Text 16204, 110 rader
Skriven 2007-02-17 07:23:24 av mike (1:379/45)
  Kommentar till text 16203 av mike (1:379/45)
Ärende: Microsoft dirty tricks, part two
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From: mike <mike@barkto.com>


http://www.technologyevangelist.com/2007/02/microsoft_dirty_tric_4.html

===
In my last post here I revealed that a former Microsoft contract worker had
come to me some time ago to reveal details about the possible destruction of
evidence in the Burst.com v. Microsoft case -- destruction of evidence that I
expected to be a factor in the recently settled Comes (People of Iowa) v.
Microsoft case.  I thought for sure this information would come out but
apparently it didn't.  Maybe that was among the many reasons why the case was
suddenly settled after nearly seven years.  We'll probably never know.  But I
think it is important that the information be made public, anyway.

To recap part one, lawyers for Burst.com found in the discovery phase of their
case what appeared to be a pattern of message destruction, with Microsoft
unable to reproduce ANY e-mail concerning Burst.com over periods of time
surrounding specific meetings between the two companies. Burst had ITS copies
of the messages where it had been part of the conversation as the two companies
worked together under NDA, but Microsoft presented none of these.  It seemed
logical to Burst that Microsoft, as a company that fairly lives by e-mail,
would have [at] least a few messages concerning the meetings, either before or
after. Eventually Burst lawyers uncovered a mechanism -- a sort of procedural
algorithm if you will -- under which Microsoft had consistently and in MANY
cases managed to keep all the messages it didn't need to keep and to destroy
all the ones it DID need to keep.  The survival of ANY incriminating messages,
in fact, came only from the breakdown of discipline in implementing this
procedural algorithm.  Burst revealed this information and the judge in that
case, Judge Motz, ordered Microsoft to take heroic measures to search backup
tapes for messages that were supposedly lost.

The last post revealed that contract workers had been assigned to gather all
the relevant tapes and did so quite easily at the very time when Microsoft
lawyers were claiming that to do so would be impossible.  This leads to logical
questions like; Did the Microsoft lawyer know that the tapes had been found or
were they deliberately kept in the dark so they could continue to argue against
the whole idea? And why, if the tapes were found, did they sit for months in a
special tape vault in Building 11 rather than having been examined for the
missing messages?  And then there is the big question about what happened to
the messages at all -- messages that were in a locked vault and labeled "Do not
touch" -- how did they get thrown away and by whom?

The former Microsoft contract employee who contacted me on this issue did not
do so anonymously, by the way.  I know his name and how to reach him.  We have
talked on the phone more than once.  He did not hesitate to name names.

So now the story continues....

"Several months after all of the tapes were gathered," my source continued, "MS
legal started asking for restores of any pst files captured, the tapes
“mysteriouslyö went missing. Now because our team was a managed service vendor,
we were held directly accountable and responsible for the loss. Calvin Keaton
the blue badge who managed the team made the appropriate loud noises about the
loss to HP services, although I never saw any public disclosure about it.
Internally HP was held responsible and although I cannot point a finger at
anyone in particular, I can think of a lot of reasons that the tapes were
removed by someone blue. It is also possible that someone on our team
performing a  standard purge of old media mistakenly pulled them and sent them
to the shredder and even though the tapes were stored in a special section
specifically marked “Do Not Touchö taped across them I find it highly unlikely.
 Just glad I never had to depose for the issue. Can’t imagine that it would
have done my career any good."

So the outside vendor was Hewlett-Packard, one of Microsoft's hardware OEMs,
which is to say Microsoft's bitch.

The tape disappearance was blamed on HP, which  accepted the blame, and the
employees directly involved kept expecting there to be repurcussions,
especially legal ones.  They expected to be deposed by Burst lawyers.  But it
never happened.

This was, for Microsoft, a perfect ending.  The damning tapes were lost in a
way that could be blamed on a contractor -- a contractor over which Microsoft
had great power -- power greater than just a services contract.  The contractor
"accepted" responsibility though there was no real evidence they had done
anything wrong.  It could just as easily have been a Microsoft employee who
destroyed the tapes.  It is clear that Microsoft never evealed to the court
either that the tapes had been found or that they had been destroyed.  This
would have had to have taken place at the spoliation hearing that would have
happened had Microsoft not settled with Burst for $60 million.

I contacted both Burst and Burst's lawyers on this a few months ago and they
could not recall any aspect of this incident having been revealed to them by
Microsoft or by the court. It was news to them.

Microsoft's legal behavior in this is consistent -- consistently bad -- and the
only intersting aspect of that part is that it is logical to assume Redmond
would have paid ANYTHING to avoid that spoliation hearing and its need to
either come clean about evidence destruction or to commit perjury.  $60 million
was nothing to Microsoft.  Burst could have got a lot more money had they known
what was actually going on.

And where was HP in this?  Why didn't HP file a friend-of-the-court brief
explaining what had happened?  Even the lowly contract workers who were blamed
expected that to happen yet it didn't.  Did the HP legal Department even know
about the incident or were they too busy tapping phone records of reporters? 
My guess -- and it is only a guess -- is that HP corporate was never told about
the incident, though that is not in any way an acceptable excuse.  It should
have been reported.

Shortly thereafter, of course, HP lost the storage contract.  My source was
laid-off and moved away from Seattle.  Microsoft (and HP by implication) got
away with it... at least until now.
===

  /m

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