and its progeny. In Pioneer, the court applied a three part test (citing Hill v. National Collegiate Athletic Assn. (1994) ( H i l l ) 7 Cal.4th 1, 35-37), finding that only if that test was satisfied would the asserted privacy interests be balanced against other competing interests. (Pioneer at 370-371.) While the first part of the test, a legally recognized privacy interest, is arguably met, in that 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., Puerto v. Sup. Ct. (2008) 158 Cal.App.4th 1242, 1253-54 [address and telephone information, while personal, is not particularly sensitive.].) 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's complaining customers, who have voluntarily disclosed their identifying information to Defendant 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 followup interview and then addressing the disclosure of the contact information for that subset of individuals; (b) first sending an opt-out notice such as that frequently used in class action litigation; and (c) sending an opt-in notice as urged by Defendant. The court rejects the last of these alternatives as too burdensome and not according sufficient weight to Plaintiffs legitimate discovery interests. The opt-out notice 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 indicates that disclosure of personal identifiable information may happen to "comply with ... court orders." The Motion is DENIED. Defendant shall produce the personal identifying information of those of its customers who complained to Defendant or questioned Defendant or made a statement to Defendant about 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 Protective Order Governing The Use And Dissemination Of 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: 11/04/2012 Judge Wynne Carvill

Order

SHORT TITLE: People ofjtatc of California VS Overstock.com, Inc.
ADDITIONAL ADDRESSEES

CASE NUMBER:

RG10546833

District Attorney fof the County of Santa Cruz Attn: Lee, Archibald Robert 701 Ocean St, Suite 200 Santa Cruz, CA 95060

Order

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