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Microsoft's Sendo case: has it Burst wide open?

As far as I'm aware, Microsoft deleted no relevant internal emails pertaining to its attempt to turn Sendo into the first Microsoft Smartphone giant - or pertaining to its subsequent alleged attempt to bankrupt the small company. But if I were Sendo, I'd be investigating this, just in case.

The phone business is very unlike the movie business. Well, it was, at any rate, until the "movie-clip-on-a-phone" was invented. But even before that, there was one important factor both businesses shared: both were "crucial to the future" of Microsoft, according to Bill Gates.

And it turns out that Microsoft has, indeed, destroyed emails which might pertain to a lawsuit against a small minnow company in multimedia: Burst.

Here's the relevant section of columnist Robert X Cringeley's report:

"The hearing came about because Burst felt Microsoft was not divulging all the documents it was supposed to as part of the discovery phase of the case. Discovery is where each side asks the other for pertinent information and documents important to its case. Among other things, Burst asked for copies of all Microsoft e-mail messages concerning Burst during and shortly after the time when the companies were trying to negotiate a license for Microsoft to use Burst's intellectual property."

Cringeley is reporting from a court case in Baltimore, where Burst is protesting that some emails appear to be missing. Cringley goes on to say:

"Microsoft handed over the e-mail messages on a disk, and when Burst's lawyers had printed all the messages they filled 140 boxes. That's a lot of messages, but not surprising for Microsoft, where the business culture of the company literally happens on e-mail."

Well, yes. Not unusual in many of today's cultures. But what is unusual, is that Burst's lawyers say there's something very odd about the emails they received.

"There were literally no messages from approximately one week before until about a month after all seven meetings between the two companies. This meant that either Microsoft completely suspended its corporate e-mail culture for an aggregate period of 35 weeks, or there were messages that had been sent and received at Microsoft, but not divulged to Burst."

Here's the interesting bit: Microsoft doesn't contest this.

Yes, says the company, there were messages. Yes, the messages are indeed missing. Yes, this was deliberate: "the messages had been erased by the half-dozen Microsoft employees involved, both from their PCs and from the mail servers. There were no backup copies."

Why? Because Burst technology "was unimpressive and not of interest to Microsoft, and the e-mails were simply not worth keeping."

The argument which Microsoft appears to be suggesting here, appears to be very similar to what I've heard about the Sendo suit.

Again, as with multimedia technology, mobile technology is crucial to Microsoft's future.

As with Burst, Sendo is a small company which Microsoft expected to go bust, leaving it unable to defend any lawsuit. Indeed, if the documents which Sendo has filed with the court in America are accurate, Microsoft's contract gave it the right to make Sendo bankrupt, and Microsoft attempted to enforce that contract.

In both cases, what happened next was that the company, against all the apparent odds, kept going.

In the case of Burst, the company survived on its patents; there is enough intellectual property there that a firm of lawyers is prepared to bankroll the two-man Burst corporation in the expectation of scoring an income from those patents - including payments from Microsoft itself - over and above any legal "damages" settlement.

In the case of Sendo, the CEO refused to roll over and die; he simply cancelled his contract with Microsoft. There were penalties attached: he paid them. Next month, Sendo will produce its smartphone - based on Nokia Series 60 (Symbian) technology instead of Microsoft Windows Mobile; it is 18 months behind schedule, but at least it is still making phones.

Does this affect the Sendo case?

Mobile data has been a subject which has shifted from the PC to the hand-held. It is crucial to the future of Microsoft which started out by launching Windows CE on the back of a series of Psion Series 5 clones, thus forcing Psion out of the market. It has launched the Pocket PC (now the Windows Mobile PC) on the back of a series of Palm clones, attempting to push Palm out of the market. And it badly needs to get Nokia out of the phone business, and even more, it needs to get Symbian, the inheritor of Psion EPOC software, out of the portable OS business.

According to Cringeley, the destruction of 35 weeks of emails was the work of six (unnamed) Microsoft staff.

Those emails were, I'll guarantee, compromising. If they are dug out of the backups which the lawyers claim don't exist (ha!) I'll bet they embarrass Microsoft's lawyers like the Nixon tapes. And I'd eat my hat if those six operated on instructions from either Bill Gates or Steve Ballmer. I'd suspect that the six might well have wiped those emails out because of fear of what Steve and Bill might say when they found them.

But is it likely that six other guys decided to do something similar with their incriminating emails with regard to Sendo? Are there any such incriminating emails, even?

Is it possible that the same culture which caused the Burst emails to vanish, would not have tempted any of the executives in the mobile department to be similarly selective in what evidence they produce for the Sendo lawsuit? Yes, obviously, it's possible.

Did it happen? We may never find out, of course, even after the Sendo case is settled. Most of Microsoft employees are honest, and wouldn't do it.

But I wouldn't bet much of my own money on a wager that it didn't happen. And if I were Sendo's lawyers, I'd be looking at the dates on any emails that Microsoft sends over as part of the discovery process. And who could blame me?

The point is that after the Burst disclosures, Microsoft's case against Sendo is brutally damaged. Lawyers for Sendo will be able to ask, time and time again, in court, whether Microsoft has truly disclosed all the evidence, given its admissions in the Burst case.

And Microsoft won't have a leg to stand on.