motion to compel - White Collar Fraud

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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 

THE SUPcniufl COURT 

/": /7;7/y 

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Attorneys for 

Plaintiff 

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SUPERIOR COURT OF CALIFORNIA 

IN AND FOR THE COUNTY OF ALAMEDA 

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THE PEOPLE OF THE STATE OF 

CALIFORNIA, 

Plaintiff 

vs. 

OVERSTOCK.COM, INC., et al., 

Defendants 

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: 

May 5, 2011 

2:00 p.m. 

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Office of 

DISTRICT ATTORNEY 

Al.iiwd.1 County 

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Assigned for All Purposes to the 

Honorable Robert B. Freedman 

Complaint Filed: 

Answer Filed: 

Am. Answer Filed: 

TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 

November 17, 2010 

January 28, 2011 

March 7, 2011 

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 

-1- \. RG10-546833 

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. 

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Dated: April 1,2011 


Alameda County District Attorney 

Matthew L. Beltramo 

Deputy District Attorney 

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Office of 


Alaincdj County 

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NOTICE OF MOTION AND MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES FROM DEFENDANT 

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in this action: 

APPENDIXA 

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 


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 


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 


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 


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 


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 


2300 County Center Drive, Ste. B-170 

Santa Rosa, California 95403 

Telephone: (707)565-3161 

Facsimile: (707)565-3499 


Alamnh County 

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APPENDIX A 

Case No. RG10-546833

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Alimedi Coiuuy 

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Telephone: (510) 569-9281 

Facsimile: (510) 569-0505 

Attorneys for Plaintiff (Additional counsel listed 

on Appendix A to Notice of Motion/Motion to Compel) 


CALIFORNIA, 

Plaintiff 

vs. 


Defendants 


'8829874* 

AuwSBf eûfffY 


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. 

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Date and Time: May 5, 2011, 2:00 p.m. 

Dept: 20 

Reservation: #116751 

Assigned for-All Purposes to the 




November 17,2010 

March 7, 2011 

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. 

I. INTRODUCTION 

By this motion, the People seek to compel defendant Overstock to further respond to two of the 

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People's First Set of Interrogatories, Special Interrogatories 8 and 14, by providing current contact 

information for former employees—now potential witnesses—whose 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, 

1110-11. 

The Complaint alleges, inter alia, that Defendant routinely and systematically made untrue and 

misleading advertising claims regarding these comparison prices. Complaint, f21. More specifically, 

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 

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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 

by its vendors and suppliers. Bdtramo Decl, 12, Ex. 1 at 7,11. 25-26 (Spec. Interrog. 8) and 14, Ex. 2, 

at 14,11. 4-8 (Resp. Spec. Interrog. No. 8.) The individuals whose names Defendant disclosed in 

response to Special Interrogatory Number 14 are former employees who communicated with the 

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. 6- 

17 (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 

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, 

in summary fashion, the legal basis for the this view. The email further went on to propose that, as a 

way of satisfying Overstock's privacy concerns, the parties enter into a reasonable protective order. 

Beltramo Decl. ^7, Ex. 5. Overstock's counsel responded by email on March 25, 201 1, asserting that 

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 

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). 

The disclosure of contact information of potential witnesses fits squarely within the broad 

scope 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.... 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). 

-5- Case No. RG10-546833 

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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 

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

Section 1, of the California Constitution recognizes an individual's right to privacy, that right is not 

absolute and must give way in the appropriate circumstances to legitimate discovery needs. 

I. The Privacy Rights Test Articulated in the Pioneer Case. 

The interplay between privacy rights and discovery was examined by the California Supreme 

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 

2 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 

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"). 

4 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: 

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 

otherwise valid discovery request. 

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. 

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 

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. 

As reflected in the meet and confer emails, the People repeatedly offered to enter into a 

reasonable and appropriate protective order as a means of resolving this dispute. Beltramo Decl. ^7 

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 

i 

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. 

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Dated: April 1, 2011 



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Office of 

DISTRICT ATTOBflV 

Abmcda County J 

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By:. 

Matthew Beltramo 




V 

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**2 

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NANCY E.O'MALLEY 






Telephone: (510) 569-9281 

Facsimile: (510) 569-0505 

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•8829866* 

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Additional counsel listed on Appendix A 

To Notice of Motion and Motion to Compel 


Plaintiff 


CALIFORNIA, 

Plaintiff 

vs. 


