July 7, 2006 4:00 AM PDT

Police blotter: SBC sued over deleted screenplay

Police blotter is a weekly CNET News.com report on the intersection of technology and the law.

What: An aspiring writer sues SBC (now AT&T) after a technician installing a DSL link allegedly deleted three screenplays from his computer.

When: A California appeals court ruled on July 5.

Outcome: Screenwriter basically gets no money.

What happened, according to court documents:
When Nicholas Boyd asked SBC to install a digital subscriber line (DSL), he got more than he bargained for.

In December 2000, a technician named James Kassenborg showed up, allegedly said that certain icons and files were not needed--and deleted all of Boyd's scripts and related projects when installing the connection.

Boyd claims he subsequently tried to contact SBC on numerous occasions, but he was repeatedly put on hold, cut off and even laughed at. Eventually, SBC did pay to recover the data and fired Kassenborg, the technician.

The screenplays, by the way, are called "Color of Tulip," "Blood on Ice," and "Blood on Seven Hills," and are about topics including genocide and Italian Prime Minister Benito Mussolini. While pitching studios, Boyd claimed that his screenplays would make "far better" movies than "Gladiator," "Schindler's List" and "Ben Hur."

Boyd has never made a cent from selling a screenplay. But he did get a nibble from a freelance producer for Berlin-based Aurora Media, which made "An American Werewolf in Paris" and who testified he talked about paying Boyd $2.7 million for the three scripts and related productions. That apparently relied on securing financing from German fund managers, though, and was anything but a done deal.

SBC agreed to pay for a computer consultancy called Burgess Forensics to examine Boyd's hard drive.

It was able to recover only part of one screenplay. Burgess Forensics said the reason was that 4,134 files were saved to the hard drive after the screenplays were deleted--overwriting the unused space that could have otherwise been recovered. (Additions included Napster and RealPlayer and their related media files.)

SBC's attorneys claimed that Boyd's troubles were caused in part by his own negligence. They noted, for instance, that he backed up "Color of Tulip" on a floppy disk but not the other draft screenplays, and continued to use the computer after files were deleted.

The jury apparently didn't believe the German witness' testimony that a $2.7 million deal was in the works. Jurors found that Boyd could recover out-of-pocket damages of only $60,000 and said that he was responsible for 55 percent of the fault resulting in the deletion of the screenplays. The jury awarded Boyd $27,000 in compensatory damages and $33,000 in punitive damages.

Both SBC and Boyd appealed. The California state appeals court (second district) eliminated the punitive damages, upheld the compensatory damages--but said Boyd must pay for SBC's legal fees for the appeal, which could easily be in the range of his $27,000 compensatory damages award.

The bottom line? Boyd failed to hit the jackpot, and probably lost quite a bit of money after having to pay his own lawyer fees.

Excerpt from the court's opinion:
Boyd moved for a new trial on the issue of damages and punitive damages or, in the alternative, for additur to the damages and punitive damages. He argued that the evidence was insufficient to justify such low compensatory and punitive damages awards, and that it was error for the trial court to deny the motion to reopen the case...

As to Boyd's motion, the trial court stated: "Although Boyd produced evidence of a contract in the millions-of-dollars range through the testimony of various witnesses, the jury was free to, and obviously did, find the evidence not credible. There was evidence presented by (SBC) from which the jury could have so concluded, apart from the demeanor evidence of Boyd's witnesses (and their equivocations regarding the details of the 'contract').

The jury was also convinced that Boyd himself was negligent in not backing up or otherwise protecting his screenplays, finding him 55 percent contributorily at fault for deletion of the screenplays. The compensatory damage award of $60,000 was fully supported by the evidence...

First, Boyd contends that we must accept all the evidence that Kassenborg was acting in the scope of his employment with (SBC) when the incident occurred, (SBC) was negligent, (SBC)'s negligence caused Boyd harm, Boyd sustained damages, and Boyd and a movie producer had an economic relationship that probably would have resulted in an economic benefit to Boyd.

Second, Boyd contends: There was undisputed evidence that he entered into the agreement for $2.7 million...Syd Field, Boyd's film industry expert, testified that the agreement was reasonable. The minimum range of compensation for a single project, at least according to Gale, (SBC)'s film industry expert, was $60,000. Based on these facts, a damage assessment of $60,000 is clearly not supported by the evidence...

Instead of providing a fair statement of the facts and a discussion of all the evidence, Boyd's appellate briefs focuses only on the evidence he deems favorable to his position. He omitted any reference in his briefs to the necessity of getting approvals from the fund managers and the completion bond company in order to secure funding, the January 2001 e-mail (the wording of which suggested that the parties had not agreed to a contract), and his equivocations on the stand about the meaning of the January 2001 e-mail. One-sided record citations are at cross-purposes with the appellate process, which has justice as its utmost aim and strives for fairness and efficiency...

The finding of $60,000 in damages fell within the reasonable range permitted by the evidence. It is inferable that the jury found that Boyd did not have a contract with Aurora Media, but decided that Boyd should be compensated for the money he spent researching and preparing his projects. In other words, the jury assessed damages for out of pocket losses (the first measure of damages in the jury instructions), but not lost profits (the second measure of damages in the jury instructions)...

