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Nokia struggles some more to evade Barnes & Noble's discovery requests ~ pj
Monday, January 23 2012 @ 09:17 AM EST

Nokia continues to struggle mightily to get free from Barnes & Noble's discovery requests. Barnes & Noble, you'll recall, succeeded in persuading the ITC to recommend that Finland help it to do depositions of some Nokia executives, including Stephen Elop, and also get its hands on some documents that Nokia isn't willing to provide voluntarily.

So the necessary request documents were sent to Finland, and then Nokia started going wild with efforts to block. And it continues to do so, telling the court all the steps it's taken, and asking ITC to quash the Barnes & Noble motion or in the alternative to advise Finland that it can't provide any discovery until the motion is ruled on. Nokia also has complaints about what it represents to both Finland and the ITC as being Barnes & Noble's misstatements about the case.

And now Microsoft has asked the court to quash a motion to depose Steve Ballmer. It's under seal, but I'm sure we can guess at its contents. After all, we've seen companies try to keep their executives from having to get involved in litigation before, and so far, they all had to testify. Remember SCO v. IBM? Sam Palmisano had to testify because he had "unique personal knowledge", or so the judge believed. If the CEO knows things other people don't, no matter how busy he is, he will likely have to testify. I'm sure Microsoft lawyers know that, so in the alternative, they ask that he be allowed to testify by videoconference.

Here are the filings, the ones that are publicly available as PDFs, and a listing of those filed under seal:

01/13/2012 - 468667 - Respondents Barnes & Noble, Inc's and LLC's Memorandum in Opposition to Nokia Corp.'s Motion to Quash Letter of Request and Request to Notify the Central Authority of Finland of the Filing of the Motion to Quash (Motion No. 769-060)

01/17/2012 - 468863 - Agreement to be Bound by the Protective Order of Patrik Lindorfs, Nicholas McHaffie and Megan MacDonald

01/17/2012 - 468873 - Complainant Microsoft Corporation's Request for Receipt of Evidence Without a Sponsoring Witness

01/17/2012 - 468877 - Complainant Microsoft Corporation's Pre-Hearing Brief

01/17/2012 - 468879 - Respondents Barnes and Noble, Inc., LLC and Inventec Corporation's Pre-Hearing Brief

01/17/2012 - 468878 - Motion for Leave to File Reply in Support of Motion to Quash Barnes & Noble, Inc. and's Letter of Request to Third Party Nokia Corporation and Request to Notify the Central Authority of Finland of the Filing of the Motion to Quash

01/17/2012 - 468880 - Respondents' Request for Receipt of Evidence Without a Sponsoring Witness

01/18/2012 - 468992 - Commission Investigative Staff's High Priority Objections to Complainant's and Respondents' Proposed Direct Exhibits

01/18/2012 - 469027 - Corrections to Motion for Summary Determination

01/18/2012 - 469051 - Respondents' Objections to Microsoft's Direct Witness Statements and Deposition Designations

01/18/2012 - 469057 - Complainant Microsoft Corporation's Objections to Direct Exhibits, Witness Statements, and Deposition Designations of Respondents Barnes & Noble, Inc., LLC, and Inventec Corporation

01/18/2012 - 469064 - Respondents' Objections to Microsoft's Direct Exhibits

01/19/2012 - 469209 - Complainant Microsoft Corp.?s Motion for a Protective Order Excusing Mr. Steven A. Ballmer from Testifying at the Hearing or, in the Alternative, Ordering that He May Testify Via Videoconference and Request for Shortened Response Time

01/19/2012 - 469213 - Motion of Non-Party Jaakko Kaskinen to Quash Barnes and Noble's Subpoena Duces Tecum and Ad Testificandum

01/19/2012 - 469217 - Complainant Microsoft Corporation's Notice of Withdrawal of Trial Subpoena to Third Party, Inc.

