Microsoft loses bid for IBM documents in antitrust case

Microsoft Corp. failed in its bid to subpoena communications from IBM Corp. relating to an antitrust case against Microsoft in the European Union, when a U.S. District Court judge in New York quashed Microsoft’s request on Thursday.

In an attempt to substantiate its allegations that the European Commission colluded with its rivals over enforcement of the antitrust ruling, Microsoft had asked U.S. courts in Massachusetts, California and New York to order IBM, Sun Microsystems Inc., Novell Inc. and Oracle Corp. to hand over details of their communications with the Commission and with the monitoring trustee for the case. All three courts have now rejected Microsoft’s requests.

Starting Monday, Microsoft will begin its appeal against the 2004 antitrust ruling at the European Court of First Instance in Luxembourg. The hearing runs through next Friday.

In 2004, the Commission found Microsoft guilty of abusing its dominance in the operating system market for desktop computer systems, and ordered the company to provide details of the communications protocols used by its workgroup server software, among other remedies. The Commission appointed a monitoring trustee — selected from a list proposed by Microsoft — to evaluate the company’s compliance with the ruling. His responsibilities include consulting with Microsoft’s competitors to gauge the effects of the remedies on the market.

In March, Microsoft accused the Commission and the monitoring trustee of colluding with its rivals and sought to obtain details of their communications from the Commission.

Frustrated by the Commission’s refusal on the grounds that its procedural rules made such communications secret, Microsoft sought to obtain the documents from the U.S. offices of the companies concerned.

Judge Colleen McMahon issued an opinion Thursday quashing the request for IBM’s documents, confirmed Tom Brookes, a spokesman for Microsoft in Europe.

A California court rejected Microsoft’s request for Sun and Oracle documents last month, and on Monday another court in Massachusetts quashed its attempt to subpoena communications from Novell.

Microsoft has decided not to pursue the California case further. “The writing was clearly on the wall. They’re not going to be pursued further,” said Brookes.

“Things have moved on in Brussels, and some of the clarification that Microsoft was seeking [from the monitoring trustee] we have received,” he said.

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