2011 04-01 California Vs Overstock - Com - Plaintiff's Notice of Motion and Motion To Compel

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Office of DISTRICT ATTORNEY Al.iiwd.1 County
NANCY E. O'MALLEY District Attorney of Alameda County Matthew L. Beltramo, Deputy District Attorney (State Bar No. 184796) 7677 Oakport Street, Suite 650 Oakland, CA 94621 Telephone: (510) 569-9281 Facsimile: (510) 569-0505 Additional counsel listed on Appendix A Attorneys for Plaintiff
THE SUPcniufl COURT /": /7;7/y
SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff No. RG10-546833 PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF INTERROGATORIES TO DEFENDANT OVERSTOCK.COM, INC. [Separate Statement, Declaration, and Memorandum of Points and Authorities filed concurrently herewith] Date: Time: Dept: Reservation:
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OVERSTOCK.COM, INC., et al., Defendants
May 5, 2011 2:00 p.m. 20 #1167531
Assigned for All Purposes to the Honorable Robert B. Freedman Complaint Filed: Answer Filed: Am. Answer Filed: November 17, 2010 January 28, 2011 March 7, 2011
TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE THAT on May 5, 2011, at 2:00 p.m., or as soon thereafter as the matter may be heard in Department 20 of the Alameda County Superior Court, Plaintiff, People of the State of California (hereinafter "the People") will and do hereby move, pursuant to California Code
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NOTICE OF MOTION AND MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES FROM DEFENDANT
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of Civil Procedure Section 2030.300, for an order compelling defendant Overstock.com, Inc. (hereafter "Overstock" or "Defendant") to provide farther responses to the People's First Set of Interrogatories to Overstock. Specifically, the People will and do hereby move for an order compelling Overstock to further respond to Special Interrogatories 8 and 14 by providing current contact information for the former employees whose names Overstock disclosed in response to these Interrogatories. The People met and conferred via email in good faith in an attempt to informally resolve this dispute and have offered to enter into a protective order as a means of satisfying Overstock's asserted privacy objections. Nonetheless, Overstock has refused to provide the People with the information sought. Because the People's discovery requests fall properly within the scope of permissible discovery pursuant to the Code of Civil Procedure, Overstock should be ordered to produce the information requested in response to the People's First Set of Interrogatories, Special Interrogatories 8 and 14. This motion is based on this Notice of Motion and Motion, the Separate Statement in Support of Motion, the Declaration of Matthew L. Beltramo with exhibits attached thereto, and the Memorandum of Points and Authorities, as well as such oral argument and other evidence as may be presented at or before the hearing on this motion.
Dated: April 1,2011
NANCY E. O'MALLEY Alameda County District Attorney
Matthew L. Beltramo Deputy District Attorney
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NOTICE OF MOTION AND MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES FROM DEFENDANT
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APPENDIXA The following additional counsel also represent Plaintiff, the People of the State of California, in this action: EDWARD S. BERBERIAN District Attorney of Marin County Andres H. Perez, Deputy District Attorney (State Bar No. 186219) 3501 Civic Center Drive, Room 130 San Rafael, CA 94903 ~ Telephone: (415)499-6450 Facsimile: (415)499-3719 GARY LIEBERSTEIN District Attorney of Napa County Daryl A. Roberts, Deputy District Attorney (State Bar No. 111981) 931 Parkway Mall, P.O. Box 720 Napa, CA 94559 Telephone: (707) 253-4493 Facsimile: (707) 299-4322 STEPHEN S. CARLTON District Attorney of Shasta County Erin M Dervin, Deputy District Attorney (State Bar No. 188426) 1355 West Street Redding, California 96001 Telephone: (530) 245-6300 Facsimile: (530) 245-6345 DEAN D. FLIPPO District Attorney of Monterey County James R. Burlison, Deputy District Attorney (State Bar No. 79836) 1200 Aguajito Rd., Room 301 Monterey, CA 93940 Telephone: (831)647-7713 Facsimile: (831)647-7762 JEFFREY F. ROSEN District Attorney of Santa Clara County Kenneth Rosenblatt, Deputy District Attorney (State Bar No. 104847) 70 W. Hedding Street, West Wing San Jose, California 95110 Telephone: (408) 792-2572 Facsimile: (408)279-8742 JILL R. RAVITCH District Attorney of Sonoma County Matthew T. Cheever, Deputy District Attorney (State Bar No. 191783) 2300 County Center Drive, Ste. B-170 Santa Rosa, California 95403 Telephone: (707)565-3161 Facsimile: (707)565-3499
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DISTRICT ATTORNEY Alamnh County
Case No. RG10-546833 APPENDIX A
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NANCY E. O'MALLEY District Attorney of Alameda County Matthew L. Beltramo, Deputy District Attorney (State Bar No. 184796) 7677 Oakport Street, Suite 650 Oakland, CA 94621 Telephone: (510) 569-9281 Facsimile: (510) 569-0505 Attorneys for Plaintiff (Additional counsel listed on Appendix A to Notice of Motion/Motion to Compel)
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SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff No. RG10-546833 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF INTERROGATORIES TO DEFENDANT OVERSTOCK.COM, INC. * Date and Time: May 5, 2011, 2:00 p.m. Dept: 20 Reservation: #116751 Assigned for-All Purposes to the Honorable Robert B. Freedman Complaint Filed: Am. Answer Filed: November 17,2010 March 7, 2011
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Plaintiff, the People of the State of California (the "People,") respectfully submit this Memorandum Of Points And Authorities in support of the Motion To Compel Further Responses To First Set Of Interrogatories to Defendant Overstock.com, Inc. (hereinafter "Defendant" or "Overstock") pursuant to Code of Civil Procedure Section 2030.300.
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I. INTRODUCTION
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By this motion, the People seek to compel defendant Overstock to further respond to two of the * People's First Set of Interrogatories, Special Interrogatories 8 and 14, by providing current contact information for former employeesnow potential witnesseswhose names and other information Overstock has already disclosed in response to these Interrogatories. Overstock has refused to provide
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the requested contact information for these former employees, citing privacy concerns. The People met and conferred in good faith in an attempt to informally resolve this dispute, and offered to enter into a protective order as a means of satisfying Overstock's asserted privacy objections. Nonetheless, Overstock refused to provide the People with the information sought. Because the People's discovery requests fall properly within the scope of permissible discovery, Overstock should be ordered to produce the information requested in response to the People's First Set of Special Interrogatories, Nos. 8 and 14. II. STATEMENT OF FACTS This is a law enforcement action brought by the People of the State of California pursuant to Business & Professions Code Sections 17200 and 17500, et seq. Complaint,9^. Defendant is an internet retailer. Complaint, f5. For many of the products advertised on its web site, it includes a comparison price (at various points called a "List Price" or a "Compare At Price") that purportedly represents the price at which the item in question can be purchased from other merchants. Complaint,
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The Complaint alleges, inter alia, that Defendant routinely and systematically made untrue and misleading advertising claims regarding these comparison prices. Complaint, f21. More specifically,
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the Complaint alleges that Defendant set misleading comparison prices by, for example: failing to ascertain the prices at which other merchants were actually selling the items in question; adopting the highest sales price at which other merchants were selling the items in question; and where no comparable items were being sold by other merchants, creating a fictitious comparison price through the use of mathematical pricing formula. See, e.g., Complaint, fllO-12, 17-29. As a result of this conduct, consumers in California were misled into believing that purchasing a product from Overstock would result in an inflated amount of savings. See, e.g., Complaint, ^29. The People served its First Set of Interrogatories on Defendant Overstock on December 23, 2011. Beltramo Decl. ^2. Among other things, the People sought: (1) the identity of "EACH FORMER EMPLOYEE who SET COMPARISON PRICES at anytime on or after January 1, 2006 Beltramo Decl. 12, Ex. 1, at 7,11. 25-26 (Spec. Interrog. No. 8), and (2) the identity of "EACH i
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FORMER EMPLOYEE who worked as an OVERSTOCK BUYER at any time on or after January 1, 2006." Beltramo Decl. 12, Ex. 1, at 8,11. 13-14 (Spec. Interrog. No. 14). Included in these interrogatories was a request for the name of each former employee, and their "present or last known address, telephone number, e-mail address, present or last known home telephone number, and present or last known cell phone number." Beltramo Decl. 12, Ex. 1, at 4,11. 5-9 (Spec. Interrog. Dem. ^17.) As discussed above, the principal allegation in the People's Complaint is that Overstock set misleading comparison prices, thereby inducing consumers into believing that purchasing a product from Overstock would result in an inflated amount of savings. See, e.g., Complaint, 119-13. The individuals whose names Defendant disclosed in response to Special Interrogatory Number 8 are former employees who either set the allegedly misleading comparison prices, or as Defendant claims, received and reviewed and on occasion may have modified comparison prices provided to Overstock
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by its vendors and suppliers. Bdtramo Decl, 12, Ex. 1 at 7,11. 25-26 (Spec. Interrog. 8) and 14, Ex. 2,
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at 14,11. 4-8 (Resp. Spec. Interrog. No. 8.) The individuals whose names Defendant disclosed in
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response to Special Interrogatory Number 14 are former employees who communicated with the
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merchants, vendors or other "fulfillment partners" who sold items that were advertised on Defendant's web site using comparison prices that Overstock now claims were provided to it by the vendors and suppliers. Beltramo Decl 12, Ex. 1, at 8,11. 13-14 (Spec. Interrog. No. 14), and 14, Ex. 2, at 18,11. 617 (Resp. Spec. Interrog. No. 14).' In both instances, these individuals are percipient witnesses whose testimony will shed light on the main issue in this case, namely, the methodology (or lack thereof) used by Overstock to set comparison prices. On February 16, 2011, Overstock served its Objections and Responses to Plaintiffs First Set ol Interrogatories. Beltramo Decl. ^4. Defendant asserted a number of objections to Special Interrogatories 8 and 14, including that they seek "information protected by California's constitutional
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DISTRICT ATTOWflV Alamcda Couniy J
1 Overstock's Amended Verified Answer underscores the importance to this action of those "buyers" (both current and former) who communicated with Overstock's "fulfillment partners." Paragraph 48 of the Answer specifically states that Overstock "admits that // received from Partners, the highest prices charged in the marketplace for some products, but denies all of the remaining allegations in the last sentence of Paragraph 48.' Verified Answer, at T|48 (emphasis added).
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right of privacy." Beltramo Decl. fl, Ex. 2, at 13, 11. 23-24 (Resp. Spec. Interrog. No. 8), and aM8, 11. 9-10 (Resp. Spec. Interrog. No. 14.) Despite these objections, Defendant did attach a document containing the names of former employees, their former job titles, employment dates, and their former departments. See Beltramo Decl. ^[4, Ex. 2, Attachment, at OSTK 5-6 and 8-9. However, rather than provide current contact information, Overstock listed its corporate address and telephone number, even though the individuals in question were by definitions/burner employees. See id. On February 28, 20 11 , the People first attempted to meet and confer by email regarding the failure to provide the requested contact information. Beltramo Decl. ^[5, Ex. 3. Overstock's counsel eventually responded by email, stating that "after careful thought" Overstock was "not able to provide you with the private information of over 200 of Overstock's former employees." Beltramo Decl. J6, Ex. 4. On March 22, 201 1, the People replied with another email, explaining that Overstock appeared to be improperly asserting a privacy rights objection to the Interrogatories in question and providing,
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in summary fashion, the legal basis for the this view. The email further went on to propose that, as a
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way of satisfying Overstock's privacy concerns, the parties enter into a reasonable protective order.
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Beltramo Decl. ^7, Ex. 5. Overstock's counsel responded by email on March 25, 201 1, asserting that
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the legal authority cited in by the People was distinguishable and requesting that the parties table this issue - with an open extension on a motion to compel - so as to allow other discovery to go forward. Beltramo Decl ^[8, Ex. 6. Later in the day on March 25, 201 1 , the People responded by email, stating that they were not
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able to put off resolution of this dispute inasmuch as obtaining contact information of potential witnesses was a necessary and important first step in the discovery process. The email went on to state that, although the People would welcome any legal authorities from Overstock, the parties appeared to have reached an impasse. The email reiterated the People's willingness to enter into a reasonable protective order. Beltramo Decl. ^[9, Ex. 7. The People have heard nothing further from Overstock on this issue. I Thus, the People have no choice but to move the Court to overrule Overstock's objection and
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compel it to supplement its responses to Special Interrogatories 8 and 14, III. ARGUMENT A. Defendant Should Be Ordered To Supply Current Or Last Known Contact Information On Potential Witnesses. In refusing to provide the current contact information for those former employees who are potential witnesses in this case, Defendant has taken an improperly narrow view of the scope of civil discovery as its pertains to disclosure of witness information. Code of Civil Procedure section 2017.010 provides that unless the court orders limits on discovery: any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter .... (Emphasis added). "The scope of discovery is very broad," (Tien v. Superior Court (2006) 139 Cal. App. 4th 528, 535), representing "a deliberate attempt to take the game element out of trial preparation and to do away with the sporting theory of litigation-namely, surprise at the trial." Crab Addison, Inc. v. Superior Court (2008) 169 Cal. App. 4th 958, 966 (citations and internal quotations omitted). Accordingly, "discovery statutes are broadly construed in favor of discovery whenever possible in order to aid the parties in preparation for trial." Id. (citations omitted).
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The disclosure of contact information of potential witnesses fits squarely within the broad
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scope of discovery:
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Ofllccof DISTRICT ATTOfflfJY Alameto Counly -"-*
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 ofpretrial discovery.... 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: The Civil Discovery Act also provides that a party may obtain information by the use of various methods, including oral and written depositions. (Code Civ. Proc., 2020.010, subd. (a).) The party's ability to subpoena witnesses presumes that he has the witnesses' contact information. (Puerto v. Superior Court (2008) 158 Cal. App. 4th 1242, 1249-1250 (Puerto) (case citations and internal quotations omitted; emphasis added).
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See also Crab Addison, Inc., supra, 169 Cal. App. 4th at1967 ("it is only under unusual circumstances , that the courts restrict discovery of nonparty witnesses' residential contact information") (citations and quotations omitted); Lee v. Dynamex, Inc. (2008) 166 Cal. App. 4th 1325, 1337-1338 ("the information sought... here-the location of witnesses-is generally discoverable, and it is neither unduly personal nor overly intrusive") (citations and internal quotations omitted). The rule requiring disclosure of contact information on potential witnesses applies to a litigant's former employees. See Puerto, supra, 158 Cal. App. 4th at 1256 ("These current and former employees are potential percipient witnesses to the occupational duties of the petitioners, the primary issue in this litigation, and as such their locations are properly discoverable"); accord Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal. App. 4th 554, 562 . In this case, it appears from both the objections lodged in its responsive pleadings and the information provided in the meet-and-confer process that Defendant's refusal to supply contact
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information on former employees is predicated on a privacy-rights objection. Although Article I,

