Burst.com accuses Microsoft of destroying evidence

In documents filed in court, Burst.com has accused top managers at Microsoft of telling employees to destroy evidence contained...

In documents filed in court, Burst.com has accused top managers at Microsoft of telling employees to destroy evidence contained in old e-mail during 2000, even as the company faced several antitrust lawsuits at the time.

Burst.com is suing Microsoft for alleged patent and antitrust violations and has accused Microsoft managers of telling employees in 2000 to delete most or all e-mail after 30 days.

At the time, the US Department of Justice was in the midst of its antitrust lawsuit against Microsoft, and the software giant faced dozens of class action lawsuits.

"Given this array of litigation, Microsoft had a concrete duty to preserve relevant documents," Burst.com's lawyers said.

"But it did not. Instead, it implemented ... practices to make sure that incriminating documents disappeared."

Microsoft disputed Burst.com's allegations. "Over the past several years, we have produced literally millions and millions of documents and e-mails for the various legal cases we have been involved in, and we have been completely forthcoming in all document requests in this case as well," Microsoft said.

"We have provided more than half a million pages of documents from more than 60 employee files specifically in response to Burst’s broad discover requests."

Burst.com's motion asks Judge Frederick Motz to instruct the jury when the case goes to trial that because Microsoft failed to retain documents relating to Burst.com's lawsuit, "the jury is free to infer that Microsoft did so because the contents of the documents were adverse to Microsoft".

Burst.com filed its lawsuit 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 about Burst.com's technology in two years of meetings and discussions, although it signed a nondisclosure agreement with Burst prior to those meetings, Burst.com alleges.

Burst.com's new motion asks Motz to exclude former Microsoft executive Eric Engstrom as a witness during trial. Engstrom, the former general manager of MSN's dial-up service, was a key employee in Microsoft negotiations with Intel, after which Intel ceased development of its Java Media Framework Player in 1998, according to Burst.com's lawyer.

Burst.com's Burstware media player relied on the Intel Java framework.

With no e-mail to back up his testimony, Engstrom is "free to remember history in a way most convenient for Microsoft", Burst.com's lawyers said.

"We don't think he should be able to appear in court and make up stuff," said Brust.com's lawyer.
Burst.com's motion accuses Microsoft of not allowing employees to archive e-mail and accuses James Allchin, group vice-president of Microsoft’s Platforms Group, of ordering employees in January 2000 to destroy e-mail after 30 days.

"This is not something you get to decide," Allchin wrote to employees, according to the Burst.com motion. "Do not archive your mail. Do not be foolish. 30 days."

But company policy is to retain e-mail relating to continuing legal actions, and Allchin's instructions on deleting unneeded e-mail is consistent with company policy, Microsoft said.

"No company retains every e-mail or document it generates and there is no obligation to do so, particularly given the severity of the inefficiencies it would create," Microsoft said.

"Microsoft does keep those documents and e-mails that are necessary to retain for legal reasons – as has been shown throughout the US antitrust and other legal cases. No party has ever previously claimed that Microsoft did not comply with its discovery obligations, and we have spent millions of dollars in doing so."

Grant Gross writes for IDG News Service

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