e-Discovery Team

Everyone in e-discovery knows that people writing emails will, much like kids on the old Art Linkletter show, “say the darndest things“.  Of course, instant messaging is even worse, as Congressman Mark Foley showed.  Private emails and instant messages have a way of becoming public, especially when discovered in litigation and introduced into evidence at trial. There are hundreds of examples of this from past lawsuits, and the phenomena has been widely discussed since the late 1990s.  See for instance the scholarly observation by Kenneth Withers in his 1999 article, Is Digital Different?:

Much is made in the electronic discovery literature of the informal, revealing, and often embarrassing nature of e-mail. E-mail is considered the window into the corporate soul, and is therefore a highly sensitive area for discovery. The literature also notes a deep disconnect between individuals’ perceptions of e-mail as private and transitory, and the reality of e-mail as a permanent and discoverable corporate record, although only rarely does the literature suggest that this phenomenon has been studied empirically in any other discipline, such as linguistics or psychology.

Since this has been known for a long time, you might think that, at the very least, senior management in businesses that are frequently involved in litigation would watch what they say.  But you would be wrong, and that is why email continues to be the best field for “smoking gun” searches.

Unfortunately for Microsoft, which was one of the first companies to be burned by email in its antitrust cases,  Microsoft offers the latest proof that senior corporate officers continue to say the darndest things in email.   The point is proven by a horde of once private Microsoft emails that were introduced into evidence at a trial in Iowa in December 2006.  The case is a class action styled Comes et al. v. Microsoft.  After the emails were admitted into evidence, plaintiff’s counsel, Roxanne Conlin, a former United States Attorney, posted them  on the Internet, just as she has done with all of the other evidence in this case.  (Note: when this blog was originally written, all of these materials were published on the web and some were linked here. A few weeks later the case settled and all of the materials were removed as part of the settlement.  I then removed the links since they no longer functioned.)

Plaintiff’s Exhibit 7,264, which Bates marking indicates was originally produced on June 15, 2005, and marked “Confidential”, was  circulated on the Net as soon as it was admitted into evidence, even before plaintiff’s counsel posted it last week.  It is an email dated January 7, 2004, from Jim Allchin to Bill Gates and Steve Ballmer.  The subject line of the email is “losing our way.” Mr. Allchin’s email to his bosses begins like this:

This is a rant. I’m sorry. I am not sure how the company lost sight of what matters to our customers (both business and home) the most, but in my view we lost our way.

The second paragraph of the email gets worse and he says: “I would buy a Mac today if I was not working at Microsoft.” This is the line that is now being widely quoted. Today Mr. Allchin is not working for Microsoft; he retired from Microsoft on the day Vista was released, January 30, 2007. According to Microsoft, “Allchin was a member of the Senior Leadership Team, responsible for developing Microsoft’s core direction along with Steve Ballmer and Bill Gates.”  No news yet on what kind of computer Jim Allchin is now using, but he did leave a humorous blog on what his life after Microsoft is like.

In fairness to Microsoft and Jim Allchin, this is the reply which Jim posted on the Windows Vista Team blog when this story first broke on December 12, 2006:

In the email, I made a comment for effect about buying a Mac if I was not working at Microsoft. Taken out of context, this comment could be confusing. Let me set the record straight:

This email is nearly 3 years old, and I was being purposefully dramatic in order to drive home a point. The point being that we needed to change and change quickly. We did: We changed dramatically the development process that was being used and we reset the Windows Vista development project in mid-2004, essentially starting over.

2-and-½ years later, Windows Vista has turned into a phenomenal product, better than any other OS we’ve ever built and far, far better than any other software available today, in my opinion. It’s going to be available to customers on Jan 30, and I suggest everyone go out and get it as soon as you can. It’s that good.

The spirit of being self-critical continues to flourish at Microsoft. Within Microsoft everyone considers it their duty to always put their convictions and our product quality ahead of everything else. That was the intent of my mail to Bill and Steve, and I consider it a great example of how this company can focus and do what’s right for customers.

It is interesting to note that the evidence admitted was not the original email from Jim Allchin to Bill Gates, but rather an email from Allchin to another Microsoft executive, Eric Rudder, sharing his private email to Gates.  Again, this shows the danger of email and other electronic documents; they can easily be circulated to others without your knowledge, and turn up later as part of an email chain.  Email has an amazing way of  surviving and appearing later, sometimes where you least expect it, despite all efforts to the contrary.

Eric Rudder still works for Microsoft. He has reported directly to Bill Gates since September 2005, when promoted to Senior Vice President leading what Microsoft calls the “Developer and Platform Evangelism division.” 

This entry was posted on Sunday, February 4th, 2007 at 1:15 pm and is filed under Related Legal Webs, Technology. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.