Defendants 



I, Matthew L. Beltramo, declare: 

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 




Answer Filed: 


November 17, 2010 

January 28, 201 1 

March?, 2011 

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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Office of 

D15TTUCT ATTOBfftY 

Alameda Couniy -1" 

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-1- Case No. RG10-546833 

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 

the facts described below. 

2. I am informed and believe that on December 23,2011, the People served by overnight mail its 

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 - 

without attachment - is attached hereto as Exhibit 4. 

7. On March 22, 2011,1 sent a reply email to counsel for Overstock, explaining the People's 

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. 

-2- Case No. RG10-546833 

BELTRAMO DECLARATION IN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES

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8. On March 25, 2011,1 received an email from counsel for Overstock, asserting that one of the 

principal legal authorities cited in my March 22, 2011, email was distinguishable from this case 

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. 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 

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, 


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-3- Case No. RG10-546833 

BELTRAMO DECLARATION IN SUPPORT OP MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES

EXHIBIT 1

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NANCY E.O'MALLEY 






Telephone: (510) 569-9281 

Facsimile: (510) 569-0505 

Additional counsel listed in Appendix A. 


Plaintiff 

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PEOPLE OF THE STATE OF CALIFORNIA, 



v. 

OVERSTOCK.COM, INC., 

a Corporation; and 

DOES 1-10 

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 

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PROPOUNDING PARTY: Plaintiff, PEOPLE OF THE STATE OF CALIFORNIA 

RESPONDING PARTY: Defendant, OVERSTOCK.COM, INC. ^^ 

SET NUMBER: One - ,. ,-"' -'":'''' 

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

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Definitions 

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 

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 

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 

or magnetic media, and/or microfiche, which contains, a "writing". Thus, this definition 

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, 

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printing, photostating, photographing, and every other means of recording upon any 

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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 

YOU. 

12. "FULFILLMENT PARTNER" refers to any retailer, manufacturer, distributor, 

cataloguer, merchant, vendor, or other broker or seller of goods, other than YOU, whose 

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 

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 

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not in YOUR actual or constructive possession, YOU are to IDENTIFY the custodian of 

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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, 

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 

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. 

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. 


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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. 

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, 

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 

PRODUCT PAGE as the LIST PRICE for an ITEM. 

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. 

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

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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. 

Interrogatories 

Form Interrogatories. 

1. Form Interrogatory 1.1: State the name, ADDRESS, telephone number, and 

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 

responses.) 

2. Form Interrogatory 3.1: Are YOU a corporation? If so, state: 

a. the name stated in the current articles of incorporation; 

b. all other names used by the corporation during the past ten years and the dates 

each was used; 

c. the date and place of incorporation; 

d. the ADDRESS of the principal place of business; and 

e. whether YOU are qualified to do business in California. 

3. 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: 

a. identify the license or registration; 

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

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b. state the name of the public entity; and 

c. state the'dates of issuance and expiration. 

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Spec ia 1 Interrogatgr i es. 

1. Identify the job title(s) which YOU currently use to identify EMPLOYEES who SET 

COMPARISON PRICES. 

2. Identify every job title which YOU do not identify in your answer to Interrogatory #1 

and which YOU used on or after January ], 2006 to identify EMPLOYEES who SET 


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 

President Jonathan Johnson. 

4. How many EMPLOYEES currently SET COMPARISON PRICES? 

5. How many EMPLOYEES SET COMPARISON PRICES in each year between 2006 

and 2010, inclusive? 

6. IDENTIFY each CURRENT EMPLOYEE who SET COMPARISON PRICES at any 

time on or after January 1, 2006. 

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

identify each DEPARTMENT and/or PRODUCT LINE for which that EMPLOYEE SET 

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COMPARISON PRICES on or after January 1, 2006. 

8. IDENTIFY each FORMER EMPLOYEE who SET COMPARISON PRICES at any 


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

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



10. How many EMPLOYEES currently work as OVERSTOCK BUYERS? 

11. How many EMPLOYEES worked as OVERSTOCK BUYERS between 2006 and 2010, 

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 

any time on or after January 1, 2006. 

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. 

