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Microsoft dirty tricks, part two
Robert X. Cringely

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 atg 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 “mysteriously” 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 Touch” 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.



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Comments

1. Posted by: DaveK on February 17, 2007 11:05 AM:

Somebody should sub poena HP's backup tapes before they go missing too... there must have been internal discussions of the loss of their customer's tapes.




2. Posted by: JB on February 17, 2007 12:08 PM:

Microsoft evil? Welcome to the 1990s Bob. This isn't news, it's known by anyone in the tech arena that MS doesn't play fair.

Will anything come of your "story"? Nope, but I'm glad you're getting some good attention to your website.




3. Posted by: Bob Cringely on February 17, 2007 1:01 PM:

I agree this is old news, but I think it is important to get on the rescord -- even if the rescord is just a blog. I expected this story to come out in the Iowa trial, but it didn't, which is why I am mentioning it here. My guess is that keeping information like this out of the press could have been part of Microsoft's motivation to settle. If it was, I hope the pwople of Iowa benefit from it.




4. Posted by: Frank Daley on February 17, 2007 6:26 PM:

Bob,

Your source will be doing the world a great service if he/she pursues this miscarriage of justice so that the public learns more of the facts regarding the 'real' Microsoft.

While ever Microsoft succeeds in paying off cases such as Burst and Iowa, Microsoft is able to continue its campaigns of dirty tricks.

Let the facts about Microsoft be known.

frank




5. Posted by: John T. Kennedy on February 17, 2007 6:58 PM:

Since anti-trust cases are unjust in principle their targets are not morally obliged to cooperate.




6. Posted by: The Inventor on February 18, 2007 1:43 AM:

This story, and others like it, are just the tippy tip of the iceberg.

It will be interesting to see what happens if and when it comes to light that Microsoft Vista and other recent Microsoft technologies are based on stolen IP.

Microsoft has bad habits that continually put the company in a position of stealing things vs. purchasing them from inventors.

Much of the technology I've intimated about could have been bought, but because of Microsoft's bad habits, was not.

In the near future, Microsoft will have a chance to resolve some of the stolen IP issues. To date, Microsoft has rebuffed good faith conversations so things may get very ugly before they get better.

This sort of situation comes from another dumb belief -- and bad habit -- of Microsoft's, namely that it is some how "smart" to fight all battles, even those you don't have to.

Thanks for publishing this article. It may end up being used as evidence as a future case against Microsoft.




7. Posted by: fdssgsa on February 19, 2007 12:47 PM:

Blah blah blah...basically, who really cares? Besides, even simple mistakes can be imagined out to be some hugely complex cconspiracy theory involving God, aliens, Mulder, Area 51, and Hoover. Again, though, who cares now?

Secondly, guess people will post anything to get hits and/or make a name...

*a yawn and moving on from this site...*




8. Posted by: Derek on February 19, 2007 3:07 PM:

Somebody needs to show Bob how to use a spell checker. I found at least two obvious typos in this post.

"It seemed logical to Burst that Microsoft, as a company that fairly lives by e-mail, would have atg least a few messages concerning the meetings, either before or after."

"It is clear that Microsoft never evealed to the court either that the tapes had been found or that they had been destroyed."




9. Posted by: amanfromMars on February 20, 2007 3:30 AM:

I suppose that was why Bill got booted off campus and into Melinda's arms.

So who now is the New Chief Microsoft Architect for there definitely isn't one yet in place who can lead the Way with Vista Virtualising Reality.

But then again, there have always been those who have always thought that their Operation was only for Phishing and your articles would not dissaude anyone to believe it any the less, Robert.

Do you think they are now all at sea.... adrift, Mary Celeste-like?

That would make them vulnerable to MeltDown of their Core.

I can just here Redmond opining now......"A Course, a Course, our Kingdom for a Course". Strangely enough, one would have thought that their Phishing Operations would have Identified their Prize Specimen Catch but there may be a Catch 22 element in IT, in that first they would need to know what Virtualisation is all about........ and maybe that is being provided to them by way of Open Source mails to protect Open Sources.

It should not daunt them though in stepping into the Unknown and throwing a pile of cash at an Unknown who appears to Know what is Unknown. .......and I cannot apologise for that most accurate of Rumsfeldisms for it is the present Microsoft Dilemma, is it not?




