Labor & Employment Law Daily Wrap Up, EVIDENCE, DISCOVERY—W.D. Wash.: Amazon's motion to exclude former employees’ expert testimony in FTC case denied, (Aug 28, 2025)

By Wendy Biddle, J.D.

The former employees can testify on opinions they developed as Amazon employees.

A federal court in Seattle, Washington has denied Amazon's motion to preclude the Federal Trade Commission from designating four former Amazon employees as hybrid fact-expert witnesses in the agency's lawsuit alleging deceptive practices related to Amazon Prime subscriptions. The court rejected Amazon's arguments that the former employees lack sufficient qualifications and that their testimony would be unreliable and confusing to jurors (FTC v. Amazon.com, Inc., No. 2:23-cv-00932-JHC (W.D. Wash. Aug. 26, 2025)).

The FTC filed suit against Amazon.com, Inc. and three company executives claiming violations of Section 5(a) of the FTC Act and Section 4 of the Restore Online Shoppers' Confidence Act. The government alleged that Amazon tricked, coerced, and manipulated consumers into subscribing to Amazon Prime by failing to clearly disclose material subscription terms and failing to obtain informed consumer consent before enrollment. The FTC also claimed Amazon failed to provide simple cancellation mechanisms for Prime subscribers.

The disputed witnesses were Reid Nelson, a former Principal UX researcher with a Master's degree in experimental psychology; David Edelstein, who managed the Global Prime User Experience team and has a background in graphic design; Christopher "C.R." Brown, a former UX Design Manager at Worldwide Amazon Prime; and Molly O'Donnell, a former UX research manager with degrees in communications and digital media.

The FTC designated these individuals as hybrid fact-expert witnesses to testify about unintentional Prime enrollments, the Amazon Prime cancellation process, and related user experience topics based on their professional experience at Amazon and in their respective fields.

Amazon's challenge. Amazon moved under Federal Rule of Evidence 702 to exclude the testimony, arguing the former employees were not qualified as experts and lacked reliability on the noticed topics. The company contended that the witnesses' testimony would be needlessly cumulative and risk jury confusion. Amazon specifically argued that the employees must be qualified in the specific subject matter of their testimony and that some, like Edelstein, were not qualified to testify about Amazon-specific user testing because his relevant experience came from work at Microsoft rather than Amazon.

Amazon also challenged the reliability of the proposed testimony, arguing that the former employees lacked adequate personal knowledge and could not testify based on information provided by others. The company further contended that allowing hybrid fact-expert witnesses would confuse jurors and that the testimony would be cumulative of the FTC's retained expert witnesses.

Court's analysis of qualifications. The court rejected Amazon's qualification arguments, finding them unsupported by controlling legal authority. The court noted that Amazon relied on a 30-year-old district court ruling from outside the circuit for the proposition that experts must be qualified in the specific subject of their testimony. However, the court explained that this authority merely stands for the straightforward principle that experts must have some level of familiarity with their testimony topics.

The court emphasized that under Rule 702, individuals can qualify as experts based on "knowledge, skill, experience, training, or education," and these qualifications need only exceed "the common knowledge of the average layman." The court distinguished Amazon's cited case, United States v. Chang, 207 F.3d 1169 (9th Cir. 2000), explaining that it held only that experts cannot testify on topics where they have no experience, not that experts must have specific levels of experience in particular subject areas.

Regarding Edelstein's qualifications, the court found that his general UX design and research experience, even if gained at Microsoft rather than Amazon, provided adequate foundation for expert testimony on topics such as consumer flow testing and testing metrics. The court noted that experts are regularly deemed qualified based on general training and experience, and that experts need not be the best qualified among potential witnesses.

The court also rejected Amazon's argument that it should be permitted to designate its own hybrid fact-expert witnesses to counterbalance the FTC's witnesses, noting that Amazon had ample opportunity to make such designations under the scheduling order but chose not to do so.

Reliability and personal knowledge requirements. On the reliability challenge, the court found that the FTC met disclosure requirements under Federal Rule of Civil Procedure 26(a)(2)(C) for hybrid witnesses who do not produce written reports. The court noted that such disclosures are "considerably less extensive" than full expert reports and that courts must avoid requiring undue detail from witnesses who have not been specially retained.

The court determined that the former employees could reliably testify based on their personal knowledge and observations gained during their employment at Amazon. The court clarified the boundaries of permissible testimony, explaining that while witnesses like Edelstein cannot testify about meetings they did not attend, they can testify about conclusions and opinions they formed while working at Amazon based on their personal knowledge.

The court emphasized that hybrid witnesses must testify from personal knowledge and observations gained on the job, distinguishing between percipient knowledge and information reviewed in anticipation of trial. As the court noted, "the critical distinction between retained and non-retained experts is... whether [the testimony] is based only on percipient knowledge or on information reviewed in anticipation for trial."

Jury confusion and cumulative evidence concerns. The court acknowledged that hybrid fact-expert testimony can potentially confuse juries but found that appropriate safeguards could address these concerns. The court identified several available measures: issuing jury instructions before witness testimony and at case conclusion, bifurcating testimony into separate percipient and expert phases, and requiring the FTC to specify whether each question relates to the witness's fact or expert role.

The court rejected Amazon's cumulativeness argument, noting that each former employee had different roles at Amazon and different foundations for their opinions. While acknowledging potential overlap, the court found their testimony unlikely to be needlessly cumulative. The court also distinguished the former employees' testimony from that of the FTC's retained experts, explaining that the former employees can testify about opinions they developed as Amazon employees rather than opinions formed for litigation.

Other recent expert testimony rulings. This case has seen its fair share of expert testimony motions. In the month of August alone, the court has ruled three other times on expert testimony motions.

On August 6, 2025 the court ruled that an Amazon’s expert’s survey of Amazon users did not warrant exclusion of the survey results and cross examination would be sufficient to challenge any results.

On August 11, 2025, the court granted the FTC’s motion to exclude an Amazon expert who was to opine about “dark patterns” in user interface design did not reliably ground his conclusions in his own training and experience.

Most recently, on August 18, 2025, the court denied two motions to exclude expert evidence because the challenged experts would help consumers understand the design elements of Prime’s cancellation process and that the testimony would be relevant to the question of Amazon’s implied knowledge.

The Case is No. 2:23-cv-00932-JHC.

Judge: Chun, J.

Attorneys: Evan Mendelson for the FTC. Anders Linderot (Covington & Burling LLP) for Amazon.com Inc.

Companies: Amazon.com Inc.

Cases: EvidenceDiscovery Procedure AgencyNews WashingtonNews