How Toys "R" Us won its case against Amazon.com using Amazon's own live Web site
The decision was risky. There was a chance that the Amazon site would not show the violations. It also was not clear whether the live screenshots showing a particular violation -- which, of course, would not have existed during the discovery phase of the lawsuit -- could even be admitted as evidence.
In August 2000, Toys "R" Us signed a 10-year agreement with Amazon to become its exclusive retailer of toys, games and baby products. In 2003, however, Toys "R" Us began complaining that some of its competitors were also selling toys, games and baby products on Amazon.com. Amazon responded by stating that it read the term "exclusive" to mean that others could not sell the specific products which Toys "R" Us offered (although Amazon had been allowing them to do so by the hundreds), and if Toys "R" Us elected not to sell a specific item, Amazon could invite other merchants to its site to offer those products. Mediation in the summer of 2004 failed, and Toys "R" Us was left with no choice but to seek termination of the agreement.
It was this concern over potential harm to the Toys "R" Us brand that led to the unique, and perhaps unprecedented, decision to use Amazon's own Web site as a witness at trial. By going live to Amazon.com early and often during pre-trial hearings, and, most importantly, during the 3-month bench trial, Toys "R" Us hoped to show the court precisely what customers were seeing at that very moment: toys, games and baby products being sold by third-party retailers alongside the Toys "R" Us' contractually exclusive assortment on Amazon.com.
However successful the tactic was during pre-trial hearings, though, using the Internet as a witness during trial presented additional challenges. For one, Amazon could have changed its search methodology and altered the appearance of its site to mask its violations. And, while Amazon loaded its site with thousands of competing toys, games and baby products, it was doing a better job of policing the exact duplicates that Toys "R" Us had been able to find during the injunction hearings. Finally, in terms of admissibility, courts typically restrict evidence to those matters that have been shared with the other side during pre-trial discovery. Yet there was no way that Toys "R" Us could anticipate what would be on the Amazon site during trial in the fall when discovery closed at the end of June.