Date: Sun, 14 Sep 2003 12:25:12 -0400 From: Peter Sahlstrom <peter@xxxxxxxxxxxxx> Subject: Cringely responds to "Microsoft responds to Cringely" article To: dave@xxxxxxxxxx X Dave,I forwarded Rich Lappenbusch's "Microsoft responds to Cringely article" message to Robert Cringely yesterday. He was kind enough to provide a rebuttal (attached below), and to include a copy of the courtroom transcript of the motions hearing. The transcript is posted on my website at http://peter.stormlash.net/documents/8-26MICR.TXT. Having read the article in question, Lappenbusch's rebuttal, the courtroom transcript, and much of the other press on the issue, I now offer my own perceptions on the article, and on the case:As I read Lappenbusch's letter, I see five primary points against the Cringely article, along with assorted semi-relevant material (which includes discussion of Microsoft's pressures as a large company, their perceived unfairness of Cringely's article, and criticism of Cringely's methods).Point 1 (paragraph 4): "Cringely inexplicably claims that [the court hearing] was the first public hearing in the case, which is simply false". Cringely states in his original article, "This was, to the best of my knowledge, the first public hearing in the case". I do not have the resources to determine who is accurate; but given that Cringely offers this as being "to the best of [his] knowledge", it's understandable that this could be in error. In any case, whether or not this is the first public hearing is not particularly relevant to the rest of Cringely's (or Lappenbusch's) arguments.Point 2 (paragraph 5): Lappenbuch criticizes Cringely for not verifying his facts. According to Cringely's attached response, Microsoft was given an opportunity to respond, but did not. If Microsoft had responded promptly, perhaps their complaints could have been straightened out prior to publication, as opposed to now, 2.5 weeks after the article's publication. In any case, saying "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..." is not really fair, or accurate.Point 3 (paragraphs 5-6): Microsoft did not deliberately withhold or improperly destroy e-mails. This is just an echo of the courtroom issue, so I won't spend much time on it: refer to the transcript to see the merits of either side. But here's the issue as I see it. In the transcript, Burst claims that there is a conspicuous amount of e-mail missing (both in the form of messages that Burst possesses, but that Microsoft did not provide; and in messages that *should* have triggered a large Microsoft response, but didn't). Microsoft says that they already provided plenty of information, that the process of attempting to recover messages will take too long, and that, if messages were archived on a particular server (against Microsoft's instructions to employees on archiving e-mails), they won't be recoverable, anyway. As I see it, the potential importance of these messages is enough to warrant a search of the backup tapes. Whether or not the messages will be recoverable is a different matter, but one thing is clear: given that Microsoft has received requests previously for messages to be retrieved from the backups, it seems as though it would behoove them to develop a more efficient backup catalogue. If a non-profit organization like the Internet Archive can archive over 300 terabytes of information while still keeping it searchable over the web, it would seem as though the world's largest software company could at least make it through their backup archive in less than one million man-hours.Point 4 (paragraph 6): "Cringely's claim that Microsoft produced 'literally no' Burst-related e-mail for a supposedly key 35-week period is completely false". I have no means to verify or dispute Cringely's statement on this: according to Cringely's message below, the 35 week figure comes from Burst's legal brief (which I have not seen). So I will refrain from judgment on this issue.Point 5 (paragraph 9): Lappenbusch criticizes Cringely's claim that Microsoft is withholding information as "privileged attorney-client communications", saying that "nothing about Microsoft's claims to attorney-client privilege was ever mentioned at the hearing or in the court papers filed beforehand". Given that Cringely states that "It never got around to the other Burst complaint about discovery, that Microsoft was withholding some messages as privileged attorney-client communications", this shouldn't be surprising.So, in summary: There may be errors in Cringely's article (or, there may not be), but in spite of this uncertainty, I think it makes some very strong points. Moreover, despite its length, and its strong criticisms, Lappenbusch's response is surprisingly scarce on facts, and strikes me as more of a press release than a rebuttal.Anyway, here's Robert Cringely's response: -Peter Sahlstrom peter@xxxxxxxxxxxxx http://peter.stormlash.net Begin forwarded message:From: "Robert X. Cringely" <bob@xxxxxxxxxxxx> Date: Sat Sep 13, 2003 21:36:34 US/Eastern To: Peter Sahlstrom <peter@xxxxxxxxxxxxx> Subject: Re: [IP] Microsoft responds to Cringely article Thanks for sending that to me, Peter, I hadn't seen it. I did contact Microsoft for the column but they were not only unable to respond in my time frame (that is, 48 hours) but were unable to even tell me who would respond. I have still heard nothing. My column was based on the attached hearing transcript and Burst's legal brief, which explained the 35 weeks of missing data. All parties had read both Burst's and Microsoft's briefs so they were considered part of the proceedings. Most companies have had in the past a policy of deleting e-mail after a certain amount of time, say six months to three years. Microsoft's policy has been to leave this up to the individual employee. At most companies, if 70+ e-mails are missing from the time period prior to scheduled erasure, it is suspicious. Selective erasure is not supposed to be allowed. But Microsoft's policy of letting the employee decide allows selective erasure and I guess that is okay UNLESS the erasure is specifically to hide damaging evidence. Even individuals are not supposed to hide damaging evidence, but Microsoft's defense here is that what was erased wasn't damaging. Frankly, I am having a hard time understanding how this erasure could even have taken place as described. You have six key employees and five of them remain at Microsoft. Those six employees sent e-mails back and forth about Burst, about Burst's technology, and about customer interest in Burst's technology. But for some reason the six employees sent no e-mails about Burst from a period a week before to a month after all seven meetings between the two companies. There is not even an "Are you going to be at the Burst meeting on Thursday?" message. We know that there were e-mail messages during these time periods because 70 of them were to or from Burst. Now the court is being asked to believe that five employees decided COMPLETELY AS INDIVIDUALS AND WITH NO CONSULTATION WITH ANYONE ELSE to delete exactly the same e-mails. What kind of coincidence is that? If we assume that there are more than 70 messages involved, which I think is fair, what are the chances of five (remember one guy left the company) Microsoft people choosing to delete exactly the same e-mails both from their PCs and from the mail servers? I think the odds are very low. Some statistician please figure it out. Now it would be easy to explain this by saying, "Well they usually delete messages about meetings with other IP owners." That sounds innocent but what it reveals is a policy that is in conflict with Microsoft's stated "leave it up the individual employee." Leaving it up to the individual department or work group, for example, is not legal. You can't have it both ways. So how do they explain it? Pure chance. If you read the transcript you'll also see that Microsoft's lawyers claim searching the backup tapes would require one million man-hours, which they see as burdensome. Can Microsoft, which prides itself on being so filled with gray matter, not find a better way to search its backup tapes? Given that they have had to do this for the DoJ, FTC, Be, Sun, Burst, and AOL, you'd think they would apply just a few hundred man-hours to solving what should be an easy problem. Why don't they do that? You decide. All the best, Bob PS -- Feel free to share this with anyone you like.
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