Joint Case Management Statement - White Collar Fraud

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FILED BY E-DELWERY
ALAMEDA COUNTY
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NANCY RO'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 for
Listed on Appendix A)
Plaintiff
CLERK OF
THE SUPERIOR COURT
Bv Rosanne Case, Deputy
CASE NUMBER:
RG10546833
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
Email: bobfeldman@quinneraanuel.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: meiissabaily@quinnemanuel.com
Attorneys for Defendant
Overstock.com, Inc.
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THE PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff
vs.
OVERSTOCK.COM, INC., et al,
Defendants
SUPERIOR COURT OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
No. RG10-546833
JOINT CASE MANAGEMENT STATEMENT
Assigned for all purposes to the
Honorable Robert B. Freedman
Date:
Time:
Department:
June 24,2011
2:00 p.m.
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Complaint Filed: November 17,2010
Second Am. Answer Filed: May 31,2011
This Case Management Statement is submitted jointly by Plaintiff, the People of the State of
California ("Plaintiff or the "People") and Defendant, Overstock.com, Inc. ("Defendant" or
"Overstock").
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A. BACKGROUND/FACTUAL SUMMARY.
1. Parties and Their Respective Counsel
Plaintiff is represented in this action hy the District Attorneys of Alameda, Marin, Monterey,
Napa, Santa Clara, Shasta, and Sonoma Counties, by and through their appointed deputy district
attorneys, whose names are listed on the caption page and on Appendix A.
Defendant is represented by Quinn Emanuel Urquhart & Sullivan, LLP, by and through Robert
P, Feldman, Melissa J, Baily, and Dane W. Reinstedt.
2, Summary Of Respective Allegations and Prayers For Relief.
a. Plaintiff's A llegatioiis.
This is a law enforcement action brought on behalf of the People against Defendant Overstock,
an online retailer based in Utah and doing business throughout the State of California, Overstock sells
products via its weo site: ww, oversiock.com. For many of me products tnat it sells, Overstock
advertises a comparison price, which is supposedly the price at which a consumer could expect to
purchase the product in question from another merchant. Overstock formerly labeled this comparison
the "List Price," It is now called the "Compare At Price." In both cases, the comparison price appears
on the same web page as the product being sold
The Complaint alleges that beginning no later than January 1, 2006, Overstock has routinely
and systematically made untrue and misleading comparative advertising claims about the prices which
other merchants charge for the identical products offered by Overstock, More specifically, the
Complaint alleges that Overstock set misleading comparison prices by, for example: failing to
ascertain the prices at which other merchants were actually selling the items in question; by adopting
as the comparison price the highest sales price at which other merchants were selling me identical item
in question; and where no comparaole items were aeing sold by otner merchants, by creating a
fictitious comparison price through the use of mathematical pricing formulae. As a result of this
conduct, consumers in the state of California were mislead into believing that purchasing a product
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from Overstock would result in an inflated amount of savings. Contrary to Overstock's contention,
this case is not about a single consumer complaint, but rather about the widespread practice of
advertising inflated and/or unverified comparison prices - a practice that, the People maintain, was
both effective ancJ hidden from consumers, Even at ttis early stage of the litigation, Overstock has
admitted that in many cases it knowingly advertised comparison prices that were often significantly
higher than the "street prices" at which other merchants sold the identical products. Compare
Overstock's Verified Second Amended Answer to the Complaint, fl 46, with the People's Complaint,
1145-46.
The complaint contains five causes of action:
• The First Cause of Action alleges a violation of Business and Professions Code Section 17500
(the "false advertising law") as a result of the misleading and untrue nature of Overstock's
comparison prices, as described above.
• The Second Came of Action alleges a violation of Business and Professions Code Section
17200 (the "unfair competition iaw") also a result of the misleading and untrue use of
comparison prices described above.
• The Third Cause of Action alleges a violation of Business and Professions Code Section
17500 as a result of Overstock's misleading advertising about the source of its products,
Specifically, Overstock advertised and marketed itself as an on-line liquidator of distressed or
discontinued items (i.e.9 "overstocks"), when in fact the vast majority of the products sold on
its web site are offered for sale, warehoused and shipped by third-party vendors who use
Overstock's web site as a sales platform,
• The Fourth Cause of Action alleges a violation of Business and Professions Code Section
17500, on the grounds that Overstock made false or misleading statements about whether
shipping costs were being included in the comparison prices or otherwise factored into the
costs "savings" that customers were receiving.
