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Microsoft Request for Novell's EU Docs Rejected

Massachusetts court denies Microsoft's request to force Novell to hand over EU papers that may help in antitrust case.

(Brussels, Belgium) -- A Massachusetts court rejects Microsoft's request to force software rival Novell Inc. to hand over European Union correspondence that Microsoft claims it needs to defend itself against antitrust charges in Europe.

According to a court order Monday, U.S. District Judge Mark L. Wolf said Microsoft had not shown that the EU proceedings were fundamentally unfair or would be if it did not have access to the Novell documents.

Wolf said the European Commission had told the court it viewed Microsoft's subpoena as a "thinly veiled attempt" to circumvent EU procedures that aimed to strike a balance between a defendant's right to see antitrust papers and companies "who may have a well-founded fear of retaliation if they assist the Commission in such cases."

"It is now evident that granting Microsoft the discovery it requests from Novell would interfere with the foreign tribunal, not assist it," he wrote.

Wolf also criticized the software company for "erroneously, repeatedly" stating that the European Commission could not obtain the documents and make them available to Microsoft.

Microsoft's spokesman in Brussels, Tom Brookes, had no comment on the ruling.

On March 3, the company asked courts in California, Massachusetts and New York to compel Sun Microsystems Inc., IBM Corp., Oracle Corp. and Novell Inc. to hand over correspondence, saying U.S. judges could order U.S. citizens to provide evidence for use in foreign legal action.

California has turned down Microsoft's petition for Oracle and Sun. New York has yet to rule on IBM.

Microsoft said it needs to see these documents to understand how an independent expert came to write reports highly critical of the company's efforts to comply with the EU's 2004 antitrust order.

Microsoft's dispute with the European Commission took a turn for the worse in December when the EU antitrust authority charged that the software company had not obeyed an order to provide competitors with the information needed to make their software work with Microsoft servers.

The EU has threatened to fine Microsoft 2 million euros ($2.4 million) a day, backdated to Dec. 15.

Microsoft has said it believes the Commission colluded with its rivals and two outside experts ahead of the latest charges, alleging that regulators had "inappropriate contacts" with independent monitor Neil Barrett and rival companies.

It said that called into question the impartiality of a report Barrett wrote that said the technical documentation Microsoft had supplied needed a drastic overhaul to be workable.

The Commission has refused to comment on these allegations, beyond pointing out that Barrett was chosen from a list of candidates put forward by Microsoft.

The EU levied a record 497 euros ($613 million) fine against Microsoft in 2004. It also ordered the company to share code with rivals and offer a version of Windows without the Media Player software.

Microsoft is appealing the ruling, and the case will be heard next week by the European Court of First Instance, the EU's second-highest court.

Associated Press Writer Karen Testa in Boston contributed to this story.

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