District Judge J. Frederick Motz ordered the company last week to interview attorneys and search for any record of discussions leading to a January 2000 e-mail from Windows Group Vice President James Allchin, in which he ordered Windows division employees to destroy e-mails after 30 days.
An attorney for start-up Burst.com, which is suing the software giant for patent infringement, said Allchin's e-mail and previous company policies seemed to be aimed at destroying evidence that could be used against Microsoft by the U.S. Department of Justice or in other litigation. Microsoft has argued in court that some e-mail deletion policies were set by its internal IT department.
"There is no way an IT person decided to drop e-mail from retention," Burst.com attorney Spencer Hosie said. "There is no way that wasn't discussed at the highest level."
Microsoft opponents have routinely used the software maker's own internal e-mails against it in the course of antitrust and other lawsuits, often to embarrassing effect. A standard Microsoft policy on e-mail destruction could ultimately affect companies beyond Burst.com, such as RealNetworks, which are pursuing separate lawsuits.
Last year, Motz ordered Microsoft to search for evidence of deleted company e-mails that might refer to Burst.com. The Santa Rosa, California-based company contends that Microsoft stole its patented audio and video download technology for its digital media software, Windows Media 9. It has claimed that considerable numbers of relevant Microsoft e-mails were missing from the court record.
Microsoft spokesman Jim Desler said that the company has been diligent in providing more than a half-million documents to the court in Burst.com's case, but would also comply with Motz's latest request.
"We think (the issue of Allchin's e-mail) was raised out of context by Burst, and the judge has some questions on it," Desler said. "We hope to provide the court with information that...can provide a more accurate picture of the context."
