Court Squashes Microsoft's IBM Subpoena

A New York court has quashed a Microsoft Corp. subpoena aimed at compelling IBM to hand over documents related to the software giants's European antitrust case.

Judge Colleen McMahon said Microsoft's subpoena amounted to a "blatant end run" on the European Commission's authority, according to an April 21 court order obtained on Friday.

Microsoft accused the commission of colluding with International Business Machines Corp. and other rivals and denying the company a fair chance to review key evidence.

The regulator has refused to give Microsoft access to some documents, citing confidentiality concerns and rivals' "fear of retaliation," according to a Boston court ruling earlier this week in which a judge quashed a similar Microsoft request for documents held by Novell Inc.

Last month a U.S. federal court in California rejected Microsoft's request for documents from Oracle Corp. and Sun Microsystems Inc. Microsoft appealed that decision. However, Microsoft decided to withdraw the appeal following the New York court's ruling.

"The writing is clearly on the wall for these actions, and we will not be pursuing them any further," Microsoft spokesman Tom Brookes said.

The four competitors named in the U.S. subpoenas have supported European regulators' finding that Microsoft isn't doing enough to comply with a March 2004 antitrust decision. In that ruling, the European Commission fined Microsoft a record euro497 million (US$613 million) and ordered it to help rivals make their software products work with servers running the ubiquitous Windows operating system.

Microsoft now faces further fines of as much as 2.4 million a day backdated to Dec. 15 for failing to provide adequate guidelines for other software developers.

Microsoft argues that it has complied with the regulator's orders, but will make further concessions if necessary. Commission officials and lawyers familiar with the case say Microsoft is unlikely to dissuade Neelie Kroes, the commission's top antitrust official, from levying fines.

Microsoft, the commission and rival companies will square off in an EU court in Luxembourg next week in Microsoft's appeal of the regulator's March 2004 ruling.


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