Data lost during repair - lawsuit

I accidently corrupted my customer's hard drive.  The customer claimed that she doesn't have any backup data and the data was very valuable for her plan to establish a new school.  It was a Toshiba laptop ant the hard drive should have had a lot of teaching materials, application docs and more.  

My and another data recovery firm's attempt to recover the files were not successful.  I generally admit that was my fault (my employee) and I found that this case is legally classified as "ordinary negligence".  

My customer asks for compensation.  Does anybody have good background how much $$$ is appropriate?

Sam
koinosworldAsked:
Who is Participating?
I wear a lot of hats...

"The solutions and answers provided on Experts Exchange have been extremely helpful to me over the last few years. I wear a lot of hats - Developer, Database Administrator, Help Desk, etc., so I know a lot of things but not a lot about one thing. Experts Exchange gives me answers from people who do know a lot about one thing, in a easy to use platform." -Todd S.

Lee W, MVPTechnology and Business Process AdvisorCommented:
Exactly what did you do to the hard drive... I cannot imagine many circumstances where this could really be your fault as in negligence.  If you Wiped the system and reformatted it without their approval and/or asking them if they wanted things backed up, then yes, you were negligent.  But you said "corrupted" the hard drive - what exactly did you do to cause the corruption?

Hard drives fail, the customer should have made a backup.  I make it known to customers that THEY are responsible for their own backups, EVEN when I say I'll back things up for them.  

What did you have the other data recovery company try to do?
koinosworldAuthor Commented:
Thanks for your comment.
We tried ghost copy from notebook hdd to desktop hdd.  It was intended to give my customer a desktop loaner because it would take longer to repair the Toshiba notebook.  

Eventhough we put every caution to make sure data is transferred from notebook to desktop it actually copied backward.  Later we found out that the Intel motherboard recognize 1st hard drive as booting hard disk.  This only happen in Norton ghost program.  We thought 1st hard disk will be primary IDE hard drive.  

As a result of this a garbage data was transferred to notebook hard drive.  I hate to repeat this statement.....  Instead of getting a backup, we lost original.  The data recovery company was able to scavenge some of the files and list of directories, but not the important folder that has all the docs.  I still keep the original notebook hdd.    
TechInsiderCommented:
Woah woah woah,

Kionosworld, get that drive back and send it to Ontrack Data Recovery. If there's no recovery, there's no fee.

Here's the link:

http://www.ontrack.com/

Ontrack is by far the world leader in data recovery.  These are the guys most responsible for saving the New Orleans I/T world after Katrina, and they can do some absolutely amazing things with corrupted hard drives (even drowned hard drives).

Click that link, arrange for the drive to be sent in and get a recovery quote.  I've never seen a single-drive data recovery exceed $2000 (and we're talking forensic bit-by-bit restoration for that much), with normal recovery costs around $800-$1500.  Since you're probably looking at 3x-5x times that in "lost opportunity costs" to your client is you get sued in court, this is a bargain.

I've sent dozens of my own clients to Ontrack over the years, some with physical impacts to the drive media (drive head drove into the platters), and they have never failed to recover data.  As a tech and manager for Dell, I was even *instructed* to send liability/recovery jobs to Ontrack, complete with the Big Boss' blessing.  They are THAT good and that reliable.

I'm very sure your client would rather have her data than your money, so please please please give this a try.  You have nothing to lose except your money and reputation.  

Well, go!  Call em now :) If not only for yourself and your client, but for the sake of every tech in your State (legal precedents have a way of biting all of us, when judgement day comes).  This is the right thing to do, and the right company to call in this situation.  As I said, they are amazing.

I'll even say a little prayer for you.

*waits to be struck by lightning*

Go...click...call...now!

-TechInsider
Rowby Goren Makes an Impact on Screen and Online

Learn about longtime user Rowby Goren and his great contributions to the site. We explore his method for posing questions that are likely to yield a solution, and take a look at how his career transformed from a Hollywood writer to a website entrepreneur.

TechInsiderCommented:
Ooops, cross-posted there. =)

When you contact Ontrack, tell them you are only interested in the data in that specific folder (or those specific folders where critical data is located).  This will give you an added level of protection against unnecessary fees.

Essentially the drive has been overwritten with duplicate folder names, an incorrect MBR and partition table, and a few other nasty file system events.  The recovery will be difficult, but it's still very probable that they can get it all back.

Like I said, you have nothing to lose and everything to gain.

-TechInsider

Lee W, MVPTechnology and Business Process AdvisorCommented:
OnTrack DOES have a very good reputation for data recovery and I would suggest you try them.

