Burst.com Alleges Microsoft Purposefully Destroyed Incriminating Emails

A pending Burst.com patent-theft case has Microsoft in more legal hot water this week. Adding to its previous charges, Burst.com now alleges that Microsoft systematically destroyed incriminating email messages from its servers, despite the many international, federal, state, and class-action lawsuits it faces, many of which could rely on information in those messages. The revelation came this week when a Burst.com court filing was unsealed.
  
If you don't recall the details of the Burst.com case, you're not alone. Mired in relative obscurity compared with Microsoft's higher-profile court cases, the Burst.com complaint hasn't received a lot of press. In 2002, Burst.com alleged that Microsoft stole Burst.com's Internet-based digital media playback technology for use in Windows and Windows Media Player (WMP). According to Burst.com, Microsoft then tried to file for a patent for the technology and changed Windows so that Burst.com's original technology would no longer work.
  
Sound familiar? Microsoft has faced similar charges regularly since the days of "It's not done until Lotus won't run," from the early 1990s. However, in these more technical times, when millions of email messages are regularly saved and archived electronically at companies such as Microsoft, discovering and documenting trails of evidence is much easier--unless, of course, one of the parties decides to destroy all traces of those email messages, as Burst.com now alleges.
  
Burst.com first complained about the email allegations earlier this year. In an earlier court filing, the company said that key Microsoft email evidence was missing, but Microsoft later provided more documentation and the case fell from the public eye as the companies waited for their court date. However, Burst.com had more explosive charges to come. In the filing that was unsealed this week, Burst.com alleges that Microsoft has a secret policy to delete most email messages, including those that could be incriminating with regard to the Burst.com case. Burst.com also says that Microsoft lied to federal prosecutors in 2002 when it concealed the email-destruction policy.
  
Specific examples of this abuse exist, Burst.com alleges. One email message from Microsoft Executive Vice President Jim Allchin, the man ultimately responsible for all Windows products, reads, "I mean this--purge \[email\] every 30 days." Allchin sent that message, Burst.com says, just weeks after Judge Thomas Penfield Jackson found Microsoft to be an illegal monopoly and ordered the company to be broken up (an order that was later struck down). "This is not something you get to decide," Allchin continued. "This is company policy. Do not archive your mail. Do not be foolish. 30 days."
  
Microsoft, however, denies the claims. Specifically addressing the Allchin email, Microsoft officials note that the executive later amended his instructions so that employees covered by court order wouldn't destroy their email. The Burst.com case is inflammatory, and more is going on here than just the email-retention accusation. For example, unsealed documents exist that prove Microsoft considered buying Burst.com at a "fire-sale" price as an "insurance policy" in case the company ever decided to sue it for violating Burst.com's patents. Ultimately, Microsoft didn't make an offer for Burst.com, but Burst.com did, of course, sue Microsoft for patent theft. Stay tuned.