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Netscape subpoena part of rising trend

Microsoft's subpoena of internal Netscape postings raises new questions about the role of electronic correspondence in legal cases.

A move by Microsoft to obtain internal online postings at rival Netscape Communications is raising new questions about the role of electronic correspondence in legal cases.

The software giant has subpoenaed the contents of a Netscape bulletin board, dubbed Bad Attitude, where workers vent about anything from parking lot peeves to competing against Microsoft. Lawyers also subpoenaed the contents of Netscape employee Jamie Zawinski's Really Bad Attitude list, which allows further venting on an invitation-only basis.

Microsoft requested the correspondence in search of incriminating messages as it prepares to defend itself in its landmark antitrust trial. Industry and legal analysts said such actions could have a chilling effect on corporate bulletin boards, especially among high-technology companies that often use such forums routinely and informally.

A Netscape spokeswoman declined to say whether the company's Bad Attitude bulletin board will continue to operate. However, confirming a story first reported in the Wall Street Journal, she said: "We received a subpoena from Microsoft, are reviewing it, and will respond appropriately."

Companies and individuals are finding their email, online postings, and other forms of electronic communication increasingly sought as part of evidence-gathering in litigation. The issue already played a pivotal part in the Microsoft antitrust case when Harvard professor Lawrence Lessig's appointment as a court adviser was suspended after controversy arose over an email he had sent to Netscape earlier.

The Justice Department and Microsoft are embroiled in an antitrust lawsuit that is expected to go to trial September 23. Among the issues is whether the software giant leveraged its dominance in desktop PC operating systems to curtail Netscape's business in Internet software.

"We're increasingly seeing requests for documentation that include email and backup tapes," said Russ Elmer, an attorney with Gray, Cary, Ware, & Freidenrich. "Five years ago, these requests were made in only one of 30 or 40 cases. But now, it's one out of every two."

While these email subpoenas have largely affected high-ranking executives, rank-and-file employees are finding that they too are fair game, especially in light of Microsoft's recent request of the bulletin board postings. "More and more companies are becoming conscious of this sort of thing and putting limits on how employees use email and all forms of electronic communications," Elmer added.

But John Steele, an attorney with Fenwick & West, said he doubts that this will lead to more employees self-policing their email and bulletin board postings.

"I've yet to see a lot of self-monitoring," he noted. "We could predict there will be some chilling effect in the future, but right now there are tens of thousands of employees who are keying in stupid emails that may come back to hurt them or their companies."

Attorneys note that the most egregious emails usually lead to a settlement in a case. But in those cases that go to trial, Elmer said he's heard of cases where a jury was largely swayed based on the contents of an email message.

These attorneys note that jurors, depending with their familiarity with email, may rank an electronic message on par with a formal corporate memo.

Ian Ballon, a partner with Finnegan, Henderson, Farabow, Garrett, & Dunner, said, however: "My sense is that jurors are becoming more savvy than they used to be."