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Microsoft ordered to look for deleted e-mails | |
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||
| Time: 11:19 EST/16:19 GMT | News Source: Seattle PI | Posted By: Brian Kvalheim | ||
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A U.S. judge has ordered Microsoft Corp. to search for any deleted e-mails that might help Burst.com Inc. win a lawsuit claiming its technique for broadcasting music and video on the Internet was stolen by the Redmond company. Burst shares have jumped almost 75 percent since the judge issued the edict Aug. 28 at a hearing in Baltimore where the software company's lawyer, Spencer Hosie, complained that there were "profound gaps" in the 140 boxes of e-mails that Microsoft turned over in pretrial proceedings. A transcript of the hearing obtained by Bloomberg News showed that U.S. District Judge J. Frederick Motz ordered Microsoft to search 25,000 backup computer tapes to determine whether they contain deleted e-mails pertinent to Burst's lawsuit. | ||
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| #1 By 7754 (216.160.8.41) at 9/10/2003 12:12:56 PM |
| I don't envy that restore task.... |
| #2 By 3339 (66.219.95.6) at 9/10/2003 1:16:34 PM |
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splinter seems like it would be very trivial to prove. For one:
"Hosie said company lawyers found 70 e-mails from Microsoft executives to Burst executives that weren't included in the material Microsoft provided." But we are also talking about 6 or 7 execs (Motz only ordered searches be conducted on the main 3) that met with Burst 7 times, but there is ZERO email relating to any meetings. Why would a company and technology be worth meeting 7 times over a span of two years but not generate a single email? |
| #3 By 7390 (198.246.16.251) at 9/10/2003 2:05:54 PM |
| Also there are gaps in time of the emails. During certain meeting periods emails seems to coincidentally missing. I am one of the biggest MS supports out there but it is stupid stuff like this that makes you wonder. Why didn’t they just buy them out when they had the chance? Why steal (if that is what they did) when you can own everything outright for a few shekels? |
| #4 By 135 (209.180.28.6) at 9/10/2003 2:41:47 PM |
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sodajerk - "Why would a company and technology be worth meeting 7 times over a span of two years but not generate a single email? "
Maybe they used the telephone? Should they be recording all conference calls as well? This use of internal email in lawsuits has taught most companies to take such discussions off the wire, either through telephones or personal meetings. |
| #5 By 135 (209.180.28.6) at 9/10/2003 2:56:08 PM |
|
Another thing. I don't know exactly what this company does or what technology they provide, but...
We're on the other end of things as a tech consumer, but we will oftentimes have a problem look at existing solutions and when we get to price negotiations be given some ridiculous figure because we're a "large company that can afford it". We then generally reject these quotes, and in some cases build the solution internally. I can imagine MS goes through a similar process. Smith Software comes to them and says "look at this cool thing we can do". MS goes "yeah it is cool, how much?" Smith Software says "$10 million". MS goes back, talks to developers who say they can build it themselves for $5 million... It seems to me like it's only theft if they took Smith Software's physical code and copied it into their software. If they just took the idea, that's maybe unfair but not illegal unless they had some sort of NDA. Oh wait, there are those damn software patents. But then jerky boy has been pretty consistent in not defending those. Oh well unless they're being used against MS. |
| #6 By 9589 (68.17.52.2) at 9/10/2003 3:58:01 PM |
| On the sue as a corporate business plan front, we have Burst. Here is a company who has never had a profitable product, quarter, year, anything. Doesn't that count for something in the mind of this dufus judge, Motz? Motz - its called a grift. Get a clue! |
| #7 By 3339 (66.219.95.6) at 9/10/2003 5:59:14 PM |
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They had an NDA and software patents. And MS did at least have a look at the code (I don't know if they "possessed" it). But they were working on a technolgy "partnership."
I have been on the side of both defending and decrying software patents if you recall correctly. "Maybe they used the telephone?" But they've already have been shown to have destroyed 70 emails that DO EXIST. That's MS's problem--they've already boldfacedly claimed that these emails never existed at all. Also, they have inundated Burst with extraneous and unimportant emails so there is plenty of reason to assume that Microsoft has continued its email culture. This post was edited by sodajerk on Wednesday, September 10, 2003 at 18:13. |
| #8 By 3339 (66.219.95.6) at 9/10/2003 6:12:29 PM |
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"I would be surprised if larger companies had not done something similair."
But I think this is actually becoming an important legal issue--if you destroy all email wholesale, and it can be determined that any of that email documented any crime you are exposing yourself to destruction of evidence charges -- a serious and difficult to dispute crime. So... you have one disgruntled worker who prints out an email or archives the file to a floppy, and you are fcked. With the history of email testimony and the number of legal cases MS is involved in, I think it would be very bad legal advice to MS to destroy all evidence. As is stated in the article, Motz may actually assume as fact some of Burst's arguments because the documents which provide evidence of the assumptions have been purposefully destroyed. |
| #9 By 7754 (216.160.8.41) at 9/10/2003 11:09:46 PM |
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Sodajerk--this is more a matter of what was requested by Burst's attorneys at discovery time. Most requests are for computer hard drive images, server storage, and emails--and the email discovery usually amounts to a .pst dump of the current account. There are also special protections for privileged and/or confidential items. So, it's entirely possible that the 70 emails did exist at one point, but weren't covered by the request.
