Judge blocks Microsoft 'end-run' in EU antitrust case

U.S. judge nixes request to subpoena IBM, calling it a "blatant end-run around 'foreign proof-gathering restrictions.'"

Microsoft's request to subpoena IBM in the software giant's antitrust battle with European regulators was denied by a U.S. federal judge on Thursday.

Microsoft sought to obtain documents and correspondence between Big Blue and the European Commission, which issued a historic antitrust order regarding the software giant in 2004. IBM is currently a third party in the Commission's review of whether Microsoft should pay a significant fine for noncompliance of the remedies listed in that order.

Microsoft claims the requested documents could aid its defense against the Commission's "statement of objections," and has not only tried to subpoena IBM but also other third parties in the case, such as Novell. But a federal court in Boston recently rejected Microsoft's Novell subpoena request as well.

"Microsoft hopes to discredit the reports on which the Commission relied by demonstrating that they 'were in whole or in part the result of efforts by IBM, a fierce Microsoft competitor,'" according to Thursday's order by Judge Colleen McMahon of the U.S. District Court in Southern New York.

Microsoft said it does not plan to appeal the judge's decision.

"The writing is clearly on the wall for these actions, and we are not pursuing them any further," said a Microsoft representative. "In the last few weeks, the situation has changed. We have received some clarity from the Commission and its monitoring trustee that has been very helpful. Our focus is on working constructively with them."

In denying Microsoft's subpoena request, McMahon noted the Commission has, or will be, in possession of all documents Microsoft is seeking and that the software giant should approach the Commission for those documents.

"A foreign tribunal has jurisdiction over those appearing before it, and can itself order them to produce the evidence," the judge stated in her order. "Microsoft must request the documents from the Commission, as opposed to requesting them directly from IBM....The relevant inquiry is whether the evidence is available to the foreign tribunal. In this case, it is."

The judge also noted that granting Microsoft's subpoena request would undermine a statute relating to sovereignty concerns involving U.S. government authorities and foreign courts.

"Microsoft's (subpoena) application constitutes a blatant end-run around 'foreign proof-gathering restrictions or other policies of a foreign country,'" the judge stated in her order.

And the court also found that Microsoft's subpoenas would be "unduly intrusive and burdensome."

Microsoft faces a much larger court challenge next week, when it appears before the Court of First Instance in Europe to appeal the Commission's historic 2004 order.

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