Microsoft responds to Cringely article

[Dave Farber <dave () farber net>]

If anyone wants his email address I will attempt to be responsive.

Dave

> Date: Sat, 13 Sep 2003 06:00:01 -0700
> From: Rich Lappenbusch
> Subject: Microsoft responds to Cringely article
> To: Dave Farber <dave () farber net>
>
>
> Dave - you know I let most of the Microsoft bashing that goes on pass by 
> but this one was just too much -- and way off base.  I felt compelled to 
> respond to it because a few others were starting to take it 
> seriously.  Please do not include my email or phone # in the posting.
>
> regards,
>
> rich
>
>
>
>
> ________________________________
>
>
> In response to the "Stupid Microsoft Tricks" article by Robert Cringely 
> that was forwarded to the list last week, I'm taking the somewhat unusual 
> action of commenting on ongoing litigation (Burst.com v. Microsoft). I'm 
> doing so because I feel strongly that you all deserve to have some view of 
> the other side of this dispute, with the hope that you will not accept 
> Burst's allegations that Cringely repeats at face value. And yes, I did 
> have this reviewed by counsel -- please pardon the precise language.
>
>
>
> Not only is the central premise of Cringely's column wrong, but he also 
> includes additional inaccuracies that create a misleading account of 
> Microsoft and our participation in the discovery process of a patent 
> infringement case with Burst.com.  This is especially unfair given that we 
> have been completely forthcoming in all document requests, have provided 
> mountains of documents, and will continue to cooperate fully in the 
> discovery process.  Burst's and Cringely's focus on this hearing also 
> obscures the fact that Burst's case is without merit and the technology at 
> issue in this proceeding is based on Microsoft's own work and innovation.
>
>
>
> As a large company, Microsoft expects a high level of scrutiny of its 
> business practices, its relationships with its partners and others in the 
> industry, and its approach to its customers. We accept this scrutiny and 
> in many ways it motivates us to be a more responsible industry leader and 
> a better partner. We also expect direct and harsh criticism from time to 
> time. This is also part of being an industry leader. However, we do take 
> particular exception when such criticism is off base and creates a 
> perception that is wildly inaccurate.
>
>
>
> Such is the case with Cringely's column which mischaracterizes a recent 
> court hearing in the Burst.com v. Microsoft case. (Cringely inexplicably 
> claims this was the first public hearing in the case, which is simply 
> false.) The myth Cringely tries to create is that Microsoft is somehow 
> hiding evidence relevant to the case. This accusation is just wrong. The 
> facts show that Microsoft has been forthcoming in providing evidence. We 
> have cooperated, and will continue to cooperate, with the Court and the 
> parties in the discovery process of this case.
>
>
>
> It's unfortunate that Cringely did not check with Microsoft on any of the 
> facts related to this proceeding or cross-check his understanding of what 
> transpired before posting an article that grossly distorts a routine 
> discovery dispute before the US District Court for Maryland. He echoes 
> Burst's fundamental premise in this particular proceeding - that there are 
> emails from a particular period of time that Microsoft has deliberately 
> withheld or improperly destroyed. This premise is simply wrong and unfair 
> considering the great lengths to which Microsoft has gone to cooperate 
> fully throughout this process. Here are the facts.
>
>
>
> The parties appeared in court on August 26th to discuss a type of issue 
> that often arises during pretrial discovery - to what lengths a party in 
> litigation must go in order to look for potentially relevant documents, 
> even if the chance of finding nonredundant evidence through extraordinary 
> efforts is slim. In this case, Microsoft had already provided over 300,000 
> pages of documents from more than 60 employees' files that are responsive 
> to Burst's broad discovery requests. (Cringely's claim that Microsoft 
> produced "literally no" Burst-related e-mail for a supposedly key 35-week 
> period is completely false. Even Burst's attorneys have never made that 
> claim. There was no "en masse ... erasure" as Cringely claims.)
>
>
>
> Burst, however, had in its files some e-mails that were sent between the 
> two companies that were not still in Microsoft's files. This is not 
> surprising.  It is, of course, common in litigation between two 
> corporations that one company has copies of communications that the other 
> has not retained, and in fact, Microsoft explained why it believes this 