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Section 1, of the California Constitution recognizes an individual's right to privacy, that right is not
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absolute and must give way in the appropriate circumstances to legitimate discovery needs. I. The Privacy Rights Test Articulated in the Pioneer Case.
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The interplay between privacy rights and discovery was examined by the California Supreme
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Court in Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal. 4th 360, 370 (Pioneer}. There, the Court applied a three-part test to determine, at the outset, whether a cognizable privacy righ had been asserted:3 (1) the party on whose behalf a privacy claim is asserted must have a "'legally protected privacy interest'"; (2) the party whose privacy rights are at issue "must possess a reasonable expectation of privacy under the particular circumstances, including 'customs, practices, and physical settings surrounding particular activities'"; 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
Defendant has never supplied the People with any authorities for its objection, nor has it articulated any other legal basis for its refusal to supply the requested information. Seltramo Decl, ffl|6-l 0, Exs. 3-7. 3 This framework was adopted from Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1.
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norms, for trivial invasions afford no cause of action." Pioneer, supra, 40 Cal. 4th at 370-71 (emphasis added) (quoting Hill v. National Collegiate Athletic Assn. (1994) 7 CaUth 1, 36-37)). Assuming a claimant satisfies the three-part test, the Court in Pioneer went on to hold that "that [the privacy] interest must be measured against other competing or countervailing interests in a 'balancing test."1 Pioneer, supra, 40 Cal. 4th at 371 (quoting Hill, supra, 1 Cal.4th at 37). Discovery
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that is alleged to result in an invasion of privacy must '"be evaluated based on the extent to which it furthers legitimate and important competing interests.' .... Protective measures, safeguards and other alternatives may minimize the privacy intrusion. 'For example, if intrusion is limited and confidential information is carefully shielded from disclosure except to those who have a legitimate need to know, privacy concerns are assuaged.1" Pioneer, supra, 40 Cal. 4th at 371 (citations omitted) (quoting Hill, supra, 7Cal.4that38).4
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2. Disclosure of Contact Information on Potential Witnesses Who Have Already Been Named In Discovery Does Not Implicate Privacy Rights. The legal flaws in Defendant's apparent position are evident upon application of the Pioneer framework. Assuming arguendo that Defendant has standing to assert the privacy interests of former employees, it cannot satisfy the remaining two elements of the Pioneer test. First, although contact information such as addresses and telephone numbers are generally regarded as private, it is far from certain that Defendant's former employees would harbor a "reasonable expectation of privacy under the particular circumstances" of this case. Pioneer, supra, 40 Cal. 4th at 371. This is not a dispute between private litigants; it is a law enforcement action brought by public officials on behalf of the People of California. Under these circumstances, there is no reason to assume that the former employees -who are no longer in an employment relationship with Overstock would object to disclosure of their contact information. Cf. Puerto, supra, 158 Cal. App. 4th at 1252-53 (the generally private nature of "residential telephone and address information ... does not mean that the individuals would not want it disclosed under these circumstances").
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Although Pioneer accepted the use of an "opt-out" letter under the facts of its case, it did not impose an optout requirement. And for the reasons discussed in Part H.B., infra, no such letter is warranted here.
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Second', and more importantly, the limited discovery that the People seek - namely, contact information on potential witnesses who have already been identified -- does not, as a matter of law, constitute a "serious" invasion of privacy rights must less an "egregious breach of social norms." Pioneer, supra, 40 Cal. 4th at 371 (internal quotations and citation omitted). Puerto is highly instructive. There, private plaintiffs brought an action against their former employer, Wild Oats Markets, Inc. ("Wild Oats"). During discovery, the plaintiffs propounded a standard form interrogatory, requesting information on all individuals who witnessed the "INCIDENT." See Jud. Council Interrog. No. 12.1. In response, Wild Oats disclosed the names, but not the addresses and telephone numbers, of thousands of current and former employees. Wild Oats refused to disclose contact information on the grounds that doing so would violate the privacy rights of the current and former employees. Puerto, supra, \8 Cal. App. 4th at 1247. The Court of Appeal soundly rejected this contention:
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Here, just as in Pioneer, the requested 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. . . . This is basic civil discovery. These individuals have been identified by Wild Oats as witnesses. Nothing could be more ordinary in discovery than finding out the 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. ... In some respects, the potential intrusion here is even less significant than that in Pioneer, because here the requested disclosure does not involve individuals' identities, which had already been disclosed by Wild Oats prior to the filing of the motion to compel. There simply is no evidence that disclosure of the contact information for these already- identified witnesses is a transgression of the witnesses' privacy that is "sufficiently serious in [its] nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right...." (Puerto, supra, 158 Cal. App. 4th at 1253-1254 (citations and internal quotations omitted). The holding in Puerto controls in this case. The individuals whose names Defendant disclosed in response to Special Interrogatories 8 and 14 are former employees who either set comparison prices or communicated with the merchants, vendors or other "fulfillment partners" who sold items that were advertised on Defendant's web site using comparison prices. In either instance, these individuals are percipient witnesses whose testimony will shed light on the main issue in this case, namely, the
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methodology (or lack thereof) used by Overstock to arrive at comparison prices. See Puerto, supra, 158 Cal. App. 4th at 1256 ('These current and former employees are potential percipient witnesses to the occupational duties of the petitioners, the primary issue in this litigation, and as such their locations are properly discoverable") (emphasis added). Importantly, this is not a case in which Defendant has refused to produce any information on its former employees. Defendant not only provided the individuals' names, but also their job titles, dates of employment and the departments in which they worked. Beltramo Decl. ^4, Ex. 2, Attachment at OSTK 5-6 and 8-9. The only information Defendant withheld is a means by which the People can contact these witnesses. See Puerto, supra, 158 Cal. App. 4th at 1258 ("the petitioners already have the identities of the individuals involved; they merely seek their contact information"). For all these reasons, Defendant should not be allowed to interpose a "privacy rights" objection as a bar to what is
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otherwise valid discovery request.

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3. A Balancing Test Also Favor Disclosure Of The Requested Information. Because no serious invasion of privacy rights is at issue in this case, it is not necessary for the Court to engage in a balancing test pursuant to Pioneer. See Puerto, supra, 158 Cal. App. 4th at 1256.
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However, were the Court to engage in such a test, it would only serve to "reinforce[] [the] conclusion"
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that the requested contact information should be provided. Id Like Puerto, which involved employee-protection laws, this case involves the "fundamental public policy" underlying California's consumer protection laws, "suggesting that the balance of opposing interests tips toward permitting access to relevant information necessary to pursue the litigation." Id. Also like Puerto, this case implicates the "general public interest in facilitating the ascertainment of truth in connection with legal proceedings.. .and in obtaining just results in litigation [citation]." Id (citations and internal quotations omitted). Finally, because the former employees listed in the special interrogatories "are potential percipient witnesses" to Defendant's comparison price setting policies, "the primary issue in this litigation," their locations are discoverable. Id Balanced against these compelling interests is, at worst, a comparatively slight intrusion into the privacy rights of former employees. The People are seeking only current contact information, and
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not more sensitive information such as employment records, financial records, psychiatric records or the like^ Compare, e.g., In re Clergy Cases J'(2010) 188 Cal. App. 4th 1224,1231 (psychiatric records). As in Puerto, these "former employees are potential percipient witnesses to the [acts of defendant], the primary issue in this litigation, and as such their locations are properly discoverable." Puerto, supra, 158 Cal. App. 4th at 1256 (emphasis added). B. A Protective Order Is Sufficient to Satisfy Defendant's Privacy Concerns And No Further Procedural Protections Are Warranted.
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As reflected in the meet and confer emails, the People repeatedly offered to enter into a
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reasonable and appropriate protective order as a means of resolving this dispute. Beltramo Decl. ^7
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and 9, Exs. 5 and 7. The People remain willing to enter into such a protective order and believe that doing so should sufficiently allay Defendant's asserted privacy concerns. See Puerto, supra, 158 Cal. App. 4th at 1259 ("Certainly the trial court may require that the information be kept confidential by the petitioners and not be disclosed except to their agents as needed in the course of investigating and pursuing the litigation"). Further, because a protective order affords sufficient safeguards under the circumstances of this case, no further procedural protections - such as sending "opt-in" or "opt-out" letters to the former employees - are warranted. See id, at 1251 -52 (refusing to order an opt-out lette because "a percipient witness's willingness to participate in civil discovery has never been considered
relevant -- witnesses may be compelled to appear and testify whether they want to or not.") IV. CONCLUSION For the reasons set forth above, the People respectfully request that this Court overrule Defendant's privacy objections, order Defendant to provide current contact information for the former employees identified in its responses to Special Interrogatories Numbers 8 and 14, and grant such other and further relief as the Court deems just and proper. Dated: April 1, 2011 NANCY E. O'MALLEY Alameda County District Attorney
By:. Matthew Beltramo Deputy District Attorney

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NANCY E.O'MALLEY District Attorney of Alameda County Matthew L. Beltramo, Deputy District Attorney (State Bar No. 184796) 7677 Oakport Street, Suite 650 Oakland, CA 94621 Telephone: (510) 569-9281 Facsimile: (510) 569-0505 Additional counsel listed on Appendix A To Notice of Motion and Motion to Compel Attorneys for Plaintiff SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff No. RG10-546833 DECLARATION OF MATTHEW L. BELTRAMO IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES Date: Time: Dept: Reservations: May 5,2011 2:00 p.m. 20 J/C1S7I
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Assigned for All Purposes to the Honorable Robert B. Freedman Complaint Filed: Answer Filed: Am. Answer Filed: November 17, 2010 January 28, 201 1 March?, 2011
I, Matthew L. Beltramo, declare: 1. I am an attorney at law in the State of California and am currently employed as a Deputy District Attorney for the County of Alameda. The Alameda County District Attorney's Office is one of the Offices representing the Plaintiff, the People of the State of California (hereinafter
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BELTRAMO DECLARATION IN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES
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"the People") in this action. Except where otherwise indicated, I have personal knowledge of
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the facts described below.

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2. I am informed and believe that on December 23,2011, the People served by overnight mail its
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First Set of Interrogatories on Defendant Overstock.com, Inc. ("Overstock"), a true and correct copy of which is attached hereto as Exhibit 1. 3. On two occasions, in late January and early February 2011, respectively, the People agreed to extensions of time for Overstock to respond to the First Set of Interrogatories. A response date of February 16, 2011, was ultimately agreed upon. 4. On February 16, 2011, Overstock served its Objections and Responses to Plaintiffs First Set of Interrogatories (the "Interrogatory Responses"), a copy of which is attached to this declaration as Exhibit 2. 5. On February 28, 2011,1 sent an email to counsel for Overstock, seeking to meet and confer regarding certain issues with respect to Overstock's Interrogatory Responses. Among the issues addressed was Overstock's unwillingness to include present or last known contact information for those former employees whose names were disclosed in response to Special Interrogatories Number 8 and 14. A true and correct copy of that email is attached hereto as Exhibit 3. 6. On March 4, 2011, counsel for Overstock acknowledged receiving the Meet and Confer email. Counsel for Overstock eventually responded by email on March 18, 2011, indicating that "after careful thought we are not able to provide you with the private information of over 200 of Overstock's former employees." A true and correct copy of the March 18, 2011, email -
22
without attachment - is attached hereto as Exhibit 4.

