District Attorney of Alameda CountyAttn: Beltramo. Mattew L.7677 Oakport Street, Suite 65Oakland. CA 94621

Quinn Emanucl Urquhart Oliver &HedgesAttn: Feldman, Robert P555 Twin Dolphin Dr Stc 560Redwood City, CA 94065

Superior Court of California, County of AlamedaRene C. Davidson Alameda County Courthouse

People of State of CaliforniaPlaintifl7Pelitioner(s)

VS.

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

(Abbreviated Title)

No. RG10546833

Order

Motion for Protective OrderDenied

The Motion for Protective Order filed for Ovcrstock.com. Inc. was set for hearing on 11/01/2012 at08:30 AM in Department 21 before the Honorable Wynne Carvill. The Tentative Ruling was publishedand was contested.

The matter was argued and submitted, and good cause appearing therefore.

IT IS HEREBY ORDERED THAT:

The tentative ruling is affirmed as follows: The Motion of defendant Overstock.Com, Inc.("Defendant") For Protective Order ("Motion") is ruled on as follows:

Defendant seeks a protective order in connection with the People of the State of California's("Plaintiffs") Third Set of Specially Prepared Interrogatories and First Set of Requests for Productionof Documents and Things, both of which contain requests for the personal identifying information ofDefendant's customers who "complained to [Defendant] or questioned [Defendant] or made a statementto [Defendant] about any of the comparison prices for any of [Defendant's] products..." (Exhibit 1 toDeclaration of Dane W. Reinstcdt, number 159.) Defendant notes that it has already agreed to providePlaintiff with the substance of each complaint in spreadsheet format and any accompanying emailcorrespondence, but it will not voluntarily provide personal identifying information, based on privacyconcerns.

Defendant asserts that the First Amendment rights of its customers are at issue, relying primarily onAmazon.com LLC v. Lay (W.D.Wash. 2010) 758 F.Supp.2d 1154 ("Amazon.com"). The Amazon.comcourt held that the First Amendment protects a buyer from having the expressive content of herpurchase of books, music and audiovisual materials disclosed to the government. (Amazon.com at1167-68.) Likewise here. Defendant's customers are entitled to make their purchasing decisions inprivate, including Defendant's product offerings such as books, movies, magazines, personal hygieneitems, adult toys and costumes, tobacco supplies, gun supplies, religious jewelry, clothing, handicapaccessibility items, and even medical supplies.

Defendant also argues that its customers have a reasonable expectation of privacy in their personalidentifying information, particularly in light of Defendant's "Privacy Policy", a link to which is availableat the bottom of each Overstock page (Declaration of Dane W. Reinstcdt, paragraph 20 and Exhibit12). and that, on balance, the constitutional right to privacy outweighs the marginal utility (at best) thatpotential testimony of individual consumers would provide. (Citing, inter alia, Pioneer Electronics Incv. Sup.Ct. (2007) 40 Cal.4th 360, 370 ("Pioneer").)

Order

In opposition, Plaintiff argues that Amazon.com is distinguishable. The court agrees. In Amazon.com,the North Carolina Department of Revenue ("DOR"), as part of an investigation of Amazon's sales taxliability, sought identifying information for Amazon's customers that could readily be correlated withspecific product information, all of which was fell within the category of "expressive material," e.g.literary, music and film purchases, which together would result in a complete statewide (NorthCarolina) product purchase history for all of Amazon.coin's customers. Here, in contrast, Plaintiff arcseeking specific and limited information for a subset of Defendant's customers who made specificcomplaints about the very things that arc at the center of Plaintiffs claims in this case, i .e. comparisonpricing and the use of comparison pricing terminology. The purchasing patterns and practices of theseindividuals is not necessarily disclosed but rather the substance of their complaints to Defendant. Thelatter are not shielded from discovery in an action challenging Defendant's conduct as opposed to theconduct of the individuals who have complained.

The court agrees with Plaintiff that this factual scenario falls squarely within the parameters of Pioneerand its progeny. In Pioneer, the court applied a three part test (citing Hill v. National Collegiate AthleticAssn. (1994) ( H i l l ) 7 Cal.4th 1, 35-37), finding that only if that test was satisfied would the assertedprivacy interests be balanced against other competing interests. (Pioneer at 370-371.) While the firstpart of the test, a legally recognized privacy interest, is arguably met, in that contact informationdeserves some level of privacy protection (sec, e.g. Belairc-Wcst Landscape, Inc. v. Sup. Ct. (2007) 149Cal App 4th 554, 561). the third part, invasion of privacy "serious" in nature, clearly is not. (Sec, e.g.,Puerto v. Sup. Ct. (2008) 158 Cal.App.4th 1242, 1253-54 [address and telephone information, whilepersonal, is not particularly sensitive.].) Most important in this context, however, is the second part ofthe test, an expectation of privacy reasonable under the particular circumstances. Here, as in Pioneer,Defendant's complaining customers, who have voluntarily disclosed their identifying information toDefendant in the hope of obtaining some form of relief, arc unlikely to have a reasonable expectationthat such information would be kept private. (Pioneer at 372.)

In reaching the above cnclusions, the court considered several alternatives, including the following: (a)requiring Plaintiff to first review the underlying complaints, identifying; those that might justify a follow-up interview and then addressing the disclosure of the contact information for that subset of individuals;(b) first sending an opt-out notice such as that frequently used in class action litigation; and (c) sendingan opt-in notice as urged by Defendant. The court rejects the last of these alternatives as tooburdensome and not according sufficient weight to Plaintiffs legitimate discovery interests. The opt-outnotice is also rejected given that same interest and the trend of appellate decisions emphasizing theimportance of that interest. The first option is also rejected as potentially too time-consuming and anundue burden on Plaintiffs discovery interests.

As to Defendant's Privacy Policy, as correctly pointed out by Plaintiff, said policy specifically indicatesthat disclosure of personal identifiable information may happen to "comply with ... court orders."

The Motion is DENIED. Defendant shall produce the personal identifying information of those of itscustomers who complained to Defendant or questioned Defendant or made a statement to Defendantabout any of the comparison prices for any of Defendant's products during the applicable time period.Such information shall be treated as confidential, subject to the existing protective order in this case.

An examination of the record in this case reveals that the parties submitted a "Stipulation To ProtectiveOrder Governing The Use And Dissemination Of Certain Materials Produced During Discovery" onJuly 8, 2011 ("Protective Order"). However, due to a clerical error, that stipulation was apparentlynever directed to the court for review and entry. The now HEREBY APPROVES the Protective Order,mine pro tune to the date of its submission, and orders that the parties abide by its terms.

Dated: 11/04/2012

Judge Wynne Carvill

Order

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

CASE NUMBER:

RG10546833

ADDITIONAL ADDRESSEES

District Attorney fof the County of SantaCruzAttn: Lee, Archibald Robert701 Ocean St, Suite 200Santa Cruz, CA 95060

Order