Subject: [IP] Cringely responds to "Microsoft responds to Cringely" article
>Date: Sun, 14 Sep 2003 12:25:12 -0400 >From: Peter Sahlstrom <peter@stormlash.net> >Subject: Cringely responds to "Microsoft responds to Cringely" article >To: dave@farber.net >X > >Dave, > >I forwarded Rich Lappenbusch's "Microsoft responds to Cringely article" >message to Robert Cringely yesterday. He was kind enough to provide a >rebuttal (attached below), and to include a copy of the courtroom >transcript of the motions hearing. The transcript is posted on my website >at http://peter.stormlash.net/documents/8-26MICR.TXT. Having read the
>article in question, Lappenbusch's rebuttal, the courtroom transcript, and
>much of the other press on the issue, I now offer my own perceptions on
>the article, and on the case:
>
>As I read Lappenbusch's letter, I see five primary points against the
>Cringely article, along with assorted semi-relevant material (which
>includes discussion of Microsoft's pressures as a large company, their
>perceived unfairness of Cringely's article, and criticism of Cringely's
>methods).
>
>Point 1 (paragraph 4): "Cringely inexplicably claims that [the court
>hearing] was the first public hearing in the case, which is simply
>false". Cringely states in his original article, "This was, to the best
>of my knowledge, the first public hearing in the case". I do not have the
>resources to determine who is accurate; but given that Cringely offers
>this as being "to the best of [his] knowledge", it's understandable that
>this could be in error. In any case, whether or not this is the first
>public hearing is not particularly relevant to the rest of Cringely's (or
>Lappenbusch's) arguments.
>
>Point 2 (paragraph 5): Lappenbuch criticizes Cringely for not verifying
>his facts. According to Cringely's attached response, Microsoft was given
>an opportunity to respond, but did not. If Microsoft had responded
>promptly, perhaps their complaints could have been straightened out prior
>to publication, as opposed to now, 2.5 weeks after the article's
>publication. In any case, saying "It's unfortunate that Cringely did not
>check with Microsoft on any of the facts related to this proceeding or
>cross-check his understanding of what transpired..." is not really fair,
>or accurate.
>
>Point 3 (paragraphs 5-6): Microsoft did not deliberately withhold or
>improperly destroy e-mails. This is just an echo of the courtroom issue,
>so I won't spend much time on it: refer to the transcript to see the
>merits of either side. But here's the issue as I see it. In the
>transcript, Burst claims that there is a conspicuous amount of e-mail
>missing (both in the form of messages that Burst possesses, but that
>Microsoft did not provide; and in messages that *should* have triggered a
>large Microsoft response, but didn't). Microsoft says that they already
>provided plenty of information, that the process of attempting to recover
>messages will take too long, and that, if messages were archived on a
>particular server (against Microsoft's instructions to employees on
>archiving e-mails), they won't be recoverable, anyway. As I see it, the
>potential importance of these messages is enough to warrant a search of
>the backup tapes. Whether or not the messages will be recoverable is a
>different matter, but one thing is clear: given that Microsoft has
>received requests previously for messages to be retrieved from the
>backups, it seems as though it would behoove them to develop a more
>efficient backup catalogue. If a non-profit organization like the
>Internet Archive can archive over 300 terabytes of information while still
>keeping it searchable over the web, it would seem as though the world's
>largest software company could at least make it through their backup
>archive in less than one million man-hours.
>
>Point 4 (paragraph 6): "Cringely's claim that Microsoft produced
>'literally no' Burst-related e-mail for a supposedly key 35-week period is
>completely false". I have no means to verify or dispute Cringely's
>statement on this: according to Cringely's message below, the 35 week
>figure comes from Burst's legal brief (which I have not seen). So I will
>refrain from judgment on this issue.
>
>Point 5 (paragraph 9): Lappenbusch criticizes Cringely's claim that
>Microsoft is withholding information as "privileged attorney-client
>communications", saying that "nothing about Microsoft's claims to
>attorney-client privilege was ever mentioned at the hearing or in the
>court papers filed beforehand". Given that Cringely states that "It never
>got around to the other Burst complaint about discovery, that Microsoft
>was withholding some messages as privileged attorney-client
>communications", this shouldn't be surprising.