The punitive damages are reversed. In all other respects, the judgment is affirmed. (SBC) shall recover its costs on appeal.

See more CNET content tagged:
SBC Communications Inc., Police Blotter, damage, technician, AT&T Corp.

34 comments

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Backups, people. Not lawsuits.
Yes, the technician was probably negligent in deleting the files, but the user is ultimately responsible for their own data. A DSL tech is there to install a service, not clean up a PC. I would venture to guess that probably 95% of DSL techs aren't qualified to do PC repair or even "clean up" work anyway. Now it becomes clear why SBC invested so heavily in the "Self-Install" kits for DSL.
Posted by thenet411 (415 comments )
Reply Link Flag
So Why?
Then why did the tech delete the guy's icons and files? Shouldn't he have asked first?

I feel sorry for this guy who lost his work. Whether he would have made money or not - the fact is that it was his work that was lost. I have tons of creations that may not be worth 1c to anyone else - but to me (who has spent hours on end creating them) they are priceless. (Although I do back them up from time to time.)
Posted by wiley14 (39 comments )
Link Flag
So Why?
Then why did the tech delete the guy's icons and files? Shouldn't he have asked first?

I feel sorry for this guy who lost his work. Whether he would have made money or not - the fact is that it was his work that was lost. I have tons of creations that may not be worth 1c to anyone else - but to me (who has spent hours on end creating them) they are priceless. (Although I do back them up from time to time.)
Posted by wiley14 (39 comments )
Link Flag
No backups?
If this writer's ONLY copy of the screenplays was the one on his hard disk, it was only a matter of time before he lost it due to a hard disk crash (or his own accidental deletion). The SBC tech only hastened the inevitable. Case dismissed because plaintiff failed to mitigate his own damages.
Posted by td1138 (42 comments )
Reply Link Flag
backups
wait.. so since he didn't have a backup the guy deleting his files means nothing..?

hmm.. sorry i only have one car.. it's unfortunate that i didn't have a backup car.
Posted by djpaisley (80 comments )
Reply Link Flag
backups
wait.. so since he didn't have a backup the guy deleting his files means nothing..?

hmm.. sorry i only have one car.. it's unfortunate that i didn't have a backup car.
Posted by djpaisley (80 comments )
Reply Link Flag
backups
wait.. so since he didn't have a backup the guy deleting his files means nothing..?

hmm.. sorry i only have one car.. it's unfortunate that i didn't have a backup car.
Posted by djpaisley (80 comments )
Reply Link Flag
Well...
The tech got fired. What more do you want?

Also, cars are replaceable. Original IP is not.
Posted by Neo Con (428 comments )
Link Flag
I Agree
My family has just under 600Gigs of home movies and digital photograhs on my main computer. I typically backup my work across to the computers in my son's and daughter's bedrooms, but they only have a combined 80Gigs - most of which is used for their own stuff (games, archived cd's and movies, etc.).

So by and large, short of getting some 900Gigs of storage somewhere, most of the stuff on my computer remains unbacked up. It is of not value to someone else, but It is priceless to us.

If someone came and zapped that and then said, it was inevitable and my fault, I'd throw them off the balcony and tell them that that was inevitable from the minute they hit the delete button.
Posted by Flytrap (82 comments )
Link Flag
yes, backups
Well I at least hope you have a backup for your car. It's called insurance. If someone accidentally smashes your car and you don't have insurance, people's response to your story will seem as unsympathetic as this story.

Accidents happen. People in business lose important data every day because they save it in their profile and dont' back it up to network drives like their IT folks tell them to.
Posted by nmcphers (261 comments )
Link Flag
but you do have a back up for your car.
You do have a way to get where you need to go with out your car, be it friends, family or public transit.

It doesn't take much to pop in a blank CD or floppy disk and coppy and paste.
Posted by Bob Brinkman (556 comments )
Link Flag
600GB's should be important
That's not really a good argument. If you have 600 GB's of stuff that's so important to you, then it should be important enough to you to go buy a backup device. If you purhcased that much storage already, then it shouldn't be that big a deal to duplicate that.

Personal responsibility needs to the name of the game with computers, if you can't be responsible for your own data, then you get whatever happens to you.
Posted by DJ-Panic (14 comments )
Reply Link Flag
Agreed
Where I work, we tell our clients that their data is their responsibility. There is no excuse for losing your data. If a technician deletes someone's data, they'll of course get in trouble for it, but it's not their fault that the data is lost.

Here's a good analogy -- Your children are important to you. Do you let your kid run in the street in heavy traffic, and then blame the driver that hits your kid for your neglect? No? Then why would you do the same for anything else that was "priceless?"

Blaming other people for issues you could have avoided is not the way to go. Take some responsibility and prevent these things from happening in the first place. If you can't afford to or don't want to back up your data, don't put it on a computer.
Posted by orbiter5 (4 comments )
Link Flag
Umm try hard drive recovery software?
If people are able to get data from hard dirves that have been under water in flodded areas for weeks, surely they can recover this data.

