Microsoft Subpoenas Thrown out of Court

liliafan writes "Following Microsoft's attempt to subpoena documents through US courts, relating to their ongoing anti-trust case in the UK, the judge in California has thrown the case out of court citing: 'As a matter of comity, this court is unwilling to order discovery when doing so will interfere with the European Commission's orderly handling of its own enforcement proceedings.' as his reasoning."

Comments

Ah, the backdoor approach.

[rob_squared]

I'm glad that the judge was paying attention. On average I have more respect for judges than elected officials (mind you, not 100% of the time).

And I learned a new word, comity: http://en.wikipedia.org/wiki/Comity

Comity is a term used in international law (and in the law governing relations between U.S. states) to describe an informal principle that nations will extend certain courtesies to other nations, particularly by recognizing the validity and effect of their executive, legislative, and judicial acts. This principle is most frequently invoked by courts, which will not act in a way that demeans the jurisdiction, laws or judicial decisions of another country.

Re:Ah, the backdoor approach.

[Kadin2048]

It's not about recognizing any other country's laws as being valid here, which would of course be rather ridiculous (despite this we do it quite often through international treaties, and I stand behind my judgement), but not attempting to extend U.S. law onto another nation in a way that would diminish their sovereignty. This is the international case, but it works between U.S. States as well. It's basically one court's way of respecting another jurisdiction's right to make their own laws, which apply to themselves.

Now, where your question really gets interesting is if the 'other jurisdiction' is obviously undemocratic and unjust. IMO, the notion of "comity" is based on an essential respect for the right to self-determination of others; when the laws in the other jurisdiction are obviously borne not out of self-determination but out of tyranny and oppression, it raises a valid question as to whether such courtesy and respect should be given. My feeling is that no, it should not; but this is a bit of a moot point when you're talking about relations between the U.S. and U.K. legal systems, which typically do not characterize each other as tyrannical. In fact it is possible, although not typically seen anymore, to use very old English rulings as precedent in U.S. courts. (You see this sometimes if you read old USSC or appellate court cases on particularly fundamental issues; somebody will have dragged out their Blackstone's Commentaries and found some particularly interesting Common Law case to mention.)

Re:Ah, the backdoor approach.

[Kadin2048]

Basically what the judge said, was that Microsoft couldn't ask for the right of discovery in a U.S. court and subpoena other people/corporations for information, all because they were involved in a dispute in a U.K. court. Basically, he said "we're not going to get involved."

I think the flip side of his use of 'comity,' though, is that if Microsoft went to court in the U.K., and got whatever their equivalent of discovery powers are (power to have subpoenas issued), then the U.S. courts would honor them and might allow Microsoft to use them to get subpoenas valid in the U.S. (maybe). At least that would be my take on what would be fair, once you start saying that you're going to respect the judgment of the other jurisdiction's courts.

I don't know this, but I suspect that Microsoft may have already attempted to get discovery/subpoenas in the U.K. already and failed (which would make sense, since logically you'd try there first), and the judge is also telling Microsoft that he's not going to contradict a U.K. court's ruling on something that's going on in their jurisdiction. If this is the case, it's as if a child asked their mother for something, got told no, and then went to their father and asked the same question, hoping for a different answer. The father, not wanting to really piss off his wife, tells his kid that he already got his answer.

So depending on the situation, the ruling could be a bit of a slapdown (the latter case, where MS has already tried in the U.K.), or it could just be telling them to go ask permission first (the former, second paragraph) and then they might have a chance.

Re:What documents?

[Keeper]

Communication between Oracle and Sun and the EU commission.

Re:What documents?

[gstoddart]

What documents are we talking about?

Stuff they've already been told by a judge in Europe they're not allowed to have because it's been deemed irrelevant. Also from TFA ...

She described Microsoft's subpoenas as constituting "an attempt to circumvent specific restrictions the European Commission has placed on Microsoft's right to obtain certain kinds of information."

Without knowing the specific information, I suspect they got shut down in the EU, decided to try and do a little fishing in the US, and got smacked down for having tried to bypass another court's ruling. Kinda like asking your other parent if you can stay out late after the first one says no.

