Evan Schuman's StorefrontBacktalk

The next hearing on the case is scheduled for Monday (May 18) where Rotenberg might announce whether he is forcing Macy’s to comply with the subpoena and turn over to Wright the necklace customer names.

In his filing, Wright contends Macy’s privacy concerns are “minimal” and cannot be used by the company to keep the names secret. Wright said those who bought the necklaces are likely to be called as witnesses and “will testify as to whether or not they were misled” by the labels. He asserted the customers also “could provide context, shed light on other assurances, circumstances, complaints or statements made by Macy’s pertaining to the crimes committed.”

Lawyers for Macy’s lawyers want the charges dismissed. In asking Rotenberg to quash the state’s subpoena seeking the customer identities, they assert providing the names is inappropriate because the case is about false advertising and can be argued without the state knowing exactly who bought the items in question.

“Macy’s promises its customers to keep their personal information confidential except in certain limited circumstances,” said a motion by Macy’s lawyer Donald Etra.

“Macy’s customers therefore have a reasonable expectation that any identifying information collected and retained by Macy’s as a result of their purchases will be kept confidential and not disclosed unless Macy’s is compelled to do so by proper legal process,” Etra wrote. “As the privacy concerns of third parties is high and the usefulness of the documents to the people’s prosecution of the false advertising claims against Defendants is non-existent, production should not be required.”

In his opposition to Etra’s motion, Wright said that Macy’s is ignoring California’s Evidence Code and that the requested information is highly relevant to show Macy’s intent, preparation, plan and knowledge that the necklaces did, indeed, contain lead.

Macy’s has told the judge it doesn’t have information “as to every customer” that bought one of the necklaces. “If a customer used a Macy’s proprietary credit card to purchase the product–either a Macy’s credit card or a Macy’s branded Visa–”Macy’s retains such information, though such retention and any possible disclosure is governed by the terms of Macy’s privacy policy,” the Macy’s court filing said. “If a customer purchased the products on a credit card other than Macy’s, Macy’s may not have in its possession the customer’s personal contact information from the credit card transaction and thus may not have any documents reflecting that customer’s identity. Macy’s does not have information relating to the identities of those who purchased the products with cash.”

In February 2008, the U.S. Consumer Product Safety Commission was involved in a recall of the jewelry. It figures some 2,900 necklaces were sold from January 2006 through November 2007, warning that “the children’s necklaces contain high levels of lead. Lead is toxic if ingested by young children and can cause adverse health effects.”