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• Finally, the Fifth Cause of Action alleges a violation of Business and Professions Code
Section 17200 based on all of the foregoing causes of action.
By way of relief, the People seek, inter alia, an injunction prohibiting the conduct alleged,
restitution to consumers who may have been harmed by Overstock's conduct, and at least $15 million
in civil penalties, as authorized by Business and Professions Code Sections 17536(a) and 17206(a).
b, Defendant's Allegations and Denials.
In this case, Plaintiffs have alleged that Overstock misled consumers through its presentation of
comparative prices on its website, In support of their five claims under the California Business and
Professions Code, Plaintiffs cite a single example of one allegedly misleading price comparison related
to Overstock's sale of a patio set in 2007. (Complaint ^ 25.) Plaintiffs have confirmed in Interrogatory
Responses that they have received only a single consumer complaint regarding Overstock's
comparative pricing practices. Similarly, Plaintiffs Interrogatory Responses have identified no other
instances of purported harm caused by Overstock's conduct other than harm allegedly flowing from
one sa^e of a patio set to one consumer, Nonetheless, Plaintiffs seek an injunction, restitution,
$15,000,000 in civil penalties, and attorneys'' fees. In response to Plaintiffs*' Complaint, Overstock
filed its Second Amended Answer, which states nine affirmative defenses.
One point bears mentioning in response to the District Attorneys' argument that Overstock has
"admitted" that it knowingly advertised comparison prices that were significantly higher than "street
prices." Overstock answered the Complaint—it did not "admit" anything—and will, in fact, prove at
trial that it advertised comparison prices that were higher than "street prices"—exactly as Overstock
and virtually every retailer routinely does. This practice is consistent with the definitions of the
relevant terms on Overstock's website (and the websites of many of its competitors).
3. Current Procedural Posture.
a. Unserved Parties.
Other than potential "Doe'3 defendants, the People are aware of no unserved parties at this time.
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Overstock is aware of no unserved parties at this time,
b. Unserved or Unfiled Cross-Complaints.
The People are aware of no such cross-complaints.
Overstock is aware of no such cross-complaints.
c. Related Actions Pending In Other Jurisdictions.
The People are aware of no such actions.
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Overstock is aware of no such actions.
d. Any Possible Jurisdictional or Venue Issues.
The People are aware of no such issues,
Overstock is aware of no such issues at this time.
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e. Status of Discovery,
Discovery Served by the Plaintiff: The People have served and received a response to their
First Set of Interrogatories. In addition, the People have served a Second Set of Interrogatories, the
response date for which was extended by stipulation to June 28, 2011.
The People expect shortly to serve additional discovery on Overstock, including but not limited
to the following:
• Request for Production of Documents
• Request for Admissions
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• Third and subsequent Interrogatories
• Deposition notices
Discovery Served by the Defendant: Overstock has served and received responses to its First
Set of Specially Prepared Interrogatories, First Set of Form Interrogatories, First Set of Requests for
Admission, and First Set of Inspection Demands.
Overstock expects to serve additional discovery7 on The People, including but not limited to:
• Additional Requests for Admission
• Additional Interrogatories
• Code Civ. Proc. § 2025,230 Depositions of Persons Most Knowledgeable re Plaintiffs
Contentions
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/ Unresolved Law and Motion Matters,
As 01 the filing of this Joint Case Management Statement, there are no pending law and motion
matters.
g, Requests for And/or Opposition to ADR.
Tlie People believe this case is exempt from ADR under California Rule of Court 3.811
because the Complaint includes a prayer for equitable relief that is not frivolous or insubstantial.
The People are willing to participate in a judicial settlement conference at the convenience of
the Court, provided sufficient discovery has been completed to make such a conference worthwhile.
Overstock does not believe that sufficient discovery has taken place to result in a change in the
parties' pre-litigation position or a successful mediation.
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fi
Re commendation for Judicial Settlement Officers
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The People respectfully request that this case be referred to Judge Steven Brick for purposes of
conducting a judicial settlement conference.
Assuming a mediation were to be held at some point, Overstock agrees with the choice of
Judge Steven Brick.
/. Severance of Issues For Trial
The People do not believe there are any issues that would require severance in this case.
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Overstock does not believe there are any issues that would require severance in this case.
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/ Class Action Status.
This is not a class action case.