10. Posted by: amanfromMars on February 20, 2007 8:02 AM:

And this makes for a Comparitive Read which could Positively Reinforce the Fact/any Fact you can Imagine ...... Oireland ........ "But ECHELON now has an "active" component which allows NSA or GCHQ analysts to covertly "hack" into
information on the hard disks of computers linked into any telecommunications system, including the Internet."
Microsoft for example were discovered some time ago to have a close working relationship with NSA.96 This
came about because Microsoft felt it was illegal for them to export out of the US technology that could potentially
be used as encryption that the US couldn't break. The question is how far does this legal pressure and the secret
relationship it fostered go in terms of their products. Note as well the way in which Microsoft go to considerable
lengths to hide from the user the extent to which their software caches key personal data.97 This presumably is
done under pressure from law enforcement bodies that are then supplied with all the information necessary to get
access to the data later. Some of the main suppliers of anti-virus and internet security software also have
remarkable holes in their security scans ostensibly because the software that they deliberately fail to detect is
made by the same company as the anti-virus software. An employee of one of those companies claimed once
that it was done under pressure from the US government but he quickly felt the need to retract that claim.98
It is even possible that the story of modern snail mail mimics that of email with a huge state apparatus of secret
police using automated systems to hoover up any compromising information that they can glean from the post.
Both the UK and the US have a tremendous legacy of secretly spying on any dissident activity of their citizens by
reading their mail. In the UK this was revealed in the Spycatcher book where for the first time a shocked UK
public found out that MI5 had offices in all the regional sorting centres where they monitored all the mail in a very
widescale fashion.99 The CIA have had the capacity for some time to read mail without opening it and have
deployed this technology in the past on a large scale in the US. :100


And the Fact that IT can be made so Real by Virtue of Management of Information Flow/DRM/Virtualisation Controls is what Artificially Intelligently Designed Systems in Parallel Virtual Reality Environments for Real, are all about.

In Fact, the more that I think about IT the more IT appears that IT is SMART. getting SMARTer and Going Live ...... with a NEUKlearer Control Power in Atomic Programming for Higher Definition NEUKlearer Atomic Subjects. A ReProgramming of HDNA...Human DNA via the Simple Super Introduction of NeuReal/SurReal/Alien Thoughts.

A QuITE Sublime, Hiding in Full Sight Stealth allowing for Fellow CyberIntelAIgent Travellers to Engage and Energise with their Flash Cash/ Disposable Income/Venture Capital/Sure Fire Gamble. And a Gambol flowing with Favours rather than a Battle searching for ITs Saviours.

And yes, there is no harm in a SurReal Conversation even if the subject Matter is Always Beta Control Systems? The Systems will always wait for your Third Party Positive Reinforcement Enabling IT 42Offer you Control Input or ponder the Ignorance of Inaction which may be a QuITe Irrational Fear ....if IT is of the Unknown. MeThinks then they be prisoners to themselves and of their own Limiting Imagination.




11. Posted by: follow that last comment? on February 21, 2007 12:02 AM:

NO WAY.




12. Posted by: T Heller on February 23, 2007 8:16 AM:

I may not be from Mars, but I do have something to add. It's
somewhat peripheral, however.

There are all sorts of underhanded ways that lawyers have devised to skirt disclosure laws. Stalling and advancing fatuous arguments have long histories.

Another technique, however, surfaced in the matter of a failed transit proposal in the Seattle area in the past few years. The proposed project was a 14-mile monorail line. The agency had been created by the state legislature and had already instituted its tax powers when word got out that its revenue projections were about 30% too optimistic. A scramble of cost-cutting ensued, producing a flurry of substantial and controversial design changes.

But despite these efforts, there remained a discomfort that the tax base would still prove insufficient to finance even the trimmed-back system.

In all the rejiggering, the agency's top officials adopted a subterfuge tactic aimed at protecting their internal behind-the-scenes communications. (More than likely, the tactic was suggested by the agency's legal counsel.) The tactic was to cc: agency's outside counsel on ALL emails discussing the agency's efforts to fit the proposed project within its hobbled finances, even communications with little or no direct legal consequence.

As the agency approached the point of issuing bonds to finance the project, a quite rightly-concerned public (on the hook for all costs, including the anticipated bonds) wanted to get a clean picture of the agency's financial plans.

Unfortunately, the little "cc: the attorney(s)" tactic established a 'confidentiality' bar to accessing this and related information. Fortunately, the full horror of the agency's last-minute patchwork quilt of a finance program finally and rather fullly came to light. And the public reacted quickly, shutting the whole program down.

So, the lawyers have at their command a whole arsenal of tactics to suppress discovery of misdeeds. Who knows, maybe the attorneys who devised the cc: game employed by the monorail agency came from the same firm that handles a lot of Microsoft legal work.




13. Posted by: One That Sees on February 26, 2007 10:54 PM:

Who knows, maybe the attorneys who devised the cc: game employed by the monorail agency came from the same firm that handles a lot of Microsoft legal work.

