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Thursday, November 18, 2004

Microsoft Accused Of Destroying Incriminating Email

Burst.com, a company suing Microsoft, is accusing the software giant of destroying emails critical to the case. Burst is suing MS for anti-competitive behavior; saying the company broke off talks with Burst, and misappropriated the ideas it learned from Burst's media player. Burst claims that Microsoft has an institutional policy to destroy all email after 30 days. They filed a motion to have the jury told of this practice, citing a January 2000 memo where Jim Allchin, a senior VP, told the Windows Division about the policy, saying, "This is not something you get to decide. This is company policy. ... Do not archive your mail. Do not be foolish. 30 days." The motion also says:
  • told workers, beginning in 1995, not to save emails to corporate servers.
  • maintained its deletion policy by creating servers that forced workers to "auto-delete" emails.
  • "carefully limited the employees it asked to preserve documents for litigation, and excluded key employees. … This has meant that a large number of core documents simply no longer exist."
  • and has "concealed or falsely described its document retention practices in past litigation."
Burst says that the jurors must be told the emails were deleted, so that they can infer that the emails were incriminating. While it is likely there were incriminating emails, Burst can't possibly infer that those emails were incriminating in the Burst case. You first need to prove that there was a violation to be incriminating about! This kind of circular logic is like saying that because there is no gun, you can infer that a person threw away the gun (which is only true if the person ever had a gun). Burst is using a lack of evidence to prove such evidence existed, which I simply can't believe any judge would allow.

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