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Microsoft dirty tricks that were never revealed
Robert X. Cringely
Microsoft settled today its anti-trust case with the people of Iowa, which may well be the last anti-trust case against the world’s largest software company, at least in this cycle.  Iowa was all that remained of the original 18 states and the District of Columbia that sued Redmond several years ago.

Now that the case is settled I’d like to write a little bit about something that happened in an earlier case – Burst v. Microsoft – but was never revealed.  I kept expecting it to be revealed in this case, but apparently it was not.

I’ve written before about Burst v. Microsoft, but the short story here is that Burst lawyers caught a pattern of apparent destruction of e-mail evidence on the part of Microsoft.  Microsoft claimed it was “too hard” to search for the lost e-mails (Burst had copies from its side so many of the messages were known to exist) but the judge finally ordered Microsoft to do whatever it took to dig up the tapes and find the e-mails.  Fortunately for Redmond, the case settled (for $60 million) before Microsoft actually had to produce anything.

Now, as they say, for the rest of the story…..

Months after the Microsoft/Burst settlement I received e-mail from a former Microsoft contractor:


“Now that Burst v. MS has moved out of the courts, I thought that I might add a little to what you know about this case. Back about two years ago when the judge told MS to cough up the rest of the emails that was supposed to have floated around between MS execs that discussed the Burst relationship, the team that I was on (Corporate tape backups) was asked to gather all together all of the tapes that were used during that time. Even though there was a corporate policy in place that any *.pst was to be excluded from backup capture, the effort failed. Not only did the Backup Exec software fail to filter out those pst files, but some of the involved blue badges (Microsoft employees) intentionally disguised their mail files so that they would not be recognized and included in the nightly backups. This last effort was even prohibited by policy from the VP level. As I was the one tasked to gather the tapes together from Arcus/Iron Mountain, I know exactly how many tapes were recalled for the involved servers. They filled several 240 tape trunks and were stored in the Building 11 tape vault.”

“Several months after all of the tapes were gathered, MS legal started asking for restores of any pst files captured, the tapes “mysteriously” went missing. Now because our team was a managed service vendor, we were held directly accountable and responsible for the loss. 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 Touch” taped across them I find it highly unlikely.”

This is Bob, back again.  In case you aren’t familiar with this case let me put this guy’s statement in some context.  Microsoft was saying that it couldn’t find the tapes and that it would take millions of man-hours to search for them when in fact the several trunks full of tapes were apparently easily gathered and already stored in the Building 11 tape vault.

At the time Microsoft lawyers were claiming the tapes would be impossible to find, THEY HAD ALREADY BEEN FOUND.

It would be interesting to know if Microsoft’s lawyers were aware of this.  They should have been, but this may have been one of those instances when it was to their advantage NOT to know.

And then THE TAPES DISAPPEARED.  Funny we never heard about that, either.
“”
To my knowledge, Microsoft never presented this "the dog ate our tapes" story, most likely because they didn't want to acknowledge that there even WERE such tapes.  The fact that there were tapes and then there weren't SHOULD have been mentioned, since I'm guessing not doing so violated a court order.  Certainly it should have at least been mentioned in the discovery materials given to Burst.

But wait, there’s even more to this story.  Stay tuned……

[Editor's note: Part II is here. Welcome Slashdot and Groklaw readers. Consider subscribing to our RSS feed for future updates.]



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Comments

1. Posted by: DanMac on February 15, 2007 12:06 AM:

of course Microsoft got away with that: I'd be surprised to hear a corporation like that didn't scheme and lie to avoid getting what it deserved...




2. Posted by: Garvell P. Humbleworth on February 15, 2007 12:21 PM:

lots of speculation. and from a source who has everything to gain by claiming someone else (other than his vendor service that was held responsible) lost the tapes. i love when pretend journalists rely on word of mouth speculation from anonymous sources without any real facts or corroborating evidence.




