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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.

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