'Vista Capable' lawyers bicker over document discovery

Microsoft, plaintiffs' attorneys trade shots in running dispute about Vista marketing

Lawyers for Microsoft and those for the plaintiffs in the ongoing "Vista Capable" class-action lawsuit crossed swords this month over requests for internal company documents, court filings show.

The legal brouhaha was disclosed in e-mail messages and letters that the lawyers exchanged in May and June and made public by a Seattle federal court last week. The same court earlier this year released hundreds of e-mails written by Microsoft managers in 2006 and 2007, including some by top-level executives who admitted they couldn't run Vista on their personal machines.

According to the filings and supporting documents released this week, Microsoft's lawyers objected to a video-taped deposition that was eventually held earlier this month, claiming that it was counter to previous agreements between the parties. Plaintiffs attorneys had pressed for the deposition, so they could take testimony from Microsoft a representative "who knows about the existence, location, and meaning of documents (documents include data, databases, analyses or reports) which describe, include or relate to" 22 different specific subjects.

In the messages revealed this week, lawyers for the plaintiffs expressed concern that they wouldn't have enough time to digest the documents that Microsoft was still collecting unless it moved forward with the deposition. The case, which at one point had a trial date set for October, had already been re-scheduled -- most recently in May -- to April 2009.

"We remain concerned about the timeframe in which we are going to get the documents," wrote Jeffrey Thomas, an attorney at Gordon Tilden Thomas & Cordel who is representing the plaintiffs, in a letter dated May 16 to his counterpart, Stephen Rummage of Davis Wright Tremaine. "This is especially pressing because [US District Court Judge Marsha] Pechman has set dates that demand concerted and productive activity by the lawyers in the case."

Rummage filed a lengthy objection to the deposition on behalf of Microsoft that same day. Two weeks later, however, another lawyer for the plaintiffs, William Hart of Keller Rohrback joined in. Hart wrote to Charles Casper, an attorney with Montgomery, McCracken, Walker & Rhoads, also representing Microsoft in the case.

"To date, you have essentially given us none of the information that we have sought for the last year," said Hart. "Now you objected to our 30(b)(6) [deposition] notice in ways and forms that leave us somewhat in doubt as to what you will and won't answer. Nevertheless, rather than let anymore time go by, we intend to forge ahead with the deposition on Tuesday."

That got the fur flying.

"I was surprised by your May 28 letter saying that you plan to take the 30(b)(6) deposition on June 3 despite Steve's [Rummage] having informed Jeff Thomas on May 22 in the attached e-mail, which you acknowledge receiving, that June 3 will not work for us," said Casper in a letter to Smart dated May 30.

Casper took Smart to task on several points in the four-page letter, including what he called an "about-face" on earlier agreements. He also labeled the deposition "a useless and therefore abusive exercise" because Microsoft had not yet located documents on one of the 22 topics. That meant the plaintiffs' attorneys had not yet reviewed them to determine, which, if any, a witness would need to testify about.

"We are available to answer any questions you may have, but you need to call and ask rather than unilaterally tell us that you 'intend to forge ahead with the deposition on Tuesday' instead," added Casper.

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Gregg Keizer

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