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Protective Order:
Potential Issues Regarding Confidentiality or Protected Evidence:
1. Protective Order.
In the Court's May 17,2011, Order granting the Motion to Compel, it directed the parties to
meet and confer with respect to an appropriate form of protective order. The parties have diligently
met and conferred in an effort to settle on a stipulated protective order and have agreed in principle to
most aspects of such an order. However, they are unable to reach an agreement on one issue for which
they seek guidance from the Court: the procedure for handling confidential information once the case
is resolved and, specifically, whether such material should be destroyed and/or returned to the
disclosing party.
People's Position:
The People cannot agree to any proposal that requires them to immediately destroy or return
materials following final disposition of this case, The District Attorneys, acting on behalf of the
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People, are law enforcement agencies having a duty to maintain evidence relating to law enforcement
actions for purposes, among others, of enforcing any injunctions that may be entered. Agreeing to
destroy or return evidence at the conclusion of the case would make it far more difficult to enforce
such an injunction months, or even years, later, and thereby amount to an abdication of that law
enforcement duty.
For much the same reasons, the People cannot agree to Overstock's alternative proposal that it
- or its attorneys1 - be allowed to retain the only copy of these materials following resolution of this
case, with the understanding that it - or its attorneys - will re-produce the documents in the event the
People wish to take subsequent enforcement action. Setting aside the impractical logistics of this
proposal (including the fact that law firms occasionally go out of business), it would be contrary to the
District Attorneys' role as public prosecutors to allow a company that was the subject of a law
enforcement action and ensuing injunction - or its attorneys - to retain the only copy of documents
that may be necessary to ensure its compliance with the terms of that very same injunction.
Tne People have long experience in keeping discovery confidential. Indeed, the District
Attorneys regularly comply with California Government Code Section 11183, which protects ftom
disclosure information obtained by way of investigative subpoena, "An officer who divulges
information or evidence in violation of this section is guilty of a misdemeanor and disqualified from
acting in any official capacity in the department/* Id, Indeed, Overstock produced thousands of pages
pursuant to such an investigative subpoena without securing, or even demanding, a protective order.
In the unlikely event the People are served with a demand under the California Public Records
Act, the parties have already agreed on provisions that will protect Overstock's rights to the extent
permitted under the law. Those rights are considerable, making the possibility of disclosure virtually
non-existent.
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1 The fact that Overstock's attorneys may be the ones would propose to retain the confidential materials following
disposition of this case - and not Overstock itself- does not alleviate the People's concerns regarding the District
Attorneys' ability to fulfill their role as public prosecutors,
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The People recognize that Overstock is entitled to protection for its proprietary information and
have afforded Overstock that protection by agreeing to a reasonable protective order. However, just as
we can at! agree that courts may seal documents in evidence, but not destroy tiiem, the evidence
produced by Overstock in this action must be retained as evidence, albeit with appropriate safeguards.
Given these principles, the People are willing to stipulate to the following language in the
Protective Order:
"Within sixty (60) days after receipt of a request from the producing Party, made witkin
at least one-hundred-twenty (120) days after the time for all possible appeals in the
above-optioned action has expired, all 'Confidential Information' [or "Highly
Confidential Information*] provided in this action shall be returned to die producing
party or maintained consistent with the document retention policies of the District
Attorneys, provided that any documents retained by the District Attorneys shall be kept
confidential under the terms of this Protective Order and shall be kept for a period of no
more than five (5) years following the expiration of the time for appeal To the extent
Confidential Information is retained, the terms of this Protective Order shall survive the
termination of the litigation."
Overstock's Position:
Any information retained by the District Attorneys after the end of this case is potentially
subject to public disclosure through a request under the California Public Records Act ("CPRA"), The
CPRA "articulates a policy of broad disclosure of documents in the possession of public agencies" by
providing that "every person has a right to inspect any public record" subject to certain limited
statutory exceptions. University v. Superior Court (2005) 132 Cal.App,4th 889,896. Using the
CPRA> an Overstock competitor could request documents in the District Attorneys' possession which
contain Overstock's highly confidential and trade secret information. While certain statutory
exceptions to the CPRA may provide protection to Overstock's confidential information, so long as
this information is retained in the possession of tine District Attorneys, it risks being the subject of such
a request,
Overstock has thus proposed that its counsel (not Overstock) retain a copy of all material
produced by Overstock during the course of this case in exactly the form it has or will be produced in.
