[IP] Can There Be Some Psychological Basis to Microsoft Court Behavior?
Begin forwarded message:
From: Barry Ritholtz <ritholtz@xxxxxxxxxxxxx>
Date: June 18, 2004 7:26:49 AM EDT
To: Dave Farber <dave@xxxxxxxxxx>
Subject: Can There Be Some Psychological Basis to Microsoft Court
Behavior?
Hey Dave,
Bob Cringely throws down the gauntlet, accusing Microsoft's of
psychotic behavior. "Interesting People" gets brought into this via a
(disingenuous) letter you published from a Microsoft attorney, which
Bob references.
His article speaks for itself:
June 17, 2004
Clueless in Seattle
Can There Be Some Psychological Basis to Microsoft Court Behavior?
By Robert X. Cringely
http://www.pbs.org/cringely/pulpit/pulpit20040617.html
Burst v. Microsoft
The recent hearing transcript.
(http://www.pbs.org/cringely/pulpit/hearing_transcript.pdf)
Burst v. Microsoft
The first Burst e-mail brief.
(http://www.pbs.org/cringely/pulpit/brief_one.pdf)
Burst v. Microsoft
Burst's reaction to Microsoft's response.
(http://www.pbs.org/cringely/pulpit/brief_two.pdf)
A Microsoft Lawyer Responds
A Microsoft lawyer responds to my original Burst article. Viewed in
today's light, who is right?
(http://www.interesting-people.org/archives/interesting-people/200309/
msg00116.html)
>snip<
This is all preamble to my attempt at understanding three documents
you'll also find in this week's links. They are two legal briefs and
the transcript of a recent hearing in the Burst v. Microsoft case I
have written about before. The hearing took place a couple weeks ago,
and at that time, the mainstream press noticed for a moment that
Microsoft was being accused of deliberately destroying e-mails that
probably should have been retained as part of ongoing litigation. There
were some dark suggestions that this behavior, if true, could have
impact on other anti-Microsoft cases, but then of course, the story
just faded away.
Read the documents, please, and tell me what you think.
Here is a company that prides itself on both its technology and its
corporate discipline, saying that its policy on whether to archive
e-mails dates from either 1994, 1996, 1997, 2000, or 2003, they aren't
sure which. The apparent decision to ban e-mail archiving was sold to
the troops as being "for legal reasons," but nobody can remember who
put that language in or when. Lawyers were consulted, but they don't
know which lawyers. Of course, you could put out a company-wide
bulletin asking for the appropriate lawyer or anyone familiar with the
decision to step forward, but they don't. Jim Allchin, the senior VP on
the spot, changes his story a number of times, two of them only a month
apart. Jim Allchin is not stupid.
So what's going on? Is Microsoft just plain incompetent? Are they
deliberately lying to the court? Do they simply not care? Or is this
just a lawyer billing frenzy?
Probably all of the above.
I have a friend who used to say, "All IBM stories are true," and I
think that adage can now be extended to Microsoft. What's obvious to me
is that Microsoft as a corporation sees itself above all this. Rules,
regulations, laws, and agreements are for the little people, not for
those whom history has shown are able to finesse the system. This
attitude isn't peculiar to Microsoft, it is an artifact of privilege.
Asking for consistency and compliance is apparently too much. A company
with 50,000 employees doesn't have enough labor available to track down
a few dozen backup tapes. A company with more than $40 billion in cash
feels burdened by what it sees as frivolous accusations by a little
company that won't die.
At PayPal a couple years ago, the company was plagued by a Russian
hacker who liked to both rifle PayPal accounts and gloat about it in
e-mails to the company. He claimed that he was unstoppable because even
if PayPal could take legal action against him in Russia, he had
accumulated a nest egg of sufficient size to bribe every Russian judge.
The guy would fit-in perfectly at Microsoft. No opponent, not even the
U.S. government, has more money than Microsoft to spend on these
issues, so Microsoft sees itself as immune to both criticism and
punishment.
The simple fact is there are different sets of rules for different sets
of people. This is nothing invented by Microsoft, they just play the
game better than most. In many ways, it is simply how big business is
done in this and many other countries. And we certainly can't count on
the mainstream media to bring these issues to light. They are much too
busy keeping track of Jennifer and Brad to notice anything that isn't
shoved repeatedly in their faces. That's why documents like those with
this week's column are so important. These documents were under a court
seal for months because Microsoft claimed making them public would have
hurt their competitive position. How . . . ?"
>snip<
By now, you should know all of my disclosures regarding this case . . .
Burst S/H, on the BoD, etc.
Regards,
Barry L. Ritholtz
Market Strategist
Maxim Group
britholtz@xxxxxxxxxxxx
(212) 895-3614
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