MS ANTITRUST - Microsoft fails in quest to subpoena Novell

A Massachusetts judge has blocked Microsoft's subpoena of Novell for documents to be used in the EU antitrust case.

In a ruling handed down Monday, a Massachusetts judge has blocked Microsoft's subpoena of rival Novell. The company was trying to get access to documents related to its ongoing battle with the European Commission to prove it is complying with a 2004 antitrust ruling.

In a 12-page filing, U.S. District Court Judge Mark L. Wolf granted Novell's motion to quash the subpoena because supporting the action would circumvent the Commission's authority in the proceedings over which it presides.

"It is now evident that granting Microsoft the discovery it requests from Novell would interfere with the foreign tribunal, not assist it," Judge Wolf wrote in his ruling. He said the European Commission's support of Novell's motion to quash the subpoena also factored into his decision.

Another factor in the ruling was that Microsoft changed its assertions about whether the Commission had the authority to obtain the documents from Novell and then give them to Microsoft. In his ruling, Judge Wolf said that Microsoft had informed him on several occasions that the Commission did not have this authority, but then admitted later this assertion was not true.

On March 30, a California judge denied Microsoft's request to subpoena Sun Microsystems and Oracle for the same purposes. A judge in New York is currently considering another subpoena against IBM.

Microsoft has said it needed the information from the four companies to help it fight potentially millions of dollars in fines from the Commission if it decides the company has not complied with the antitrust ruling.

Microsoft could not immediately be reached for comment Tuesday.

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