23
7. On March 22, 2011,1 sent a reply email to counsel for Overstock, explaining the People's
24 25 26 27 28
Office of DISTRICT ATTOfflflY Alamcda County *J*J
view that Overstock appeared to be improperly asserting a privacy rights objection to the Interrogatories in question. The email went on to set forth, in summary fashion, the legal basis for the People's position. The email further went on to propose, as a way of satisfying Overstock's privacy concerns, that the parties enter into a reasonable protective order. A true and correct copy of that email is attached hereto as Exhibit 5.
-2Case No. RG10-546833
31
BELTRAMO DECLARATION IN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES
1
2 3
8. On March 25, 2011,1 received an email from counsel for Overstock, asserting that one of the
4
principal legal authorities cited in my March 22, 2011, email was distinguishable from this case
5
and requesting that the parties table this issue - with an open extension on a motion to compel 6 7
so as to allow other discovery to go forward. A true and correct copy of this email is attached hereto as Exhibit 6. . 9. Later in the day on March 25, 2011,1 responded via email, indicating that the People could not agree to table this issue inasmuch as obtaining contact information of potential witnesses was an important and necessary preliminary step in the discovery process. The email went on to state that, although the People would welcome any legal authorities that Overstock was willing to provide, the parties appeared to have reached an impasse. The email reiterated the People's
8 9
10 11
12 13 14 15 16 17 18 19 20
willingness to enter into a protective order to address Overstock's privacy concerns. A true and \t copy of thi 10. As of the date of this declaration, I have not heard anything further on this discovery issue from Overstock's counsel. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 1st day of April, 2011, in Oakland,
Matthew L. Beltramo
21 22 23 24 25 26 27 28
Office of DISTRICT AlBmcda County
-3-
31
BELTRAMO DECLARATION IN SUPPORT OP MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES
EXHIBIT 1
NANCY E.O'MALLEY District Attorney of Alameda County 2- Matthew L. Beltramo, Deputy District Attorney (State Bar No. 184796) 3 7677 Oakport Street, Suite 650 Oakland, CA 94621 4 Telephone: (510) 569-9281 Facsimile: (510) 569-0505 5 Additional counsel listed in Appendix A. Attorneys for Plaintiff
9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PROPOUNDING PARTY: RESPONDING PARTY: SET NUMBER:
v.
SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA PEOPLE OF THE STATE OF CALIFORNIA, ) ) Plaintiff, ) ) > ) ) ) ) Defendant. ) NO. RG10-546833 ASSIGNED FOR ALL PURPOSES TO: Judge Robert B. Freedman DEPARTMENT: 20 PLAINTIFF'S FIRST SET OF INTERROGATORIES TO DEFENDANT OVERSTOCK.COM, INC
OVERSTOCK.COM, INC., a Corporation; and DOES 1-10
Plaintiff, PEOPLE OF THE STATE OF CALIFORNIA Defendant, OVERSTOCK.COM, INC. One ,. ,-"' -'":'''' ^^
'-1PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT OVERSTOCK.COM, INC.
1 2
Definitions
3 4 5 6 7
General terms: 1. "ADDRESS" means the street address, including the city, state, and zip code. 2. The "COMPARE AT PRICE" is the dollar amount listed on a PRODUCT PAGE describing an ITEM and next to the words "Compare at". 3. A "COMPARISON PRJCE" for an ITEM is the LIST PRICE or the COMPARE AT
.8-
9
10 11 12 13 .14 15
PRICE which YOU display on the PRODUCT PAGE for that ITEM. 4. "COMPARISON PRICING" refers to the act of SETTING A COMPARISON PRJCE. 5. "CURRENT EMPLOYEE" refers to any natural person who is currently employed by
YOU.
6. DATES: Where a request calls for information relating to a period of time occurring between two dates, those dates are inclusive. 7. "DATES OF EMPLOYMENT" refers to the date when a PERSON first became one of
16 17 18 19 20 21 22 23
or magnetic media, and/or microfiche, which contains, a "writing". Thus, this definition YOUR EMPLOYEES and, if that PERSON is no longer one of YOUR EMPLOYEES, the date on which he/she left YOUR employ. 8. A "DEPARTMENT" refers to a category of ITEMS which YOU use to describe ITEMS on YOUR SITE (e.g., "Luggage", "Bedding and Bath"). A "DEPARTMENT" may include one or more PRODUCT LINES. 9. "DOCUMENT" includes any tangible thing, including but not limited to paper, optical
24 25 26 27 28
encompasses DOCUMENTS stored within computers and on magnetic or optical media. The People define "writing" in the same manner as set forth in California Evidence Code section 250. Thus, a "writing" includes handwriting, typewriting,
-2PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT OVERSTOCK.COM, INC.
printing, photostating, photographing, and every other means of recording upon any
2
3
4
tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof. Any such document bearing on any portion thereof any mark (including but not limited to initials, stamped indicia, comments, or notations of any character) not a pan of the original text or photographic reproduction thereof, is to be considered to be a separate document. 10. "EMPLOYEE" refers to any natural person employed by YOU during the time specified in the interrogatory. 11. "FORMER EMPLOYEE" refers to any natural person who was once employed by YOU during the time specified in the interrogatory, but is not presently employed by
5 6 7 8
9 10
11 12
YOU.
12. "FULFILLMENT PARTNER" refers to any retailer, manufacturer, distributor, cataloguer, merchant, vendor, or other broker or seller of goods, other than YOU, whose
13
14
15
16
17
goods are offered for sale on, through, or via YOUR SITE (said goods are referred to hereinâs PARTNER PRODUCTS). 13. "IDENTIFY" when referring to a PERSON requires YOU to provide the (a) name of the PERSON; (b) the last known ADDRESS of the PERSON; (c) the last known telephone number of the PERSON; and (d) the relationship, if any, of the PERSON to
18
19
20
21 22
YOU.
14. "IDENTIFY" when referring to an event, incident, occasion, or occurrence requires YOU to provide the date and location of that event, incident, occasion, or occurrence. 15. "IDENTIFY" when referring to a DOCUMENT requires YOU to (a) IDENTIFY the PERSON who created the document; (b) state the date on which the DOCUMENT was created; and (c) identify the present location of that DOCUMENT. If that document is
23 24 25 26 27 28
not in YOUR actual or constructive possession, YOU are to IDENTIFY the custodian of 2 3 4 5 6 DATES OF EMPLOYMENT, the job title that person held when departing YOUR 7 8 9 10 11 12
13
that DOCUMENT.
16. To "IDENTIFY A CURRENT EMPLOYEE" means to list that EMPLOYEE'S full name, DATES OF EMPLOYMENT, and current job title. 17. To "IDENTIFY A FORMER EMPLOYEE" means to list that EMPLOYEE'S full name,
employ, present or last known home ADDRESS, e-mail address, present or last known home telephone number, and present or last known cell phone number. 18. An "ITEM" is any good offered for sale on YOUR SITE. 19. The "LIST PRICE" is the dollar amount listed on a PRODUCT PAGE describing an ITEM and next to the words "List Price". 20. An "OFRER PRICE" is the dollar .amount listed on a PRODUCT PAGE at which a particular ITEM is offered for sale by YOU to CONSUMERS.
14 15 21. "OVERSTOCK" refers to YOU. 22. An "OVERSTOCK BUYER" is an EMPLOYEE who communicates with PRODUCT SOURCES to acquire ITEMS and/or the right to sell ITEMS on the SITE. 23. "PERSON" includes a natural person, firm, association, organization, partnership, business, trust, corporation, or public entity. 24. A "PRODUCT LINE" is any set of related ITEMS for which one or more EMPLOYEES was assigned, or otherwise made RESPONSIBLE for, SETTING THE OFFER PRICE and/or SETTING THE COMPARISON PRICE. A "PRODUCT LINE" may be a DEPARTMENT, or a subcategory thereof. 25. A "PRODUCT PAGE" is any portion of, or page on, YOUR SITE which displays an ITEM.
16
17 18 19
20
2! 22
23 24 25 26 27 28
PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT OVERSTOCK.COM, INC.
1
2 3 4 5 6
7
26. The "PRODUCT SOURCE" is the merchant, vendor, or other seller, including any FULFILLMENT PARTNER, from whom YOU OR ANYONE ACTING ON YOUR BEHALF acquired an ITEM and/or the right to sell that ITEM on the SITE. 27. A "PRODUCT SOURCE REPRESENTATIVE" is an employee or representative of a PRODUCT SOURCE with whom YOU OR ANYONE ACTING ON YOUR BEHALF communicates or communicated in the process of SETTING THE OFFER PRICE and/or SETTING THE COMPARISON PRICE of an ITEM.
8 9 10 11 12 13
14
28. "RESPONSIBLE" means having been assigned, contracted, delegated, or given the task of performing the action(s) specified in the interrogatory below, whether or not that action was ultimately performed. If YOU assigned, delegated, or gave the task of performing that specific action(s) to more than one PERSON during the time period stated, IDENTIFY each such PERSON. If YOU did not assign, contract, delegate, or give any PERSON the task of performing the action(s) specified in the interrogatory,
15 16 17 18 19 20 21 22
PRODUCT PAGE as the LIST PRICE for an ITEM.
23
24
then state as much in YOUR response. 29. To "SET THE COMPARE AT PRICE" means to determine the dollar amount to be displayed on a PRODUCT PAGE as the COMPARE AT PRICE for an ITEM. 30. To "SET COMPARISON PRICES" is to SET THE LIST PRICE or to SET THE COMPARE AT PRICE for an ITEM. 31. To "SET THE LIST PRICE" is to determine the dollar amount to be displayed on a
32. To "SET THE OFFER PRICE" is to determine the dollar amount to be displayed on a PRODUCT PAGE as the "Today's Price" for an ITEM.
25 26 27 28
-5PLAINTIFF'S FIRST SET OF rNTERROGATORIES DIRECTED TO DEFENDANT OVERSTOCK.COM, INC.
33. The "SITE" refers to www.overstock.com and all Internet sites or URLs which include part of that domain name, including but not limited to the PRODUCT PAGES accessible from www.overstock.com. 34. "YOU" refers to Overstock.com, Inc. 35. "YOU OR ANYONE ON YOUR BEHALF" includes YOU, YOUR agents, YOUR EMPLOYEES, and anyone else acting on YOUR behalf.
- 2 3 4 5 6 7
8 9
10 11 12 13 14
1. Form Interrogatory 1.1: State the name, ADDRESS, telephone number, and Form Interrogatories. Interrogatories
relationship to you of each PERSON who prepared or assisted in the preparation of the responses to these interrogatories. (Do not identify anyone who simply typed or reproduced the
15' responses.)
16 17
a. the name stated in the current articles of incorporation; all other names used by the corporation during the past ten years and the dates 2. Form Interrogatory 3.1: Are YOU a corporation? If so, state:
18 19 20 21 22
23 24 25
b.
each was used; c. d. e. 3. the date and place of incorporation; the ADDRESS of the principal place of business; and whether YOU are qualified to do business in California.
Form Interrogatory 3.7: Within the past five years has any public entity registered or
licensed your businesses? If so, for each license or registration:

26 27 28
a.
identify the license or registration;
-6PLArNTlFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT OVERSTOCK.COM, FNC.
1
2 3
b. c.
state the name of the public entity; and state the'dates of issuance and expiration.
4 Spec ia 1 Interrogatgr i es. 5

1. Identify the job title(s) which YOU currently use to identify EMPLOYEES who SET
6 7 8
COMPARISON PRICES. 2. Identify every job title which YOU do not identify in your answer to Interrogatory #1
9 and which YOU used on or after January ], 2006 to identify EMPLOYEES who SET
10 11 12 13 14
President Jonathan Johnson. COMPARISON PRICES. 3. Provide an organization chart which indicates the job titles for each EMPLOYEE who
currently SETS COMPARISON PRICES and the job titles of all managers, supervisors or superiors who are in a direct reporting relationship between that EMPLOYEE and Overstock
15 16
4. 5. How many EMPLOYEES currently SET COMPARISON PRICES? How many EMPLOYEES SET COMPARISON PRICES in each year between 2006
17 18 19
and 2010, inclusive? 6. IDENTIFY each CURRENT EMPLOYEE who SET COMPARISON PRICES at any
20 time on or after January 1, 2006. 21

7.
For each CURRENT EMPLOYEE IDENTIFIED in response to Interrogatory #6,
22
23
identify each DEPARTMENT and/or PRODUCT LINE for which that EMPLOYEE SET i COMPARISON PRICES on or after January 1, 2006. 8. IDENTIFY each FORMER EMPLOYEE who SET COMPARISON PRICES at any
24 25 26 27 28
time on or after January 1, 2006.
-7PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT OVERSTOCK/COM, INC.
9.
For each FORMER EMPLOYEE IDENTIFIED in response to Interrogatory #8,
identify each DEPARTMENT and/or PRODUCT LINE for which that EMPLOYEE SET COMPARISON PRICES on or after January 1, 2006. 10. 11. How many EMPLOYEES currently work as OVERSTOCK BUYERS? How many EMPLOYEES worked as OVERSTOCK BUYERS between 2006 and 2010,
3
4 5
6 7 8 9 10
11
inclusive? 12. IDENTIFY each CURRENT EMPLOYEE who has worked as an OVERSTOCK
BUYER at any time on or after January 1, 2006. 13. For each OVERSTOCK BUYER identified in response to Interrogatory #12, identify
each DEPARTMENT and/or PRODUCT LINE for which that EMPLOYEE regularly acted as an OVERSTOCK BUYER on or after January 1, 2006. 14. IDENTIFY each FORMER EMPLOYEE who worked as an OVERSTOCK BUYER at
12 13 .14
any time on or after January 1, 2006.

15
16
17
15.
For each FORMER EMPLOYEE IDENTIFIED in response to Interrogatory #14,
identify each DEPARTMENT and/or PRODUCT LINE for which that EMPLOYEE regularly acted as an OVERSTOCK BUYER on or after January 1, 2006.
18 19 20 21 22 23 24 25 26
27 28
PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT OVERSTOCK.COM, INC.
Appendix A Additional Counsel for the People EDWARD S. BERBER1AN District Attorney of Marin County , Andres H. Perez, Deputy District Attorney (State Bar No. 186219) 3501 Civic Center Drive, Room 130 San Rafael, CA 94903 Telephone: (415)499-6450 Facsimile: (415)499-3719
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
DEAN D. FLIPPO District Attorney of Monterey County James R. Burlison, Deputy District Attorney (State Bar No. 79836) 1200 Aguajito Rd., Room 301 Monterey, CA 93940 Telephone: (831)647-7713 Facsimile: (831)647-7762 GARY L1EBERSTEIN District Attorney of Napa County Daryl A. Roberts, Deputy District Attorney (State Bar No. 111981) 931 Parkway Mall, P.O. Box 720 Napa,CA 94559 DOLORES A. CARR District Attorney of Santa Clara County Kenneth Rosenblatt, Supervising Deputy District Attorney (State Bar No. 104847) 70 W. Redding Street, West Wing San Jose, California 95110 Telephone: (408) 792-2572 Facsimile: (408) 279-8742 GERALD C. BENITO District Attorney of Shasta County Erin M. Dervin, Deputy District Attorney (State Bar No. 188426) 1355 West Street Redding, California 96001 Telephone: (530)245-6300 Facsimile: (530) 245-6345
STEPHAN R. PASSALACQUA District Attorney of Sonoma County 2 Matthew T. Cheever, Deputy District Attorney (State Bar No. 191783) 3 2300 County Center Drive, Ste. B-170 Santa Rosa, California 95403 4 Telephone: (707)565-3161 Facsimile: (707) 565-3499 5
6 7 8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 -2425
III
26 27 28
III
QUINN EMANUEL URQUHART & SULLIVAN, LLP Robert P. Feldman (Bar No. 69602) Dane W. Reinstedt (Bar No. 275447} 555 Twin Dolphin Dr., 5th Floor Redwood Shores, CA 94065 Telephone: (650) 801-5000 Facsimile: (650) 801-5100 Emai'l: bobfeldman@quinnemanuel.com Email: danereinstedt@quinnemanuel.com Melissa J. Baily (Bar No. 237649) 50 California St., 22nd Floor San Francisco, CA 94111 Telephone: (415) 875-6600 Facsimile: (415) 875-6700 Email: melissabaily@quinnemanuel.com
9 10 Attorneys for Defendant Overstock.com, Inc., 11 12 13
SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA
14 15
16 PEOPLE OF THE STATE OF CALIFORNIA, 17 18
CASE NO. RG10-546833 OVERSTOCK.COM, INC.'S OBJECTIONS AND RESPONSES TO PLAINTIFF'S FIRST SET OF INTERROGATORIES TO DEFENDANT OVERSTOCK.COM, INC. Judge: Hon. Robert Freedman Dept.:20 Complaint Filed: November 17, 2010
Plaintiff,
vs.
19 OVERSTpCK.COM, INC., a corporation; and 20 DOES 1-10 21 22 23 24
Defendant.
PROPOUNDING PARTY:
25
PEOPLE OF THE STATE OF CALIFORNIA OVERSTOCK.COM, INC.
RESPONDING PARTY:
26
SET NUMBER:
' " 27 28
.51782/3971861.1
ONE
Case No. RG10-546833 RESPONSES TO FIRST SET OF INTERROGATORIES
Overstock.com, Inc. ("Overstock") hereby objects and responds to Plaintiffs First Set of Interrogatories to Defendant Overstock.com, inc. as follows:
3 4 5 6 ' 7
stated below. GENERAL RESPONSES AND OBJECTIONS Overstock makes the following General Responses and Objections, which apply to and hereby are incorporated in Overstock's responses to each and every Interrogatory. Overstock's further specific objections to each Interrogatory supplement the General Responses and Objections
8
1. Overstock objects to each Interrogatory to the extent that it seeks production of
9
documents or things or testimony protected by the attorney-client privilege, the work product
10
doctrine, the joint defense or common interest privilege, or any other applicable privileges or
11
protections.
12 13 14 15
3. Overstock objects to each Interrogatory to the extent that it calls for private, 2. Overstock objects to each Interrogatory to the extent that it seeks to impose obligations on Overstock greater than or more extensive than those required by the California Code of Civil Procedure.
16
confidential, or proprietary business, technical, or financial information or trade secrets of
17
Overstock or of third parties.
18 19 20 21 22 23 24 25 26
responsive to the Interrogatories may not yet have been discovered. Accordingly, without 6. Overstock objects to each Interrogatory to the extent that it seeks information equally or more available to Plaintiff, or already in the possession, custody, or control of Plaintiff. 7. Overstock objects to each Interrogatory on the ground and to the extent that 5. burdensome. Overstock objects to each Interrogatory to the extent that it is overbroad and unduly 4. Overstock objects to each Interrogatory to the extent that it seeks information in the possession of third parties, and not in Overstock's possession, custody or control.
Overstock has not completed its factual investigation. Moreover, information that may be
27 28
)55.51782/3971861.
asserting an obligation to do so, and without waiving the objections asserted herein, Overstock reserves the right to amend and/or supplement its responses at the appropriate time. 8. Overstock objects that Plaintiffs definitions of "YOU," "YOU OR ANYONE ON
YOUR BEHALF," and "OVERSTOCK" are overbroad and impose upon Overstock duties beyond those required under the scope of discovery as defined in the California Code of Civil Procedure at least because the definition encompasses persons and entities not within the control of Overstock. 9. Overstock objects that Plaintiffs definition of "DOCUMENT" is overbroad to the
extent it purports to impose upon Overstock duties beyond those required under the scope of discovery as defined in the California Code of Civil Procedure,
10 11
12.
Overstock's response is made expressly subject to, and without in any way waiving
or intending to waive, any questions or objections as to the competency, relevancy, materiality,
12 privilege or admissibility as evidence or for any other purpose, of any of the documents referred to 13 or produced, or of the responses given herein, in any proceeding (including the trial of this action 14 or in any subsequent proceeding). These responses are made subject to Overstock's right to object 15 to any discovery proceeding involving or relating to the subject matter of the requests responded 16 to herein. 17
13. Overstock's objections to the disclosure of any information requested by the
18 Interrogatories are not and shall not be construed as an admission by Overstock that any such 19 information exists. 20 21 22 FORM INTERROGATORY NO. 1.1:
RESPONSES
23
State the name, ADDRESS, telephone number, and relationship to you of each PERSON
24 who prepared or assisted in the preparation of the responses to these interrogatories. (Do not 25 identify anyone who simply typed or reproduced responses.) 26
27
28
155.51782/3971861,
RESPONSE TO FORM INTERROGATORY NO. 1.1: Subject to and without waiving the foregoing objections, Overstock responds as follows: Other than in-house counsel,
4 5
a.
Lani Murakami Director of Merchandising, Bedding & Bath Overstock.com, Inc. 6350 South 3000 East Salt Lake City, UT 84121 (801)947-3100
6 7
8 9
10 11
12 13 14 15
b.
Candace King Merchandise Operations Manager Overstock.com, Inc. 6350 South 3000 East Salt-Lake City, UT 84121 (801)947-3100
16 17 18 19 20 21 22
c.
Marci Osterberg Director of Human Resources
Overstock.com, Inc. \0 South 3000 East Salt Lake City, UT 84121 (801)947-3100 The foregoing individuals may only be contacted through counsel.
23 24 FORM INTERROGATORY NO. 3.1: 25