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Appendix A 

Additional Counsel for the People 

EDWARD S. BERBER1AN 

District Attorney of Marin County , 

Andres H. Perez, Deputy District Attorney 


3501 Civic Center Drive, Room 130 

San Rafael, CA 94903 

Telephone: (415)499-6450 

Facsimile: (415)499-3719 

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DEAN D. FLIPPO 

District Attorney of Monterey County 

James R. Burlison, Deputy District Attorney 


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 


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 


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 


1355 West Street 

Redding, California 96001 

Telephone: (530)245-6300 

Facsimile: (530) 245-6345 

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STEPHAN R. PASSALACQUA 

District Attorney of Sonoma County 

Matthew T. Cheever, Deputy District Attorney 


2300 County Center Drive, Ste. B-170 

Santa Rosa, California 95403 

Telephone: (707)565-3161 

Facsimile: (707) 565-3499 

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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 

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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 

Attorneys for Defendant 

Overstock.com, Inc., 

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SUPERIOR COURT OF THE STATE OF CALIFORNIA 


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PEOPLE OF THE STATE OF CALIFORNIA, 

vs. 

Plaintiff, 

OVERSTpCK.COM, INC., 

a corporation; and 

DOES 1-10 

Defendant. 

CASE NO. RG10-546833 

OVERSTOCK.COM, INC.'S 

OBJECTIONS AND RESPONSES TO 

PLAINTIFF'S FIRST SET OF 

INTERROGATORIES TO DEFENDANT 


Judge: Hon. Robert Freedman 

Dept.:20 

Complaint Filed: November 17, 2010 

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PROPOUNDING PARTY: 

RESPONDING PARTY: 

SET NUMBER: 

PEOPLE OF THE STATE OF CALIFORNIA 


ONE 

.51782/3971861.1 

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: 

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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 

stated below. 

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1. Overstock objects to each Interrogatory to the extent that it seeks production of 

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documents or things or testimony protected by the attorney-client privilege, the work product 

doctrine, the joint defense or common interest privilege, or any other applicable privileges or 

protections. 

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2. Overstock objects to each Interrogatory to the extent that it seeks to impose 

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obligations on Overstock greater than or more extensive than those required by the California 

Code of Civil Procedure. 

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3. Overstock objects to each Interrogatory to the extent that it calls for private, 

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confidential, or proprietary business, technical, or financial information or trade secrets of 

Overstock or of third parties. 

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4. Overstock objects to each Interrogatory to the extent that it seeks information in the 

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possession of third parties, and not in Overstock's possession, custody or control. 

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5. 

burdensome. 

Overstock objects to each Interrogatory to the extent that it is overbroad and unduly 

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6. Overstock objects to each Interrogatory to the extent that it seeks information 

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equally or more available to Plaintiff, or already in the possession, custody, or control of Plaintiff. 

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7. Overstock objects to each Interrogatory on the ground and to the extent that 

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Overstock has not completed its factual investigation. Moreover, information that may be 

responsive to the Interrogatories may not yet have been discovered. Accordingly, without 

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)55.51782/3971861. 

Case No. RG10-546833 


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, 

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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, 

privilege or admissibility as evidence or for any other purpose, of any of the documents referred to 

or produced, or of the responses given herein, in any proceeding (including the trial of this action 

or in any subsequent proceeding). These responses are made subject to Overstock's right to object 

to any discovery proceeding involving or relating to the subject matter of the requests responded 

to herein. 

13. Overstock's objections to the disclosure of any information requested by the 

Interrogatories are not and shall not be construed as an admission by Overstock that any such 

information exists. 

RESPONSES 

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FORM INTERROGATORY NO. 1.1: 

State the name, ADDRESS, telephone number, and 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 responses.) 

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155.51782/3971861, 

Case No. RG10-546833 


RESPONSE TO FORM INTERROGATORY NO. 1.1: 

Subject to and without waiving the foregoing objections, Overstock responds as follows: 

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Other than in-house counsel, 

a. Lani Murakami 

Director of Merchandising, Bedding & Bath 

Overstock.com, Inc. 