>
>So, in summary: There may be errors in Cringely's article (or, there may
>not be), but in spite of this uncertainty, I think it makes some very
>strong points. Moreover, despite its length, and its strong criticisms,
>Lappenbusch's response is surprisingly scarce on facts, and strikes me as
>more of a press release than a rebuttal.
>
>Anyway, here's Robert Cringely's response:
>
>-Peter Sahlstrom
>peter@stormlash.net
>http://peter.stormlash.net > >Begin forwarded message: > >>From: "Robert X. Cringely" <bob@cringely.com> >>Date: Sat Sep 13, 2003 21:36:34 US/Eastern >>To: Peter Sahlstrom <peter@stormlash.net> >>Subject: Re: [IP] Microsoft responds to Cringely article >> >> >>Thanks for sending that to me, Peter, I hadn't seen it. >> >>I did contact Microsoft for the column but they were not only unable to >>respond in my time frame (that is, 48 hours) but were unable to even tell me >>who would respond. I have still heard nothing. >> >>My column was based on the attached hearing transcript and Burst's legal >>brief, which explained the 35 weeks of missing data. All parties had read >>both Burst's and Microsoft's briefs so they were considered part of the >>proceedings. >> >>Most companies have had in the past a policy of deleting e-mail after a >>certain amount of time, say six months to three years. Microsoft's policy >>has been to leave this up to the individual employee. At most companies, if >>70+ e-mails are missing from the time period prior to scheduled erasure, it >>is suspicious. Selective erasure is not supposed to be allowed. But >>Microsoft's policy of letting the employee decide allows selective erasure >>and I guess that is okay UNLESS the erasure is specifically to hide damaging >>evidence. Even individuals are not supposed to hide damaging evidence, but >>Microsoft's defense here is that what was erased wasn't damaging. >> >>Frankly, I am having a hard time understanding how this erasure could even >>have taken place as described. >> >>You have six key employees and five of them remain at Microsoft. >>Those six >>employees sent e-mails back and forth about Burst, about Burst's technology, >>and about customer interest in Burst's technology. But for some reason the >>six employees sent no e-mails about Burst from a period a week before to a >>month after all seven meetings between the two companies. There is not even >>an "Are you going to be at the Burst meeting on Thursday?" message. >>We know >>that there were e-mail messages during these time periods because 70 of them >>were to or from Burst. Now the court is being asked to believe that five >>employees decided COMPLETELY AS INDIVIDUALS AND WITH NO CONSULTATION WITH >>ANYONE ELSE to delete exactly the same e-mails. What kind of coincidence is >>that? >> >>If we assume that there are more than 70 messages involved, which I think is >>fair, what are the chances of five (remember one guy left the company) >>Microsoft people choosing to delete exactly the same e-mails both from their >>PCs and from the mail servers? I think the odds are very low. Some >>statistician please figure it out. >> >>Now it would be easy to explain this by saying, "Well they usually delete >>messages about meetings with other IP owners." That sounds innocent but >>what it reveals is a policy that is in conflict with Microsoft's stated >>"leave it up the individual employee." Leaving it up to the individual >>department or work group, for example, is not legal. You can't have it both >>ways. >> >>So how do they explain it? Pure chance. >> >>If you read the transcript you'll also see that Microsoft's lawyers claim >>searching the backup tapes would require one million man-hours, which they >>see as burdensome. Can Microsoft, which prides itself on being so filled >>with gray matter, not find a better way to search its backup tapes? >>Given >>that they have had to do this for the DoJ, FTC, Be, Sun, Burst, and AOL, >>you'd think they would apply just a few hundred man-hours to solving what >>should be an easy problem. Why don't they do that? >> >>You decide. >> >> >>All the best, >> >> >>Bob >> >> >>PS -- Feel free to share this with anyone you like. ------------------------------------- You are subscribed as interesting-people@lists.elistx.com To manage your subscription, go to http://v2.listbox.com/member/?listname=ip Archives at: http://www.interesting-people.org/archives/interesting-people/