This class action lawsuit arises out of Amazon’s practice of using smart-speaker technology (“Alexa”) to surreptitiously: (a) intercept; (b) eavesdrop; (c) record; (d) disclose; or (e) use millions of Americans’ voices and communications, all without their knowledge or consent. Such conduct blatantly violates Washington’s wiretapping law, which applies nationwide to Plaintiffs and all members of the Class.
Defendants here, Amazon.com, Inc. and Amazon.com Services LLC (collectively, “Amazon” or “Defendants”), are therefore liable as a result of their egregious violations of the State Wiretapping laws – and are also liable for their violations of the Washington Consumer Protection Act (“CPA”), the Electronic Communications Privacy Act of 1986 (“Federal Wiretap Act”), and the Stored Communications Act of 1986 (“SCA”). Plaintiffs Kaeli Garner, Jodi Brust, Diane McNealy, Michael McNealy, Ricky Babani, Jeffrey Hoyt, Lorlie Tesoriero, Ronald Johnson, Selena Johnson and Caron Watkins (collectively, “Plaintiffs”) brought this action individually, and on behalf of a Class of similarly situated individuals, to redress those violations of law.
Amazon filed a motion to exclude the testimony of Plaintiffs’ expert, David Hoffman. Defendants sought to exclude Hoffman’s testimony regarding the sufficiency of Amazon’s disclosures in its privacy policies, terms of use, and marketing materials as improper legal conclusion and/or an invasion of the province of the jury.
Privacy Expert Witness
David Alfred Hoffman is the Steed Family Professor of the Practice of Cybersecurity Policy at the Sanford School of Public Policy at Duke University. Hoffman has advised employers and other organizations regarding the use of consumer data, cybersecurity, privacy, and data governance. While employed by Intel Corporation, Hoffman was the Director of Privacy, overseeing privacy issues related to the data Intel collected, processed, and used and Intel’s products.
He has authored internet privacy policies and terms of use documents for corporations and served on governmental advisory boards tasked with considering issues related to the effective provision of information about the collection of personal data by devices. In addition, Hoffman oversaw industry efforts to create a certification process for companies with responsible data management practices, including efforts to adequately disclose data collection and use practices through privacy policies.
Discussion by the Court
The Court found that Hoffman has the necessary experience to opine regarding industry standards and best practices for providing notice to consumers or users that data is being collected and how it will be used. He also has the expertise to compare Amazon’s policies, practices, and disclosures to the industry standards, to identify in what way Amazon’s practices are deficient, and explain how the deficiency or deficiencies would impact a reasonable consumer’s understanding of how Alexa works.
In two important respects, however, Hoffman’s opinions are not supported by any knowledge, skill, experience, training, or education he may have.
Hoffman did not suggest that the universe of representations are subject to or violate any industry standard or best practice
First, with regards to his opinion that Amazon’s marketing materials are inconsistent with and countermand the disclosures made in the privacy policy, Hoffman did not suggest that the universe of representations are subject to or violate any industry standard or best practice. Thus, his area of expertise did not inform this opinion. Nor is there any reason to suspect that his opinion regarding the interactions between documents would be helpful to the trier of fact.
There is no indication that Hoffman has relevant experience or training that would allow him to opine on what Alexa users actually knew
Second, Hoffman’s conclusion that a user or group of users did not, in fact, understand how Alexa works or did not consent to the recording of their voice data is not supported by any surveys, interviews, research, or studies. There is no indication that Hoffman has relevant experience or training that would allow him to opine on what Alexa users, individually or collectively, actually knew given the disparate sources of information regarding the Alexa device.
Finally, Hoffman will not be permitted to testify regarding opinions that were not included in his report, such as that Amazon shares Alexa data with third-parties or that Amazon created its disclosures with the intent to mislead consumers. He may, however, opine on facts that may be relevant to the jury’s understanding of Amazon’s practices and intentions.
Held
The Court granted in part and denied in part the Defendants’ Daubert motion regarding Professor David Hoffman.
Key Takeaway
While Hoffman’s experiences in evaluating privacy policies and establishing best practices for alerting consumers when and why their personal data is being collected necessarily involves an understanding of how the typical or reasonable consumer would react to and understand different practices, that is not the same as opining what a particular person or group of persons actually knew or understood.
Please refer to the blog previously published about this case:
Computer Science Expert’s Testimony on the Value of Data Admitted
Case Details:
| Case Caption: | Garner V. Amazon.Com, Inc. |
| Docket Number: | 2:21cv750 |
| Court Name: | United States District Court for the Western District of Washingto |
| Order Date: | January 05, 2026 |
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