Carbonite sues hardware maker, reseller
Customers who lost data after it had failed to be backed up properly by service provider Carbonite in 2007 may have few legal remedies, a lawyer said on Monday. Meanwhile, Carbonite is suing the hardware manufacturer and reseller for charges including breach of warranty, breach of contract, fraud, and unfair and deceptive practices.
Carbonite filed a lawsuit last week against hardware maker Promise Technology and reseller Interactive Digital Systems, alleging it was sold $3 million worth of defective equipment, which affected backups of 7,500 customers.
In its lawsuit, filed in Massachusetts' Suffolk County Superior Court, Carbonite claims it lost business and that its reputation was damaged as a result of the problems.
Carbonite alleges that the Promise VTrak Raid equipment in several instances failed to recognize defects in the hard drives and transfer the data to another hard drive before the data was lost, said Thomas I. Elkind, attorney for Carbonite.
Most of the customers were able to recover their data but some were not, he said. In the meantime, he said, Carbonite has been replacing the defective hardware with systems that work properly so service is operating normally.
Joe Messina, a lawyer who represents Interactive Digital Systems, said he had not seen the lawsuit.
A Promise spokesman provided this comment: "We have looked into Carbonite's allegations and believe that they have no merit. Our investigation indicates that our products were neither implemented nor managed using industry best practices."
"I think this is more of a public relations campaign than an actual lawsuit," Messina said. "We'll respond if and when they decide to serve us the papers."
Several outside lawyers said the case will revolve around what the terms were of Carbonite's contract with Interactive Digital Systems and its warranty with Promise, details of which were scarce in the five-page lawsuit.
"Often the manufacturer says you put in a tray that was too hot or was situated magnetically in an inappropriate place. They could also say it was the (plaintiff's) environment that caused the problem or another piece of hardware and not our product," said David Steuer, of Wilson Sonsini Goodrich & Rosati. "Normally they settle because there are risks on both sides."
Jeff Lederman, of Winston & Strawn, took a look at the terms of use on Carbonite's Web site and said it looks like the company had attempted to shift the risk of damages from data loss to its customers, which limits the customers' ability to recover damages.
"In no event will Carbonite .... be liable ... for any lost profits, lost data, interruption of business, or other special, indirect, incidental, or consequential damages of any kind... even if Carbonite has been advised of the possibility of such loss or damages," the Web site's terms of use says.
In a statement, Carbonite Chief Executive David Friend had this to say about the lawsuit: "All of the affected customers had their backups restarted immediately and automatically. A small number of these customers had their PCs crash before their restarted backups were complete. These customers were unable to restore all of their files from Carbonite. We took full responsibility for what happened, and I did my best to apologize personally to each of these customers. We addressed the technical issues that caused the above problems, and in the nearly two years since the incident, we have not encountered further problems. That said, our lawsuit seeks a refund for the defective products we were sold."
Elinor Mills covers Internet security and privacy. She joined CNET News in 2005 after working as a foreign correspondent for Reuters in Portugal and writing for The Industry Standard, the IDG News Service, and the Associated Press. E-mail Elinor. 
Promise makes a good product to a certain point.
Carbonite obviously architected the infrastructure as cheap as possible and did not care about the customers interests. In my opinion they did not get anything less then they paid for but the customer did.
"Carbonite alleges that the Promise VTrak Raid equipment in several instances failed to recognize defects in the hard drives and transfer the data to another hard drive before the data was lost, said Thomas I. Elkind, attorney for Carbonite. "
What the hell is that? That should in an article of how RAID logic works on Wikipedia.
I could of set this up with about the same equipment and never had data loss. I might of had to set it up in a way that may of decreased the usable capacity and required a minimal amount of additional software or hardware, but hey it would still be lower cost than many other vendors.
This more about Carbonites greed and irresponsibility.
Where did the get the hard drives? They should sue the drive manufacturer while they are at it. Promise doesn't sell drives and integrate them like most RAID vendors. How about the "stupid" customer, sue everybody and take no responsibility.
"In no event will Carbonite .... be liable ... for any lost profits, lost data, interruption of business, or other special, indirect, incidental, or consequential damages of any kind... even if Carbonite has been advised of the possibility of such loss or damages,"
Why don't they just say "we knew but screw you"?
Actually I think you will find that in the terms of many companies, it is rather standard.
Really, the courts need to make these types of codicils illegal. It's basically giving carte-blanche to the industry to screw over their customers....... and the customers then have no legal remedy whatsoever.
no, seriously?
I have yet to see a problem with Carbonite, luckily, none of my clients, nor I were affected by this problem in 2007, I didn't even know about it until I read the article after the fact.
I do make sure to warn my clients that if Carbonite goes out of business or has their own crash you may lose all your data,but they take that risk, constantly promising me that they are going to use that external hd that I gave each of them, that is gathering dust in their closets. Services like Carbonite are excellent for those people that want to use their computer but not have to mess with "technical stuff".
KieranMullen
[CNET editor's note: Prohibited content deleted.]
In the long term, too bad for him (and Carbonite's value) if customers' satisfaction is not his priority !
Unless he's ready to sell his business ????
Xavier
www.yooron.com
- by vchar April 1, 2009 11:02 AM PDT
- Carbonite customers? data loss is not Promise?s fault. For some more context on this case, see Promise's response in a letter sent to customers this week at http://www.promise.com/support/Announcements.asp
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