> occurred in this instance. Among other reasons, the Microsoft employee who 
> was Burst's principal contact at Microsoft left the company about 20 
> months before the lawsuit was filed. Not knowing that Burst would file a 
> lawsuit - and believing, as it does today, that there is no basis for one 
> - that employee's Microsoft-issued computer was returned to the company 
> and reformatted for future use, in the process deleting any e-mails he had 
> saved, including any between him and the Burst executives. Some of his 
> e-mails have still been produced because they were sent to others who 
> remain at the company. As for Burst's speculation that the discussions 
> with Burst must have generated substantial documentation, it is just that 
> - speculation. The fact that the parties never entered into any deal or 
> even got into negotiations about one casts further doubt on their claim.
>
>
>
> The issue before the Court was whether Microsoft should have to go to a 
> very complex and time-consuming process of restoring and searching backup 
> server tapes to look for this and other materials - when the only 
> additional material known to exist is what Burst already has in its files. 
> As the court stated at the conclusion of the hearing, this is an issue 
> that many corporations will increasingly face in litigation in the 
> electronic age. In any event, Microsoft is following up on the Court's 
> direction and will then report back to the court.
>
>
>
> Cringely also claims that "the other Burst complaint about discovery" is 
> that we are somehow withholding some messages improperly as privileged 
> attorney-client communications, and he compares Microsoft to the tobacco 
> industry. This accusation strikes us as curious because nothing about 
> Microsoft's (or Burst's) claims to attorney-client privilege was ever 
> mentioned at the hearing or in the court papers filed beforehand, and in 
> fact, we are not aware of any complaints that Burst or its counsel have 
> made in that regard. If there are concerns, we are sure that Burst would 
> raise them to us directly.
>
>
>
> Microsoft routinely meets with hundreds of companies that wish to license 
> us technology.  Burst was one of many companies we met with and they 
> offered to license their technology to us.  We evaluated Burst's proposal 
> like we would any other - carefully, under appropriate agreements, and 
> following very conservative business practices. As you can imagine, we 
> never want to be in a position to even appear to have misappropriated 
> someone else's technology. In this case, we determined that their offer 
> for their technology and for their IP was not something we wanted to 
> accept, so we declined. This is routine for any technology company.
>
>
>
> As Cringely acknowledges, the merits of Burst's patent infringement claims 
> have not in any respect been addressed by the Court. Burst contends that 
> some versions of Windows Media Player make use of technology that was 
> developed by Burst. We look forward to presenting to the Court the real 
> facts in this matter - Microsoft has innovated with digital media and 
> networking technologies in Windows for more than 10 years. The fast 
> streaming technology in Microsoft's Windows Media 9 series is an example 
> of work by Microsoft to deliver an even more compelling streaming media 
> experience to users. Burst's claims are without merit and the technology 
> at issue in this court proceeding is based on Microsoft's own work and 
> innovation.
>
>
>
> So you wonder if we've done, as Cringely alleges, "stupid tricks".  We'll 
> let other be the judge of that. But all companies that run their business 
> by email will have a burden in legal proceedings. We've produced literally 
> millions and millions of pages of emails and other MS documents over the 
> past few years in litigation. We have lawyers and paralegals that do 
> nothing but transfer Microsoft documents from Microsoft to adversaries in 
> litigation.  This is just a fact of life given our market position.
>
>
>
> We will continue to fully cooperate with the pretrial discovery process 
> and look forward to providing our side of the story and vigorously 
> defending ourselves against these baseless charges in court. We will also 
> continue to respond to extraordinary stories that create a wrong and/or 
> unfair impression of our participation in this process.
>
>
>
> I want to openly thank you Dave for providing an opportunity to set the 
> story straight on this topic.
>
>
>
> regards,
>
>
>
> rich
>
>
>
>
>
> ________________________________________________________________________________________
>
> Richard W. Lappenbusch
>
> Director of Strategic Planning
>
> Windows Client
>
> Microsoft Corporation

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