3. Posted by: Bob Cringely on February 15, 2007 12:38 PM:

I have plenty of corroborating information, thank you. This is a story I have known about for many months and have done quite a bit of work to understand. Yes, it comes down to one word against another and without any clear method of resolution buit it isn't as simple is you think. And even if it came down strictly to the points you make, there would still be troubling legal and ethical issues. Why wasn't the court ever informed? Why wasn't Burst ever informed? Was anyone at Microsoft or the controctor ever punished for this infraction? Keep reading....




4. Posted by: Bob Cringely on February 15, 2007 12:40 PM:

And whoever said my source was anonymous? Not to me he wasn't.





5. Posted by: Claude lee on February 16, 2007 9:58 PM:

Well Bob, what's the next step. Does Burst sue HP for withholding evidence in a Federal lawsuit? Can Burst sue Microsoft again? why not let a District Attorney sue HP and MSFT and put some people in jail. How about a Burst share holders suit against HP and MSFT.

Claude




6. Posted by: A Square on February 16, 2007 10:16 PM:

Garvell, dude, you've been outclassed. Go back to lurking for a while. In 10-15 years you'll get it, like Bob does.




7. Posted by: DaveK on February 17, 2007 10:56 AM:

Garvell, even if there were ass-covering going on at the ISV over the loss of the tapes, the fact that MS were lying about the difficulty of finding these tapes - some time after they had already in fact gathered them - clearly demonstrates bad faith on MS' part.

Given that this took place before the tapes were lost, I'd say it tips the balance of probabilities toward MS' being responsible for the loss rather than the ISV...




8. Posted by: Duck Destructor on February 17, 2007 11:33 AM:

"And whoever said my source was anonymous? Not to me he wasn't."


You insult your audience. What do you take us for.


In anycase its all because male ducks have willies that Microsoft behaves so badly. Can you think of anything so disgusting. And they're nobbly too. Get a gun and shoot a duck today.




9. Posted by: Jared on February 17, 2007 12:37 PM:

Duck - What do YOU take *US* for?

I think you work for Microsoft by the looks of that non-sequitur...




10. Posted by: Duck Destructor on February 17, 2007 1:11 PM:

Jared, you noob, crinkly willy was accused of being a pretend journalist, and the comment I quoted proves it.


You obviously haven't killed a duck today.




11. Posted by: Bob Cringely on February 17, 2007 1:12 PM:

Burst has no recourse here as far as I can tell since "all claims" were settled for $60 million. I'm not sure if anyone has recourse, but then I'm no lawyer. It might be an interesting case for someone to take up. Tell a friend....




12. Posted by: Ancient Mariner on February 17, 2007 1:52 PM:

Bad faith does not surprise me. However, I doubt it is a corporate level policy. Past personal experience indicates that there are enough toadies in the world to accomplish the lying, cheating and stealing without it becoming a "conspiracy". It only becomes a real issue when the management becomes surrounded by toadies or when the toadies take over. Kill a duck? Hell, no. Step on a toad (corporate type - not Bufonidae).




13. Posted by: curious cat on February 17, 2007 6:14 PM:

So I am curious Bob. Are we to take you as an impartial reporter or a passionate advocate ? Your reporting is valid and interesting but makes me wonder about your goals.

curious as a cat...




14. Posted by: curious is a retard on February 17, 2007 7:27 PM:

Dear curious:

You are the dumbest person on the planet.




15. Posted by: From Yahoo Burst board on February 17, 2007 10:14 PM:

However, in the wake of the Sarbanes-Oxley Act of 2002, especially the promulgation of 18 U.S.C. § 1503(a), perhaps the burgeoning applicability of Criminal Law to the act of document destruction in Civil Actions may have been overlooked.

I believe in United States v. Lundwall, 1 F. Supp. 2d 249 (S.D.N.Y. 1998) the Court in that jurisdiction deemed it a criminal obstruction to destroy documents that have been requested pursuant to civil discovery. Hypothetically applying that caselaw precedent to the current discussion herein of new and ostensibly credible allegations of Microsoft’s spoliation of evidence, this would be a matter referred to the U.S Attorney in the appropriate jurisdiction.