Are YOU a corporation? If so, state: a. b. the name stated in the current articles of incorporation; all other names used by the corporation during the past ten years and the dates each
26
27
28 was used;
55.51782/3971861.
CaseNo. RG10-546833 -4RESPONSES TO FIRST SET OF INTERROGATORIES
c. d. e.
the date and place of incorporation; the ADDRESS of the principal place of business; and whether YOU are qualified to do business in California.
RESPONSE TO FORM INTERROGATORY NO. 3.1:

Subject to and without waiving the foregoing objections, Overstock responds as follows: Overstock is a corporation. a. b. Overstock.com, Inc. Overstock objects to interrogatory No. 3.1 as the word "used" is vague and
10 mbiguous. Notwithstanding the foregoing general and specific objections, Overstock responds as 11 ollows: Overstock.com (1999-present); Overstock (1999-present) and O.co (2010-present). 12 c. Overstock was incorporated in Utah on December 30, 1998. Overstock was
13 re incorporated in Delaware on February 27, 2002. 14 15 d. e. 6350 South 3000 East, Salt Lake City, UT 84121. Overstock is not qualified to do business in California.
16 17 FORM INTERROGATORY NO. 3.7: 18

Within the past five years has any public entity registered or licensed your businesses? If
19 so, for each license or registration: 20 21 22

a. b. _ c. identify the license or registration; state the name of the public entity; and state the dates of issuance and expiration.
23 24 RESPONSE TO FORM INTERROGATORY NO. 3.7: 25

Overstock objects to interrogatory No. 3.7 as the phrase "public entity" is vague and
26 ambiguous. Notwithstanding the foregoing general and specific objections, Overstock responds as 27 follows: 28
55.51782/3971861.
-5-
CaseNo. RGIO-546833 RESPONSES TO FIRST SET OF INTERROGATORIES
a.
Overstock is a Delaware corporation, File No. 3496781 and has been incorporated
continuously since February 27, 2002. b. Overstock is licensed to do business in the State of Utah, Entity Number 5102118-
0143 and has been licensed to do business in the State of Utah since April 9, 2002.
c.
Overstock was issued a Utah Sales Tax License and/or Use Tax Certificate of
Registration, Account Number: 11955665-002-STC, and has been licensed to collect and remit sales and/or use tax to the State of Utah since January 1, 1999. d. Overstock was registered to do business in the State of Illinois on December 22,
2004 and remained registered continuously until May 9, 2008.

10 11 12 13
14
e.
Overstock was registered to do business in the State of Indiana on September 24,
2004, Control Number: 2004092700281, and remained registered until April 15, 2010. f. Overstock was issued an Indiana tax identification number - Taxpayer TID
0119489600 in 2004. g. Overstock is licensed by the California Bureau of Home Furnishings and Thermal
15 16
Insulation as an "Importer," License No. 145571 and has been licensed since October 26, 2005. h. Since 2005, Overstock has operated a "Representative Office" in Shanghai, China
17 commonly known as "American Overstock.com, Inc," License No. 0114416.
18
i.
Overstock was issued a North Carolina Sales Tax Registration number-
19 600798736, and has been licensed to collect and remit sales and/or use tax to the State of North 20 Carolina since December 16, 2010.
21
J<
Overstock was issued a business license by Salt Lake County, Utah in or about
22 2000 which expired on or about December 31, 2005.

23 k. Overstock was issued a business license by the city of Cottonwood Heights, Utah
24 on January 1, 2006, License Number 1647C, which expires December 31, 2011. 25
1. Overstock was issued a business license by Salt Lake City, Utah on or about
26 September 29, 2000, License Number LIC2000-01954, which expires August 31, 2011. 27
m. Overstock was issued a business license by Salt Lake City, Utah on October 24,
28 2007, License Number LIC2007-01930, which expires September 30, 2011.

155.51782/3971861.
-fiCase No. RG10-546833 RESPONSES TO FIRST SET OF INTERROGATORIES
n.
Overstock was issued a business license by the city of Tooele, Utah on October 21,
2010, License Number 2010235, which expires on or about December 31, 2011. o. Overstock was issued a business license by the city of Provo, Utah on January 10,
2011, License Number 52500, which expires December 31, 2011.
SPECIAL INTERROGATORY NO. 1: Identify the job title(s) which YOU currently use lo identify EMPLOYEES who SET
8 COMPARISON PRICES. 9
"
10 RESPONSE TO SPECIAL INTERROGATORY NO. 1: 11

Each general objection is hereby incorporated by reference as if fully set forth herein.
12 Overstock objects to this interrogatory on the grounds that (1) it is overbroad, unduly burdensome, 13 and oppressive; (2) it seeks information neither relevant nor reasonably calculated to lead to the 14 discovery of admissible evidence; (3) it seeks information protected by California's constitutional 15 right of privacy; (4) it is vague and ambiguous as to the terms and/or phrases "regarding any 16 employment, consulting, or contracting relationship;" and (5) it is vague and ambiguous as to the 17 terms and/or phrases "EMPLOYEES who SET COMPARISON PRICES," as Overstock does not 18 itself designate certain employees, consultants, or contractors as those that set comparison prices. 19 Nothing in Overstock's response is intended as or shall be interpreted as a waiver of any
20 applicable privilege or protection of information from disclosure. 21
Subject to and without waiving the foregoing objections, Overstock responds as follows:
22 EMPLOYEES do not SET COMPARISON PRICES. EMPLOYEES typically receive and review,
23 and on occasion may modify COMPARISON PRICES submitted to Overstock by its vendors and 24 suppliers. The job title(s) of current EMPLOYEES who typically receive and review, and on 25 occasion may modify COMPARISON PRICES are: 26 27 28
55.51782/3971861.
a. b. c.
Merchandise Operations Manager Merchandise Operations Specialist Merchandise Operations Coordinator

CaseNo. RGIO-546833 -7RESPONSES TO FIRST SET OF INTERROGATORIES
d. e. f. g. h.
Divisional Merchandising Manager Merchandising Manager Buyer Associate Buyer Buyer's Assistant
SPECIAL INTERROGATORY NO. 2: Identify every job title which YOU do not identify in your answer to Interrogatory #1 [sic] and which YOU used on or after January 1, 2006 to identify EMPLOYEES who SET
10 COMPARISON PRICES.
II
12 RESPONSE TO SPECIAL INTERROGATORY NO. 2: 13
14 Overstock objects to this interrogatory on the grounds that (1) it is overbroad, unduly burdensome, 15 and oppressive; (2) it seeks information neither relevant nor reasonably calculated to lead to the 16 discovery of admissible evidence; (3) it seeks information protected by California's constitutional
17 right of privacy; (4) it is vague and ambiguous as to the terms and/or phrases "regarding any 18 employment, consulting, or contracting relationship;" and (5) it is vague and ambiguous as to the 19 terms and/or phrases "EMPLOYEES who SET COMPARISON PRICES," as Overstock does not
20 itself designate certain employees, consultants, or contractors as those that set comparison prices. 21 Nothing in Overstock's response is intended as or shall be interpreted as a waiver of any
22 applicable privilege or protection of information from disclosure.

23
24 EMPLOYEES do not SET COMPARISON PRICES. EMPLOYEES typically receive and review, 25 and on occasion may modify COMPARISON PRICES submitted to Overstock by its vendors and
26 suppliers. The job title(s) of EMPLOYEES (other than in Overstock's Response to Special
27 Interrogatory No. 1) who typically received and reviewed, and on occasion may have modified 28 COMPARISON PRICES on or after January 1, 2006 are:
55.51782/3971861.1
-R_
Case No. RGIO-546833 RESPONSES TO FIRST SET OF INTERROGATORIES
1
2 3
a. Partner Account Manager b. Category Manager
4 SPECIAL INTERROGATORY NO. 3: 5

Provide an organization chart which indicates the job titles for each EMPLOYEE who
6 currently SETS COMPARISON PRICES and the job titles of all managers, supervisors or 7 superiors who are in a direct reporting relationship between that EMPLOYEE and Overstock 8 President Jonathan Johnson. 9 - 10 RESPONSE TO SPECIAL INTERROGATORY NO. 3:
11
12 Overstock objects to this interrogatory on the grounds that (1) it is overbroad, unduly burdensome, 13 and oppressive; (2) it seeks information neither relevant nor reasonably calculated to lead to the 14 discovery of admissible evidence; (3) it seeks information protected by California's constitutional
15 right of privacy; (4) it is vague and ambiguous as to the terms and/or phrases "regarding any 16 employment, consulting, or contracting relationship;" (5) it is vague and ambiguous as to the 17 terms and/or phrases "EMPLOYEE who currently SETS COMPARISON PRICES," as Overstock 18 does not itself designate certain employees, consultants, or contractors as those that set
19 comparison prices; and (6) it improperly seeks content or production of documents in the form of
20 an organization chart. Nothing in Overstock's response is intended as or shall be interpreted as a
21 waiver of any applicable privilege or protection of information from disclosure.

22
23
Subject to and without waiving the foregoing objections, Overstock responds as follows: EMPLOY-EES do not SET COMPARISON PRICES. EMPLOYEES typically receive and review,
24 and on occasion may modify COMPARISON PRICES submitted to Overstock by its vendors and 25 suppliers. Notwithstanding the foregoing, Overstock does not have an official company-wide 26 organization chart depicting job titles for each EMPLOYEE who currently receives and reviews,
and on occasion may modify COMPARISON PRICES and the job titles of all managers,
27
55.51782/3971861.
28 supervisors or superiors who are in a direct reporting relationship between that EMPLOYEE and
-9CaseNo. RG10-546833 RESPONSES TO FIRST SET OF INTERROGATORIES
Overstock President Jonathan Johnson. Notwithstanding the foregoing, Overstock does have informal segmented organization charts by department which identify job titles for EMPLOYEES who typically receive and review, and on occasion may modify COMPARISON PRICES, copies of which are produced herewith and identified as OSTK1 -OSTK2.
SPECIAL INTERROGATORY NO. 4: How many EMPLOYEES currently SET COMPARISON PRICES?
RESPONSE TO SPECIAL INTERROGATORY NO. 4:

10 11 12 13 14 15
Each general objection is hereby incorporated by reference as if fully set forth herein. Overstock objects to this interrogatory on the grounds that (1) it is overbroad, unduly burdensome, and oppressive; (2) it seeks information neither relevant nor reasonably calculated to lead to the discovery of admissible evidence; (3) it seeks information protected by California's constitutional right of privacy; (4) it is vague and ambiguous as to the terms and/or phrases "regarding any employment, consulting, or contracting relationship;" and (5) it is vague and ambiguous as to the
16 terms and/or phrases "EMPLOYEES [who] currently SET COMPARISON PRICES," as 17 Overstock does not itself designate certain employees, consultants, or contractors as those that set
18 comparison prices. Nothing in Overstock's response is intended as or shall be interpreted as a 19 waiver of any applicable privilege or protection of information from disclosure. 20
21 EMPLOYEES do not SET COMPARISON PRICES. EMPLOYEES typically receive and review, 22 and on occasion may modify COMPARISON PRICES submitted to'Overstock by its vendors and
23 suppliers. Notwithstanding the foregoing, the approximate number of current EMPLOYEES who
24 typically receive and review, and on occasion may modify COMPARISON PRICES is: 113. 25 26 SPECIAL INTERROGATORY NO. 5: 27
How many EMPLOYEES SET COMPARISON PRICES in each year between 2006 and
28 2010, inclusive?
355.51782/3971861.1
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CaseNo. RG10-546833 RESPONSES TO FIRST SET OF INTERROGATORIES
RESPONSE TO SPECIAL INTERROGATORY NO. 5: Each general objection is hereby incorporated by reference as if fully set forth herein. Overstock objects to this interrogatory on the grounds that (1) it is overbroad, unduly burdensome, and oppressive; (2) it seeks information neither relevant nor reasonably calculated to lead to the discovery of admissible evidence; (3) it seeks information protected by California's constitutional
6 right of privacy; (4) it is vague and ambiguous as to the terms and/or phrases "regarding any
7 employment, consulting, or contracting relationship;" and (5) it is vague and ambiguous as to the
8 terms and/or phrases "EMPLOYEES [who] SET COMPARISON PRICES," as Overstock does 9 I not itself designate certain employees, consultants, or contractors as those that set comparison
10 prices. Nothing in Overstock's response is intended as or shall be interpreted as a waiver of any 11 applicable privilege or protection of information from disclosure.
12
13 EMPLOYEES do not SET COMPARISON PRICES. EMPLOYEES typically receive and review, 14 and on occasion may modify COMPARISON PRICES submitted to Overstock by its vendors and 15 suppliers. Notwithstanding the foregoing, the number of EMPLOYEES who typically received 16 and reviewed, and on occasion may have modified COMPARISON PRICES is approximately: 17 18
19 20 21 22
2006-130 2007-130
2008-180 2009-120 2010-173

IDENTIFY each CURRENT EMPLOYEE who SET COMPARISON PRICES at any time
25 on or after January 1, 2006. 26

27
28
55.51782/3971861.
RESPONSE TO SPECIAL INTERROGATORY NO. 6: Each general objection is hereby incorporated by reference as if fully set forth herein. Overstock objects to this interrogatory on the grounds that (1) it is overbroad, unduly burdensome, and oppressive; (2) it seeks information neither relevant nor reasonably calculated to lead to the discovery of admissible evidence; (3) it seeks information protected by California's constitutional
6 right of privacy; (4) it is vague and ambiguous as to the terms and/or phrases "regarding any 7 employment, consulting, or contracting relationship;" and (5) it is vague and ambiguous as to the 8 terms and/or phrases "CURRENT EMPLOYEE who SET COMPARISON PRICES," as 9 Overstock does not itself designate certain employees, consultants, or contractors as those that set
10 comparison prices. Nothing in Overstock's response is intended as or shall be interpreted as a 11 12
waiver of any applicable privilege or protection of information from disclosure. Subject to and without waiving the foregoing objections, Overstock responds as follows:
13 EMPLOYEES do not SET COMPARISON PRICES. EMPLOYEES typically receive and review,
, 14 and on occasion may modify COMPARISON PRICES submitted to Overstock by its vendors and
15 suppliers. Notwithstanding the foregoing, CURRENT EMPLOYEES who typically receive and 16 review, and on occasion may modify COMPARISON PRICES are identified in the document 17 produced herewith and identified as OSTK3 - OSTK4. . 18 19 SPECIAL INTERROGATORY NO. 7: 20 21
For each CURRENT EMPLOYEE IDENTIFIED in response to Interrogatory #6 [sic], identify each DEPARTMENT and/or PRODUCT LINE for which that EMPLOYEE SET
22 COMPARISON PRICES on or after January 1, 2006. 23 24 RESPONSE TO SPECIAL INTERROGATORY NO. 7: 25
26 Overstock objects to this inlerrogatory on the grounds that (1) it is overbroad, unduly burdensome, 27 and oppressive; (2) it seeks information neither relevant nor reasonably calculated to lead to the 28 discovery of admissible evidence; (3) it seeks information protected by California's constitutional
55.51782/3971861.
-12-
right of privacy; (4) it is vague and ambiguous as to the terms and/or phrases "regarding any employment, consulting, or contracting relationship;" and (5) it is vague and ambiguous as to the terms and/or phrases "EMPLOYEE [who] SET COMPARISON PRICES," as Overstock does not itself designate certain employees, consultants, or contractors as those that set comparison prices. Nothing in Overstock's response is intended as or shall be interpreted as a waiver of any applicable privilege or protection of information from disclosure. Subject to and without waiving the foregoing objections, Overstock responds as follows: EMPLOYEES do not SET COMPARISON PR'lCES. EMPLOYEES typically receive and review, and on occasion may modify COMPARISON PRICES submitted to Overstock by its vendors and
10 suppliers. Notwithstanding the foregoing, CURRENT EMPLOYEES who typically received and 11 reviewed, and on occasion may have modified COMPARISON PRICES after January 1, 2006 by 12 DEPARTMENT and/or PRODUCT/LINE are identified in the document produced herewith and
13 identified as OSTK3 - OSTK4. ,

