Class Action Over “Scareware” Computer Software Raises eDiscovery Disputes

15 Jan 2014

In the putative class action case Worley v. Avanquest North America, Inc., No. C 12-04391 WHO(LB)(December 13, 2013), plaintiffs alleged that the defendant’s computer software (referred to as “Scareware”) misrepresented and exaggerated alleged computer errors in order to perpetuate fraud on consumers.  Plaintiffs’ First Amended Complaint was grounded, in part, on certain factual allegations made by the plaintiff computer forensics expert.

The parties presented several electronic discovery disputes before the court regarding the preservation period, the production period, inspection of Plaintiffs’ computers and expert discovery.

Regarding the preservation period, plaintiffs sought all electronic data from the time the original version of the software was developed to the present. The defendant objected, claiming that such a time frame was over ten years prior to the statute of limitations period. Additionally, the software at issue in the complaint was only Versions 8, 9 and 12. The court noted that communications regarding prior software versions could be relevant from the time before the limitations period.  Accordingly, the court ordered that all relevant data from any time be preserved. However, as nether party could identify the custodians with relevant information, the court ordered defendants to provide their Rule 26 disclosures and identify categories of responsive documents and custodians, at which point in time, defendants could renew a burden argument.

The court then ordered the production of documents from the entire statute of limitations period, but noted that since discovery can be iterative, left open the possibility of plaintiffs obtaining additional data.

Regarding the defendant’s request for mirror imaging of plaintiffs’ and their experts’ hard drives, the court held that since plaintiffs unilaterally placed their computers into contention with their complaint, with a protective order in place to preserve privacy, plaintiffs’ computers were ordered for mirror imaging and forensic examination.

Finally, plaintiffs objected to the deposition of the expert they used to investigate and draft the complaint, arguing that he would not be the trial expert.  However, since plaintiffs had put the expert into play by making factual allegations based on his investigation, the court ordered that the deposition of the expert be permitted.

ILS – Plaintiff Electronic Discovery Experts