6350 South 3000 East 

Salt Lake City, UT 84121 

(801)947-3100 

b. Candace King 

Merchandise Operations Manager 


6350 South 3000 East 

Salt-Lake City, UT 84121 

(801)947-3100 

c. Marci Osterberg 

Director of Human Resources 


\0 South 3000 East 

Salt Lake City, UT 84121 

(801)947-3100 

The foregoing individuals may only be contacted through counsel. 


was used; 

Are YOU a corporation? If so, state: 

a. the name stated in the current articles of incorporation; 

b. all other names used by the corporation during the past ten years and the dates each 

55.51782/3971861. 

-4- CaseNo. RG10-546833 


c. the date and place of incorporation; 

d. the ADDRESS of the principal place of business; and 

e. whether YOU are qualified to do business in California. 



Overstock is a corporation. 

a. Overstock.com, Inc. 

b. Overstock objects to interrogatory No. 3.1 as the word "used" is vague and 

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mbiguous. Notwithstanding the foregoing general and specific objections, Overstock responds as 

ollows: Overstock.com (1999-present); Overstock (1999-present) and O.co (2010-present). 

c. Overstock was incorporated in Utah on December 30, 1998. Overstock was 

re incorporated in Delaware on February 27, 2002. 

d. 6350 South 3000 East, Salt Lake City, UT 84121. 

e. Overstock is not qualified to do business in California. 

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Within the past five years has any public entity registered or licensed your businesses? If 

so, for each license or registration: 

a. identify the license or registration; 

b. _ state the name of the public entity; and 

c. state the dates of issuance and expiration. 


Overstock objects to interrogatory No. 3.7 as the phrase "public entity" is vague and 

ambiguous. Notwithstanding the foregoing general and specific objections, Overstock responds as 

follows: 

55.51782/3971861. 

-5- CaseNo. RGIO-546833 


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. 

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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 

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 

commonly known as "American Overstock.com, Inc," License No. 0114416. 

i. Overstock was issued a North Carolina Sales Tax Registration number- 

600798736, and has been licensed to collect and remit sales and/or use tax to the State of North 

Carolina since December 16, 2010. 

J< Overstock was issued a business license by Salt Lake County, Utah in or about 

2000 which expired on or about December 31, 2005. 

k. Overstock was issued a business license by the city of Cottonwood Heights, Utah 

on January 1, 2006, License Number 1647C, which expires December 31, 2011. 

1. Overstock was issued a business license by Salt Lake City, Utah on or about 

September 29, 2000, License Number LIC2000-01954, which expires August 31, 2011. 

m. Overstock was issued a business license by Salt Lake City, Utah on October 24, 

2007, License Number LIC2007-01930, which expires September 30, 2011. 

155.51782/3971861. 

-fi- 

Case No. RG10-546833 


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 

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COMPARISON PRICES. " . • 

RESPONSE TO SPECIAL INTERROGATORY NO. 1: 

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 "EMPLOYEES 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. 


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. The job title(s) of current EMPLOYEES who typically receive and review, and on 

occasion may modify COMPARISON PRICES are: 

a. Merchandise Operations Manager 

b. Merchandise Operations Specialist 

c. Merchandise Operations Coordinator 

55.51782/3971861. 

-7- CaseNo. RGIO-546833 


d. Divisional Merchandising Manager 

e. Merchandising Manager 

f. Buyer 

g. Associate Buyer 

h. Buyer's Assistant 


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 

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terms and/or phrases "EMPLOYEES who SET COMPARISON PRICES," as Overstock does not 







suppliers. The job title(s) of EMPLOYEES (other than in Overstock's Response to Special 

Interrogatory No. 1) who typically received and reviewed, and on occasion may have modified 

COMPARISON PRICES on or after January 1, 2006 are: 

55.51782/3971861.1 

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Case No. RGIO-546833 


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a. Partner Account Manager 

b. Category Manager 


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 

President Jonathan Johnson. 







employment, consulting, or contracting relationship;" (5) it is vague and ambiguous as to the 

terms and/or phrases "EMPLOYEE who currently SETS COMPARISON PRICES," as Overstock 

does not itself designate certain employees, consultants, or contractors as those that set 

comparison prices; and (6) it improperly seeks content or production of documents in the form of 

an organization chart. 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. 


EMPLOY-EES do not SET COMPARISON PRICES. EMPLOYEES typically receive and review, 


suppliers. Notwithstanding the foregoing, Overstock does not have an official company-wide 

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, 

supervisors or superiors who are in a direct reporting relationship between that EMPLOYEE and 

55.51782/3971861. 

