Software Expert Witness Testimony Allowed in SaaS Contract Case

Summary: Software Expert Witness testimony allowed even though the defense argued that his opinions were not reliable because they were based on apposite facts.

Facts: This case (SiteLock LLC v. LLC – United States District Court – District of Arizona – March 2nd, 2022) involves a breach of contract claim.  SiteLock entered into a contract with GoDaddy whereas GoDaddy agreed to sell SiteLock’s security services.  When a GoDaddy customer purchased a SiteLock subscription, and took the steps to activate the service, a sale of the proceeds would go to SiteLock.  SiteLock claims that if a GoDaddy customer purchased a SiteLock subscription, but failed to activate it, GoDaddy would still provide a sale of the proceeds to SiteLock.  GoDaddy claims that this was not part of the agreement.  In order to prove their claims, SiteLock hired Software Expert Witness Dr. Steven Kursh to provide expert testimony.  GoDaddy has filed a motion to exclude Dr. Kursh from testifying.

Discussion:  Dr. Kursh states that he was hired by SiteLock to provide two expert opinions: 1) The customs and standard of practices dealing with payment and reporting in the Software as a Service (SaaS) industry and 2) the calculation of damages in this specific case.

GoDaddy argues that Dr. Kursh’s expert opinions are supported by ipse dixit and a lack of reliable methodology. Also, GoDaddy claims that Dr. Kursh dis not permissibly opine on the legal meaning of the Reseller Agreement and does not limit himself to the industry’s “term of art.  Third, GoDaddy argues that Dr. Kursh’s opinions on customs and practices are irrelevant because they are based on inapposite factual assumptions.

The court opines that Dr. Kursh’s extensive experience in the SaaS industry is sufficient for the reliability of his customs and practice opinions and the methodology he used to come up with them.  The judge notes that Dr. Kursh has adequately explained how his experience in the field led to his expert opinions about the customs and practices of the SaaS industry and how he has never seen agreements like the one put in place by GoDaddy and SiteLock.

The court also notes that there is no merit to the argument that Dr. Kursh’s expert opinions are legal arguments dressed in the guise of customs and practice.  In this case, the judge explains, Dr. Kursh’s opinions state that GoDaddy’s interpretation of the agreements go against industry customs and practice. Thus, the judge opines that Dr. Kursh’s opinions may be relevant and useful to the jury in explaining the contract terms that are being disputed.

Conclusion:  The motion to exclude the expert witness testimony of Dr. Steven Kursh is denied.