Although the General Release no doubt entered into by both settling Parties in Burst.com v. Microsoft, to a high degree of probability, precludes any further Civil Action in the settled matter by said Parties, to a similarly high degree of probability, it would not and could not preclude a Criminal Prosecution by the U.S. Attorney. This is because it would impossible and indeed improper for either Party in a civil matter to so bind, or to attempt to bind, Federal law enforcement.

And in such a Criminal Action contemplated it would not be impossible for aforesaid U. S. Attorney to seek remuneratory restitution on behalf of the victim of any alleged criminal offense of document destruction.

More at:
Yahoo




16. Posted by: Philo on February 17, 2007 11:24 PM:

You don't get it.

"Microsoft claimed it was “too hard” to search for the lost e-mails"

This isn't a case of "we think the tapes are stored in that warehouse with the Arc of the Covenant but we lost the packing manifest." They mean "to find the specific e-mails requested by discovery" (which would probably say something like "any email discussing pricing policies for OEMs" or something like that)

So you've got 240 TRUNKS of backup tapes, and you have to find specific emails by content. Care to wager how long it will take to read through the emails contained hither and yon in 240 trunks of multi-gigabyte tapes? How much would you charge if someone contracted you to do it?

Let's just say (wild guess) 15 tapes/trunk, 100GB/tape. So - 360 terabytes of data. Come on - how much would you charge to parse through those tapes and find every email that references "OEM pricing policy"? (and apparently you can't do a dir *.pst, since your source admitted that many people renamed their pst files. You want to do it right, you have to check every file)

You can't just hand over the tapes - there is going to be data on them that you don't have a right to hand over (customer confidential information, corporate proprietary information, due diligence information from acquisition reviews, research data, etc) - you have an obligation to only deliver that which was specifically requested.

As for losing the trunks afterwards - it's possible something dark happened to them, but Hanlon's Razor says someone said "WTF are all these trunks of tapes doing stuffed in a corner of an empty building? They must be trash..."




17. Posted by: Michael Jones on February 17, 2007 11:33 PM:

"Microsoft claimed it was “too hard” to search for the lost e-mails"

Oh c'mon, this is plausible. Very plausible - this is Microsoft, remember? Do they even have search technology? Their technology ain't all that hot, maybe their servers crashed or something since they can't use real OS like Google does ;)




18. Posted by: cucu on February 18, 2007 7:31 AM:

very, very bad page formatting :(




19. Posted by: Bob Cringely on February 18, 2007 3:24 PM:

Just to wrap up a few loose ends here:

1) I have no personal interest in Burst, Microsoft OR the people of Iowa. I know the folks at Burst, who are in Santa Rosa, CA where I used to live. I have followed the story for several years and it has served me well as a journalist. My job, you see, is to find stories like these and tell them. My reward is that you read them.

2) As for Microsoft or HP getting in troublewith the U.S. attorney as a result of these actions, I don't know. The lawyer who represented Iowa was a former U.S. Attorney so she should have passed-on the informaiton if there was evidence of criminal acts. But given the current DoJ, I'm not sure anything would be done as a result.

3) Microsoft's claim that it was "too hard" to find the tapes assumed that they were stored in no particular order and would have to be reviewed individually from a pile of more than 100,000 tapes. From what my source said, the tapes weren't randomly stored at all, nor where they randomly populated (another Microsoft suggestion -- that tapes had no relationship to servers and servers had no relationship to users, which was proved wrong). This was total BS on Microsoft's part.




20. Posted by: gw on February 18, 2007 8:47 PM:

Bob writes:

>

These and related allegations appearing in the two-part article are more than serious enough to merit the attention of federal authorities. If R. Cringely is to be believed -- and I've not found any reason over the years to doubt him -- he has a witness and also corroboration -- all asserting first, that both the federal court system and Burst.com were abused via deception. Perhaps the BRST/MSFT settlement has been signed off, but crimes are crimes -- settlement or no settlement -- and these crimes should be addressed.

As I understand it, that's why it's called the Dept. of JUSTICE.

Thanks to Bob Cringely for bringing these matters to light.




21. Posted by: A Square on February 18, 2007 10:39 PM:

>So - 360 terabytes of data. Come on - how much would you charge to parse through those tapes and find every email that references "OEM pricing policy"?