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If the District Attorneys request any or all of such inforaxation for enforcement purposes, it would be
produced to the District Attorneys, This arrangement, consistent with standard practice across the
country (I.e., where producing counsel retains an archival copy of produced materials), would remove
the risks associated with a competitor making a CPRA request of the District Attorneys, At the same
time, it fully addresses the District Attorneys' concerns about having access to previously produced
discovery in the case of an enforcement issue, The District Attorneys' tiad originally expressed
reluctance to allow Overstock to retain the documents. Now, in the final draft of the CMC Statement,
they have—without justification or explanation—extended their dissatisfaction to Overstock's
counsel.
There is no authority that permits or requires counsel for any party—public or private—to
retain another party's confidential and trade secret records indefinitely. Nor would such authority
make sense: such records are produced for purposes of a pending litigation that, when concluded, no
longer justifies the records being in the possession of anyone other than their owner, In this case, •
Overstock is willing to agree that its counsel will maintain any records produced for five years after
the lawsuit is concluded to alleviate any concern that the records might be required in a future, followon
proceeding. No sound reason exists for the plaintiff to retain these records,
Overstock has proposed tne following language in the Protective Order:
Within sixty (60) days after receipt of a request from the producing Party, made within at
least one-hundred-twenty (120) days after the time for all possible appeals in the abovecaptioncc;
action lias expired, all "Confidential Information" ana "Highly Confidential
Information*' provided in this action shall be returned to the producing party or destroyed.
In the event this litigation terminates in a judgment or settlement agreement so requiring,
counsel for Overstock will retain, for a period of five (5) years, one copy of all
information produced by Overstock in the course of this litigation, If and only if the
District Attorneys seek to enforce the provision of any judgment or settlement agreement,
Overstock's counsel shall, upon request, provide the District Attorneys with copies of any
or ail information requested and reasonably necessary to tne District Attorneys'
enforcement, which information was previously produced in the litigation. Within sixty
(60) days after termination of any such enforcement action, all "Confidential
Information" and "Highly Confidential Information" provided to the District Attorneys in
the enforcement action shall be returned to the producing party or destroyed. Any
information provided pursuant to this Paragraph C, 15 shall be governed by the terms of
this Protective Order. Nothing in this Paragraph C. 15 shall prevent Overstock's counsel
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from notifying Overstock that the District Attorneys have sought copies of all
information previously produced in the litigation,
Overstock's Position:
2. Expert Witness Discovery Protocol
At the May 13,2011 Case Management Conference ("CMC"), Overstock raised the possibility
that the parties might enter into an "expert discovery protocol** See Reporter's Transcript ("RT") at p.
18,11 8-22. The subject of this protocol had been raised with plaintiffs* counsel prior to the May
CMC. The Court established June 24 as the date of a CMC for the purpose of addressing this subject.
Unfortunately, counsel for plaintiffs have declined to consider a protocol regarding expert disclosure.
The expert discovery protocol proposed by Overstock would address the extent to which expert
witness materials are discoverable. In any civil proceeding, there is an exchange of materials relating
to experts, See generally. Code Civ. Proc. § 2034.210, etseq, and Weil and Brown, Civil Procedure
Before Trial, Chapter 8, The rules regulating these excnanges are set forti by statutory provisions
wliica nave, in turn, been the subject of considerable judicial attention, See id
One subject that has provoked substantial uncertainty and unnecessary expense has been the
degree to which communications between counsel and expert are protected by attorney-client privilege
and/or work product. Likewise, uncertainty exists regarding whether the drafts of experts' reports and
related documents are protected from discovery as privileged or work product. See id. at 8J-17, To
some degree, the lack of clarity in the law has encouraged gamesmanship. See id (",,. litigators often
instruct their experts not to prepare a-formal report.** (at 8J-17); "some lawyers avoid written
communications with experts" (at 8J-7)). These uncertainties can produce satellite litigation. See id.
at 8J-3 (work product protection may or may not be available for work done as "consultant"), In any
event, the expert discovery rules may permit or require disclosure of work product that reveals
"strengths and weaknesses of the opposing party's case!" Id at 8J-7,
To overcome the foregoing difficulties, counsel for Overstock has routinely proposed- witri
almost uniform success — an "expert discovery protocol" that has been usect in many cases over the
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last 15 years. The precise formulation of such a protocol is not critical; rather, the virtue of such a
protocol is the certainty and efficiency it creates, In general, the protocol permits discovery into facts
and documents on which the expert has relied but precludes discovery about draft reports or
communications with counsel unless they form the basis of the expert's opinion.
