Legal Position?

  griffo 00:11 27 Feb 2003

last week we had a hard drive problem (corrupted FAT I believe)and called in our suppliers engineer. He installed another drive leaving the problem drive as a slave. He then spent some time transferring a lot of important data. However, we had one large folder of client files, containing a lot of scanned documents (PDF's mainly). He said that as this was showing 4.5 hours transfer time, we should let him remove the drive and take it to their workshops to download and put onto CD to send to us, to save us paying for his time. We reluctantly agreed, mainly because he said they needed to check if it was a hardware problem and under warranty.

Over a week later, despite my requesting the return of the drive (as we shouldn't have released it under Data Protection Act rules), they still haven't sent it. Furthermore, they are stating we will have to pay for 5.5 hours labour for data retrieval. I feel they are holding us to ransom and that we have been misled.

I am sure that we could retrieve the data ourselves by replacing the drive as a slave and they know it. Unfortunately, one of our backup tapes has broken (right at the end) so we can't reinstate that way.

Can they legally hold onto our HDD and what if they wipe it so we can't retrieve any data?

Would very much appreciate help and advice.

Geoff Griffiths

  spuds 02:11 27 Feb 2003

All sorts of questions have to be answered here,and my advice here would be one of consult a solicitor for the correct legal advice.Many solicitors give free initial half hour legal advice sessions nowadays.These sort of problems always have two side to them, and would be difficult for the layman to give the required advice.You or the company you represent and the repair people have a contract for the repair of the computer.They now have in their possession a hard-drive with your clients information.The company are requesting payment for the 5.5 hours which they state is for extra work, and which you are disputing.You have the choice of paying up, perhaps suggesting a discount, or stating that you will take legal proceedings via the small claims court.Sorry that I cannot offer a more simpathetic approach, but those are the only avenues that I would suggest for consideration.

  MichelleC 08:19 27 Feb 2003

Data retrieval is a little bit like drainage clearing - they do little work for large returns. I once lost data on a Mac and was promised they'd get it back within 4 hours. 7 hours later they hadn't even started so I went to firm, got stroppy and took back puter and used software to retrieve.

If you give the firm lots of work you have some leverage, if not speak to someone high up and reason with them. i think the legal route is going to be too time consuming as this is a nebulous area in legal terms.

  jazzypop 10:01 27 Feb 2003

You will have a contract with the company, that contains terms and conditions.

This is the document that defines what they (and you) can 'legally' do, as it is a legally binding document (within civil law, and providing there are not unfair or illegal terms and conditions within it that might be 'over-ruled' by other legislation - highly unlikely nowadays).

You will have to look to that contract for advice. Interpretation of the document may require further professional advice.

As a general point, it is your responsibility to make adequate provision for the safe-keeping of your data, and the responsibility of the maintenance company to keep your hardware working satisfactorily, either by repair or replacement.

My advice is given from an absolutely non-legal perspective - just somebody who has to deal with the consequences of the actions of suppliers and agents on a fairly frequent basis.

  bfoc 10:06 27 Feb 2003

From a non expert, in no particular order:

1. They would be on very dodgy (expensive) gounds if they 'wiped' any of your data. They owe a duty of care to you as a customer.

2. The key point, I believe, would be what was actually agreed when the drive was taken away and what proof there may be of that agreement. In essence did the engineer give a quote in writing or in front of witnesses. Was anything at all put in writing?

3. Does the charge for 5.5 hours labour include the time spent on-site as well as the data recovery time off-site?

4. Have you been sent the CD(s)?

5. How many CD's will be needed for data that would take 4.5 hours to transfer between hard drives and how long would that take! That does not make sense to me!

I wonder if there has been some fundamental misunderstanding here. I would strongly suggest that you:

1. Contact the most senior person in the company you can by phone and/or fax.

2. Explain that you are sure there is some major confusion between yourselves and them.

3. That you will be happy to pay for any genuine work done, once you are clear what has been done and why.

4. That as a gesture of good faith you will pay an amount to them, on account, whilst this matter is resolved providing that

5. They replace the drive as a matter of urgency.

Ultimately you could take them to court to demand the return of your hard drive, but trying to resolve it as above would be much, much quicker.

I would not dispute anything you are saying at all, but often a lack of clear communication at some point (perhaps by the engineer) leads to major complications.

Basically the service company might be saying 'we spent hours sorting that disk out and now they won't pay', whereas you are thinking 'this was meant to save us money not cost more'.

I suppose the key lesson here is that one must always make clear what basis materials are being entrusted to a service company, what work is going to be carried out and exactly how much it will cost, or at least that they get approval for spending more than X amount!

If there are no clear records of what was agreed then neither of you is in a strong position and will really need to negotiate a solution. Do check carefully any contracts or paper work you have been given by the service company. You may just find that in giving them the drive you agree to pay any costs incurred!

Hope this works out

  griffo 13:07 27 Feb 2003

Many thanks to all for your assistance


  oresome 15:28 27 Feb 2003

From a practical perspective, you need your data back, so I would agree to pay under protest.

There seems to be little trust between the two companies. If you can't come to some amicable agreement over this issue, find another supplier and cultivate the relationship.

  Forum Editor 19:04 27 Feb 2003

1. The files on the drive are your property. That's not strictly true, the information belongs to the people whose details are contained in the files, but for the purposes of this discussion it's yours. Under no circumstances whatsoever does this company have any claim on them (the files), or any right to delete them without your consent.

2. Without delay you should send them a special delivery letter, stating that the drive, and everything on it is your property, and that you expect it to be returned within 48 hours. Tell them that you parted with the drive at their engineer's suggestion, and tell them that he offered to transfer data to a CD. Say that you now require the return of the drive with the data intact, and that you have no intention of paying them to retrieve the data. Say that a failure to comply with this request will result in immediate and vigorous legal action to recover your property - refer to it as that.

3. If you do not get the drive back within the stated period you will either have to take legal action for its recovery, or forget the matter.

To be perfectly frank it might be said that you acted negligently in letting this engineer walk out with a drive containing clients' data, and I'm sure you feel bad enough without me rubbing your nose in it. I just hope that this all ends satisfactorily.

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