Late Friday, a federal judge ordered Microsoft to search for evidence that a senior executive had instructed employees to destroy email records related to the Burst.com lawsuit in 2000. "Do not archive your email," Microsoft Group Vice President Jim Allchin wrote to employees in an email message at a time when the company was "up to its neck in high-stakes litigation," Burst.com Attorney Spencer Hosie said.
"It appears Microsoft as matter of institutional policy has decided to destroy emails in anticipation of litigation," Hosie said, noting that the email-destruction charges are more far-reaching than just the Burst.com case. "Did Microsoft destroy emails that would have been germane to the big \[Department of Justice\] DOJ case? If I were at the \[DOJ\], I would want to know."
US District Judge J. Frederick Motz ordered Microsoft to search for email messages that contained Allchin's instructions to destroy Burst.com-related email; this is the second time Motz has required Microsoft to search its email archives in the Burst.com case. Microsoft said it would comply with the judge's order but admitted no wrongdoing, noting that Allchin's email message was taken out of context. "\[We will\] clarify this matter and show that Mr. Allchin's comments were consistent with a policy that is responsive to any legal requirements and consistent with a policy of efficient management of corporate email," a Microsoft representative said.
Burst.com sued Microsoft for patent infringement in 2002, accusing the company of appropriating its multimedia streaming technologies for use in Windows Media 9 Series products. Burst.com alleges that Microsoft's instant-on streaming technology violates Burst.com's patented Burstware technology. "Burst's claims are without merit, and the technology issue in this court proceeding is based on Microsoft's own work," a Microsoft representative noted.