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