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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. 


How many EMPLOYEES currently SET COMPARISON PRICES? 


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terms and/or phrases "EMPLOYEES [who] currently 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 




and on occasion may modify COMPARISON PRICES submitted to'Overstock by its vendors and 

suppliers. Notwithstanding the foregoing, the approximate number of current EMPLOYEES who 

typically receive and review, and on occasion may modify COMPARISON PRICES is: 113. 


How many EMPLOYEES SET COMPARISON PRICES in each year between 2006 and 

2010, inclusive? 

355.51782/3971861.1 

-10- CaseNo. RG10-546833 


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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 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, the number of EMPLOYEES who typically received 

16 and reviewed, and on occasion may have modified COMPARISON PRICES is approximately: 

17 2006-130 

18 2007-130 

19 2008-180 

20 2009-120 

21 2010-173 

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IDENTIFY each CURRENT EMPLOYEE who SET COMPARISON PRICES at any time 

on or after January 1, 2006. 

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55.51782/3971861. 

Case No. RG10-546833 







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terms and/or phrases "CURRENT EMPLOYEE who SET COMPARISON PRICES," as 

Overstock does not itself designate certain employees, consultants, or contractors as those that set 






suppliers. Notwithstanding the foregoing, CURRENT EMPLOYEES who typically receive and 

review, and on occasion may modify COMPARISON PRICES are identified in the document 

produced herewith and identified as OSTK3 - OSTK4. . 

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



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Overstock objects to this inlerrogatory on the grounds that (1) it is overbroad, unduly burdensome, 



55.51782/3971861. 

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ight of privacy; (4) it is vague and ambiguous as to the terms and/or phrases "regarding any 


terms and/or phrases "EMPLOYEE [who] SET COMPARISON PRICES," as Overstock does not 





EMPLOYEES do not SET COMPARISON PR'lCES. EMPLOYEES typically receive and review, 


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suppliers. Notwithstanding the foregoing, CURRENT 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 OSTK3 - OSTK4. , 


IDENTIFY each FORMER EMPLOYEE who SET COMPARISON PRICES at any time 

on or after January 1, 2006. 








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 

!55.51782/3971861. 

Case No. RG10-546833 





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 

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identified in the document produced herewith and identified as OSTK5 - OSTK6. 

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


COMPARISON PRICES on or after January 1 , 2006. 

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RESPONSE TO SPECIAL INTERROGATORY NO. 9; 




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terms and/or phrases "EMPLOYEE [who] SET COMPARISON PRICES," as Overstock does not 







355. 51782/3971861.1 

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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. 


How many EMPLOYEES currently work as OVERSTOCK BUYERS? 

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employment, consulting, or contracting relationship;'1 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 

disclosure. 

Subject to.and without waiving the foregoing objections, Overstock responds that the 

approximate number of EMPLOYEES that currently work as OVERSTOCK BUYERS is as 

follows: 81. 

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inclusive? 

How many EMPLOYEES worked as OVERSTOCK BUYERS between 2006 and 2010, 

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JS5.-5178M97I861. 

-15- CaseNo. RG10-546833 


RESPONSE TO SPECIAL INTERROGATORY NO. II: 







terms and/or phrases "OVERSTOCK BUYERS." Nothing in Overstock's response is intended as 

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disclosure. 

Subject to and without waiving the foregoing objections, Overstock responds that the 

approximate number of EMPLOYEES that worked as OVERSTOCK BUYERS between 2006 and 

2010 is as follows: 

a. 2006-130 

b. 2007-130 

c. 2008-180 

d. 2009-140 

e. 2010-90 


IDENTIFY each CURRENT EMPLOYEE who has worked as an OVERSTOCK BUYER 

at any time on or after January 1, 2006. 






IS5.S 1782/3971861. 

_ 16- 

Case No. RG10-546833 




terms and/or phrases "OVERSTOCK BUYER." Nothing in Overstock's response is intended as 


disclosure. 

Subject to and without waiving the foregoing objections, Overstock refers to and 

incorporates the document produced herewith and identified as OSTK7. 

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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 

OVERSTOCK BUYER on or after January 1, 2006. 

