In this case involving a breach of implied warranties, the plaintiff sued the defendant, a company that provides software that optimizes computer performance and protects against malware.
The plaintiff alleged that the defendant committed fraudulent misrepresentation under various consumer protection laws, claiming that the premium version of the defendant’s software did not live up to the defendant’s promise of performance. The plaintiff alleged that class members bought the premium version after the defendant’s free software pointed out a number of malware problems in their devices. However, the premium version did not perform as expected.
The plaintiff retained a computer forensics expert witness to analyze the diagnostic function of the free version of the defendant’s software and compose an expert report on his findings.
The Computer Forensics Expert
The plaintiff’s computer forensics expert was a software and website developer who had developed hundreds of applications in a variety of industries. He held a degree in Information Engineering Technology from the University of Cincinnati and had experience testifying as an expert software development witness reviewing source code for technology-based litigation cases.
Following his diagnostic examination of the software in question, the computer forensics expert concluded that the diagnostic function of the free version of the software assessed the level of computer damage indiscriminately and is programmed to classify routine computing behavior as problematic.
The defendant argued that the expert’s opinion did not meet the standards of qualification, reliability, or proper methodology set down in Daubert and that it should thus be excluded. The court noted that the expert had enough experience with software and source code to render him qualified to state his opinions.
The defendant alleged that the expert only looked at the code for the free version and not the premium one. The defendant further alleged that the expert never looked at an image of the plaintiff’s laptop, never checked the efficiency of software’s fixes, nor did he cite any standards relating to the issues in this case. The court observed that the computer forensics expert witness had only been tasked with examining the free version’s diagnostic function, and as such, his report was limited to that topic. Moreover, the defendant failed to show how he could not examine the free version source code without using the premium version or the Plaintiff’s laptop. The defendant’s first three claims were thus rendered baseless.
The computer forensics expert proffered the opinion that the free version assessed the computer damage arbitrarily by only showing the number of system problems and not their severity. The court said the defendant failed to cite any standards for such issues. Furthermore, even if such standards existed, the computer forensics expert was entitled to opine on the diagnostic function without searching for industry standards. The court noted that the defendant did not directly challenge the reasoning behind the expert’s opinion.
The court held that the expert’s opinion was up to the Daubert standards and was thus admissible.