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Dwayne B.
Dwayne B., Lawyer
Category: Consumer Protection Law
Satisfied Customers: 33761
Experience:  Practicing for over 20 years and handled many cases and trials for consumers.
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I am a PhD candidate in the middle of my dissertation, I

Customer Question

I am a PhD candidate in the middle of my dissertation, I have been school since December 2013. I had a computer problem 3 weeks ago and took my computer to a computer to have it fixed, the store fixed the problem. The store technician placed all of my school files and other desktop documents and combined them into one folder on my desktop. I was happy with this. The technician also installed another version of Windows OS on my computer and I was happy with that.
Approximately 2 weeks after that occurred, Microsoft Corporation detected online that I did not have the latest version of Windows and did an automatic update to my computer, I did not want a new Windows OS because it could be problematic, but the update occurred anyway. The subsequent update erased my files from my computer. I noticed on 12 June 2016 that my files were gone. I called the computer store that did the repair to ask them if they could recover the files, they said no, the files were lost and that is a problem with the Microsoft software.
I immediately called Microsoft and 2 separate technicians at different times today remotely searched my computer and the final search, the technician apologized to me profusely and said the files are lost forever, He also stated that the Microsoft system has a glitch in it and that is a problem. I have 3 years of research work lost into outer space, do I have a claim against Microsoft?
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  Dwayne B. replied 1 year ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

Before I ask questions about your situation, I need to make sure that you understand how the website and rating system works.

Many times in software law situations, and particularly in Texas, the law is not in favor of the purchaser/user. When that happens we have to give the person asking the question bad news. It's true, but sometimes it's not in their favor.

On this website the customer rates us experts at the end of the question and answer and every now and then a customer is unhappy about the law and gives a negative rating. Unfortunately, that negative rating is taken by the website to be a reflection on me, indicating that I wasn't polite, wasn't prompt, or provided a wrong answer.

I'm more than happy to discuss this with you, but I just wanted to make sure that you understood how the system works and that you will rate me on my professionalism and not on whether the law is in your favor or not, since I have no control over that.

With that understanding, do you want me to discuss this in more detail with you?

Customer: replied 1 year ago.
I understand, I am not asking you to be the judge, I just want to know if the negligence of Microsoft system caused intellectual injury to me?
Customer: replied 1 year ago.
I would like to discuss this situation further, is there something else I am supposed to do?
Expert:  Dwayne B. replied 1 year ago.

I think that there is little doubt MS caused you injury, the question becomes whether or not you can sue them.

Most software, and Microsoft even more than most, have disclaimer, waiver, and express warranties with their products. It usually is on the packaging, on a sticky paper that holds the envelope containing the software shut, on the website, and on click throughs you have to go through to use the software (occasionally).

The language has varied over the years but every one I have seen has stated that Microsoft's responsibility is only to the extent of the value of the software (I think that was the limitation, but it is a minimal amount however they phrase it).

I am working on your answer, it takes a while to post it all though, please be patient.

I'll continue below.

Customer: replied 1 year ago.
I did not purchase the software that caused the injury, they forced it on my system when I did not even want it, that is the problem. My system was working fine until they literally automatically did an update against my will.
Expert:  Dwayne B. replied 1 year ago.

In your case there may be exceptions. The message you got through your computer actually sounds like a scam one that is going around. If that is what happened then Microsoft isn't going to be responsible at all, but you would have to have an expert examine the computer to see if it is a scam or if it really was Microsoft.

In addition, you may also have a cause of action against the company that worked on your computer, depending on exactly what they did.

To know what happened and who is responsible you are going to have to have an expert examine the computer.

I understand you didn't purchase the update, but you did purchase, in one way or another, the original MS product and the disclaimers cover any updates to that product.

The first thing to do is see if you can find the envelope or packaging that the MS product originally came in. If you bought the computer as a package with the MS product already on it then the documentation should have been in the box.

Expert:  Dwayne B. replied 1 year ago.

Regardless, at some point you will have to get an expert to find out what happened. If you sue the burden will be on you to prove that the update caused the problem.

You will also want the expert to go back through your browser history to see if the original notice from Microsoft was actually from them. As I said, there is a scam purporting to be a MS technician and who is saying the same things you indicated you were told.

Expert:  Dwayne B. replied 1 year ago.

You can also get the documentation and then go see a local lawyer who does Consumer Law or Civil Litigation and ask them to look the papers over and see what the disclaimer and warranty does and what limits it places.

Expert:  Dwayne B. replied 1 year ago.

The same lawyer can also help you find an expert who is both knowledgeable and who will present well to a judge or jury.

Customer: replied 1 year ago.
Okay, I don't think you understood me.My computer store technician installed a version of Microsoft Office after my computer was repaired. The computer was working perfectly. Microsoft system detects if you are not using the latest version of their software and literally forces updates to the system, it was not or is not a scam, it was Microsoft that did the update, the Microsoft technician already validated that to me. The Microsoft OS that I purchased was done through the computer store technician that fixed my computer, hat is not the problem, they problem is, the forced update from Microsoft erased my data
Expert:  Dwayne B. replied 1 year ago.

I a familiar with Microsoft and there is also a scam that does the exact same thing. If you are 100% sure that Microsoft was the one that did everything then you certainly don't have to pursue that line but I have seen the screens from the scam and they look exactly like MS screens. After you have them do the work to update the computer then it starts having problems and then they contact you again a few weeks later offering to fix it for additional funds. You can Google this and you'll find reports about it.

However, since you are sure it is MS we will just put that aside. The issue then revolves entirely around whether MS gave an express warranty and an express limitation as to what they would be responsible for and then an issue as to whether or not you accepted this arrangement.

You will have to find the paperwork to know what your specific disclaimer says and you will still, at some point, have to have an expert who can prove that the MS update is what si causing your problem.

The temporal relationship between the update and your problem is some evidence that the update cause it but it is not sufficient to get a judgment on it. In addition, you can expect MS to use one of their people to testify that their product doesn't cause this issue. You then have to have an expert to oppose that testimony or the judge will dismiss your case since the burden of proof is on you.