01/19/2012 - 469220 - Respondents Barnes & Noble, Inc.'s and Llc's Motion to Hold the Record Open to Receive Evidence Obtained from Nokia Corp. (or Its Affiliates) and Mosaid Technologies Inc. (or Its Affiliates) and Request to Shorten Time to Respond

01/20/2012 - 469297 - Commission Investigative Staff's Statement Regarding Proposed Direct Exhibits

As you can see, there are quite a few entries about which witnesses and exhibits will be used at trial, with the Commission batting some of them out. And as you can see, Barnes & Noble is asking the ITC to hold the record open, since there are now going to be delays, due to Nokia fighting against having to let its executives be deposed in Finland, even threatening to appeal if the ITC doesn't rule its way.

Now comes forward one of the five Nokia executives Barnes & Noble wishes to question, Jakkoo Kaskinen, and he also submits a motion to quash the subpoena. He says it was improperly served, the topics are redundant, it will cause a delay, and anyway, they already got or could get all the information asked for from Microsoft, a party to the investigation.

Right. Get it from Microsoft. The company that doesn't want Barnes & Noble to get to ask Ballmer anything. If there is a conspiracy to crush Android, might Mr. Ballmer know something about it, do you think?

Kaskinen's biggest defense, and it matches Microsoft's, is that this is about patent misuse, a "last-minute" issue raised by Barnes & Noble, and that it's over patents that Nokia doesn't even own. The Microsoft patents that this investigation, and parallel litigation in federal district court, is supposedly about, targeting Barnes & Noble, aren't what the testimony would even be about:

Its attempts are all focused on a defense raised by Barnes & Noble of patent misuse directed to patents that are not now, and have never been owned or controlled by any Nokia entity.

Barnes & Noble has sought (and has been granted) the right to serve multiple subpoenas in order to pursue discovery on a patent misuse defense that does not even relate to the patents in suit in the present Investigation. As a result, Nokia - a non party against which no allegation of wrongdoing has been alleged and with no stake in the outcome of this dispute, and Mr. Kaskinen, an individual and employee of Nokia Corporation -- are forced to spend valuable time and money to quash multiple irrelevant and unlawful subpoenas including this one, and the Court is burdened with motion practice.

Wait. What? No stake in the outcome? No allegation of wrongdoing? No connection between the patent misuse defense and these patents, patents Microsoft is using to sue an Android vendor? They say this because of the way antitrust law is interpreted in the US. But it's a stretch. Still, I do think it's the argument most likely to have wings. It seems that while the guy is on the list sent to Finland, asking for depositions, that happened after the subpoena was unsuccessfully served on him, and yet the subpoena is still in the air, Barnes & Noble not having dropped it. So all his arguments are about that initial subpoena. Barnes & Noble has already told him that if he is deposed in Finland, they will drop the subpoena, but that hasn't happened yet. So this is, I would guess, a move to protect himself if Nokia is successful in preventing the depositions.

So what do you think? Is Nokia going to all this trouble because it has nothing to hide? Would it go to all this trouble and expense -- much greater to fight than to simply go forward -- if it thought that nothing in the documents in its possession, or answers to questions posed, would implicate them in an anticompetitive scheme to destroy Android and protect and extend Microsoft's monopoly on the desktop?

In due time, we'll find out, methinks, as the Barnes & Noble snowball has already started rolling down the hill, and it's picking up snow and leaves and pebbles and lots of interesting things as it keeps on rolling. That is the allegation, that Microsoft, Nokia and MOSAID are partners in an anticompetitive scheme to use patents to crush Android, and Barnes & Noble would like to see the contracts and all emails and other documents relevant to investigating its claim.

And it would like to put Mr. Elop (and Mr. Ballmer and Mr. Kaskinen) in a chair in a context where each has to answer questions about it under oath. Elop is, I would suggest, the guy who has said the most in public about their plans, including mentioning patents as a part of the partnership's plans for making money. Naturally, Barnes & Noble would like to hear a bit more about that.

So would the millions and millions of people who love using Android, and all the vendors who sell Android products, all of whom, presumably, are potentially targets of any Microsoft-Nokia-MOSAID conspiracy, should one be in existence.

Cough cough.


Nokia struggles some more to evade Barnes & Noble's discovery requests ~ pj | 174 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread
Authored by: Arthur Marsh on Monday, January 23 2012 @ 10:28 AM EST
Please detail any errors in this post, by quoting the text in the subject line
and explaining the error and suggested correction in the body of your post.