14 15 SPECIAL INTERROGATORY NO. 8: 16
IDENTIFY each FORMER EMPLOYEE who SET COMPARISON PRICES at any time
17 on or after January 1, 2006. 18 19 RESPONSE TO SPECIAL INTERROGATORY NO. 8: 20

21 Overstock objects to this interrogatory on the grounds that (1) it is overbroad, unduly burdensome, 22 and oppressive; (2) it seeks information neither relevant nor reasonably calculated to lead to the
23 discovery of admissible evidence; (3) it seeks information protected by California's constitutional 24 right of privacy; (4) it is vague and ambiguous as to the terms and/or phrases "regarding any 25 employment, consulting, or contracting relationship;" and (5) it is vague and ambiguous as to the 26 terms and/or phrases "FORMER EMPLOYEE who SET COMPARISON PRICES," as Overstock 27 does not itself designate certain employees, consultants, or contractors as those that set 28
!55.51782/3971861.
comparison prices. Nothing in Overstock's response is intended as or shall be interpreted as a waiver of any applicable privilege or protection of information from disclosure. Subject to and without waiving the foregoing objections, Overstock responds as follows: EMPLOYEES do not SET COMPARISON PRICES. EMPLOYEES.typically receive and review, and on occasion may modify COMPARISON PRICES submitted lo Overstock by its vendors and suppliers. Notwithstanding the foregoing, FORMER EMPLOYEES who typically received and reviewed, and on occasion may have modified COMPARISON PRICES after January 1, 2006 are . 8 identified in the document produced herewith and identified as OSTK5 - OSTK6. 9 10 SPECIAL INTERROGATORY NO. 9: 11
12 13
For each FORMER EMPLOYEE IDENTIFIED in response to Interrogatory #8 [sic], identify each DEPARTMENT and/or PRODUCT LINE for which that EMPLOYEE SET COMPARISON PRICES on or after January 1 , 2006.
15
RESPONSE TO SPECIAL INTERROGATORY NO. 9; Each general objection is hereby incorporated by reference as if fully set forth herein.
16
17 Overstock objects to this interrogatory on the grounds that (1) it is overbroad, unduly burdensome, and oppressive; (2) it seeks information neither relevant nor reasonably calculated to lead to the 19 discovery of admissible evidence; (3) it seeks information protected by California's constitutional
20
right of privacy; (4) it is vague and ambiguous as to the terms and/or phrases "regarding any employment, consulting, or contracting relationship;" and (5) it is vague and ambiguous as to the
21
22 terms and/or phrases "EMPLOYEE [who] SET COMPARISON PRICES," as Overstock does not
23 itself designate certain employees, consultants, or contractors as those that set comparison prices. 24 Nothing in Overstock's response is intended as or shall be interpreted as a waiver of any
25 applicable privilege or protection of information from disclosure. 26 27 Subject to and without waiving the foregoing objections, Overstock responds as follows: EMPLOYEES do not SET COMPARISON PRICES. EMPLOYEES typically receive and review,
28 and on occasion may modify COMPARISON PRICES submitted to Overstock by its vendors and
355. 51782/3971861.1
-14-
CaseNo, RG10-546833 RESPONSES TO FIRST SET OF INTERROGATORIES
suppliers. Notwithstanding the foregoing, FORMER EMPLOYEES who typically received and reviewed, and on occasion may have modified COMPARISON PRICES after January 1,2006 by DEPARTMENT and/or PRODUCT/LINE are identified in the document produced herewith and identified as OSTK5 - OSTK6.
SPECIAL INTERROGATORY NO. 10: How many EMPLOYEES currently work as OVERSTOCK BUYERS?
9 RESPONSE TO SPECIAL INTERROGATORY NO. 10:

10 11 12 13 14
Each general objection is hereby incorporated by reference as if fully set forth herein. Overstock objects to this interrogatory on the grounds that (1) it is overbroad, unduly burdensome, and oppressive; (2) it seeks information neither relevant nor reasonably calculated to lead to the discovery of admissible evidence; (3) it seeks information protected by California's constitutional right of privacy; (4) it is vague and ambiguous as to the terms and/or phrases "regarding any
15 employment, consulting, or contracting relationship;'1 and (5) it is vague and ambiguous as to the
16 terms and/or phrases "OVERSTOCK BUYERS." Nothing in Overstock's response is intended as 17 or shall be interpreted as a waiver of any applicable privilege or protection of information from 18 disclosure. 19 Subject to.and without waiving the foregoing objections, Overstock responds that the
20 approximate number of EMPLOYEES that currently work as OVERSTOCK BUYERS is as 21 follows: 81. 22 23 SPECIAL INTERROGATORY NO. 11: 24 How many EMPLOYEES worked as OVERSTOCK BUYERS between 2006 and 2010,
25 inclusive? 26 27 28
JS5.-5178M97I861.
-15-
RESPONSE TO SPECIAL INTERROGATORY NO. I I : Each general objection is hereby incorporated by reference as if fully set forth herein. Overstock objects to this interrogatory on the grounds that (1) it is overbroad, unduly burdensome, and oppressive; (2) it seeks information neither relevant nor reasonably calculated to lead to the discovery of admissible evidence; (3) it seeks information protected by California's constitutional right of privacy; (4) it is vague and ambiguous as to the terms and/or phrases "regarding any employment, consulting, or contracting relationship;" and (5) it is vague and ambiguous as to the terms and/or phrases "OVERSTOCK BUYERS." Nothing in Overstock's response is intended as or shall be interpreted as a waiver of any applicable privilege or protection of information from
10 disclosure. 11 *
Subject to and without waiving the foregoing objections, Overstock responds that the
12 approximate number of EMPLOYEES that worked as OVERSTOCK BUYERS between 2006 and
13 2010 is as follows: 14 15 16 17 18 19
IDENTIFY each CURRENT EMPLOYEE who has worked as an OVERSTOCK BUYER
a. b. c. d. e.
2006-130 2007-130 2008-180 2009-140 2010-90
22 at any time on or after January 1, 2006. 23 24 RESPONSE TO SPECIAL INTERROGATORY NO. 12: 25
26 Overstock objects to this interrogatory on the grounds that (1) it is overbroad, unduly burdensome, 27 and oppressive; (2) it seeks information neither relevant nor reasonably calculated to lead to the
28 discovery of admissible evidence; (3) it seeks information protected by California's constitutional

IS5.S 1782/3971861.
_ 16Case No. RG10-546833 RESPONSES TO FIRST SET OF INTERROGATORIES
right of privacy; (4) it is vague and ambiguous as to the terms and/or phrases "regarding any employment, consulting, or contracting relationship;" and (5) it is vague and ambiguous as to the terms and/or phrases "OVERSTOCK BUYER." Nothing in Overstock's response is intended as or shall be interpreted as a waiver of any applicable privilege or protection of information from disclosure. Subject to and without waiving the foregoing objections, Overstock refers to and incorporates the document produced herewith and identified as OSTK7.
9 SPECIAL INTERROGATORY NO. 13:

10 11
For each OVERSTOCK BUYER identified in response to Interrogatory #12 [sic], identify each DEPARTMENT and/or PRODUCT LINE for which that EMPLOYEE regularly acted as an
12 OVERSTOCK BUYER on or after January 1, 2006. 13
RESPONSE TO SPECIAL INTERROGATORY NO. 13: Each general objection is hereby incorporated by reference as if fully set forth herein.
15
16 Overstock objects to this interrogatory on the grounds that (1) it is overbroad, unduly burdensome, 17 and oppressive; (2) it seeks information neither relevant nor reasonably calculated to lead to the 18 discovery of admissible evidence; (3) it seeks information protected by California's constitutional 19 right of privacy; (4) it is vague and ambiguous as to the terms and/or phrases "regarding any 20 employment, consulting, or contracting relationship;" (5) it is vague and ambiguous as to the 21 terms and/or phrases "OVERSTOCK BUYER," as Overstock does not itself designate certain
22 employees, consultants, or contractors as "OVERSTOCK BUYER;" and (6) it is vague and 23 ambiguous as to the meaning of the word "regularly." Nothing in Overstock's response is
24 intended as or shall be interpreted as a waiver of any applicable privilege or protection of 25 information from disclosure. 26 Subject to and without waiving the foregoing objections, Overstock refers to and .
, -. '
27 incorporates the document produced herewith and identified as OSTK7. 28
155.51782/3971861.1
-17Case No. RG10-546833 RESPONSES TO FIRST SET OF INTERROGATORIES
r '2
SPECIAL INTERROGATORY NO. 14: IDENTIFY each FORMER EMPLOYEE who worked as an OVERSTOCK BUYER at any time on or after January 1, 2006.
3
4 5
RESPONSE TO SPECIAL INTERROGATORY NO. 14: Each general objection is hereby incorporated by reference as if fully set forth herein.
7 Overstock objects to this interrogatory on the grounds that (1) it is overbroad, unduly burdensome,
8 and oppressive; (2) it seeks information neither relevant nor reasonably calculated to lead to the 9 discovery of admissible evidence; (3) it seeks information protected by California's constitutional 10 right of privacy; (4) it is vague and ambiguous as to the terms and/or phrases "regarding any
11 employment, consulting, or contracting relationship;" and (5) it is vague and ambiguous as to the 12 terms and/or phrases "OVERSTOCK BUYER," as Overstock does not itself designate certain 13 employees, consultants, or contractors as an "OVERSTOCK BUYER." Nothing in Overstock's
14 response is intended as or shall be interpreted as a waiver of any applicable privilege or protection O 15 of information from disclosure. 16
Subject to and without waiving the foregoing objections, Overstock refers to and
17 incorporates the document produced herewith identified as OSTK8 - OSTK9. 18 19 SPECIAL INTERROGATORY NO. 15: 20 21
For each FORMER EMPLOYEE IDENTIFIED in response to Interrogatory #14 [sic], identify each DEPARTMENT and/or PRODUCT LINE for which that EMPLOYEE regularly
22 acted as an OVERSTOCK BUYER on or after January 1, 2006. 23 24 RESPONSE TO SPECIAL INTERROGATORY NO. 15: 25
26 Overstock objects to this interrogatory on the grounds that (1) it is overbroad, unduly burdensome,
27
28
and oppressive; (2) it seeks information neither relevant nor reasonably calculated to lead to the discovery of admissible evidence; (3) it seeks information protected by California's constitutional
-18Case No. RG10-546833 RESPONSES TO FIRST SET OF INTERROGATORIES
155.51782/3971861.1
right of privacy; (4) it is vague and ambiguous as to the terms and/or phrases "regarding any employment, consulting," or contracting relationship;" (5) it is vague and ambiguous as to the terms and/or phrases "OVERSTOCK BUYERS," as Overstock does not itself designate certain employees, consultants, or contractors as an "OVERSTOCK BUYER;" and (6) it is vague and ambiguous as to the meaning of the word "regularly." Nothing in Overstock's response is
6 intended as or shall be interpreted as a waiver of any applicable privilege or protection of 7 information from disclosure. 8
<
Subject to and without waiving the foregoing objections, Overstock refers to and
9 incorporates the document produced herewith identified as OSTK8 - OSTK9.

10 11 12 DATED; February 16,2011 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
55 51782/3971861.
QUINN EMANUEL URQUHART & SULLIVAN, LLP
Dane W. Reinstedt Attorneys for Defendant OVERSTOCK.COM, INC.
I.
VERIFICATION
J, Jonathan E. Johnson 1H, am President at Overslock.com, Inc., and I am authorized to
3 matw this verification on its behalf, I have read Ovcrstock.com, Infi.'s Responses to Plaintiffs 4 First Sci of Interrogatories and know its contents. I om informed and believe that the matters S staled therein art true and on that ground declare under penalty of perjury under the laws of the 6 Slate of California that the some are tnl and correct, 7 8 9 10 11
Executed on February f t * . 20 11 in
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13
M 15 16 17 18 19 20 21 22 23 24 25 26 27 28
CweNo.ROI<W4633 RSSPOXSES TO FIRST SET OF INTERROGATORIES
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Page 1 of 1
Beltnamo, Matthew, DA
From: Sent: To: Cc: Beltramo, Matthew, DA Monday, February 28, 2011 5:22 PM 'Dane Reinstedt1 Bob Feldman; Melissa Baily; 'Ken Rosenblatt'; 'mcheever@sonoma-county.org'
Subject: Meet and Confer In Response to Overstock's Response to People's First Set of Interrogatories
Dane: Our team has now had a chance to review Overstock's response to the People's First Set of Interrogatories (the "Interrogatories"). There are two issues we'd like to meet and confer with you and/or your colleagues about pursuant to CCP Sections 2030.300(a)(1), 2030.300(b) and 2016.040. First, on pages OSTK3-OSTK9, you included a column of information labeled "Title". Many of the entries in the Title column consist of abbreviations, such as "SRPAM," "CSR," "INSEARA" and "0". I assume abbreviations were used for purposes of conserving space. Although we can make some educated guesses about what these abbreviations may mean, without any additional information, there is no way to know for sure. Could you please provide a guide or legend that explains what each of these abbreviations mean? Second, your responses to Special.Interrogatories #8 and #14 incorporate by reference lists of former employees, which are set forth on pages OSTK5-OSTK6 and OSTK8 OSTK9, respectively. However, your responses (and the lists themselves) do not "IDENTIFY" the former employees in the manner called for in the Interrogatories. Paragraph 17 of the Interrogatories defines "IDENTIFY A FORMER EMPLOYEE" to mean listing "that EMPLOYEE'S full name, DATES OF EMPLOYMENT, the job title that person held when departing YOUR employ, present or last known home ADDRESS, email address, present or last known home telephone number, and present or last .knowncell phone number." The list of former employees contained on OSTK5 - OSTK6 and OSTK8 - OSTK9 do not include any present or last known contact information, such as home address, e-mail address, cell phone numbers, etc. All of this information is called for by the Interrogatories. Please supplement your responses to Interrogatories #8 and #14 by identifying the former employees in the manner set forth in the Interrogatories. I would be happy to discuss these matters with you in more detail, if necessary, bearing in mind the time parameters of CCP 2030.300(c). Please contact me as soon as possible. Regards, Matt Beltramo Deputy District Attorney Alameda County District Attorney's Office matt.beltramQ(3}acQOV.org (510)569-9281
3/30/2011
EXHIBIT 4
Page 1 of 1
Beltramo, Matthew, DA
From: Sent: To: Cc: Matt,
Dane Reinstedt [danereinstedt@quinnemanuel.com] Friday, March 18, 2011 3:02 PM Beltramo, Matthew, DA Bob Feldman; Melissa Baity
Subject: Meet & Confer
We have gone over your requests regarding information supplementing Overstock's responses to the People's First Set of Interrogatories. As to the first request to provide a key to the job title abbreviations, Overstock has created such a key, and it is attached to this email. Regarding your request for the personal contact information of Overstock's former employees, after careful thought we are not able to provide you with the private information of over 200 of Overstock's former employees. Finally, as to the two other discovery issues mentioned in your last email: First, we agree to provide a 30 day extension for the People's responses to Overstock's First Set of Inspection Demands, until April 21. Second, we agree that discovery responses may be served by overnight delivery (originals) and email (copies) on the due date. We will continue to calculate response dates based on the overnight mailing. Best, Dane
3/30/2011
EXHIBIT 5
Page 1 of2 Beltramo, Matthew, DA

