E-records Impeach Opponent's E-Discovery
Burst.com’s electronic mail records served the company well in its trade secret lawsuit against Microsoft.
Wrongful Withholding of Records?
Burst had held conversations with Microsoft in which it confidentially (under non-disclosure agreement) revealed trade secrets (nonpublic ideas of an inventor) about Burst's streaming media technology. Burst later alleged that Microsoft chose to use these trade secrets without Burst’s consent, and without compensation to Burst.
So Burst sued, claiming misappropriation of trade secrets and breach of contract. During the discovery phase of the lawsuit, Microsoft was required to reveal all of its e-mail records on the topic, and Microsoft did turn over a large number of e-mails regarding its development and use of streaming technology.
But a question arose in court whether Microsoft complied fully with the discovery requirements. Burst contended that Microsoft had wrongfully withheld some e-records or destroyed them. To support its contention, Burst produced numerous of its own email records showing particular exchanges between Burst and Microsoft, where Microsoft had produced no corresponding records on its end. Stefanie Olsen, “Microsoft ordered to uncover old e-mails,” September 10, 2003.
Microsoft's Mismanagement of Records Played to Adversary's Advantage
This mismatch in email records led the court to suspect Microsoft was being evasive. The court ordered Microsoft to sift through backup tapes in search for missing e-records (looking for electronically stored information (ESI) in network backup is a tedious and expensive process!). The court's suspicion, coupled with the order to look through backup, cast Microsoft at a strategic disadvantage, and contributed to company’s decision to settle the case and pay Burst $60 million. Tim Siglin, “Microsoft Settles Burst.com Lawsuit,” March 14, 2005.
Mr. Wright teaches the law of data security and investigations at the SANS Institute.