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W&H also rented as lessor the names on its masterfile to
third parties, including other W&H clients and W&H-controlled
entities. Petitioner’s names could be separately selected from
the W&H masterfile and were occasionally rented by W&H to third
parties as a discrete, separate list of petitioner names.
Petitioner’s names were also contained in lists rented by W&H to
third parties mixed together with non-petitioner names. On the
record in the instant case, it is virtually impossible to
determine how often any particular petitioner name was rented as
part of a mixed list.
From 1984 through the time of the trial in the instant case,
W&H as lessor rented discrete segments of petitioner’s housefile
names about 50 to 80 times. These rental transactions may have
involved as few as 5,000 petitioner names or as many as 300,000
petitioner names.13 From 1984 through the time of the trial, in
the instant case, W&H as lessor rented segments of the W&H
masterfile more than 2,000 times. Any such rental may have
involved no petitioner names, one petitioner name, or a
substantial number of petitioner names. On at least one occasion
as many as 300,000 petitioner names were contained on a rented
13 For example, a list rental order dated Jan. 1, 1990,
submitted on behalf of the Norris Hospital at the University of
Southern California to W&H, reflects that an 8,500-name
“representative cross section” of certain petitioner names was
being ordered. The order indicates that the segment of
petitioner names selected consisted of donors who had made a
donation of $5 or more to petitioner within the past 24 months.
Note that the Contract had expired more than 7 months earlier.
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