Court Rejects Microsoft EU Document Request
A Massachusetts court has rejected a Microsoft Corp. request to force software
rival Novell Inc. to hand over European Union correspondence that Microsoft claims
it needs to defend itself against antitrust charges in Europe.
According to a court order Monday, U.S. District Judge Mark L. Wolf said Microsoft
had not shown that the EU proceedings were fundamentally unfair or would be
if it did not have access to the Novell documents.
He said the European Commission had told the court it viewed Microsoft's subpoena
as a "thinly veiled attempt" to circumvent EU procedures that aimed
to strike a balance between a defendant's right to see antitrust papers and
companies "who may have a well-founded fear of retaliation if they assist
the Commission in such cases."
"It is now evident that granting Microsoft the discovery it requests from
Novell would interfere with the foreign tribunal, not assist it," he wrote.
Wolf also criticized the software company for "erroneously, repeatedly"
stating that the European Commission could not obtain the documents and make
them available to Microsoft.
Microsoft's spokesman in Brussels, Tom Brookes, had no comment on the ruling.
On March 3, the company asked courts in California, Massachusetts and New York
to compel Sun Microsystems Inc., IBM Corp., Oracle Corp. and Novell Inc. to
hand over correspondence, saying U.S. judges could order U.S. citizens to provide
evidence for use in foreign legal action.
California has turned down Microsoft's petition for Oracle and Sun. New York
has yet to rule on IBM.
Microsoft said it needs to see these documents to understand how an independent
expert came to write reports highly critical of the company's efforts to comply
with the EU's 2004 antitrust order.
Microsoft's dispute with the European Commission took a turn for the worse
in December when the EU antitrust authority charged that the software company
had not obeyed an order to provide competitors with the information needed to
make their software work with Microsoft servers.
The EU has threatened to fine Microsoft 2 million euros ($2.4 million) a day,
backdated to Dec. 15.
Microsoft has said it believes the Commission colluded with its rivals and
two outside experts ahead of the latest charges, alleging that regulators had
"inappropriate contacts" with independent monitor Neil Barrett and
It said that called into question the impartiality of a report Barrett wrote
that said the technical documentation Microsoft had supplied needed a drastic
overhaul to be workable.
The Commission has refused to comment on these allegations, beyond pointing
out that Barrett was chosen from a list of candidates put forward by Microsoft.
The EU levied a record 497 euros ($613 million) fine against Microsoft in 2004.
It also ordered the company to share code with rivals and offer a version of
Windows without the Media Player software.
Microsoft is appealing the ruling, and the case will be heard next week by
the European Court of First Instance, the EU's second-highest court.