TechInsider - I'm not sure how appropriate it is to post your own "partner" link to them.  I will look into this and if it's not acceptable, remove it.
koinosworldAuthor Commented:
I still need comments for how much is appropriate for a compensation.  Just in case data recovery is not successful.  I heard about $7000 from one of my affiliates.  It can go to small claim court where maximum is $5000 in CA.  
Lee W, MVPTechnology and Business Process AdvisorCommented:
I think your best bet is to consult an attorney.  What's appropriate is entirely up in the air.  If the data lost was created in 20 minutes, then $10 is appropriate.  If that was their life story and they spent YEARS writing it and researching family history, then $5000 may be appropriate.  It really depends on what EXACTLY was lost and how much the data is valued at.  The reason I say contact a lawyer is that my first reaction was to contact the client, but you don't want to do anything to cost you MORE money in the future - the lawyer should be able to help guide you through this.
tec2mroCommented:
If you have any type of business insurance, then it's probably covered under the policy.
TechInsiderCommented:
I will keep that in mind.

That was my referral discount link, not my revenue link (my revenue link has my PC business domain name in it), but perception is reality, and I certainly understand the need to keep this site as pure as possible.  The straight ontrack.com link is nearly as good, and eliminates the perception issue.  I'm very sorry for the link pollution, Leew.

Ok, back to the matter at hand.

Kionos,

I'm not entirely sure you can be classified as "negligent", Kionos.  There is a huge amount of judicial precedent showing that "computer professionals" are not true professionals for a variety of reasons (mostly because there is no standard or regulating organization in place to issue a 'professional' title to a computer guru...sure, there's lots of certifications, but there's no oversight, no licensing, and no disciplinary structure (although with some of the "techs" I run into out here in Northern CA, I sure wish there was such an organization....)

I'm guessing this is where you found yourself guilty of "ordinary negligence"...:

----In 1991, Wang Laboratories was sued for negligence and gross negligence.[14] Wang sold a
computer and a service contract to Orthopedic & Sports Injury Clinic. While attempting to fix the computer,
Wang’s employee used, and corrupted, the Clinic’s last backup disk, thereby losing five years of the clinic’s
medical and accounting data. (Oops.) The contract limited the amount of damages that Orthopedic could
collect from Wang, but Louisiana law (and many other States’ laws) allows the plaintiff to recover all
damages if the defendant committed gross negligence. The Court ruled that Orthopedic hadn’t proved that
this use of the backup disk was gross negligence. However, it did allow the lawsuit to go forward as a suit
for ordinary negligence. This is another example of a case in which a Court allowed a negligence
------  http://www.kaner.com/pdfs/Malprac.pdf

According to the legal sites (and I am sooooo not a lawyer!), proof of negligence requires that a similar person, claiming similar skills, would have taken more proactive precautions to safeguard the data.  

Now, as a tech, I can tell you that I've used many versions of that Ghost software dozens (hundreds?) of times, and nearly done exactly what you did.  It is and can be confusing software to use, especially when copying between two primary hard drives (as you pointed out).  I think about the only thing you could have done differently would have been to image from a drive to a CD-R span, then 'ghosted' the spanned cd set to the desktop machine.  I've done it both ways, and both ways of have a very long history of success....just with that Ghost software, you're one bad keystroke  from digital doom.  And yet I use it anyway because I trust it, as do most of us here I imagine.

If you are feeling some guilt and responsibility over this, first get OnTrack to recover the data (and I'll be completely shocked if they can't recover the missing files), and you will of course pay for that, as a responsible business person trying to correct an unfortunate mistake.  If that fails to get her critical data back, then cut her a check for $2500, which is 50% of what she might receive in court, assuming she can PROVE $5000 of investment in data creation.  If she has a CD/DVD burner with that Toshiba Laptop, I doubt she'll be able to claim 'she didn't have the ability' to make a rudimentary backup of critical data, which means she comes to court with 'dirty hands'...tough to win that way, according to my Business Law 141 books and Judge Judy.

She also must bear a share of responsibility (and if I were a part of her business, I would label her as negligent in maintaining her computer and data), but her 'share' of responsibility will come from the new time investment she'll have to make in rebuilding the data.

So, the right thing to do is make every possible effort to recover the drive, and that means calling Ontrack.  Seriously.  If Ontrack fails, then the right thing to do is offer a reasonable cash settlement (ask a lawyer about that first (!!!), least you accidently admit responsibility/negligence by paying her), which, if she's invested serveral months of thought and time into, is certainly worth $2500 in good feelings.  It's a good starting place...meeting her halfway and all.

If you just want this whole thing to go away, pay her the full $5000 possible award from small claims.

Has she already filed a lawsuit?  Do you know for a fact that this is a smal claims case, and not a larger civil case (county or state level court?).

Either way, let us know how this one runs its course.  This is a mega important topic for many of us, I'm sure.

-TechInsider

Experts Exchange Solution brought to you by

Your issues matter to us.

Facing a tech roadblock? Get the help and guidance you need from experienced professionals who care. Ask your question anytime, anywhere, with no hassle.

