Amazon Seeks to Strike Its Counsel From Opponents’ Witness List

Amazon wants the U.S. District Court for Southern Indiana in Indianapolis to strike its outside counsel, Robert Cruzen of Klarquist Sparkman, from the plaintiffs' preliminary witness list, said Amazon’s motion Tuesday (docket 1:22-cv-02246). Plaintiffs Annie Oakley Enterprises and its owner Renee Gabet allege Amazon ignored the trademark infringement conduct of its third-party sellers (see 2302160029).

The plaintiffs’ inclusion of Cruzen “harasses” the attorney and Amazon, “as has occurred in prior litigation between the parties,” said Amazon’s motion to strike. Gabet and Oakley “have no legitimate reason” for naming Cruzen, it said. He’s not an Amazon employee “with percipient knowledge of products sold on its website, or their financial performance,” it said.

This isn’t the first time the plaintiffs and their counsel “have employed improper tactics against Amazon,” said the motion. In the past, they “have been admonished to review and comply with” the 7th Circuit U.S. Court of Appeals Standards for Professional Conduct and the Federal Rules of Civil Procedure, Amazon said. “Courts also have sanctioned plaintiffs’ counsel in litigation against parties other than Amazon,” it said. “Harassment and improper tactics from plaintiffs and their counsel will continue unless checked.”

Case law in the 7th Circuit shows a party can’t call opposing counsel to testify in a case where evidence is easily available from other sources and absent extraordinary circumstances or compelling reasons, said Amazon’s motion. The information the plaintiffs seek from Cruzen “is either easily available from other sources” or it’s “irrelevant,” it said. The testimony that Cruzen would offer at trial also is “overwhelmingly” covered by attorney-client privilege or “work-product protections,” it said.

The plaintiffs “can seek testimony from Amazon employees about product listings and sales at issue in this case,” said the motion. Cruzen “works at an outside law firm, not Amazon,” it said. He’s not involved in Amazon’s “day-to-day business operations,” it said. Amazon documents and employee witnesses “are far better suited to provide information about Amazon’s knowledge of product listing and sales” than is Cruzen, it said. “The vast majority of any such internal Amazon legal department communications are obviously protected by the attorney-client privilege in any case.”