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.

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