Microsoft Corporation v. Ronald Alepin Morrison & Foerster et al

Filing 62

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

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EXHIBIT C

Dockets.Justia.com

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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.

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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.

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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 [phone] (Telephone) [phone] (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 [phone] (Telephone)
Attorneys for Applicant Microsoft Corporation

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