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[IP] Microsoft responds to Cringely article



If anyone wants his email address I will attempt to be responsive.

Dave

Date: Sat, 13 Sep 2003 06:00:01 -0700
From: Rich Lappenbusch
Subject: Microsoft responds to Cringely article
To: Dave Farber <dave@xxxxxxxxxx>


Dave - you know I let most of the Microsoft bashing that goes on pass by but this one was just too much -- and way off base. I felt compelled to respond to it because a few others were starting to take it seriously. Please do not include my email or phone # in the posting.

regards,

rich




________________________________


In response to the "Stupid Microsoft Tricks" article by Robert Cringely that was forwarded to the list last week, I'm taking the somewhat unusual action of commenting on ongoing litigation (Burst.com v. Microsoft). I'm doing so because I feel strongly that you all deserve to have some view of the other side of this dispute, with the hope that you will not accept Burst's allegations that Cringely repeats at face value. And yes, I did have this reviewed by counsel -- please pardon the precise language.



Not only is the central premise of Cringely's column wrong, but he also includes additional inaccuracies that create a misleading account of Microsoft and our participation in the discovery process of a patent infringement case with Burst.com. This is especially unfair given that we have been completely forthcoming in all document requests, have provided mountains of documents, and will continue to cooperate fully in the discovery process. Burst's and Cringely's focus on this hearing also obscures the fact that Burst's case is without merit and the technology at issue in this proceeding is based on Microsoft's own work and innovation.



As a large company, Microsoft expects a high level of scrutiny of its business practices, its relationships with its partners and others in the industry, and its approach to its customers. We accept this scrutiny and in many ways it motivates us to be a more responsible industry leader and a better partner. We also expect direct and harsh criticism from time to time. This is also part of being an industry leader. However, we do take particular exception when such criticism is off base and creates a perception that is wildly inaccurate.



Such is the case with Cringely's column which mischaracterizes a recent court hearing in the Burst.com v. Microsoft case. (Cringely inexplicably claims this was the first public hearing in the case, which is simply false.) The myth Cringely tries to create is that Microsoft is somehow hiding evidence relevant to the case. This accusation is just wrong. The facts show that Microsoft has been forthcoming in providing evidence. We have cooperated, and will continue to cooperate, with the Court and the parties in the discovery process of this case.



It's unfortunate that Cringely did not check with Microsoft on any of the facts related to this proceeding or cross-check his understanding of what transpired before posting an article that grossly distorts a routine discovery dispute before the US District Court for Maryland. He echoes Burst's fundamental premise in this particular proceeding - that there are emails from a particular period of time that Microsoft has deliberately withheld or improperly destroyed. This premise is simply wrong and unfair considering the great lengths to which Microsoft has gone to cooperate fully throughout this process. Here are the facts.



The parties appeared in court on August 26th to discuss a type of issue that often arises during pretrial discovery - to what lengths a party in litigation must go in order to look for potentially relevant documents, even if the chance of finding nonredundant evidence through extraordinary efforts is slim. In this case, Microsoft had already provided over 300,000 pages of documents from more than 60 employees' files that are responsive to Burst's broad discovery requests. (Cringely's claim that Microsoft produced "literally no" Burst-related e-mail for a supposedly key 35-week period is completely false. Even Burst's attorneys have never made that claim. There was no "en masse ... erasure" as Cringely claims.)



Burst, however, had in its files some e-mails that were sent between the two companies that were not still in Microsoft's files. This is not surprising. It is, of course, common in litigation between two corporations that one company has copies of communications that the other has not retained, and in fact, Microsoft explained why it believes this occurred in this instance. Among other reasons, the Microsoft employee who was Burst's principal contact at Microsoft left the company about 20 months before the lawsuit was filed. Not knowing that Burst would file a lawsuit - and believing, as it does today, that there is no basis for one - that employee's Microsoft-issued computer was returned to the company and reformatted for future use, in the process deleting any e-mails he had saved, including any between him and the Burst executives. Some of his e-mails have still been produced because they were sent to others who remain at the company. As for Burst's speculation that the discussions with Burst must have generated substantial documentation, it is just that - speculation. The fact that the parties never entered into any deal or even got into negotiations about one casts further doubt on their claim.



The issue before the Court was whether Microsoft should have to go to a very complex and time-consuming process of restoring and searching backup server tapes to look for this and other materials - when the only additional material known to exist is what Burst already has in its files. As the court stated at the conclusion of the hearing, this is an issue that many corporations will increasingly face in litigation in the electronic age. In any event, Microsoft is following up on the Court's direction and will then report back to the court.



Cringely also claims that "the other Burst complaint about discovery" is that we are somehow withholding some messages improperly as privileged attorney-client communications, and he compares Microsoft to the tobacco industry. This accusation strikes us as curious because nothing about Microsoft's (or Burst's) claims to attorney-client privilege was ever mentioned at the hearing or in the court papers filed beforehand, and in fact, we are not aware of any complaints that Burst or its counsel have made in that regard. If there are concerns, we are sure that Burst would raise them to us directly.



Microsoft routinely meets with hundreds of companies that wish to license us technology. Burst was one of many companies we met with and they offered to license their technology to us. We evaluated Burst's proposal like we would any other - carefully, under appropriate agreements, and following very conservative business practices. As you can imagine, we never want to be in a position to even appear to have misappropriated someone else's technology. In this case, we determined that their offer for their technology and for their IP was not something we wanted to accept, so we declined. This is routine for any technology company.



As Cringely acknowledges, the merits of Burst's patent infringement claims have not in any respect been addressed by the Court. Burst contends that some versions of Windows Media Player make use of technology that was developed by Burst. We look forward to presenting to the Court the real facts in this matter - Microsoft has innovated with digital media and networking technologies in Windows for more than 10 years. The fast streaming technology in Microsoft's Windows Media 9 series is an example of work by Microsoft to deliver an even more compelling streaming media experience to users. Burst's claims are without merit and the technology at issue in this court proceeding is based on Microsoft's own work and innovation.



So you wonder if we've done, as Cringely alleges, "stupid tricks". We'll let other be the judge of that. But all companies that run their business by email will have a burden in legal proceedings. We've produced literally millions and millions of pages of emails and other MS documents over the past few years in litigation. We have lawyers and paralegals that do nothing but transfer Microsoft documents from Microsoft to adversaries in litigation. This is just a fact of life given our market position.



We will continue to fully cooperate with the pretrial discovery process and look forward to providing our side of the story and vigorously defending ourselves against these baseless charges in court. We will also continue to respond to extraordinary stories that create a wrong and/or unfair impression of our participation in this process.



I want to openly thank you Dave for providing an opportunity to set the story straight on this topic.



regards,



rich





________________________________________________________________________________________

Richard W. Lappenbusch

Director of Strategic Planning

Windows Client

Microsoft Corporation











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