Judge Orders Oracle to Produce Some Records in Microsoft Case

(September 30, 1998)  Judge Thomas Jackson ordered Oracle to produce some of the records which Microsoft had sought under a subpoena in the government's antitrust case which is set to go to trial on October 15.

Microsoft subpoenaed Oracle earlier this month to obtain records pertaining to certain agreements and negotiations.  Oracle did not comply with the subpoena, and instead filed a motion for a protective order from the Court.   Microsoft opposed that motion.  Judge Jackson held a hearing on Tuesday morning, September 29, on this motion.  He issued his Order later in the day.

Oracle competes with Microsoft in several markets, including for database software, and is sometimes referred to as one of the members of the "rebel alliance" of companies seeking government restraint of Microsoft.  Oracle was represented by legal counsel at the hearing.  Attorneys for the Department of Justice, and the state plaintiffs, also argued in support of Oracle's motion for a protective order.

Oracle's attorney, Donald Falk, asserted that "Microsoft has not made the slightest case why Oracle's communications with third parties ... have anything to do with this case."   It is Microsoft's agreements that are at issue, not Oracle's, he said.

Microsoft sought documents pertaining to collaborative agreements between Oracle and seven other companies.  It wanted "actual, proposed, discussed, possible, abandoned, suggested, contemplated and considered" agreements.  The Department of Justice has emphasized in its legal briefs and public pronouncements a meeting between Microsoft and Netscape officials.  The government has alleged that at this meeting Microsoft proposed a collaborative agreement on market division.  However, no one has alleged that any agreement to divide any market was actually reached.

Microsoft disputes the government's account of that meeting.  Moreover, through its discovery requests to companies such as Oracle, it is seeking to show that Microsoft's contacts and negotiations with companies such Netscape, Apple, and Intel are typical of the contacts and negotiations of other computer industry companies.

Attorneys for Oracle and the government argued that at most, all that Microsoft should get is documents which constitute actual agreements, but not documents pertaining to negotiations.

Microsoft's attorney, John Warden, raised the subject of the infamous Microsoft-Netscape meeting at the hearing, and argued that Microsoft should be able to obtain information about similar meetings from other computer industry companies.

However, Judge Jackson ultimately ruled that Microsoft is only entitled to get copies of actual agreements, and not documents pertaining to negotiations.

Recently, it was Microsoft which objected to certain discovery requests from the government.  In the matter heard yesterday, the parties reversed roles, with the government and Oracle objecting to certain discovery requests from Microsoft.   Moreover, many of the arguments made by Oracle and the government in opposition to Microsoft's discovery requests were uncannily similar to the arguments which Microsoft recently made.

Judge Jackson's Order stated in part that:

Oracle Corporation shall produce, pursuant to the subpoena aforesaid, on or before October 9, 1998, all agreements actually entered into between Oracle Corporation and any of the following companies, dated 1994 or later, with respect to (1) the development or marketing of a UNIX operating system; (2) bundling of software, including web browsers; (3) Java, including (or in addition) Hot Java, JavaScript, and LiveScript; and (4) collaborative competition against Microsoft Corporation:

Apple Computer, Inc.
IBM Corporation
Novell, Inc.
Netscape Communication Corporation
Sun Microsystems, Inc.
Hewlett-Packard Co.
Compaq Computer Corporation