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By Stephanie Olsen, 11 September 2003 07:50

NEWS A federal judge has ordered Microsoft to recover any deleted emails that may support charges from a streaming media company that the software giant stole its video-delivery technology, according to a recent hearing transcript. US District Judge Frederick Motz, of the Northern Division of Maryland, said in a 28 August hearing that Microsoft must find back-up tapes and servers containing communications of six key executives in its Windows Media Strategy division. The order came out of concern from Burst.com that there were gaps in internal communications from a Microsoft unit that could produce evidence for its case. "We list 70 emails that went back and forth between the parties that Burst had that Microsoft did not produce. These were emails that absolutely undeniably existed once, but for some reason are no longer at Microsoft System," Spencer Hosie, attorney for Burst, said during the hearing. Burst filed a complaint against the giant in June 2002, claiming that after lengthy discussions about licensing its technology to the company, Microsoft lost interest and simply duplicated the patented software within its own video encoding and decoding product, Windows Media 9 Series. The suit echoes earlier charges from Netscape Communications, Sun Microsystems and others that Microsoft bullied companies out of using Burst products. Microsoft spokesman Jim Desler said that the company has been forthcoming in providing evidence to date, already having produced more than 300,000 documents from more than 60 employee files. "We have co-operated and will continue to cooperate with the court and the parties and the discovery process in this case." More broadly, Desler added, Microsoft has created digital media networking technologies for more than 10 years, and its latest product is an example of the company's own work. He characterised any deliberate attempt to cover up email communication as speculation, as did Micrsoft's legal counsel, John Treece, at the hearing. Treece said the company will have great difficulty in tracking down any lost communication. Microsoft must investigate back-up tapes to find the emails of six Windows Media executives, including Will Friedman, David Duvall, Will Pool, Bill Shefelbein, Mike Beckerman and Tony Bawcutt. "Of course, we know - and it's undeniable - that there are some gaps, because we know they have emails in their files that we don't have. On the other hand, much of what [Burst's attorney] says truly is speculation," Treece said during the hearing. Lawyers for Burst said that email communications between the companies and internally are vital to proving a case against Microsoft, but during discovery it became clear that there were "a huge number of emails missing." "The bottom line is they need to find the emails, and we're anxious to find out what they come up with, if anything," said Richard Lang, co-founder and CEO of Burst. Stefanie Olsen writes for CNET News.com