Microsoft Corporation v. Ronald Alepin Morrison & Foerster et al

Filing 62

Attachment 3
Declaration Supplemental Declaration of Christopher S. Yates in Support of Response to Microsoft Corporation's Objections to Magistrate Judge Trumbull's Order Quashing Subpoenas to Oracle Corporation, Clifford Chance LLP, Daniel Harris and Ronald Alepin filed byRonald Alepin Morrison & Foerster, Clifford Chance LLP and Daniel Harris, Oracle Corporation. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Yates, Christopher) (Filed on 4/17/2006)

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Microsoft Corporation v. Ronald Alepin Morrison & Foerster et al Doc. 62 Att. 3 Case 5:06-mc-80038-JF Document 62-4 Filed 04/17/2006 Page 1 of 4 EXHIBIT C Case 1:06-mc-10061-MLW Document 62-4 5:06-mc-80038-JF Document 28 Filed 04/17/2006 04/12/2006 Page 2 of 4 13 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Inre Civil Action No. 06-MBD-10061 Application of Hon. Mark L. Wolf MICROSOFT CORPORATION, Applicant. MICROSOFT CORPORATION'S REPLY TO RESPONSE OF NOVELL. INC. The response fied by Novell on April 11 points out that the European Commission does have the authority to request documents from third paries such as Novell under Aricle 18 of Regulation 1/2003. Novell is correct. We apologize for any inconvenience this good faith mistake concernng EC procedural law may have caused the Cour. Certain other points in Novell's response merit a brief reply. ARGUMENT I. MICROSOFT CANNOT OBTAIN RELEVANT DOCUMENTS FROM NOVELL ABSENT THIS COURT'S ASSISTANCE. The central point in Microsoft's opposition to Novell's motion to quash and in Microsoft's response to the Commission remains unrebutted: Microsoft has no ability under Commission procedures to obtain documents that Novell has in its possession. (Opp. 14; Response 3.) Nor does Microsoft have the ability to take advantage ofthe Commission's ability to obtain such documents. Microsoft has no way to require the Commission to request documents from Novell under Aricle 18. That point is undisputed. Thus, Microsoft's only alternative to obtain documents that are relevant to its defense before the Commission is to turn to this Cour for assistance pursuant to 1782. OOl10793.DOC / Case 1:06-mc-10061-MLW Document 62-4 5:06-mc-80038-JF Document 28 Filed 04/17/2006 04/12/2006 Page 3 of 4 23 Microsoft's requested discovery under 1782 does not constitute a circumvention of European restrictions on what is discoverable. As Novell does not dispute, the hearng officer and the Commission have repeatedly stated that Microsoft would be entitled to the documents it seeks ifthey were in the Commission's files. (Burt Decl. Ex. G; Supp. Wolson DecL. Exs. A, B.) That the documents are only in Novell's fies is no bar to Microsoft's discovery ofthem. Novell's speculation about the Commission's need to protect confidential communcations has no bearng here, because the Commission has not withheld as confidential any communcations that the Trustee or OTR had with Novell. If, in futue cases, issues of confidentiality are present, the Cour can fashion an appropriate remedy. But the issue is not present here. 1 If Novell were correct, and the Commission's "balance" of interests were dispositive, then 1782 would never be available to a litigant before the Commission, because any discovery order would be argued to disrupt the Commission's "balance." Such an outcome would contradict the Supreme Court's decision in Intel, which held that the Commssion is a "trbunal" for puroses of 1782, and that litigants should therefore be able to tu to 1782 for assistance in proceedings before the Commission. See Intel Corp. v. Advanced Micro Devices, Inc., 542 u.S. 241, 258 (2004) ("we have no warant to exclude the European Commission, to the extent that it acts as a first instance decision maker, from 1782(a)'s ambit"). II. THE SUBMISSION OF NOVELL'S "OBSERVATIONS" WAS PROPER. On March 28, the Commission provided Microsoft with what it descrbed as a "nonconfidential" version of Novell's obserations on Microsoft's response to the SO. (Supp. 1 Novell's footnote 2 suggests it would be improper for Microsoft to seek "documents in Novell's possession which refer to the internal views of the Commission staff on the investigation and its possible futue evolution." But ifthe Commission has shared its views with third paries like Novell, those views are no longer "internal" to the Commission. The hearng officer, moreover, has ordered the production of such documents if they are in the Commission's file. (Burt Decl. Ex. G.) There is no reason to treat documents in Novell's fies differently. 001 10793.DOC / 2 Case 1:06-mc-10061-MLW Document 62-4 5:06-mc-80038-JF Document 28 Filed 04/17/2006 04/12/2006 Page 4 of 4 33 Wolson Decl. Ex. B.) That letter stated that Microsoft could use the documents only for its "defence under this procedure," i.e., Microsoft's defense to the SO. Microsoft is using the documents in just that way- in this effort to obtain evidence in support of Microsoft's defense of Novell's the SO. Moreover, Microsoft has re-reviewed Novell's "Observations" in light of concerns, and Microsoft can only agree with the Commission's determination that nothing in the "Observations" is confidentiaL. Indeed, Novell has not claimed that anything in the document is confidential, nor has it asked the Court to remove the document from the public record. Novell's actions belie any concerns that it claims to have with Microsoft's submission of the document. CONCLUSION Nothing in Novell's Response should change this Court's prior analysis. Microsoft has no means available to it under European procedure to obtain the highy relevant documents that it seeks, absent the assistance ofthis Court. Accordingly, the Cour should order Novell to comply with Microsoft's narowed subpoena fortwith. Dated: April 12, 2006 Respectfully Submitted, Isl Pamela A. Zorn Rober J. Muldoon, Jr. (BBO# 359480) Pamela A. Zorn (BBO# 640800) SHERIN AND LODGEN LLP 101 Federal Street Boston, MA 02110 (617) 646-2000 (Telephone) (617) 646-2222 (Facsimile) E. Edward Bruce (pro hac vice) Wiliam D. Iverson (pro hac vice) Joshua D. Wolson (pro hac vice) COVINGTON & BURLING 1201 Pennsylvana Avenue N.W. Washington, D.C. 20004 (202) 662-6000 (Telephone) Attorneys for Applicant Microsoft Corporation 001l0793.DOC / 3

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