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MS lawsuit leads to email destruction questions

MS lawsuit leads to email destruction questions

MICROSOFT is digging deeper into its stores of electronic correspondence after a US District Court judge instructed the company to provide more information about a four-year-old email from a company vice-president that told employees to delete email after 30 days.

Microsoft will comply with the new instructions, which were issued on Thursday in a patent infringement and antitrust case brought by Burst.com Inc. The company acknowledged on Monday that the 30-day limit mentioned in the email message is shorter than Microsoft's official document retention policy, but denied that the order was related to legal cases facing the company at the time, says Jim Desler, a Microsoft spokesman.

The company is still reviewing a transcript of the instructions regarding the email message. Microsoft will likely provide the court with more email messages that put in context the reminder that came from James Allchin, group vice president of Microsoft’s Platforms Group, to "destroy all business-related" email, Desler says.

Burst.com filed its suit against Microsoft in June 2002, alleging that Microsoft stole patented technology and trade secrets concerning Internet-based video-on-demand for its Windows Media Player product. Microsoft learned all about Burst.com's technology in two years of meetings and discussions. Microsoft signed a nondisclosure agreement with Burst prior to those meetings, Burst.com says.

The Allchin e-mail surfaced after Burst.com filed repeated motions for Microsoft to turn over email messages and backup tapes containing email.

"[Burst] is trying to make the allegation that Microsoft was doing something in terms of document retention -- this came up in a broader discussion of the existence of e-mails or notes that we have looked thoroughly for, but ... don't know if they exist," Desler says.

So far, Microsoft has turned over more than 500,000 pages from 60 employee files in the case, Desler says.

Allchin's comments in the e-mail were part of an ongoing discussion or "thread" concerning document retention that Allchin did not start. That said, the 30-day limit on keeping old e-mail is a "stricter version" of the company's policy, Desler says.

Desler could not say how long Microsoft employees are allowed to hold onto email messages, but said it was longer than 30 days.

Still, Microsoft has information that will show that Allchin's comments were "consistent with [Microsoft's] policy to meet all its legal obligations and provide for efficient management of its corporate email”, he says.

Burst.com's allegations regarding Microsoft's email retention policies are without merit and are designed to distract attention from the patent infringement issues, which show that Microsoft used its "own work and innovation" with the Windows Media Player, Desler says.

Attorneys for Burst.com did not respond to requests for comment.

The issue of document retention is a particularly volatile one, especially in the wake of a jury's conviction of Frank Quattrone in May.

Quattrone was head of the Technology Group at Credit Suisse First Boston Corp. (CSFB) and was found guilty of obstructing a grand jury investigation into the issuance of shares in an IPO (initial public offerings) after he sent an e-mail reminding colleagues about CSFB's document retention policy shortly after learning of a federal probe into the IPO allocation issue.

Desler dismissed any similarities between Burst.com's allegations about Microsoft and the case against Quattrone and CSFB.

"One thing is clear: Microsoft has been completely forthcoming in providing any and all evidence requested of it," he says.


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