Kieran Mullen
Posted by kieranmullen (1070 comments )
Reply Link Flag
You should try READING
It clearly states in the article that the idiot had used his computer for months and over 4000 new files had been written to his hard drive since the deletion. Had he stopped using the computer immediately, he probably would have been able to recover the data. But, once it has been written over by other files, it becomes much more difficult.
Posted by thenet411 (415 comments )
Link Flag
If his hard drive crashed, can he sue the maker?
I don't think so. So why does the moron get to sue SBC for deleting his files? Sounds to me that he's only after the money.
Posted by bobby_brady (765 comments )
Reply Link Flag
THE BOTTOM LINE
The bottom line is that its HIS responcibility to back up his drive. Use a free service like mozy that backs up your important files online for FREE.

So check it out: <a class="jive-link-external" href="http://www.infoblog.us/2006/07/mozycom-ups-ante-in-low-cost-backup.html" target="_newWindow">http://www.infoblog.us/2006/07/mozycom-ups-ante-in-low-cost-backup.html</a>
Posted by zxocuteboy (45 comments )
Reply Link Flag
Mozy?
and how many people have heard of services like Mozy? I haven't!
Posted by jatos (55 comments )
Link Flag
never let them touch your PC
Letting technicians for these kinds of services do anything to your PC is a bad idea. It's too bad this guy lost data. It's too bad he did stuff that overwrote his then-deleted bits onthe hard drive before recovering it. There's a lesson for many people in this.

If you can afford the space, get an old cheapo computer to hook up for the techs to mess with for this kind of thing. After they leave, then bring out the good computer and use that. Don't install their software if you don't have to, and in most cases you do not have to. Avoid their mangled versions of internet explorer like the plague. Avoid toolbars and other utilities on the service install CDs when possible.

If your stock clean, unmolested "good PC" doesn't work directly, check your Windows user manual or router manual on how to get networking started if you're trying to hook up to an ISP/DSL/cablemodem. Get the smart kid down the street to help if needed, but don't install any service providers' software unless nothing built into Windows by MS can be made to work.

One trick is to ask customer support if Linux can work with their service. If they say "yes", then you don't need ANYTHING on that CD they gave you and it belongs in the trash, as your Windows PC will work quite well without it on that service. Sometimes they refuse to answer or don't know, which isn't useful, but I prefer to try anyway before letting some unknown CD taint my computer with junk I don't want or which screws with system settings, home page settings, and stuff like that.

If for some reason their proprietary software on that icky CD is required to use the service, then I'd recommend looking at their competitors that might allow a cleaner system to use their service.

And NEVER let those techs delete anything without asking you what it is and for your explicit permission to do so first. I don't give a rat's hairy butt if it's not used or not necessary. If I don't want it there, I'll delete it my own darn self, thank you very much. If I'm too lazy to do so myself, then I'm quite happy to leave it where it is.

And yes, backups are very important to do, especially when you know a tech is coming and wants to molest your PC with new software, deleting stuff, and whatever else they do in there.
Posted by amigabill (93 comments )
Reply Link Flag
Whole thing is messed up
From the postings todate everyone seems to be tech savvy if not outright computer professionals in one form or another, not everyone is there.

It really dose not matter if he had a backup of his files or not, when the tech removed the files from his hdd the files them self were not in jepordy.

Like a car when it starts makeing noise, you stop useing it until its checked out.

He foolishly continued useing the computer causeing more damage to his files. (his fault)

I think the court was far far more generous than I would have been because of his continued use of the machine when he knew his files were in a state of high risk.
Posted by reustle (37 comments )
Reply Link Flag
automatic back ups
The case seems to have been resolved successfully with a penny for the plaintiff. Back ups for content unavailable to the judge's naked eye need to be automatic on at least a tandem drive. All parts of a computer need to be external, octopus like extending from plugs on a surge protected multiplug and running UNIX or at worst freeBSD.
:) :) :)
Posted by FisherKingKQJ (59 comments )
Reply Link Flag
Its all very well to say "backup, backup, backup"
It alls very well to say backup, backup, backup.

For a lot of people, backing things up properly is a pain is the neck. Myself, I can't afford storage that its big enough to hold everything I need to backup. I just have to stick with backing up the stuff that is of most importance to me.

For your average user, they haven't heard all the geeks ranting about backup, backup, backup and probably don't how to make best use of backup facilities.

Maybe you lot should start ranting about vendors who don't provide sufficient backup facilities to their users, and don't provide with information the importance of backup and how users can effectively back their data.
Posted by jatos (55 comments )
Reply Link Flag
Not to mention
That even if he had backed up, the SBC technician was NOT in any place to delete those files. Maybe if they were shortcuts (.lnk files), but someone coming in and installing a DSL line has NO right to delete ANYTHING on your computer, unless you ask him, so this should never have happend in the first place.
Posted by Bobbias (55 comments )
Link Flag
 

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