Some evidence was declared inadmissable and not something they were entitled to. They tried to get it anyway. In a stroke of good jurisprudence, the US judge told them to get stuffed.

Re:What documents?

[gstoddart]

The judge didn't say they were irrelevant, she said they were confidential and the U.S. legal system was not going to be used as an end-run around the E.U. legal system.

Re-read my post and TFA. A European judge placed restrictions on the kinds of information that Microsoft was allowed to obtain. A US judge said they couldn't bypass that ruling in a US court.

I find if frightenign that everyoen is willing to turn a blind eye to the E.U.'s corrupt legal system simpyl because it's Microsoft at the receiving end of the raw deal here.

Well, other than you saying the EUs legal system is corrupt, and Microsoft claiming it to be an "inquisitional" system, I'm not aware of any evidence to support that claim, so it's specious at best to say so. I would certainly disagree with the characterization that Microsoft is receiving a 'raw deal'.

Would people be as casual if this were Apple?

If Apple held a near monopoly over the computing industry, and used their position to prevent others from competing with them, absolutely. But Apple doesn't hold that kind of position.

This isn't a blind "Apple Good, Microsoft Bad" scenario -- Microsoft was accused of abusing a monopoly, and competing unfairly -- the same things they were accused of in the US before the DOJ lost their balls and stopped pursuing their own case. In fact, I believe Microsoft had already lost that case in the US, but they just never enforced it.

For the same reasons I agree that the Koreans should be able to impose restrictions on the way Microsoft does business there, I agree the Europeans have the same right. Their country, their trade laws. Microsoft doesn't get a free pass because they're a Big American Company.

Microsoft acts in a way as to impede or damage the software industries in other countries. Microsoft uses their position to make sure their products have primacy, and their competitors do not have access to that kind of influence or distribution channels -- they don't have a near monopoly. Like it or not, under the European system, Microsoft has been found in violation of antitrust laws.

Microsoft is still trying to fight those rulings, and was trying to get information they've been explicitly told by a European court they are not allowed to have. A US court agreed. In fact, that same US judge referred to the proceedings as the "orderly handling of its own enforcement proceedings".

You may be of the opinion that Microsoft does nothing but good, and should be allowed to do whatever they want without restrictions. Not everyone agrees with you.

Re:Does MSFT even sell 200M Euros a day?

[ScriptedReplay]

I know these are "stupid" questions, on many levels (especially in this venue), but does MSFT even make 200-million Euros a day in sales to the EU? No.

Here's another 'no' - as in 'stupid article typo' no. The fine seems to be in fact up to €2.4M/day (see here for instance) I mean, this has been going on for quite a while now and the fine had been brought up even on /. several times. €200M/day should have looked suspicious to anyone vaguely tracking the thing.

Re:not to defend Microsoft or anything...

[NormalVisual]

Sure, maybe they aren't the best company, I'm not arguing that at all, but the EU is raping them.

I disagree. MS knew what the European laws were, and chose to conduct business in Europe anyway. Having broken said laws, the European governments are now holding the company accountable for its behavior (a somewhat rare occurrence in the US). A US judge has rightly said that the matter is not within US jurisdiction or otherwise before a US court, so it's not something the US court system needs to be involved in. No one forced MS to do business anywhere, and they apparently were betting on the EU being as pliable as the US was in regards to anti-trust matters. The EU seems to take anti-trust issues seriously, so it looks like MS lost that bet. I fail to see a problem, and I would fail to see a problem whether it was MS, Apple, SCO, RedHat, or any other American company. If you play in someone else's yard, you have to play by their rules.

Re:What documents?

[Anonymous Coward]

In fact, I believe Microsoft had already lost that case in the US, but they just never enforced it.

In the interest of facts, Microsoft was tried, convicted, and ordered broken up into OS and applications divisions.

A few weeks later, the judge prejudiced himself in public and the breakup portion of the penalty was tossed. This was probably rigged, as the judge was extremely experienced and had to know what the consequences would be.

A new judge was placed in charge of the penalty, and the wrist slapping ensued. With a republican in the white house, this was pretty much expected.

It's nice to see an entity like the EU have the guts to enforce the US' own laws.