From: Sent: To: Cc: Dane; Our group has now had a chance to consider your March 18, 2011, email in which you indicate that Overstock is unwilling to provide contact information on those former employees identified in response to Interrogatories Numbers 8 and 14, and listed on pages OSTK 5-6 and 8-9, respectively. Although you do not state a basis for Overstock's position, I surmise from your email that it is predicated on an asserted right to privacy. If that assumption is correct, we believe that Overstock's reliance on the law of privacy in this circumstance is unavailing and would not be upheld by the Court. (If that assumption is incorrect, we would welcome clarification.) Each of the former employees identified in response to the two interrogatories is a potential witness -- either someone who set comparison prices or who communicated with vendors -- and therefore has information that will be relevant to the allegations in the Complaint. As the Court of Appeal recently remarked: "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.' (People v. Dixon (2007) 148 Cal.App.4th 414, 443, 56 Cal.Rptr.3d 33 [applying Civil Discovery Act in context of sexually violent predator proceeding].) Indeed, our discovery system is founded on the understanding that parties use discovery to obtain names and contact information for possible witnesses as tne^starting point for further investigations: The Civil Discovery Act also provides that a party may obtain information by the use of various methods, including oral and written depositions. (Code Civ. Proc,, 2020.010, subd. (a).) The party's ability to subpoena witnesses presumes that he has the witnesses' contact information.' ( Dixon, at p. 443, 56 Cal.Rptr.3d 33.) 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. These standard form interrogatories request the names addresses, and telephone numbers of witnesses to the relevant incident, persons possessing tangible objects relevant to the investigation, and persons who have been interviewed or given statements about the incident, or made a report or investigation of the incident (JudhciaI Council ofaL Form Interrogatory Nos. 12.1-12.7.)" Puerto v. Superior Court 158 Cal.App.4th 1242, 1249-1250 (2008). Although courts have recognized that privacy interests must be protected, privacy rights are not absolute, nor are they an insurmountable bar to discovery. Where a privacy right has been assertea, courts; will engage in a balancing test to determine whether disclosure is appropriate. Among those factors that a court will consider are (1) whether the claimant possesses a legally protected privacy-nteres 2) whether there is a reasonable expectation of privacy under the circumstances, and (3) whether the Invasion of the privacy is serious in "nature, scope and actual or potential impact. Puerto, supra, at Beltramo, Matthew, DA Tuesday, March 22, 2011 4:40 PM 'Dane Reinstedt1 Bob F eld man; Melissa Baily
Subject: RE: 'Meet & Confer Re: Overstock's Response to 1 st Set of Interrogatories.
1251.
$$S^m*ZS& c^d^m^Wn discovery than ,ngou,he ,ocaion of idenS witnesses so that they may be contacted and additional .nvwrtgataon performed ).
the scope of investigating and pursuing this litigation.
3/30/2011
Page 2 of2
However, our ability to resolve this dispute informally is constrained by time limitations. If you are willing to supply this information within the confines of a protective order, please contact me no later than Friday, March 25. 2011. Yours truly, Matt Beltramo Original Message From: Dane Reinstedt [mailto:danereinstedt@quinnernanuel.com] Sent: Friday, March 18, 2011 3:02 PM To: Beltramo, Matthew, DA Cc: Bob Feldman; Melissa Bally Subject: Meet & Confer Matt, We have gone over your requests regarding information supplementing Overstock's responses to the People's First Set of Interrogatories. As to the first request to provide a key to the job title abbreviations, Overstock has created such a key, and it is attached to this email. Regarding your request for the personal contact information of Overstock's former employees, after careful thought we are not able to provide you with the private information of over 200 of Overstock's former employees. Finally, as to the two other discovery issues mentioned in your last email: First, we agree to provide a 30 day extension for the People's responses to Overstock's First Set of Inspection Demands, until April 21, Second, we agree that discovery responses may be served by overnight delivery (originals) and email (copies) on the due date. We will continue to calculate response dates based on the overnight mailing. Best, Dane
3/30/2011
EXHIBIT 6
^ Beltramo, Matthew, DA
From: Sent: To: Cc:
Page 1 of 2
"
Dane Reinstedt [danereinstedt@quinnemanuel.com] Friday, March 25, 2011 11:45 AM Beltramo. Matthew, DA Bob Feldman; Melissa Baily
Subject: RE: Meet & Confer Re: Overstock's Response to 1st Set of Interrogatories. Matt, Thanks for your email. While we understand your position, we believe that there are significant distinctions between the case you discuss, Puerto v. Superior Court, 158 Cal.App.4th 1242 (2008), and our situation. One potential way forward is that we would be willing to grant you an open extension on the time to file a motion to compel on this issue. This would allow other discovery to move ahead and we could revisit this issue if, after further discovery, you still wish to pursue this information. Let me know if you would be amenable to such an arrangement. Best, Dane From: Beltramo, Matthew, DA [mailto:Matthew.Beltramo@acgov.org] Sent: Tuesday, March 22, 2011 4:40 PM To: Dane Reinstedt Cc: Bob Feldman; Melissa Baily Subject: RE: Meet & Confer Re: Overstock's Response to 1st Set of Interrogatories. Dane: Our group has now had a chance to consider your March 18, 2011, email in which you indicate that Overstock is unwilling to provide contact information on those former employees identified in response to Interrogatories Numbers 8 and 14, and listed on pages OSTK 5-6 and 8-9, respectively. Although you do not state a basis for Overstock's position, I surmise from your email that it is predicated on an asserted right to privacy. If that assumption is correct, we believe that Overstock's reliance on the law of privacy in this circumstance is unavailing and would not be upheld by the Court. (If that assumption is incorrect, we would welcome clarification.) Each of the former employees identified in response to the two interrogatories is a potential witness -- either someone who set comparison prices or who communicated with vendors -- and therefore has information that will be relevant to the allegations in the Complaint. As the Court of Appeal recently remarked: "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.1 ( People v. Dixon (2007) 148 Cal.App.4th 414, 443, 56 Cal.Rptr.3d 33 [applying Civil Discovery Act in context of sexually violent predator proceeding].) 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; The Civil Discovery Act also provides that a party may obtain information by the use of various methods, including oral and written depositions. (Code Civ. Proc., 2020.010, subd (a).) The party's ability to subpoena witnesses presumes that he has the witnesses' contact information.' (Dixon, at p. 443, 56 Cal.Rptr.3d 33.) 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. These standard form interrogatories request the names, addresses, and telephone numbers of witnesses to the relevant incident, persons possessing tangible objects relevant to the investigation, and persons who have been interviewed or given statements about the incident, or made a report or investigation of the incident. (Judicial Council of Cal., Form Interrogatory Nos. 12.1-12.7.)" Puerto v. Superior Court 158 Cal.App.4th 1242,1249-1250 (2008). Although courts have recognized that privacy interests must be protected, privacy rights are not absolute, nor are they an insurmountable bar to discovery. Where a privacy right has been asserted, courts will engage in a balancing test to determine whether disclosure is appropriate. Among those factors that
3/30/2011
Page 2 of 2
a court.will consider are (1) whether the cWriant possesses a legally protected privaqWerest, (2) whether there is a reasonable expectation of privacy under the circumstances, and (3) whether the invasion of the privacy is serious in "nature, scope and actual or potential impact." Puerto, supra, at 1251. Assuming for purposes of this meet and confer -- and without conceding or waiving the right to dispute ~ that Overstock can assert the privacy interests of its former employees, we are confident that the Court will conclude that these factors, on balance, require Overstock to supply the requested information. Courts have recognized in extremely similar circumstances that providing contact information on current and former employees whose names have already been disclosed during discovery does not constitute a serious invasion of privacy interests. See Id. at 1254 ("These individuals have been identified by [defendant] as witnesses. Nothing could be more ordinary in discovery than finding out the location of identified witnesses so that they may be contacted and additional investigation performed"). We remain interested in resolving this dispute without bringing a motion to compel. To that end, we are willing to enter into a reasonable protective order to insure that current contact information of the former employees identified in response to Interrogatories 8 and 14 is kept confidential and used only in the scope of investigating and pursuing this litigation. However, our ability to resolve this dispute informally is constrained by time limitations. If you are willing to supply this information within the confines of a protective order, please contact me no later than Friday, March 25, 2011. Yours truly, Matt Beltramo Original Message From: Dane Reinstedt [mailto:danereinstedt@quinnemanuel.com] Sent: Friday, March 18, 2011 3:02 PM To; Beltramo, Matthew, DA Cc: Bob Feldman; Melissa Baily Subject: Meet & Confer Matt, We have gone over your requests regarding information supplementing Overstock's responses to the People's First Set of Interrogatories. As to the first request to provide a key to the job title abbreviations, Overstock has created such a key, and it is attached to this email. Regarding your request for the personal contact information of Overstock's former employees, after careful thought we are not able to provide you with the private information of over 200 of Overstock's former employees. Finally, as to the two other discovery issues mentioned in your last email: First, we agree to provide a 30 day extension for the People's responses to Overstock's First Set of Inspection Demands, until April 21. Second, we agree that discovery responses may be served by overnight delivery (originals) and email (copies) on the due date. We will continue to calculate response dates based on the overnight mailing.
i
Best, Dane
3/30/2011
'
^_
Page 1 of 3
Beltraeno, Matthew, DA
From: Sent: To: Cc: Dane: Beltramo, Matthew. DA Friday, March 25, 2011 3:10 PM 'Dane Reinstedt' Bob Feldman; Melissa Baily; 'Matthew Cheever'
Subject: RE: Meet & Confer Re: Overstock's Response to 1st Set of Interrogatories.
Thank you for your response. I appreciate your suggestion to table this discovery issue until some future point. However, I'm sure you can understand that obtaining contact information on potential witnesses -including former employees -- is an important and necessary preliminary step in conducting discovery in this case. So we cannot agree to your proposed arrangement^ Turning to the substance of our disagreement, although I would welcome any legal authorities you may have on the privacy issue or any elaboration on the distinctions you see between our case and Puerto, at this point it appears we have reached an impasse. Please let me know if you believe that understanding is incorrect. (We remain open to the idea of entering into a protective order as way to address your client's privacy concerns.) Regards, Matt Beltramo Original Message From: Dane Reinstedt [mailto:danereinstedt@quinnemanuel.com] Sent: Friday, March 25, 2011 11:45 AM To: Beltramo, Matthew, DA Cc: Bob Feldman; Melissa Baily Subject: RE: Meet & Confer Re: Overstock's Response to 1st Set of Interrogatories.
Matt,
Thanks for your email. While we understand your position, we believe that there are significant distinctions between the case you discuss, Puerto v. Superior Court, 158 Cal.App.4th 1242 (2008), and our situation. One potential way forward is that we would be willing to grant you an open extension on the time to file a motion to compel on this issue. This would allow other discovery to move ahead and we could revisit this issue if, after further discovery, you still wish to pursue this information. Let me know if you would be amenable to such an arrangement. Best, Dane From: Beltramo, Matthew, DA [mailto:Matthew.Beltramo@acgov.org] Sent: Tuesday, March 22, 2011 4:40 PM To: Dane Reinstedt Cc: Bob Feldman; Melissa Baily Subject: RE: Meet & Confer Re: Overstock's Response to 1st Set of Interrogatories. Dane: Our group has now had a chance to consider your March 18, 2011, email in which you indicate that Overstock is unwilling to provide contact information on those former employees identified in response to Interrogatories Numbers 8 and 14, and listed on pages OSTK 5-6 and 8-9, respectively. Although you do not state a basis for Overstock's position, I surmise from your email that it is predicated on an asserted right to privacy. If that assumption is correct, we believe that Overstock's reliance on the law of privacy in this circumstance is unavailing and would not be upheld by the Court. (If that assumption is incorrect,
3/30/2011
Page 2 of 3
\A/e ,wou]d welcome clarification.) wi of the former employees identified in res|Pise to the two interrogatories is a potential witness - either someone who set comparison prices or who communicated with vendors - and therefore has information that will be relevant to the allegations in the Complaint. As the Court of Appeal recently remarked: "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.' ( People v. Dixon (2007) 148 Cal.App.4th 414, 443, 56 Cal.Rptr.3d 33 [applying Civil Discovery Act in context of sexually violent predator proceeding].) 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; The Civil Discovery Act also provides that a party may obtain information by the use of various methods, including oral and written depositions. (Code Civ. Proc., 2020.010, subd. (a).) The party's ability to subpoena witnesses presumes that he has the witnesses' contact information.' ( Dixon, at p. 443, 56 Cal.Rptr.3d 33.) 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. These standard form interrogatories request the names, addresses, and telephone numbers of witnesses to the relevant incident, persons possessing tangible objects relevant to the investigation, and persons who have been interviewed or given statements about the incident, or made a report or investigation of the incident. (Judicial Council of Cal Form Interrogatory Nos. 12.1-12.7,)" Puerto v. Superior Court 158 Cal.App.4th 1242, 1249-1250 (2008). Although courts have recognized that privacy interests must be protected, privacy rights are not absolute, nor are they an insurmountable bar to discovery. Where a privacy right has been asserted, courts will engage in a balancing test to determine whether disclosure is appropriate. Among those factors that a court will consider are (1) whether the claimant possesses a legally protected privacy interest, (2) whether there is a reasonable expectation of privacy under the circumstances, and (3) whether the invasion of the privacy is serious in "nature, scope and actual or potential impact." Puerto, supra, at 1251. Assuming for purposes of this meet and confer -- and without conceding or waiving the right to dispute -- that Overstock can assert the privacy interests of its former employees, we are confident that the Court will conclude that these factors, on balance, require Overstock to supply the requested information. Courts have recognized in extremely similar circumstances that providing contact information on current and former employees whose names have already been disclosed during discovery does not constitute a serious invasion of privacy interests. See Id. at 1254 ("These individuals have been identified by [defendant] as witnesses. Nothing could be more ordinary in discovery than finding out the location of identified witnesses so that they may be contacted and additional investigation performed"). We remain interested in resolving this dispute without bringing a motion to compel. To that end, we are willing to enter into a reasonable protective order to insure that current contact information of the former employees identified in response to Interrogatories 8 and 14 is kept confidential and used only in the scope of investigating and pursuing this litigation. However, our ability to resolve this dispute informally is constrained by time limitations. If you are willing to supply this information Within the confines of a protective order, please contact me no later than Friday, March 25, 2011.
Yours truly,
Matt Beltramo Original Message From: Dane Reinstedt [mailto:danereinstedt@quinnemanuel.com] Sent: Friday, March 18, 2011 3:02 PM To: Beltramo, Matthew, DA Cc: Bob Feldman; Melissa Baily Subject: Meet & Confer Matt, We have gone over your requests regarding information supplementing Overstock's responses to the People's First Set of Interrogatories. As to the first request to provide a key to the job title abbreviations, Overstock has created such a key, and it is attached to this email.
3/30/2011
Page 3 of3
Regarding your request ^Phe personal contact information of OverSWk's former employees, after careful thought we are not able to provide you with the private information of over 200 of Overstock's former employees. Finally, as to the two other discovery issues mentioned in your last email: First, we agree to provide a 30 day extension for the People's responses to Overstock's First Set of Inspection Demands, until April 21, Second, we agree that discovery responses may be served by overnight delivery (originals) and email (copies) on the due date. We will continue to calculate response dates based on the overnight mailing. Best, Dane
*4^H
3/30/2011
ATTORNEY OR PART* WITHOUT ATTORNEY (Nsrne, SffllS'Bar number, and address).
Nancv E. O'Mallev (District Attorney of Alameda County), et al. Ivlatthew Be/tramo, Deputy District Attorney (SBN 184796) 7677 Oakport Street, Suite 650, Oakland, CA 94621 TELEPHONENo,(510) 569-9281 FAXNo.fo (510)569-0505
E-MAIL ADDRESS (Optional):
ATTORNEY FOR f^mejpiajntiff. People of the State of California SUPERIOR COURT OF CALIFORNIA, COUNTY OF Alameda STREETADDRESS: 1225 Fallen Street, Oakland, CA 94612 IKOFTHESUPErttuft COURT MAILING ADDRESS 1221 Oak Street cm AND ZIP CODE: Oakland, CA 94612 B} Rene C. Davidson Courthouse fAdmin Building^ PLAINTIFF/PETITIONER: People of State of California
DEFENDANT/RESPONDENT: OverstOCk.COm, Inc., 6t al.
CASE NUMBI
PROOF OF SERVICECIVIL Check method of service (only one): \_^ I By Personal Service C I By Mall [_"/J By Overnight Delivery I I By Messenger Service I I By Fax I I By Electronic Service
RG10-546833 JUDGE Hon. Robert Freedman