Start your 7-day free trial
MarkDozierCommented:
I agree with TechInsider on some points. Knowing the hardware better may  have prevented this issue with Ghost. But having had faced the same type of issue .I long ago began to usea different sized drives,bigger of course, to aviod errors in my  the ghosting.
With her laptop she could have burned backups if she had a burner or even put them on floppy. Again I am in agreement with TI

From the legal standpoint, if she had the tools to do backup of any kind  the worst that could happen is you will be found partly negligent. If I were the judge and it came to me I would find that you should replace the disk and that the loss of data. while your actions destoried  it was primaryly the resposiblilty of the user to backup up data to be thought important. In my neck of the woods we call that personal resposibilty.
sysandprogCommented:
Many years ago when disk drives could hold only 10 or 20 meg and failures were frequesnt because of early stage hardware glitches, an outfit in Orange County, California recovered my data.  I think it was in Anaheim or Santa Ana.

As I recall, the cost was under $200.  It couldn't have been much more, because I didn't have it.
neumannu47Commented:
Well, I am a lawyer, but I don't practice in California, so it will be interesting to follow this case. The best course of action is to retrieve the data, at whatever the cost. Appropriate damages? In a lawsuit, it is usually the plaintiff's responsible to prove her damages. It is an uphill battle.

It would be interesting to see how the judge or magistrate would handle the case if he or she has not technical expertise.
nltechCommented:
* consult with your attorney about this particular incident before you do anything, say anything, or admit any guilt to the customer. and also go over these next two items with him:

* check your business liability insurance (you DO have insurance, right?).

* review your service agreements and contracts. there should be language in them that protects you from liability, or at least limits the amount you're liable for; and places the burden of creating backups on your customer, before they present equipment to you for service (they can HIRE you do make them, but ultimately it is their responsibility to ensure that they have any data backed up themselves, that they do not wish to lose in the event something happens).

* and lastly, ontrack. they're simply the best in the data recovery business, hands down. not the cheapest, but the best.
TechInsiderCommented:
I totally agree, Neumann.

I was digging through CA case law on computer technician 'malpractice' (for which no new tort filing has yet been allowed by any CA or Federal judge), and for negligence cases (of which there are only a few, suprisingly).

In the few cases where the computer tech gets nailed for data loss, the details of the case tend to show that the defendant did not make the case that the end user (usually the plantiff) should have known to make simple backups, AND the defendant failed to make it clear that anytime you work on operating system, you run the risk of data loss.

Judges and/or juries are not likely to be composed of folks we would consider technical peers, so if this were me going to court, I'd probably be sure I brought in tons of evidence from local newspapers, recorded local and cable news programs, and other generally accessable and obvious public sources that inform users about the necessity of keeping good backups...in other words, evidence that the EU was bombarded with information on keeping independant backups, and still failed to take action.  Use sources the the judge and/or jury likely would read or view, and it will be tough for the plantiff to prove she was not negligent in her own right.

And if we all learn nothing else from this entire thread, we should learn that YOU MUST ALWAYS HAVE THE CLIENT SIGN A LIABILITY WAIVER.  And someplace in that waiver, preferably near the top, in big bold capital letters, you need to spell out that:

-- "Data loss is not only possible, but very common, and while __YourBusiness__ will make reasonable efforts to safeguard existing data, it is soley the clients responsbility to have their own personal backup of important or irreplaceable data, files, folders, tax records, accounting records, email archives, address books, contacts, favorites, and anything other information stored on the computer that the client is not willing to lose forever.  Hard drives can suddenly crash, mice slip, viruses spawn from no where, electrical surges lash out, and computer technicans can make mistakes.  I ___client name___ have carefully read this statement, I have/ I do not have (circle one) critical data backups, I authorize/ do not authorize  (circle one) __yourbusiness__ to perform work on my computer.  I acknowledge the data loss risks invovled.  ___client sign or initial here___
-------

Maybe we should pitch in and get Neumann to write us up a universal computer tech liability waiver?  (or would those have to be written specificly for each State?)

The more honest, open and direct you are about the types of things that can go wrong during a computer service, the more likely the judge will be to honor your liability waivers in court.

Hey Koinos, did you get hold of Ontrack?  What'd they say?

-TechInsider
neumannu47Commented:
The accepted answer is legally incorrect with regard to damages.
TechInsiderCommented:
Hopefully, he took the first part of the advice, and contacted a lawyer :)
koinosworldAuthor Commented:
Opps,

I was going to accept several comments.  I didn't know the policy very well.  Sorry for those guys who gave me valuable comments.  I'll post any update that I have.  Definitely I will accept the comments from TI and nltech (about insurance).  I'm very promising that you experts have the same ideas as I have.  

It's more than this solution.Get answers and train to solve all your tech problems - anytime, anywhere.Try it for free Edge Out The Competitionfor your dream job with proven skills and certifications.Get started today Stand Outas the employee with proven skills.Start learning today for free Move Your Career Forwardwith certification training in the latest technologies.Start your trial today
Miscellaneous

From novice to tech pro — start learning today.