As for extraneous and unimportant emails, that's for Burst to sort through. If they didn't want those, the burden would be upon them to either make a different request (narrowed by search terms, for example), or to sort out on their own. With ligitation support tools, this isn't really a big deal, anyhow. But you are right about this--if it was determined that they deliberately and wrongly removed incriminating email from the request, that's a serious issue. |
| #10 By 3339 (66.219.95.6) at 9/11/2003 12:38:55 PM |
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"There are also special protections for privileged and/or confidential items. So, it's entirely possible that the 70 emails did exist at one point, but weren't covered by the request."
Bluvg, don't act like you've got some special knowledge. Of course, the Burst attornies requested all email relating to their meetings, anything mentioning or addressed to Burst, etc... So of course, they had the right to discover the 70 emails which were sent to THEM. And, if MS sent the emails to BURST, how could they be CONFIDENTIAL or PRIVILEGED? As for the destruction, it could be excusable, but Microsoft made the huge mistake of claimign they DON't EXIST. When clearly Burst can demonstrate that is FALSE. |
| #11 By 7754 (216.160.8.41) at 9/11/2003 2:44:40 PM |
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You misunderstand, sodajerk--the discovery request of course would include all email relating to their meetings... but seldom are these requests inclusive of all tape backups. It seems apparent that request is being made now, though: "Motz ordered Microsoft to search 25,000 backup computer tapes...." Hosie is wise to the opportunity by making an implication that this may be a deliberate attempt, but it's possible that this was a hole in their discovery request.
As far as the special protections go, yes, the emails shared between them should not be covered. The internal emails may or may not be, though. |
| #12 By 3339 (66.219.95.6) at 9/11/2003 6:25:06 PM |
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And I think you are misinterpreting that statement. The discovery hasn't expanded. Microsoft simply failed to use the backups as the their source for delivering the emails in question. The search through the backups is still only in regards to the information requested -- communication by the executives involved with meeting with Burst relating to Burst and/or within the specified timeframe.
A discovery of this information would NEVER be legally limited to what happens to still exist in the users folders... It would certainly have included backups and any other storage from the very beginning. MS simply failed to do so and didn't adhere to the discovery order in good faith. The internal emails certainly will be included. The only thing that wouldn't would be information not-related to Burst... And even that may be discoverable -- leaving it up to the judge to censor information that may be sensitive to MS's current business. But anything and everything related to Burst is discoverable even if its internal email only. |
| #13 By 7754 (216.160.8.41) at 9/11/2003 8:39:22 PM |
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How do you know what the request was? I never said it was legally limited; Burst does have the right to include backups in the request. The question is whether or not it was in the discovery request. All I'm saying is that if backup tapes were not in the request, it's entirely reasonable that the evidence would not come up in the 140 boxes. If you have insider knowledge into the discovery request, then I can understand your point, but if not, you're stating speculation as fact ("the discovery hasn't expanded"). It seems more likely that it has expanded, since Motz is now ordering the search through the 25,000 backup tapes.
The request certainly should have included the backups, but that doesn't mean it does (in my electronic discovery experience, restore requests are infrequent at best). If you have knowledge otherwise and you aren't involved in the case, then let us know where you got that information. |
| #14 By 3339 (66.219.95.6) at 9/11/2003 9:00:04 PM |
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My experience with discovery is entirely opposite. The discovery simply called for emails with either recipients, subjects, or a date range. There was no need for specifying backups as it was implied. The backups were used to produce the discovery and there was no problem. Motz is ordering the search through backups because MS is lying. They claim no emails exist at all so they didn't have to bother to look at backups.
I have never seen anything like: we are requesting email files, but you can pull them from individual computers, and if they were trashed, no biggie... The servers and backups are always the source of the discovered material. It is never necessary to specify "from backups." This post was edited by sodajerk on Thursday, September 11, 2003 at 21:02. |
| #15 By 7754 (216.160.8.41) at 9/12/2003 12:49:15 AM |
| Sodajerk, I work for a law firm that deals in complex litigation, so I see this daily. This is entirely common: we want images of computers and/or servers made, relevant files and user directories pulled from servers, and email account dumps for so-and-so's account. Often, opposing council will request search terms. Often they request date ranges. Sometimes they'll even request that home computers be imaged. But most often, they do NOT request restores. Backup tapes are NOT implied, and it IS necessary to specify "from backups." The burden isn't on the other side to turn over every desk looking for floppy disks and spin every drive head in search of that crucial email message or file--the burden is on the requesting side to specify what should be included. It's simple--if they didn't include restores in their request, then they can't be disappointed that restores were not done. |
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