Burst.com says Microsoft destroyed evidence

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November 17, 2004 (IDG News Service) -- Top managers at Microsoft Corp. told employees to destroy evidence contained in old e-mails during 2000, even as the company faced several antitrust lawsuits, court documents filed by Burst.com Inc. charge.
Burst.com, which is suing Microsoft for alleged patent and antitrust violations, accused Microsoft managers of telling employees in 2000 to delete most or all e-mail after 30 days, in court documents made public this week. At the time, the U.S. Department of Justice was in the middle of its antitrust lawsuit against Microsoft, and the software vendor faced dozens of class-action lawsuits.
"Given this array of litigation, Microsoft had a concrete duty to preserve relevant documents," Burst.com's lawyers wrote in a motion filed in U.S. District Court for the District of Maryland. "But it did not. Instead, it implemented ... practices to make sure that incriminating documents disappeared."
A Microsoft spokeswoman disputed Burst.com's allegations. "Over the past several years, we have produced literally millions and millions of documents and e-mails for the various legal cases we've been involved in, and we've been completely forthcoming in all document requests in this case as well," spokeswoman Stacy Drake wrote in an e-mail in response to questions about the Burst.com motion. "We have provided more than half a million pages of documents from more than 60 employee files specifically in response to Burst's broad discover requests."
Burst.com's motion asks Judge Frederick Motz to instruct the jury when the case goes to trial that because Microsoft failed to retain documents related to Burst.com's lawsuit, "the jury is free to infer that Microsoft did so because the contents of the documents were adverse to Microsoft."
Burst.com filed its lawsuit against Microsoft in June 2002, alleging that Microsoft stole patented technology and trade secrets concerning Internet-based video-on-demand for its Windows Media Player product. Microsoft learned all about Burst.com's technology in two years of meetings and discussions, although it signed a nondisclosure agreement with Burst prior to those meetings, the company alleges.
Burst.com's new motion asks Motz to exclude former Microsoft executive Eric Engstrom as a witness during trial. Engstrom, the former general manager of MSN's dial-up service, was a key employee in Microsoft negotiations with Intel Corp., after which Intel ceased development of its Java Media Framework Player in 1998, said Bruce Wecker, a lawyer representing Burst.com. Burst.com's Burstware media player relied on the Intel Java framework.
With no e-mail to back up his testimony, Engstrom is "free to remember history in a way most convenient for Microsoft," Burst.com's lawyers wrote in the new motion.
"We don't think he should be able to appear in court and make up stuff," said Wecker.
Burst.com's motion accuses

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