Hypertouch, Inc. v. Superior Court

Full title: HYPERTOUCH, INC., Petitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY…

Court: California Court of Appeals, First District, Second Division

Date published: Jun 6, 2005

No. A108321 (Cal. Ct. App. Jun. 6, 2005)

Opinion

Page 1348e

129 Cal.App.4th 1348e __ Cal.Rptr.3d__ HYPERTOUCH, INC., Petitioner, v. THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent PERRY JOHNSON, INC., Real Party in Interest. A108321 California Court of Appeal, First District, Second Division June 6, 2005

San Mateo County, Super. Ct. No. 418600.

ORDER MODIFYING OPINION AND DENYING REHEARING

KLINE, P.J.

It is ordered that the published opinion filed herein on May 5, 2005 (128 Cal.App.4th 1527; 27 Cal.Rptr.3d 839), be modified as follows:

1. The first full sentence at the top of page 3 [128 Cal.App.4th 1534, advance report, last sent.] shall be modified to read as follows:

After plaintiff learned defendant had destroyed the database containing the phone numbers from which persons called to request that defendant cease sending facsimiles (the “do not fax database”), which was apparently done in the ordinary course of business, plaintiff issued subpoenas duces tecum to defendant’s telecommunication service providers, Global Crossing and Qwest Communications, requesting the phone numbers contained on the “do not fax database.”

2. The last sentence beginning on the bottom of page 10, and concluding on the top of page 11 [128 Cal.App.4th 1541, advance report], shall be modified to read as follows:

The record indicates plaintiff promptly commenced aggressive discovery designed to identify the class, and that its failure was not one of effort but largely due to the fact that the “do not fax database” was no longer available, ⁴ and defendant’s resistance to discovery of the “fax database” on the basis of the trade secret privilege.

3. The first full sentence at the top of page 27 [128 Cal.App.4th 1554, advance report] shall be modified to read as follows:

After this action was filed, and apparently in the ordinary course of business, defendant destroyed information identifying the individuals and entities that had asked defendant to stop sending them unsolicited advertisements by telephone facsimile (the “do not fax database”), and also information identifying the number of unsolicited advertisements defendant sent.

Page 1348f

There is no change in the judgment.

Respondent’s petition for rehearing is denied. Justice Haerle would grant the petition for rehearing.