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employment, consulting, or contracting relationship;" (5) it is vague and ambiguous as to the 

terms and/or phrases "OVERSTOCK BUYER," as Overstock does not itself designate certain 

employees, consultants, or contractors as "OVERSTOCK BUYER;" and (6) it is vague and 

ambiguous as to the meaning of the word "regularly." 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. 

155.51782/3971861.1 

-17- Case No. RG10-546833 


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IDENTIFY each FORMER EMPLOYEE who worked as an OVERSTOCK BUYER at 


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terms and/or phrases "OVERSTOCK BUYER," as Overstock does not itself designate certain 

employees, consultants, 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. 


incorporates the document produced herewith identified as OSTK8 - OSTK9. 

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

identify each DEPARTMENT and/or PRODUCT LINE for which that EMPLOYEE regularly 

acted as an OVERSTOCK BUYER on or after January 1, 2006. 

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155.51782/3971861.1 

-18- Case No. RG10-546833 


ight 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 

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intended as or shall be interpreted as a waiver of any applicable privilege or protection of 

information from disclosure. < 


incorporates the document produced herewith identified as OSTK8 - OSTK9. 

DATED; February 16,2011 

QUINN EMANUEL URQUHART & 

SULLIVAN, LLP 

Dane W. Reinstedt 

Attorneys for Defendant OVERSTOCK.COM, 

INC. 

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55 51782/3971861. 

Case No. RG10-546833 


I. 

VERIFICATION 

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J, Jonathan E. Johnson 1H, am President at Overslock.com, Inc., and I am authorized to 

matw this verification on its behalf, I have read Ovcrstock.com, Infi.'s Responses to Plaintiffs 

First Sci of Interrogatories and know its contents. I om informed and believe that the matters 

•staled therein art true and on that ground declare under penalty of perjury under the laws of the 

Slate of California that the some are tnl« and correct, 

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Executed on February ft* . 20 11 in 

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Merchandising - 2010 Org Structure

Merchandise Operations - 2010 Org Chart

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Beltnamo, Matthew, DA 

Page 1 of 1 

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, e- 

mail 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 


Alameda County District Attorney's Office 

matt.beltramQ(3}acQOV.org 

(510)569-9281 

3/30/2011

EXHIBIT 4

Beltramo, Matthew, DA ~ 

From: 

Sent: 

To: 

Cc: 

Dane Reinstedt [danereinstedt@quinnemanuel.com] 

Friday, March 18, 2011 3:02 PM 


Bob Feldman; Melissa Baity 

Subject: Meet & Confer 

Matt, 

^ Page 1 of 1 

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 

From: 

Sent: 

To: 

Cc: 


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. 

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 of£aL 

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 

1251. 

$$S^m*£Z£S& c^d^m^Wn discovery than «,ngou«,he ,oca«ion 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 


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. 


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

^ Page 1 of 2 

Beltramo, Matthew, DA " 

From: 

Sent: 

To: 

Cc: 

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 


Dane: 


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. 


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. 


"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] 


To; Beltramo, Matthew, DA 



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. 


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 

i 

3/30/2011

• ' » ^_ Page 1 of 3 

Beltraeno, Matthew, DA 

From: 

Sent: 

To: 

Cc: 

Beltramo, Matthew. DA 

Friday, March 25, 2011 3:10 PM 

'Dane Reinstedt' 

Bob Feldman; Melissa Baily; 'Matthew Cheever' 


Dane: 

 

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 


Sent: Friday, March 25, 2011 11:45 AM 




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 



Dane: 

3/30/2011 


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. 


circumstance is unavailing and would not be upheld by the Court. (If that assumption is incorrect,

^ 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. 


"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 






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 

*4^H 

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. 


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

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. 

PROOF OF SERVICE—CIVIL 

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 

CASE NUMBI 

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): 

4. On (date): April 1, 2011 I served the following documents (specify): 

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: 

I 

(2) Time of service: 

] The names, addresses, and other applicable information about persons served is on the Attachment to Proof of 

Service—Civil (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 SERVICE—CIVIL 

(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

People v. Overstock.com, Inc. 

CASE NUMBEI 

RG10-546833 

POS-040 

6. b. I 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 r till- 

(TYPE OR PRINT NAME OF DECLARANT) 

{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-

SHORT TITLE; People vs. Overstock.com, Inc., et. al, 

CASE NUMBER' 

RG10-546833 

POS-040(D) 

ATTACHMENT TO PROOF OF SERVICE—CIVIL (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,

V 

1 

- 

2 

3 

4 

5 

6 

7 

• 

' • " " *"~~" "*" 

^H mi Mil MA 1UI1 Ml M I 

lMW''Jfl~(|ag2* 

v. - - • " " . 