Philo,

In a world of GUI's and Microsoft, humble tools like 'grep' and 'strings' are occasionally forgotten. In the world of GNU/UNIX/BSD/linux we also have tools like, oh say, ReadPST that are already designed specifically for the job you describe.

The job is drop dead easy unless an MS OS is used.

360 TB? Bring it on. It's what we admin's are paid to do. And why keep backups at all except for the data contained in them?




22. Posted by: Bob Cringely on February 18, 2007 10:50 PM:

Though e-mail is, by its very nature, electronic and ought to be easily searchable, you might be interested to know how Microsoft actually provides e-mail messages as part of legal discovery. They are presented as tiff files, but not just ANY tiff files -- as the hardest-to-read tiff files you can imagine, as if they wer printed on a bad printer then faxed back and forth a few times until they are barely readable by humans, much less searchable by machines. Then ther is the 100-to-1 rule that says if you ask for 100 pages Microsoft provides 10,000 so they can claim to be "cooperative" but are actually making it far harder to find anything of value. It's in there (maybe) IF you can find it and IF you can read it. This has been the technique they've used on every case. This doesn't mean at all, by the way, that THEY can't search theri own e-mail, just that nobody else can.




23. Posted by: anon on February 19, 2007 2:37 AM:

@Philo

"They filled several 240 tape trunks and were stored in the Building 11 tape vault.”

Keyword is several. Each trunk contains 240 tapes.




24. Posted by: Proper Burstonian on February 19, 2007 12:41 PM:

Bob,

Perhaps all the loose ends are not quite yet neatly wrapped up here.

What you have unearthed appears to be a document destruction offense that has been criminalized by two things:

** the Omnibus Provision in the Sarbanes-Oxley 2002 Obstruction Statutes - 18 U.S.C. § 1503(a) which says in part:

“[w]hoever . . . corruptly . . .obstructs, or impedes, or endeavors to . . . obstruct, or impede, the due administration of justice, shall be punished . . . .”; and

** precedent established by case law, namely, United States v. Lundwall, 1 F. Supp. 2d 249 (S.D.N.Y. 1998) in which the court ruled that destruction of documents in a civil case was a criminal act:

" in preventing a litigant from learning facts which he might otherwise learn, and [thereby] preventing him from deciding for himself whether or not to make use of such facts,'" constitute obstruction of the "`due administration of justice'" under 18 U.S.C. § 1503. Lundwall, 1 F. Supp. 2d at 252 (quoting Wilder v. United States, 143 F. 433, 441 (4th Cir. 1906)). This prohibition against impeding the administration of justice applies in the context of both civil proceedings and criminal investigations. Lundwall, 1 F. Supp. 2d at 251

Burst.com may or may not have settled all civil claims. What IS on the record is that Microsoft purchased a license. What is NOT on the record is the content of any release that was entered into by both settling parties.

But it is inconceiveable that ANY release could bind a U.S. Attorney from initiating a criminal prosecution under the above law and seeking restitution for Burst.com – if a complainant comes forward to the U.S. Attorney with evidence of the crime.

The most appropriate complainant(s) are those person(s) who possess, or have access to, such evidence.

And indeed, a journalist did participate in the DOJ case against Microsoft:

www.usdoj.gov/atr/cases/ms_tuncom/major/mtc-00030610d.htm

The document destruction you have uncovered was happening all the while that Microsoft was under scrutiny by the DOJ for unseemly behavior. Specifically, even now the DOJ continues to monitor Microsoft for compliance with the Final Judgments rendered in United States v. Microsoft, CA No. 98-1232 (CKK). One has to wonder how the office of U.S. Attorney would feel about this apparent defiance of the spirit, if not exactly the letter, of the above Final Judgements, if it were brought to their attention.

www.usdoj.gov/atr/cases/f219800/219800.htm

Bob, you have written for years for years about the injustices suffered by Burst.com at the hands of Microsoft. Now you have a chance to do something about it. So the question is, are you going to step up to the plate, go to the U. S. Attorney and do the RIGHT thing?




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