[ Reply to This | # ]

Elop was at CES - was that not a place where he could have been served?
Authored by: Anonymous on Monday, January 23 2012 @ 10:30 AM EST
Elop was at CES, as part of the Microsoft keynote. Would it not have been
possible for B&N serve him while in Las Vegas, avoiding all the messy
international process servers?

[ Reply to This | # ]

Off-Topic thread
Authored by: Arthur Marsh on Monday, January 23 2012 @ 10:31 AM EST
For postings not related to this article or recent news pick articles. Remember
to include the subject in the title field, provide links where possible, and use
HTML Post Mode for links, previewing your post to avoid any problems with the
links you post.


[ Reply to This | # ]

News Picks thread
Authored by: Arthur Marsh on Monday, January 23 2012 @ 10:34 AM EST
Please post any discussion related to recent News Pick articles under here,
giving the heading of the News Pick in the title and perhaps some other text to
indicate what you will posting about the News Pick.


[ Reply to This | # ]

Comes Document transcription
Authored by: Arthur Marsh on Monday, January 23 2012 @ 10:36 AM EST
Please have a look under the "Comes v. MS" link on the left of the
page for any documents that you might be able to transcribe, and post the
transcription with HTML mark-up if possible, but in "Plain Old Text"
posting mode.


[ Reply to This | # ]

Nokia struggles some more to evade Barnes & Noble's discovery requests ~ pj
Authored by: Anonymous on Monday, January 23 2012 @ 12:00 PM EST
It might be interesting to put the CEO's on the stand. I'm
sure they would be happy to be absolutely truthful in all
respects. Unfortunately, I really don't believe it.

Also, a video teleconference? Why? I'm sure Ballmer can
afford the time to go to court. Nobody is THAT important.

[ Reply to This | # ]

Authored by: tiger99 on Monday, January 23 2012 @ 02:18 PM EST
It is safer to have him testify by teleconference because, physical things including certain items of office furniture can't be sent over the internet.


[ Reply to This | # ]

Ballmer, sweating
Authored by: IMANAL_TOO on Monday, January 23 2012 @ 02:22 PM EST
Maybe I'm not alone, but I have mixed feelings about seeing a yet another video
of a sweating Steve Ballmer, but now in court. In the previous he had been
dancing on stage at some Microsoft event.

Anyhow, if Ballmer cannot answer some ITC questions politely, what kind of
ballistic reactions would be good for Barnes & Nobles? Or would it just be
bad for Microsoft and indifferent to Barnes & Nobles? I mean Ballmer would
be a key witness, but any bad behavior from him wouldn't really benefit Barnes
& Nobles, or would it?

Just curious.



[ Reply to This | # ]

If I was the judge
Authored by: Anonymous on Monday, January 23 2012 @ 02:53 PM EST

All of this ducking and dodging would make me really suspicious. I don't
know whether or not judges take into account this sort of thing. I would
think that they would. They are human after all.


[ Reply to This | # ]

Hi again
Authored by: Anonymous on Monday, January 23 2012 @ 03:56 PM EST
You seem to be having a very "active" retirement from Groklaw! :-)

[ Reply to This | # ]

Deeply Troubling
Authored by: Anonymous on Tuesday, January 24 2012 @ 01:21 PM EST
Personally, I think Elop has been a bit too loose with his comments as a CEO. I
think he has some serious explaining to do, under oath would make is serious

I find it deeply troubling that an attempt to stay out of a lawsuit and it's
impact area, is being treated as an admission of guilt, or something to hide. I
don't care what the relationship suggests, can't we still presume innocence? Or
is that just for America, and we are talking about Finland?

-- Alma

[ Reply to This | # ]

Nokia struggles some more to evade Barnes & Noble's discovery requests ~ pj
Authored by: Anonymous on Saturday, January 28 2012 @ 07:13 AM EST
Remember, it isn't the activity that gets people in trouble, but rather the
CRIME of purgery that puts people in jail.

I wouldn't want to be disposed under oath either.

[ Reply to This | # ]

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