These protocols are not unique to counsel in this case. In fact, in 2010. an amendment to
Federal Rule of Civil Procedure 26 (governing all federal civil litigation) was adopted and provides a
version of this protocol, Rule 26 now provides:
C) Trial -Preparation Protection for Communications Between a Party* s Attorney and
Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the
party's attorney and any witness required to provide a report under Rule 26(a)(2)(B),
regardless of the form of the communications, except to the extent that the
communications:
(i) relate to compensation for the expert's study or testimony;
, (ii) identify facts or data that the party1 s attorney provided and that the expert
consicereci in forming the opinions expressed; or
(iii) identify assumptions that the party's attorney provided and that the expert
relied on in forming the opinions to be expressed.
Fed, Rides Civ, Proc, 26.
The Advisory Committee explained the purpose of this new rule;
Many courts read the disclosure provision to authorize discovery of all communications
between counsel and expert witnesses and all draft reports. The Committee has been told
repeatedly that routine discovery into attorney-expert communications and draft reports
has had undesirable effects, Costs have risea Attorneys may employ two sets of experts
- one for purposes of consultation and another to testify at trial - because disclosure of
their collaborative interactions with expert consultants would reveal their most sensitive
and confidential case analyses. At the same tipie, attorneys often feel compelled to adopt
a guarded attitude toward their interaction with testifying experts that impedes effective
communication, and experts adopt strategies that protect against discovery but also
interfere with their work.
Advisory Committee Note to Fed. Rules Civ. Proc. 26.
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Understanding full well that the Federal Rules of Civil Procedure do not govern this case,
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Overstock has nonetheless suggested such a protocol to Plaintiffs. Overstock made plain that it was
open to any appropriate phrasing of the protocol; neither Fed, Rules Civ, Proc, 26 nor any other
specific language need be used. Plaintiffs have refused to consider any such protocol.
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While no case has addressed the ability of a Superior Court to impose conditions like those in
Fed. Rules Civ, Proc. 26, this Court is invested with wide discretion to regulate discovery. See
Toshiba v. Superior Court (2004) 124 CaLApp.4th 762, 767 ("Management of discovery generally lies
within the sound discretion of the trial court."). In particular, the court may make any order that
includes "one or more of the following directions:,,,
(4) that the production and exchange of any reports and writings of experts be made
at a different place or at a different time than specified in the demand."
Code Civ, Proc. § 2034.250(b)(4).
Plainly, while an order pursuant to the Code Civ, Proc, § 2034,2500X4) provision would be
most applicable in the context of a motion for a protective order filed after a Code Civ. Proc.
§ 2034.230 demand is made, the entry of such an order now - as part of this Court's management of
this case - would give the parties certainty and efficiency in their working relationships with experts.
the District Attorneys note that there have been no expert discovery problems to date. Of
course not; no discovery of any kind regarding experts has yet been served. Now, however, is me
precise juncture to agree on the rules of tie road so me parties can proceed with certainty and
efficiency. And the parentheticals in the cases cited by the District Attorneys are not in conflict with
the protocol proposed: no one disputes that testifying experts5 knowledge and opinions will be
discoverable. The only materials that would be off-limits are the communications with counsel, notes,
and drafts of rcjports.
People's Position:
Contrary to Overstock's assertion, the People did give "consideration" to its proposal for an
expert witness discovery protocol However, on balance, the People can sec no compelling reason to
stipulate to - or for the Court to impose by extraordinary intervention ~ a set of ad hoc expert
discovery rules that are not founded in California law and that actually in many important respects run
counter to well-settled principles of expert witness discovery in this state.
For example, it is commonly understood that once an expert is designated as a trial witness, the
work product protections that once may have attached to communications ana draft reports terminate.
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See, e.&, Brokopp v. Ford Motor Co. (1977) 71 CaLApp,3d 841, 857-858 ("However, once it appears
treasonably certain that the consultant-expert is to become a witness in the action, the attorney's
work-product privilege terminates and the expert's knowledge and opinions are subject to discovery
and disclosure"); Weil & Brown, Cal Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2011)
Chapter 8C-4, at 8:256 (hereinafter "Weil & Brown") ("After an expert witness demand, reports
containing findings and opinions that go to the establishment or denial of a principal issue in the case
niust be turned over to the opposing party") (internal quotes and. citations omitted), "This rule of
termination is one of fairness." Brokopp, supra, at 858 (emphasis added).
