Cringely responds to "Microsoft responds to Cringely" article

[Dave Farber <dave () farber net>]

> 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.

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