‘Cooked’ MS memo II – DoJ chases missing emails

Missing material may involve lawyer, broad arrows

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MS on Trial The Register has now obtained copies of the DoJ's motion covering Microsoft's attempts to enter a fabricated Bill Gates memo as evidence (Cooked memo I) - and it doesn't look good for the defence team. Discussion of the motion was originally intended to take place this week, but will now probably happen next. Ominously, as proceedings closed on Wednesday, the judge said of the matter: "We could do it anytime. We'll have a general cleanup day with respect to all items that everybody has to make sure has been nailed down." Cleanup? Nailed-down? Oh-oh. A helpful reader mailed us some useful dope on legal nailing the American way: "In American jurisprudence tampering with/forging evidence during an investigation with an intent to mislead is considered obstruction of justice. Which can carry severe legal penalties including possible jail time if proven true. If Microsoft in fact did what appears to be the case thus far, they could and should face severe fines and legal sanctions." So there. The DoJ motion deals with documentation surrounding a document which Microsoft's lawyers on Monday described as "an email from Bill Gates to his executive staff dated December 1 1998." This is of course the email crowing about the AOL-Netscape deal which was deliberately cooked up by Bill in cahoots with his PR spinmeisters in order to be leaked to the press via AP. As the DoJ motion says, "the email is a self-serving summary of Microsoft's arguments in this case relating to AOL and other matters." Did the lawyers know? Now, here's the first juicy bit from the motion: "In fact, as Microsoft counsel was aware from documents produced by Microsoft, [our italics] the December 1, 1998 email had been prepared for the purposes of this litigation and had been distributed to the press the day it was dated." That's a nasty one, because if the attorneys knew the email was "cooked" (in the delightful parlance of MS spinmeister Greg Shaw) by trying to use it as evidence they were trying to mislead the court. But the audit trail is at the moment patchy, because although Microsoft has had some of the email associated with Gates' made-up email wrung out of it (via a DoJ subpoena of 1st April), tantalising slices were carved out of the sequence before it was delivered. So the DoJ motion asks for Microsoft to be forced to produce the balance of the documents, at least for an in camera inspection. But clearly the DoJ suspects that the missing bits are incriminating rather than company-confidential. Who was that masked attorney? Here's one of the reasons why: "Microsoft counsel," says the motion, "indicated that the material redacted from GX2245 [one of the email sequences] was an email from a lawyer." This is a little bit interesting, as GX2245 consists of the original Gates email, and traffic between Gates, Greg Shaw, Paul Maritz, Tod Nielsen and Mich Mathews. It's the company high command talking to the company PR high command. The stuff that has been released shows Gates taking a close interest in the distribution of the "leak," and discussing the matter with Shaw. So if the DoJ is right about there being a lawyer in that gap, the smoking pistol could be pretty close to Gates himself. The other email sequence referred to in the motion again includes the "leak" (boy, are we getting bored with it), and casts an interesting light on cooking emails according to corporate spinmeister Greg Shaw. In what appears to be an alert to the next tier of managers, Shaw writes: "The following email was sent to executive staff this morning from Billg. I have provided this to Ted Bridis of AP who has been working on a story about pricing and browsers… Reporters will likely be upset that we just gave it to AP. Calls should go to Adamso. He will explain that it's an internal email not intended for broad distribution, but he will give it to reporters if they ask for it and have some use for it." Anybody smell rotting fish? Ted Bridis can't have been terribly impressed by this process, which in Brit parlance looks remarkably like a stitch-up. It's possible Shaw sent him the leak anonymously, certainly. We've run down a copy of his original story and it treats the document as genuine, and refers to it as "obtained by The Associated Press." Later AP versions of the story use the terminology "given to reporters," presumably indicating they smelled the fish shortly after Ted fired his original. The redoubtable Mr. Bridis, incidentally, seems to have been pretty active more recently on the subject of the "settlement talks" between the DoJ and Microsoft. These turned out to be bollocks as well, and we wonder if perchance the matters may in some way relate? ® Complete Register Trial coverage

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