The case dates back to 1999 when negotiations began between Burst.com and Microsoft over a possible licence for Burst's technology that would allow high quality video-on-demand over the internet. After two years, negotiations broke down.
Burst sued in June 2002, alleging that Microsoft's newly announced 'Corona' product used technologies and trade secrets misappropriated from Burst.com following the unsuccessful negotiations. The suit alleged patent infringement, breach of the California Trade Secrets Act, and breach of contract.
The Santa Rosa, California-based company also alleged anti-trust practices, with the support of Sun Microsystems, Be and Netscape, arguing that Microsoft used its dominant market position to encourage companies not to use Burst's software.
In September last year, District Court Judge Frederick Motz ordered Microsoft to hunt for 70 missing e-mails, which were potentially instrumental in the case. Burst had records of these e-mails, but Microsoft had been unable to produce them in court.
According to a report by CNET News.com, Microsoft argued that responsibility for its e-mail deletion policy usually lay with its IT department, effectively putting the issue to rest.
But the issue would rise again with a vengeance if the policy had in fact been set by Microsoft executives, and on Thursday Judge Motz ruled that the software giant would have to sift through back-up tapes to search for evidence of such an initiative.
In particular, Judge Motz focused on an alleged e-mail from James Allchin, head of the Windows Platform Group, sent in January 2000, that ordered staff to delete e-mails after 30 days, said CNET.
"There is no way an IT person decided to drop e-mail from retention," Burst.com lawyer Spencer Hosie told CNET. "There is no way that wasn't discussed at the highest level."