How key Microsoft legal emails 'autodestruct'

[R.A. Hettinga]

<http://www.theregister.co.uk/2004/10/11/ms_legal_mail_autodestruct/print.html>

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How key Microsoft legal emails 'autodestruct'
By John Lettice (john.lettice at theregister.co.uk)
Published Monday 11th October 2004 07:23 GMT

The latest court documents to be unsealed by Judge Frederick Motz in
Burst.com's suit against Microsoft paint a picture of Microsoft document
handling procedures which destroyed the very emails that were likely to be
most relevant to several antitrust actions, Burst's included. According to
Burst's lawyers Microsoft's status as "a defendant in major antitrust cases
since at least 1995" means that it has a duty to preserve potentially
relevant evidence. But "Microsoft adopted policies that, to put it mildly,
encouraged document destruction from 1995 forward."

Microsoft is still resisting Burst's attempts to have it hand over
documents defining its retention policies, but a Burst brief of 27th
September puts forward a forensic examination of the net effect of whatever
these policies might be, accompanied by a certain amount of rolling of
eyes. We, and the technology press in general, are indebted to PBS
columnist Robert X Cringely for his dogged and single-handed pursuit of
Burst v Microsoft. You can read his take on the latest developments here,
(http://www.pbs.org/cringely/pulpit/pulpit20041007.html) and links to the
court documents here. (http://www.pbs.org/cringely/links/links20041007.html)

As Microsoft's retention policies remain for the moment a closely-guarded
secret it would be absolutely wrong of us to draw any inference as to what
they might be solely from what happens. What happens, though, is pretty
damn peculiar. The system as a whole defaults to swift destruction of
employees' emails, while there is clear evidence that Microsoft takes a
very narrow view of whose documents may be relevant to a particular case.
In some cases its choice of 'relevant' employees to be subject to retention
seems perverse and misleading.

So in the normal course of events documents would be destroyed swiftly,
documents would be saved only by a document retention notice, and if
document retention notices were not sent to the right people (the Burst
brief argues that they were not), then by the time those people were
properly identified the documents would almost certainly have been
destroyed. Microsoft exec Jim Allchin, who seems to be shaping up as a star
exhibit, instructed Windows division employees in January 2000 to delete
emails from their hard drives after 30 days. "Do not be foolish," he said,
"do not archive your e-mail." In response to emails about this instruction
Allchin sends another which confirms the existence of an "official policy"
on document retention sent company-wide in the summer of 1996, and says
that this is the only written policy. Allchin however reiterates his 30 day
instruction, adding an exception only for those who "have received specific
instructions from Legal to retain certain documents or email that may be
related to pending litigation. These instructions override the general
policy."

Microsoft has not yet yielded the 1996 policy, but Allchin's reference to
it plus his insistence on 30 days suggests that the general policy was 30
days, from 1996 onwards. The retention of legally-relevant documents is
therefore clearly dependent on Legal sending retention notices to the right
people at the right time. Burst's brief at this point notes that Microsoft
has confirmed it did not produce any of the Allchin email string in 12
prior cases, including DoJ v Microsoft, on the basis that, it claims,
nobody asked for them. But in Sun v Microsoft, Microsoft undertook to
"produce documents concerning Microsoft business policies, procedures or
guidelines for document retention, to the extent such documents exist, for
the period January 1, 1998 to November 30, 2002." This period covers the
Allchin string, but the string was not produced, so when Microsoft
confirmed that it had completed the production of documents, it was not
telling the truth.

The general policy, if it is the policy, of 30 days covers local storage.
Email could also be saved on the Exchange servers. Microsoft however
enforces rigorous limits on employee storage on these servers, and on
average there appears to be space for about a month's emails per employee.
No storage allocation left, no email until you delete some. In addition,
emails could be saved on servers maintained by the Operations Technology
Group. But as made clear previously in this case (reported here
(http://www.theregister.co.uk/2004/05/24/allchin_destroy_email_claim/)),
company policy is that emails should not be archived on these servers. This
policy was strengthened by the addition of the words "Due to legal
reasons..." in 1997, but weirdly, Microsoft claims that this bit was made
up by information technology employee Candy Stark, purely to add weight to
her campaign to save on storage costs. In fairness, therefore, we should
consider the possibility that many other apparently incriminating things in
surviving emails have been made up too. Is there a company policy on when
to believe what an exec is telling you? And if there is, has it been made
up? Frightening, isn't it?

But the Burst brief declines to believe Stark made it up, and suggests the
"legal reasons" may track back to the elusive 1996 policy, which again is
cited by Stark.

Archive location number four at Microsoft is provided by the servers
maintained by the IT person for each individual business group. The servers
most relevant to the Burst case were maintained by a Mr Ochs, who did not
receive a retention notice, and who testified to routinely destroying
documents on the servers. These are the very servers Microsoft has
previously said it cannot reasonably search for documents, because it does
not know who uses which servers.

The brief puts forward several examples of cases where Microsoft failed to
identify relevant employees and send them retention notices. In response to
a DoJ request in 1997 it failed to identify Chris Phillips and his boss
Eric Engstrom, although Phillips had led negotiations with RealNetworks and
the ensuing deal was sometimes referred to internally as "the Chris
Phillips deal." Microsoft did identify the in-house lawyer brought in to
draft the contracts, but not Phillips or Engstrom, so both destroyed their
emails. Neatly, as a Microsoft attorney the lawyer's emails were protected
by attorney-client privilege, so Microsoft doesn't have to release them.
Similarly Engstrom emails relevant to Intel's decision to drop development
of its JMF Java Media Player have been destroyed.

The Burst brief only asks for Microsoft's retention policies to be produced
in camera, so even if Redmond does cough up there's no certainty we'll ever
know if they explain the apparent weirdness of Microsoft document and
archiving policies. But if Microsoft does have a policy to diligently
retain relevant documents, well, it clearly needs to write a new policy
that works instead. We at The Register have a humble suggestion. Seeing
Rick Rashid of MS Labs is in the habit of touring the world telling people
that storage is now pretty well cheap enough for you to just record your
whole life in a lifeblog, couldn't everybody at Microsoft just...

Related links

Allchin named, as proof of MS email destruction policy is sought
(http://www.theregister.co.uk/2004/05/24/allchin_destroy_email_claim/)
Cringely PBS column (http://www.pbs.org/cringely/pulpit/pulpit20041007.html)
Links to court documents (http://www.pbs.org/cringely/links/links20041007.html)

-- 
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R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'