Software Expert Witness Testimony Allowed By Daubert

Software expert was hired to provide testimony into the calculation of damages in a breach of license agreement.  The Defendant filed a motion to exclude the expert witness testimony under Daubert.

Facts:  This case (SAS Institute Inc. v. World Programming Limited – United States District Court – Eastern District of North Carolina – August 25th, 2015) involves the breach of a license agreement by the Defendant (“WPL”) upon one of Plaintiffs (“SAS”) software products.  WPL and SAS are competitors in the data analysis, management, and presentation software business.  WPL purchased copies of SAS’s learning software (SAS LE) in order to compare the two and while installing the software, agreed to the terms and conditions in the SAS license agreement.  The license agreement limits the use of the SAS software to “nonproduction purposes” and does not allow the use of reverse engineering.  The court previously ruled that WPL breached the agreement and the parties are now attempting to qualify and quantify the benefit that WPL had when using the SAS software to develop their software.  In order to do so, WPL hired James A. Storer, a software expert witness, to provide testimony on their behalf.  SAS has filed a Daubert motion to exclude Dr. Storer’s testimony as well as a Rule 403 motion challenging certain parts of the opinion.

Discussion: Storer’s expert witness testimony stated that WPL could not have developed their software fully without the assistance of SAS and that WPL used SAS LE heavily.   He based his testimony on documents produced during the litigation as well as documents from litigation occurring in the United Kingdom.

WPL contends that Storer is not qualified to offer expert witness testimony in this case in that he lacks experience in the profession of commercial software development as well as with the WPL and SAS software.  The court disagreed, stating that WPL takes a too narrow view of Daubert.  Storer has developed software on a part-time basis for 30 years as well as supervised students at Brandies University in developing their software.   This qualifies him to be an expert in this case.   In addition, Storer’s opinion that WPL could not have developed their software without the use of SAS LE is not grounded in any experience with the software at issue, but in his general knowledge of the software industry.  This general knowledge can be the subject of cross-examination by the defendant.

WPL also argues that Storer’s opinion will not be helpful to the trier of fact as he did not rely on his expertise to reach his conclusion.  The court has decided to look at the two parts of the opinion which show its possible helpfulness:  Whether WPL is a clone of SAS and whether the development of WPL would have been impractical without SAS.  First, the court ruled that the first opinion will be helpful to the trier of facts in understanding the technical nature of the documents produced as many of them may not be understood by a layperson.  That said, the court did state that Plaintiff’s counsel, when questioning Storer, should ask only about the technical meaning of the documents, not all of the evidence generally.  The court concluded similarly for the second part of his opinion.

Held: WPL’s motion to exclude the opinion of James A. Storer will be allowed.

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