Irrelevant Discovery?
by John B. Virata

Page 1 of 1

What is the culture at Microsoft? In the ongoing antitrust case against the Redmond, Wash-based software behemoth, the federal judge assigned to hammer out potential remedies today said that she will not consider an internal Microsoft email from a ranking Microsoft minion that, among other things, proposed retaliation against computer manufacturers that were offering the Linux operating system as an alternative to Microsoft's Windows OSes.

U.S. District Judge Colleen Kollar-Kotelly refused to allow the nine remaining states that have refused to settle, to use the email in question, (authored in August 2000 by Microsoft vice president Joachim Kempin and sent to Bill Gates), that Intel was courting computer manufacturers that weren't beholden to Microsoft, to offer the Linux operating system on their computers. Gates forwarded the email without comment to Microsoft's Steve Ballmer. [an error occurred while processing this directive] Kempin allegedly wrote to Gates, detailing his plan to "stop any go-to-market activities with Intel and only work with their competitors." Kempin also wrote in the memo that Microsoft should withhold technical information from these computer manufacturers, which was one of the complaints brought up by the states.

This is the second time that the judge has disallowed the memo as part of the record, giving the reason that the states didn't supply adequate reason to consider it, and to do so would be unfair to Microsoft. It is a very interesting reason given the contents of the memo seem to be adequate enough in of itself. The judge went further to state that ``The litigation process presumes that the parties will present their case only once and will present their best arguments at that time.'' This seems to read that the nine states somehow failed to present the memo as evidence during the initial proceedings in the case, but then again the memo was written just two years ago, at which time Microsoft was being sued for its behavior as a corporate citizen.

What is peculiar is that this internal memo, on the surface, seems to smack of the anti-competitive behavior that Microsoft was found guilty of practicing, yet the judge won't consider it based on what appears to be a technicality. Was the memo disallowed because of the date? Or did the judge consider the memo privileged information? Or because of the timing could it be considered inadvertent discovery? Or was the memo not initially considered as evidence during the four year trial because it hadn't been written yet and therefore, unavailable for discovery?

I am no shark but I understand that the successful conclusion of this case, and the remedies, if any, that will be ordered upon Microsoft have the potential to drastically change the way Microsoft behaves as a corporate citizen. What I don't understand is why a memo such as this won't be considered. It serves up some pretty damning revelations as to the culture at the top at Microsoft. This memo was written as Microsoft was being sued, and the contents of the email, regardless of the non-action taken on it by the judge, tells a lot as to the culture and the mentality at the top at Microsoft.

John B. Virata is senior producer of His opinions expressed here are his own and not the opinions of DMN. You can reach him here

Source: DMN

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