U.S. District Judge Frederick Motz, of the Northern Division of Maryland, said in an Aug. 28 hearing that Microsoft must find backup tapes and servers containing communications of six key executives in its Windows Media Strategy division. The order came out of concern from Santa Rosa, Calif.-based Burst.com that there were gaps in internal communications from a Microsoft unit that could produce evidence for its case.
"We list 70 e-mails that went back and forth between the parties that Burst had that Microsoft did not produce. These were e-mails that absolutely undeniably existed once, but for some reason are no longer at Microsoft System," Spencer Hosie, attorney for Burst, said during the hearing.
Burstagainst the Redmond, Wash., giant in June 2002, claiming that after lengthy discussions about licensing its technology to the company, Microsoft lost interest and simply duplicated the patented software within its own video encoding and decoding product, Windows Media 9 Series. Microsoft and Burst held a series of seven face-to-face meetings, and exchanged numerous phone and e-mail conversations from October 1999 to March 2001, according to Burst. The suit echoes earlier charges from Netscape Communications, Sun Microsystems and others that Microsoft bullied companies out of using Burst products.
Microsoft spokesman Jim Desler said that the company has been forthcoming in providing evidence to date, already having produced more than 300,000 documents from more than 60 employee files. "We have cooperated and will continue to cooperate with the court and the parties and the discovery process in this case."
More broadly, Desler added, Microsoft has created digital media networking technologies for more than 10 years, and its latest product is an example of the company's own work. He characterized any deliberate attempt to cover up e-mail communication as speculation, as did Micrsoft's legal counsel, John Treece, at the hearing. Treece said the company will have great difficulty in tracking down any lost communication.
Microsoft must investigate backup tapes to find the e-mails of six Windows Media executives: Will Friedman, David Duvall, Will Pool, Bill Shefelbein, Mike Beckerman and Tony Bawcutt.
"Of course, we know--and it's undeniable--that there are some gaps, because we know they have e-mails in their files that we don't have. On the other hand, much of what (Burst's attorney) says truly is speculation," Treece said during the hearing.
Lawyers for Burst said that e-mail communications between the companies and internally are vital to proving a case against Microsoft but that during discovery, it became clear there were a "huge number of e-mails missing."
"The bottom line is they need to find the e-mails, and we're anxious to find out what they come up with, if anything," said Richard Lang, co-founder and CEO of Burst.