When Toysrus.com, Toys “R” Us, Inc.’s Internet retail business, sued Amazon.com to end their Internet partnership for breach of contract, it faced a key strategic decision: Could it gamble on using its opponent’s own Web site as a key trial witness? Toys “R” Us had to prove to the court that Amazon was violating its exclusivity rights under their contract. The only way to effectively do this was to show the court, live, what was happening in real time on Amazon.com.
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.
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