MPT.: 20
(Do not use this proof of service to show service of a Summons and complaint.) 1. At the time of service I was over 18 years of age and not a party to this action. 2. My residence or business address is:
7677 Oakport Street, Suite 650, Oakland CA 94621 (business)

3. r I The fax number or electronic notification address from which I served the documents is (complete if service was by fax or electronic service): I served the following documents (specify):
4. On (date): April 1, 2011
r^J The documents are listed in the Attachment to Proof of Service-Civil (Documents Served) (form POS-040{DJ). 5. I served the documents on the person or persons below, as follows:
a. Name of person served: Robert Feldman & Dane Reinstadt (counsel for Def. Overstock.com, Inc.)
b. d^l (Complete if service was by personal service, mail, overnight delivery, or messenger service.), Business or residential address where person was served:
Quinn Emanuel et al, 555 Twin Dolphin Dr., 5th Fl., Redwood City, CA 94065 (650 801 5000)
c. E I (Complete if service was by fax or electronic service.)
(1) Fax number or electronic notification address where person was served:
(2) Time of service: I ] The names, addresses, and other applicable information about persons served is on the Attachment to Proof of ServiceCivil (Persons Served) (form POS-040(P)). v
6. The documents were served by the following means (specify): a- L~.l By personal service. I personally delivered the documents to the persons at the addresses listed in item 5. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents, in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or an individual in charge of the office, between the hours of nine in the morning and five in the evening. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not younger than 18 years of age between the hours of eight in the morning and six in the evening. (Continued on next page)
Form Approved for Optional Use Judicial Council of California POS-040[Rev. January 1. 2010]
PROOF OF SERVICECIVIL (Proof of Service)
Code of Civil Procedure, 1010.6, 1011.1013.1013a. 2015.5; Cal. Rules of Court, rules 2.260. 2.306 www. couetinto. ca. gov
POS-040
CASE NUMBEI
People v. Overstock.com, Inc.

6. b. I
RG10-546833
I By United States mail. I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses in item 5 and (specify one): (1) |^3 deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. (2) placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this busrness's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at (city and state):
c. |~/""| By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses in item 5. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. d. [_""! By messenger service. I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed in item 5 and providing them to a professional messenger service for service. (A declaration by the messenger must accompany this Proof of Service or be contained in the Declaration of Messenger below.) e. [ ~~\y fax transmission. Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed in item 5. No error was reported by the fax machine that I used. A copy of the record of the fax transmission, which I printed out, is attached. f. [J~] By electronic service. Based on a court order or an agreement of the parties to accept service by electronic transmission, I caused the documents to be sent to the persons at the electronic notification addresses listed in item 5.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: April 1,2011
Mercedes Day
(TYPE OR PRINT NAME OF DECLARANT)
t i l l {SIGNATURE OF DECL
(If item 6d above is checked, the declaration below must be completed or a separate declaration from a messenger mwTfce attached-)
DECLARATION OF MESSENGER I ] By personal service. I personally delivered the envelope or package received from the declarant above to the persons at the addresses listed in item 5. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents in an envelope or package, which was clearly labeled to identify the attorney being served, with a receptionist or an individual in charge of the office, between the hours of nine in the morning and five in the evening. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not younger than 18 years of age between the hours of eight in the morning and six in the evening. At the time of service, I was over 18 years of age. I am not a party to the above-referenced legal proceeding. I served the envelope or package, as stated above, on (date): I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date:
(NAME OF DECLARANT)
(SIGNATURE OF DECLARANT)
POS-<MO[Rev.January1.2010]
PROOF OF SERVICECIVIL
(Proof of Service)
POS-040(D)
SHORT TITLE; People vs. Overstock.com, Inc., et. al,
CASE NUMBER'
RG10-546833
ATTACHMENT TO PROOF OF SERVICECIVIL (DOCUMENTS SERVED) (This Attachment is for use with form POS-040)
The documents that were served are as follows (describe each document specifically):
PLAINTIFF'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF INTERROGATORIES TO DEFENDANT OVERSTOCK.COM, INC.; APPENDIX A; SEPARATE STATEMENT IN SUPPORT OF PEOPLE'S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF INTERROGATORIES TO DEFENDANT OVERSTOCK.COM, INC.; DECLARATION OF MATTHEW L. BELTRAMO IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES (WITH EXHIBITS ATTACHED THERETO); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTJONTCT COMPEL FURTHER RESPONSES TO FIRST SET OF INTERROGATORIES TO DEFENDANT OVERSTOCK.COM, INC.,
ATTACHMENT TO PROOF OF SERVICE-CIVIL (DOCUMENTS SERVED)

POS-040(D) (New January 1. 2005] (Proof Of Service)
Paga,
2
3
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mi Mil MA 1UI1 Ml M I
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4 5 6 7 8 9 10 11
NANCY E. O'MALLEY District Attorney of Alameda County Matthew L. Beltramo, Deputy District Attorney (State Bar No. 184796) 7677 Oakport Street, Suite 650 Oakland, CA 94621 Telephone: (5 10) 569-9281 Facsimile: (510) 569-0505
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Additional counsel listed on Appendix A To Notice of Motion and Motion to Compel Attorneys for Plaintiff
/^ P$ lidQf f QuHK OP/ftj ^~~^--j^^J^^^\'
SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff . No. RG10-546833 SEPARATE STATEMENT IN SUPPORT OF PEOPLE'S MOTION TO COMPEL FURTHER RESPONSES TO FIRST SET OF INTERROGATORIES TO DEFENDANT OVERSTOCK.COM, INC. Date: Time: Dept: Reservation: May 5, 2011 2:00 p.m. 20 #1167531
12 13
14 15 16
vs.
17 18 19 20 21 22 23 24 25 26 27 28
DISTRICT ATTORNEY Alamedi Count)'
OVERSTOCK. COM, INC., et al., Defendants
Assigned for All Purposes to the Honorable Robert B. Freedman Complaint Filed: Answer Filed: Am. Answer Filed: SPECIAL INTERROGATORIES November 17, 2010 January 28, 201 1 March 7, 201 1
For purposes of the Special Interrogatories included in the People's First Set of Interrogatories,1 the following definition was used:
The People's First Set of Interrogatories includes both form and special interrogatories. -1CaseNo,'RG10-546833
*30 31
SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES
1
2 3
4 5
"IDENTIFY a FORMER EMPLOYEE" means to list that EMPLOYEE'S full name, DATES OF EMPLOYMENT, the job title that person held when departing YOUR employ, present or last known home ADDRESS, e-mail address, present or last known
6
7 8 9
10 11 12 13 14 15 16 17 18
home telephone number, and present or last known cell phone number." Beltramo Decl. 1J2, Ex. 1, at 4,11. 5-9 (Interrog. U'17).
SPECIAL INTERROGATORY NO. 8: IDENTIFY each FORMER EMPLOYEE who SET COMPARISON PRICES at any time on or after January 1, 2006.
RESPONSE TO SPECIAL INTERROGATORY NO. 8: Each general objection is hereby incorporated by reference as if fully set forth herein. Overstock objects to this interrogatory on the grounds that (1) it is overbroad, unduly burdensome, and oppressive; (2) it seeks information neither relevant nor reasonably calculated to lead to the discovery of admissible evidence; (3) it seeks information protected by California's constitutional right of privacy; (4) it is vague and. ambiguous as to the terms and/or phrases "regarding any employment, consulting, or contracting relationship;" and (5) it is vague and ambiguous as to the terms and/or phrases "FORMER EMPLOYEE who SET COMPARISON PRICES," as Overstock does not itself designate certain employees, consultants, or contractors as those that set comparison prices. Nothing in
19 20 21
Overstock's response is intended as or shall be interpreted as a waiver of any applicable privilege or 22 protection of information from disclosure. 23 Subject to and without waiving the foregoing objections, Overstock responds as follows: 24 25
26
EMPLOYEES do not SET COMPARISON PRICES. EMPLOYEES typically receive and review, and on occasion may modify COMPARISON PRICES submitted to Overstock by its vendors and suppliers. Notwithstanding the foregoing, FORMER EMPLOYEES who typically received and reviewed, and on occasion may have modified COMPARISON PRICES after January 1,2006 are identified in the document provided herewith and identified as OSTK5 - OSTK6.
27
28
DISTRICT ATTORNEY Alamala County
30
31
1
2 3 4 5 6 7 8 9
10 11 12 13 14 15 16
REASONS WHY FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 8 SHOULD BE COMPELLED: This Interrogatory and the accompanying definition call for the names and current (or last known) contact information of those former employees of Defendant Overstock.com, Inc. (hereinafter "Defendant" or "Overstock") who set comparison prices during the relevant time period. The methodology by which Defendant set comparison prices is the main issue in this case. See, e.g., Complaint Iffl9-13, 101-07 (First Cause of Action). Accordingly, these former employees are key percipient witnesses in this case. Although Defendant supplied the Plaintiff (hereinafter sometimes "the People") with the names of those individuals, it refused to provide any current contact information for them. This refusal appears to be based on an asserted right to privacy in that information. See Beltramo Decl. ^[4, Ex. 2, p. 13,11. 23-24 (Resp. Spec. Interrog. No. 8), and ^[6, Ex. 4 (meet and confer email from Overstock's counsel). This objection is improper and should be overruled by the Court. The disclosure of contact information of potential witnesses is a key component of discovery. "Central to the discovery process is the identification of potential witnesses. The disclosure of the
17
names and addresses of potential witnesses is a routine and essential part ofpretrial discovery"
18 19
20 21 22 23 24 25 26 27 28
Odin of
DISTRICT ATTORNEY Altmcdo County ^ f\1
Puerto v. Superior Court (2008) 158 Cal. App. 4th 1242, 1249 (emphasis added). This is true for a party's former employees. See id., at 1256. Although Courts have recognized that there is a right to privacy in contact information such as home addresses and telephone numbers, that right is not a bar to discovery in this case. In Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 CaJ. 4th 360, 370 (Pioneer), the Court applied a three-part test to determine, at the outset, whether a cognizable privacy right had been asserted:2 (1) the party on whose behalf a privacy claim is asserted must have a "'legally protected privacy interest'"; (2) the party whose privacy rights are at issue "must possess a reasonable expectation of privacy under the particular circumstances, including 'customs, practices, and physical settings
This framework was adopted from Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1. -3CaseNo.RGlO-546833
SEPARATE STATEMENT FN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES
I
2 3
surrounding particular activities"'; and (3) "the invasion of privacy complained of must be 'serious' in
4
nature, scope, and actual or potential impact to constitute an 'egregious' breach of social norms, for
5
trivial invasions afford no cause of action." Pioneer, supra, 40 Cal. 4th at 370-71 (emphasis added)
6 7 8 9 10
11
(quoting Hilly. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 36-37)). Moreover, the Court in Pioneer went on to hold that, even where a privacy right is found to exist, it must be weighed against countervailing interest in a "balancing test." Pioneer, supra, 40 Cal. 4th at 371 (citations omitted). In this case, even assuming that Overstock has standing to assert the privacy rights of its employees, it cannot satisfy the elements recognized in Pioneer, much less prevail in a balancing test of competing interests. First, it is far from certain that Defendant's former employees would harbor a "reasonable expectation of privacy under the particular circumstances" of this case. Pioneer, supra, 40 Cal. 41 at 371 (internal quotations and citations omitted). This is not a private dispute between businesses or private litigants, but rather a law enforcement action brought on behalf of the People of California. Under these circumstances, there is no reason to assume that Defendant's former employees ~ who are no longer in an employment relationship with the company -- would object to disclosure of their contact information to the People. Cf. id, at 1252-1253 ("The fact that we generally consider residential telephone and address information private does not mean that the individuals would not want it disclosed under these circumstances"). - Second, and more importantly, the limited discovery that the People seek - namely, contact information on potential witnesses who have already been identified does not, as a matter of law,
12
13
14
15
16 17
18
19 20 21
constitute a "serious" invasion of privacy rights, much less an "egregious breach of social norms."
22 23
24
Pioneer, supra, 40 Cal. 4th at 371 (internal quotations and citation omitted). The Puerto case is on point. There, the plaintiff sought contact information for thousands of current and former employees of the defendant company, people who had already been identified by the defendant as potential witnesses. The defendant refused, citing privacy concerns. The Court overruled that objection, concluding, among other things: [T]he requested information, while personal, is not particularly sensitive, as it is merely contact information, not medical or financial details, political affiliations, sexual
-4-
25 26
27
28
OtTice of
DISTRICT ATTORKEV AUuncda Ctnuilj
30
31
1
2 3 4
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19
20
relationships, or personnel information. ... This is basic civil discovery. These individuals have been identified by [defendant] as witnesses. ... There simply is no evidence that disclosure of the contact information for these already-identified witnesses is a transgression of the witnesses' privacy that is sufficiently serious in [its] nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right...." (Puerto, supra, 158 Cal. App. 4th at 1253-1254 (emphasis added; citations and internal quotations omitted). In this case, as in Puerto, Overstock has already disclosed the names of former employees who are potential witnesses in this case. Although Overstock may not have itself deemed these individuals "witnesses,"3 that is a distinction without a difference; there can be little dispute that former employees who set comparison prices are percipient witnesses to the false advertising practices alleged in the Complaint. Because no serious invasion of privacy rights is at issue in this case, it is not necessary for the Court to engage in a balancing test pursuant to Pioneer. See Puerto, supra, 158 Cal. App. 4th at 1256. However, were the Court to engage in such a test, it would only serve to "reinforce[] [the] conclusion" that the requested contact information should be provided. Id. This case involves the "fundamental public policy" underlying California's consumer protection laws, "suggesting that the balance of opposing interests tips toward permitting access to relevant information necessary to pursue the litigation." Id. (recognizing fundamental nature of employee protection lawsuits). Balanced against these compelling interests is, at worst, a comparatively slight intrusion into the privacy rights of the witnesses. See id, ("the requested information, while personal, is not particularly sensitive, as it is merely contact information, not medical or financial details, political affiliations, sexual relationships,
21
or personnel information.... This is basic civil discovery.") (citations omitted). The People are seeking
22
only current contact information, and not more sensitive information such as employment records,
23 24
25
financial records, psychiatric records or the like. Compare In re Clergy Cases /(2010) 188 Cal. App. 4th 1224, 1231 (personal psychiatric information); Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal. App. 4th 347 (staff of abortion clinics sought by anti-abortion group); Morales v. Superior Court (1979) 99 Cal. App. 3d 283 (extramarital affairs in wrongful death action). As in
The individuals at issue in Puerto had been identified as potential witnesses by the defendant in response to the Judicial Council form interrogatories. Case No. RG10-546833 -53
26 27 28
Office of DISTRJCT ATTORNEY Alaimda Comity
30 31
1
2 3
Puerto, these "former employees are potential percipient witnesses to the [acts of defendant], the
4
primary issue in this litigation, and as such their locations are properly discoverable." Puerto, supra,
5
158 Cal. App. 4th at 1256.