On the other hand, communications with expert witnesses who are retained in an advisory or
consultative capacity only are subject to work product protections that only may be overcome in
exceptional circumstances. See, e.g., Weil & Brown, Chapter 8C-4, at 8:248; cf See National Steel
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Products Co. v. Sup.Ct. (Rosen) (1985) 164 Cal. App. 3d 476,490 (setting forth a three-step process
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to evaluate work product issues where an expert had rendered a prior advisory report in a different
case, but nevertheless concluding that the prior report was discoverable because it "may impeach the
expert witness' new findings and testimony. In this regard there is also no comparable substitute for
the prior report").
In view of this developed body of law, the People cannot agree to an alternative set of principles
that have their origins in another jurisdiction, particularly where doing so would result in the potential
abandonment of important discovery rights, This case has been filed in California courts, alleging
California causes of actions and accordingly should be subject to California rules of procedure.
Nor should the Court feel compelled to adopt Overstock's proposal over the People's
objection. Overstock acknowledges that it has found no citable case in which a California court has
imposed an expert discovery protocol of the sort it now endorses. The one statutory authority it does
cite - Code of Civil Procedure Section 2034.25Q(b)(4) - deals only with the logistics of expert witness
production, not with its substance. Although the People remain sensitive to issues of judicial
efficiency, the fact remains that no expert witness discovery problems: have yet arisen. In the event
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they do, the People expect that the parties will meet and confer with the objective of resolving the
issue without judicial intervention. In short, there is no need for the Court to cast aside well-settled
discovery rules in favor of an alternative set of procedures that have no basis in California law.
/. Calendar Conflicts,
At this time, the People are not aware of any calendar conflicts that need to be addressed.
Should any arise, the People will call them to the Court's attention.
At this time, Overstock is not aware of any calendar conflicts that need to be addressed.
Should any arise, Overstock will call them to the Court's attention.
B, PROPOSED SCHEDULE FOR FURTHER PROCEEDINGS AND ANTICIPATED
MOTIONS.
People's Position: The People had anticipated a trial date sometime in mid-2012. However,
since then, the People have had to file, litigate and eventually prevail on a motion to compel in order to
obtain contact information of potential witnesses, information that is basic to any civil litigation. If the
difficulty in obtaining this information is any indication, the People expect that discovery will not be
completed by mid-2012. In any case, once substantial discovery has been obtained, the People
anticipate filing a motion for preliminary injunction and possibly a motion for summary judgment prioi
to trial,
Witii respect to discovery cut-off, the People expect to complete discovery 60 days prior to trial
The People believe that it is too soon to predict the length of trial,
Overstock's Position:
1, Defendants would note that they have satisfied each discovery request from Plaintiff
with one exception, The only discovery motion filed to date relates to contact information for former
employees. To the best of Overstock's knowledge however, the DA's have made no effort to contact
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any former employees by any means and ha.ve not requested any depositions to date of any witnesses.
Overstock continues to request a trial no later than March, 2012.
2, The Fifth Cause of Action, for violation of Business and Professions Code Section
17200, alleges "unfair" and "unlawful" business practices. There is no doubt about the "unlawful"
conduct allegation; it is alleged to be a violation of Business and Professions code Section 17500, The
status of the "unfair" allegation is less clear. Previously, the district attorneys have said this was
"principally" a Section 17500 case, not an "unfair" case, See Plaintiffs Memorandum of Points and
Authorities in Support of Demurrer, filed Feb. 9,2011, at 15 ("This case, by contrast, is principally
based on Defendant's "unlawful" conduct...")- At the previous CMC, Overstock sought clarification
of this issue, but this subject was not addressed, Overstock respectfully seeks clarification of whether
the district attorneys intend to pursue the "unfair" prong of Section 17200, This clarification will
affect the scope of the case, particularly in connection with a possible summary judgment motion
which Overstock may file in several months*
trial ciate.
3, Overstock would expect to complete discovery by February 1,2012 for a March 2012
4, Overstock anticipates a trial length of approximately two weeks.
RESPECTFULLY SUBMITTED,
Dated: June 21,2011
NANCY E.O'MALLEY
Alameda Cojqnty District Attorney
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Dated: June 21.20)1
Matthew (L Beltramo
Deputy District Attorney
Attorney for Plaintiff, the People
Quinn Emanuel Urquhart & Sullivan, LLP
Robert P. Feldman
Melissa J.Baily
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Dane W. Reinstedt
Attorneys for Defendant
Overstock.com, Inc.
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in this action:
The following additional counsel also represent Plaintiff, the People of the State of California,
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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
GARYLIEBERSTEIN
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-^-322
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. Redding 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 brive, Ste. B-170
Santa Rosa, California 95403
Telephone: (707)565-3161
Facsimile: (707)'565-3499
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