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Third judge quashes Microsoft subpoenas

Another U.S. judge delivered a sharp rebuke to Microsoft Thursday as she quashed a subpoena of IBM documents, saying the software giant was trying to undermine European law enforcement and harm other companies.
/ Source: Reuters

Another U.S. judge delivered a sharp rebuke to Microsoft Thursday as she quashed a subpoena of IBM documents, saying the software giant was trying to undermine European law enforcement and harm other companies.

U.S. District Court Judge Colleen McMahon became the third American judge to squelch Microsoft’s attempts to get sensitive information that companies submitted to the European Commission to help in its antitrust case against the Redmond, Washington firm.

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“Enforcement of Microsoft’s subpoenas would both undermine the Commission’s ability to enforce European antitrust law by discouraging cooperation by third parties, and potentially harm” IBM, the judge wrote in her 16-page decision.

It was the second decision on the issue this week that Microsoft lost. A federal judge in Boston, in a stinging rebuke, quashed a similar subpoena served on Novell Tuesday.

In March, a federal court in California annulled a similar attempt by Microsoft to force Sun Microsystems Inc. and Oracle Corp. to provide documents.

Microsoft said it was pulling the plug on an appeal of the California decision: “The writing is clearly on the wall for these actions and we will not be pursuing them any further.”

The company put the best face on its withdrawal, saying that “the situation has moved on” and the focus “was on working constructively with the Commission.”

Microsoft is set to go before a 13-judge panel of the European Union’s Court of First Instance on Monday to appeal against the Commission’s underlying 2004 antitrust decision against it.

That decision found Microsoft abused the power of its Windows operating system -- used on more than 90 percent of personal computers -- to harm other companies.

The Commission fined Microsoft 497 million euros in the 2004 decision and ordered it to give some software makers access to its Windows machines as good as its own.

The U.S. judge’s ruling on Thursday grew out of a side issue. The Commission says the company failed to carry out the sanctions and may face daily fines up to 2 million euros.

Microsoft recently criticized the Commission for abrogating its rights of defense against the daily fines.

The company said Commission hearing officer Karen Williams erred in refusing it access to documents the Commission said were confidential.

Commission authority endorsed
McMahon’s ruling on Thursday explicitly backed Williams’ authority.

“Through its current application, Microsoft attempts to divest the Commission of jurisdiction over this matter and replace a European decision with one by this court,” wrote McMahon.

Beyond that, McMahon said Microsoft’s request asked her to violate United States rules of discovery.

“Microsoft’s narrowed request explicitly seeks attorney notes summarizing communications with the Commission, the (monitoring) trustee and (Commission consultant) OTR,” McMahon said.

She ruled that the documents were “protected by the work-product doctrine” under United States law, and added that such documents were expressly shielded as privileged under the law.