Pretty sure as long as the replacement part is of the same or better quality then it is fine. I don't think the CGA covers your data so they repair agent does not have any obligation to transfer your data.
When I worked for a repair agent (wont name) the service form noted in bold that in all repair cases we would not transfer or backup the users data.
On the Apple side of things if you have an iPod touch for example and it dies within warranty you will receive a full replacement unit, the replacement might be either a new or refurbished unit. Either way the serial numbers on service replacements are very different than brand new boxed units.
Unfortunately I didn't take a note of the failed drive model other than it was Hitachi.
I'm pleased the Retailer replaced the drive and cloned the data without argument so I won't be taking it back to complain that it’s slower. I believe they have fulfilled their obligations.
Reduced performance is difficult thing to quantify without the model of the original drive or benchmarks to prove the point.
Replacement drive has passed WD diagnostics so all good. It’s still covered under the CGA anyway for a “reasonable amount of time”.
It’s very unlikely that’s its new. How many retail stores do you know that would have a drive hanging around for more than two years?
They would try to cycle their stock so that they don't end up with a drive that has little or no manufactures warranty.
Just a guess, but I suspect what’s happened is they have had a quake damaged machine in that was replaced under insurance which didn’t have a damaged drive.
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