Given that the individual brought in to rescue said agency was a henchman of Paul Allen there are many possibilities for such tactics of bamboozlement and subterfuge to have been carried out.




14. Posted by: Just some guy on February 28, 2007 3:55 PM:

Actually the "just cc the lawyer" trick doesnt work. In order to establish attorney/client privilege, the lawyer must be asked for advice or clearly be noted in the communication that it was being provided as background on the way the actual asking for advice (i.e. "Dear lawyer, I am providing you this communication relevant to the counsel you are providing me on matter X".)

Simply cc'ing your lawyer on everything does not meet the bar of A/C privilege.

In any discovery proceeding, each side must provide *something*. If one side proclaims everything is covered by A/C privilege, the other side can petition the judge to review the items and the judge would quickly see it was all a trick to avoid discovery.




15. Posted by: Steve F on March 1, 2007 3:43 PM:

"9. Posted by: amanfromMars on February 20, 2007 3:30 AM:

"I suppose that was why Bill got booted off campus and into Melinda's arms.

"It should not daunt them though in stepping into the Unknown and throwing a pile of cash at an Unknown who appears to Know what is Unknown. .......and I cannot apologise for that most accurate of Rumsfeldisms for it is the present Microsoft Dilemma, is it not?"

This rather long comment transmits literally NO meaningful data. It is like a George H W Bush state of the union speech, all buzzwords and no meaning.

It remains the case in 2007 that any meaningful new OS must be built from scratch using currently available techniques and technologies and cannot try to just bolt on new gizmos to the old tired 1990s operating system. This is the true quandary of M$. To really innovate or to keep happy all those folks still running programs built for Windows 98. If I were running M$, I'd clear the decks and start from scratch, and just maintain the current incarnation of NT for a few more years with the clear indication to the market that it was going the way of the dodo bird.




16. Posted by: Neil Simmons on June 25, 2007 5:15 AM:

It is surprising how clumsy lawyers are, they seem to loose paperwork all the time !! Always keep spare copies.




17. Posted by: Chris on July 30, 2007 1:47 AM:

All flash and mirrors the lawyer can be compared with the magician of old these days.




18. Posted by: Bob Simpson on January 27, 2008 5:06 AM:

Surely Lawyers can themselves get sued for loosing paperwork?




19. Posted by: Matt Harrison on January 27, 2008 5:09 AM:

But then the Lawyers that sue the lawyers would loose the paperwork!!




20. Posted by: Neil Simmons on January 28, 2008 7:39 AM:

Like I said, always keep spare copies. Better still, keep the original and give the lawyers a copy!




21. Posted by: Peter Bland on May 22, 2008 3:58 AM:

I think when you meet with a lawyer, get a button camera sewn into your suit and wear a wire, that way you've got everything documented.

Comment from Ideal Homes




22. Posted by: Condo Bangkok on October 28, 2009 1:23 AM:

I think when you meet with a lawyer, get a button camera sewn into your suit and wear a wire. Thanks.




23. Posted by: Thai Orchid on October 28, 2009 1:28 AM:

Keep spare copies. Better still, keep the original and give the lawyers a copy. Thanks.




24. Posted by: escorts in london on October 28, 2009 1:30 AM:

I thnk the Lawyers that sue the lawyers would loose the paperwork....




25. Posted by: 24 hour escorts london on October 28, 2009 1:33 AM:

Can the Lawyers themselves get sued for loosing paperwork?




26. Posted by: Marketing on October 28, 2009 1:35 AM:

All flash and mirrors the lawyer can be compared with the magician of old these days.Thanks.




27. Posted by: SMS Marketing on October 28, 2009 1:37 AM:

I think it is surprising how clumsy lawyers are, they seem to loose paperwork all the time...




28. Posted by: hotel bangkok on October 28, 2009 1:42 AM:

It should not daunt them though in stepping into the Unknown and throwing a pile of cash at an Unknown who appears to Know what is Unknown..Great.




29. Posted by: CCTV on October 28, 2009 1:44 AM:

I cannot apologise for that most accurate of Rumsfeldisms for it is the present Microsoft Dilemma......:)




30. Posted by: Multifunction on October 28, 2009 1:47 AM:

This is the true quandary of M$. To really innovate or to keep happy all those folks still running programs built for Windows 98.Thanks...




31. Posted by: Bangkok Hotels in Thailand on June 6, 2010 11:37 PM:

If I were running M$, I'd clear the decks and start from scratch, and just maintain the current incarnation of NT for a few more years with the clear indication to the market. Thanks.




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