6 7 8 9
10 11 12
Finally, it is worth noting that the People have on more than occasion offered to enter into a protective order as a means of allaying Overstock's asserted privacy concerns. See Beltramo Decl ffl[7 and 9, Exs. 5 and 7. Although Overstock has never taken the People up on this offer, it remains open. Further, because a protective order supplies sufficient safeguards under the circumstances of this case, no further procedural protections - such as "opt-in" or "opt-out" letters - are warranted. See Puerto, supra, 158 Cal. App. 4th at 1251-1252 (refusing to order an opt-out letter because "a percipient witness's willingness to participate in civil discovery has never been considered relevant -witnesses may be compelled to appear and testify whether they want to or not.")
13
14 15 16
SPECIAL INTERROGATORY NO. 14: IDENTIFY each FORMER EMPLOYEE who worked as an OVERSTOCK BUYER.at any time on or after January 1, 2006.
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18
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RESPONSE TO SPECIAL INTERROGATORY NO. 14: Each general objection is hereby incorporated by reference as if fully set forth herein. Overstock objects to this interrogatory on the grounds that (1) it is overbroad, unduly burdensome, and oppressive; (2) it seeks information neither relevant nor reasonably calculated to lead to the discovery
22
of admissible evidence; (3) it seeks information protected by California's constitutional right of

23
24
privacy; (4) it is vague and ambiguous as to the terms and/or phrases "regarding any employment; consulting, or contracting relationship;" and (5) it is vague and ambiguous as to the terms and/or phrases "OVERSTOCK BUYER," as Overstock does not itself designate certain employees, consultant, or contractors as an "OVERSTOCK BUYER." Nothing in Overstock's response is intended as or shall be interpreted as a waiver of any applicable privilege or protection of information from disclosure. -6Case No. RG10-546833 SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES
25 26 27 28
Office of DISTRICT ATTORNEY Alamnii Coumy
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1
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Subject to and without waiving the foregoing objections, Overstock refers to and incorporates
4
the document produced herewith identified as OSTK8 - OSTK.9.

5 6 7
REASONS WHY FURTHER RESPONSE TO SPECIAL INTERROGATORY NO. 14 SHOULE BE COMPELLED: This Interrogatory and the accompanying definitions call for the names and current contact
8 9 10 11 12 13
14 15
information of those former employees of Defendant who worked as Overstock buyers during the period in question. As defined in the Interrogatories, an "OVERSTOCK BUYER" is someone who "communicates" with the outside merchants or vendors who sell items on Overstock's web site in order to acquire those items or the right to sell them. See Beltramo Deal. ^2, Ex. 1, p. 4-5,11(18, 22, 26 (Spec. Interrog. Defn.). In other words, Interrogatory 8 asks for the names and contact information for everyone who set comparison prices. Interrogatory 14 asks for the names and contact information for Overstock employees who dealt with Overstock's suppliers. These buyers are key witnesses to the allegations in the Complaint, inasmuch as they are alleged to have arrived at comparison prices via communications with the third-party vendors. See, e.g., Complaint^47'-48, 50, 68, 70-71. Moreover, Overstock itself has placed its "BUYERS" in a central position in this case when, in its partial response to Interrogatory #8 above, it declared that its own employees do not regularly set comparison prices. Rather, they "typically receive and review, and on occasion" may have modified comparison prices "submitted to Overstock by its vendors and suppliers." Beltramo Decl. 14, Ex. 2, at 7,11. 22-24 (Resp. Spec. Interrog. 1) and at 14,11. 4-6 (Resp. Spec. Interrog. 8.) That declaration makes those former employees - i.e., the people who communicated with the vendors who set comparison prices ~ key percipient witnesses in this case. The People are entitled to
16
17
18
19 20 21
22
23
24
ask those buyers, inter alia, about Overstock's formal pricing policies, any deviations from those
25
policies by individual buyers, Overstock managers' knowledge of those deviations, and the
26 27
28
OffiM of DISTRICT ATTORNEY Alameda CounTy
completeness and accuracy of comparative pricing information routinely supplied by vendors.
30
-7-
31
SEPARATE STATEMENT LN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES
1
2 3
Overstock admits as much in its Verified Amended Answer. Paragraph 48 of the Complaint
4
alleges that Overstock routinely chose the highest price at which a product was advertised on the
5 6 7
Internet as its "List Price" instead of lower prices offered by other merchants. Part of that allegation includes the claim that Overstock enlisted its vendors (Overstock refers to them as "Fulfillment Partners") in this effort: . . . . For Partner products, Overstock enlisted the Partner's assistance in finding the highest such price charged in the marketplace for that product, even though both Overstock and the Partner knew that said price would be higher than the price at which other merchants typically offered that product for sale to consumers. (Complaint ^48.) Overstock responded: . . . . Overstock admits that it received from Partners, the highest prices charged in the marketplace for some products, but denies all of the remaining allegations in the last sentence of Paragraph 48. (Verified Answer, at ^[48 (emphasis added)).4 Overstock buyers who communicated with those vendors are thus key percipient witnesses. Although Defendant has supplied the People with the names of the "buyers" requested in Interrogatory 14, it has refused to provide any current contact information for them. As with Overstock's response to Interrogatory #8 above, this refusal appears to be based on an asserted right to privacy in that information (see Beltramo Decl. 1(4, Ex. 2, p. 13,11. 23-24 (Resp. Spec. Interrog. No. 8) and 1[6, Ex. 4 (meet and confer email from Overstock's counsel)) and should therefore be overruled. The disclosure of contact information of potential witnesses is a key component of discovery. "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 ofpretrial discovery'''
8
9 10 11 12
13
14 15 16 17 18 19 20 21 22
Puerto v. Superior Court (2008) 158 Cal. App. 4th 1242, 1249 (emphasis added). This is true for a
23
party's former employees. See id., at 1256.

24
Although Courts have recognized that there is a right to privacy in contact information such as home addresses and telephone numbers, that right is not a bar to discovery in this case. In Pioneer
25 26 27 28
QfTioj of DISTRICT ATTORNEY Alamala County
Overstock offered the same response to the People's allegation that it continued to enlist its vendors after changing the nomenclature of its comparative price from "List Price" to "Compare at". Compare Complaint, 70 with Amended Verified Answer, ^ 70.
-8Case No. RG 10-546833
30 31
1
2 3
Electronics (USA), Inc. v. Superior Court (2007) 40 Cal. 4th 360, 370 (Pioneer), the Court applied a
4
three-part test to determine, at the outset, whether a cognizable privacy right had been asserted;5 (1)
5
the party on whose behalf a privacy claim is asserted must have a '"legally protected privacy
6 7 8 9
10 11
interest'"; (2) the party whose privacy rights are at issue "must possess a reasonable expectation of privacy under the particular circumstances, including 'customs, practices, and physical settings surrounding particular activities'"; 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, 40 Cal. 4th at 370-71 (emphasis added) (quoting Hill v. National Collegiate Athletic Assn. (1994) 7 CaUth 1, 36-37)). Moreover, the Court in Pioneer went on to hold that, even where a privacy right is found to exist, it must be weighed against countervailing interest in a "balancing test." Pioneer, supra, 40 Cal. 4th at 371 (citations omitted). In this case, even assuming that Overstock has standing to assert the privacy rights of its employees, it cannot satisfy the elements recognized in Pioneer, much less prevail in a balancing test of competing interests. First, it is far from certain that Defendant's former employees would harbor a "reasonable expectation of privacy under the particular circumstances" of this case. Pioneer, supra, 40 Cal. 4lh at 371 (internal quotations and citations omitted). This is not a private dispute between businesses or private litigants, but rather a law enforcement action brought on behalf of the People of California. Under these circumstances, there is no reason to assume that Defendant's former employees - who are no longer in an employment relationship with the company - would object to disclosure of their contact information to the People. Cf. id., at 1252-1253 ("The fact that we
12
13
14 15 16 17
18
19 20 ,21 22
generally consider residential telephone and address information private does not mean that the
23^
individuals would not want it disclosed under these circumstances").

24
25
Second, and more importantly, the limited discovery that the People seek - namely, contact information on potential witnesses who have already been identified does not, as a matter of law-,
26 27 28
Office of DISTRICT ATTORNEY Alamcdn Cwmiy
This framework was adopted from Hill v. National Collegiate Athletic Assn. (1994) 7 Ca!.4th 1.
30
31
1
2 3
constitute a "serious" invasion of privacy rights, much less an "egregious breach of social norms."
4
Pioneer, supra, 40 Cal. 4th at 371 (internal quotations and citation omitted).
. ' 5 6 7 8 9
10 11 12 13 14 15
The Puerto case is on point. There, the plaintiff sought contact information for thousands of current and former employees of the defendant company, people who had already been identified by the defendant as potential witnesses. The defendant refused, citing privacy concerns. The Court overruled that objection, concluding, among other things: [T]he requested 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. ... This is basic civil discovery. These individuals have been identified by [defendant] as witnesses. ... There simply is no evidence that disclosure of the contact information for these already-identified witnesses is a transgression of the witnesses' privacy that is sufficiently serious in [its] nature, scope, and actual or potential impact to'constitute an egregious breach of the social norms underlying the privacy right'...." (Puerto, supra, 158 Cal. App. 4th at 1253-1254 (emphasis added; citations and internal quotations omitted). In this case, as in Puerto, Overstock has already disclosed the names of former employees who are potential witnesses in this case. Although Overstock may not have itself deemed these individuals
16
"witnesses,"6 that is a distinction without a difference; there can be little dispute that former
17
employees who set comparison prices are percipient witnesses to. the false advertising practices
18 19 20 21 22 23 24 25 26 27 28
Office of DISTRICT ATTORNEY Atuncd.1 County
alleged in the Complaint. Because no serious invasion of privacy rights is at issue in this case, it is not necessary for the Court to engage in a balancing test pursuant to Pioneer. See Puerto, supra, 158 Cal. App. 4th at 1256. However, were the Court to engage in such a test, it would only serve to "reinforce[] [the] conclusion" that the requested contact information should be provided. Id. This case involves the "fundamental public policy" underlying California's consumer protection laws, "suggesting that the balance of opposing interests tips toward permitting access to relevant information necessary to pursue the litigation." Id. (recognizing fundamental nature of employee protection lawsuits). Balanced against these compelling interests is, at worst, a comparatively slight intrusion into the privacy rights of the
The individuals at issue in Puerto had been identified as potential witnesses by the defendant in response to the Judicial Council form interrogatories.
6
-10-
CaseNo, RG10-546833
31
1
2 3
witnesses. See id. ("the requested information, while personal, is not particularly sensitive, as it is
4
merely contact information, not medical or financial details, political affiliations, sexual relationships,
5 6 7 8 9
10
or personnel information..., This is basic civil discovery.") (citations omitted). The People are seeking only current contact information, and not more sensitive information such as employment records, financial records, psychiatric records or the like. Compare In re Clergy Cases I (2010) 188 Cal. App. 4th 1224, 1231 (personal psychiatric information); Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal. App. 4th 347 (staff of abortion clinics sought by anti-abortion group); Morales v. Superior Court (1979) 99 Cal. App. 3d 283 (extramarital affairs in wrongful death action). As in Puerto, these "former employees are potential percipient witnesses to the [acts of defendant], the primary issue in this litigation, and as such their locations are properly discoverable." Puerto, supra, 158 Cal, App. 4th at 1256. Finally, it is worth noting that the People have on more than occasion offered to enter into a protective order as a means of allaying Overstock's asserted privacy concerns. See Beltramo Decl. 1fl[7 and 9, Exs. 5 and 7. Although Overstock has never taken the People up on this offer, it remains open. Further, because a protective order supplies sufficient safeguards under the circumstances of this case, no further procedural protections - such as "opt-in" or "opt-out" letters -- are warranted. See Puerto, supra, 158 Cal. App. 4th at 1251-1252 (refusing to order an opt-out letter because "a percipient witness's willingness to participate in civil discovery has never been considered relevant witnesses may be compelled to appear and testify whether they want to or not.")
11 12
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Offinor
DISTRICT ATTORNEY Alamc&l Counly f) f\0
Dated: April 1,2011
NANCY E. O'MALLEY Alameda County District Attorney
Matthew L. Beltramo Deputy District Attorney
-n-
CaseNo.RGlO-546833
31

2011 04-01 California Vs Overstock - Com - Plaintiff's Notice of Motion and Motion To Compel

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2011 04-01 California Vs Overstock - Com - Plaintiff's Notice of Motion and Motion To Compel

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1

THE SUPcniufl COURT /": /7;7/y

OVERSTOCK.COM, INC., et al., Defendants

May 5, 2011 2:00 p.m. 20 #1167531

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

Dated: April 1,2011

NANCY E. O'MALLEY Alameda County District Attorney

Matthew L. Beltramo Deputy District Attorney

Case No. RG10-546833

Case No. RG10-546833 APPENDIX A

OVERSTOCK.COM, INC., et al., Defendants

MPA IN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES

MPA IN SUPPORT Ol7 MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES

Case No. RG10-546833

MPA IN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES

MPA IN SUPPORT OP MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES

information on former employees is predicated on a privacy-rights objection. Although Article I,

MPA IN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES

MPA IN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES

Case No. RG 10-546833

MPA IN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES

otherwise valid discovery request.

MPA IN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES

By:. Matthew Beltramo Deputy District Attorney

OVERSTOCK.COM, INC., et al., Defendants

Case No. RG10-546833

BELTRAMO DECLARATION IN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES

the facts described below.

without attachment - is attached hereto as Exhibit 4.

BELTRAMO DECLARATION IN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES

Case No. RG10-546833

BELTRAMO DECLARATION IN SUPPORT OP MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES

OVERSTOCK.COM, INC., a Corporation; and DOES 1-10

'-1PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT OVERSTOCK.COM, INC.

PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT OVERSTOCK.COM, INC.

-5PLAINTIFF'S FIRST SET OF rNTERROGATORIES DIRECTED TO DEFENDANT OVERSTOCK.COM, INC.

licensed your businesses? If so, for each license or registration:

identify the license or registration;

-6PLArNTlFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT OVERSTOCK.COM, FNC.

4 Spec ia 1 Interrogatgr i es. 5

20 time on or after January 1, 2006. 21

For each CURRENT EMPLOYEE IDENTIFIED in response to Interrogatory #6,

time on or after January 1, 2006.

-7PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT OVERSTOCK/COM, INC.

For each FORMER EMPLOYEE IDENTIFIED in response to Interrogatory #8,

any time on or after January 1, 2006.

For each FORMER EMPLOYEE IDENTIFIED in response to Interrogatory #14,

-10PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANT OVERSTOCK.COM, INC.

16 PEOPLE OF THE STATE OF CALIFORNIA, 17 18

19 OVERSTpCK.COM, INC., a corporation; and 20 DOES 1-10 21 22 23 24

PEOPLE OF THE STATE OF CALIFORNIA OVERSTOCK.COM, INC.

Case No. RG10-546833 RESPONSES TO FIRST SET OF INTERROGATORIES

Case No. RG10-546833 RESPONSES TO FIRST SET OF INTERROGATORIES

or intending to waive, any questions or objections as to the competency, relevancy, materiality,

Case No. RG10-546833 RESPONSES TO FIRST SET OF INTERROGATORIES

Marci Osterberg Director of Human Resources

23 24 FORM INTERROGATORY NO. 3.1: 25

CaseNo. RG10-546833 -4RESPONSES TO FIRST SET OF INTERROGATORIES

RESPONSE TO FORM INTERROGATORY NO. 3.1:

16 17 FORM INTERROGATORY NO. 3.7: 18

19 so, for each license or registration: 20 21 22

23 24 RESPONSE TO FORM INTERROGATORY NO. 3.7: 25

CaseNo. RGIO-546833 RESPONSES TO FIRST SET OF INTERROGATORIES

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