Oakland, CA 94621 £ 

Telephone: (5 10) 569-9281 p I { E f§ 

Facsimile: (510) 569-0505 

AUlVfg0^ tMiiM 

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9 

10 

11 

12 

13 

14 

15 

16 

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18 

19 

20 

21 

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Additional counsel listed on Appendix A /^ «P$ § lidQf f 

To Notice of Motion and Motion to Compel QuHK OP/ftj 

Attorneys for Plaintiff 

THE PEOPLE OF THE STATE OF . 

CALIFORNIA, 

Plaintiff 

vs. 

OVERSTOCK. COM, INC., et al., 

Defendants 

^~~^--j^^J^^^\' 



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: May 5, 2011 

Time: 

2:00 p.m. 

Dept: 20 

Reservation: #1167531 



Complaint Filed: November 17, 2010 

Answer Filed: January 28, 201 1 

Am. Answer Filed: March 7, 201 1 

SPECIAL INTERROGATORIES 

For purposes of the Special Interrogatories included in the People's First Set of Interrogatories,1 

the following definition was used: 

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1 The People's First Set of Interrogatories includes both form and special interrogatories. 

-1- CaseNo,'RG10-546833 

SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES

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• "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 

home telephone number, and present or last known cell phone number." Beltramo Decl. 

1J2, Ex. 1, at 4,11. 5-9 (Interrog. U'17). 


IDENTIFY each FORMER EMPLOYEE who SET COMPARISON PRICES at any 


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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 

Overstock's response is intended as or shall be interpreted as a waiver of any applicable privilege or 

protection of information from disclosure. 


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 


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. 



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Odin of 


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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 

names and addresses of potential witnesses is a routine and essential part ofpretrial discovery" 

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 

2 This framework was adopted from Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1. 


SEPARATE STATEMENT FN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES

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AUuncda Ctnuilj 

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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 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 


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, 

constitute a "serious" invasion of privacy rights, much less an "egregious breach of social norms." 


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- Case No. RG10-546833 


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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. 




that the requested contact information should be provided. Id. This case involves the "fundamental 



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, 

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 /(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 

3 The individuals at issue in Puerto had been identified as potential witnesses by the defendant in response to the 

Judicial Council form interrogatories. 

-5- Case No. RG10-546833 


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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 

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.") 

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IDENTIFY each FORMER EMPLOYEE who worked as an OVERSTOCK BUYER.at 




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 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. 

-6- Case No. RG10-546833 


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Subject to and without waiving the foregoing objections, Overstock refers to and incorporates 

the document produced herewith identified as OSTK8 - OSTK.9. 

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 

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 

ask those buyers, inter alia, about Overstock's formal pricing policies, any deviations from those 

policies by individual buyers, Overstock managers' knowledge of those deviations, and the 

completeness and accuracy of comparative pricing information routinely supplied by vendors. 

-7- Case No. RG10-546833 

SEPARATE STATEMENT LN SUPPORT OF MOTION TO COMPEL FURTHER INTERROGATORY RESPONSES

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Overstock admits as much in its Verified Amended Answer. Paragraph 48 of the Complaint 

alleges that Overstock routinely chose the highest price at which a product was advertised on the 

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''' 

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 

4 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. 

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Electronics (USA), Inc. v. Superior Court (2007) 40 Cal. 4th 360, 370 (Pioneer), the Court applied a 

three-part test to determine, at the outset, whether a cognizable privacy right had been asserted;5 (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 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 


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 

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-, 

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This framework was adopted from Hill v. National Collegiate Athletic Assn. (1994) 7 Ca!.4th 1. 



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constitute a "serious" invasion of privacy rights, much less an "egregious breach of social norms." 


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 

"witnesses,"6 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. 




that the requested contact information should be provided. Id. This case involves the "fundamental 



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 

6 The individuals at issue in Puerto had been identified as potential witnesses by the defendant in response to 

the Judicial Council form interrogatories. 

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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, 

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.") 

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motion to compel - White Collar Fraud

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