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AOL failing to provide data, Microsoft tells U.S. judge

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WASHINGTON — Microsoft Corp. has asked a federal judge to compel AOL Time Warner to give up documents relating to the company's assistance to the nine states — including Utah — that are suing Microsoft for antitrust violations.

The request, made to U.S. District Judge Colleen Kollar-Kotelly late Wednesday, is the latest legal volley between the two technology titans. Earlier this week, AOL filed a private antitrust suit on behalf of its Netscape subsidiary charging that Microsoft used unfair business practices to dominate the Internet Web browser market. Microsoft argues that AOL is refusing to cooperate with subpoenas, and has only provided a handful of relevant documents. "AOL can't have it both ways," Microsoft spokesman Jim Desler said. "Their uncooperative attitude on document production stands in stark contrast to their active, behind-the-scenes involvement with the non-settling states."

In its filing, Microsoft said AOL has only offered 851 pages of documents, which fit inside a single large folder, according to their legal brief. By contrast, Microsoft said it has received seven boxes from Utah-based Novell, which also is involved in the antitrust battle.

In an earlier hearing, Microsoft had complained to the judge that some companies refused to comply with their subpoenas, and warned that they may ask the court to compel them. Kollar-Kotelly said she might not let a company testify for the states if it didn't cooperate with Microsoft as well.

"You can't be friendly to one group and not to the other," Kollar-Kotelly said earlier this month. "I want that message to go out loud and clear."

The judge has scheduled a March hearing to determine any added penalties Microsoft should face for damaging competition and hurting consumers.

In its response to Microsoft, AOL wrote that many of Microsoft's requests for documents were irrelevant to the case or had already been provided by AOL.

"AOL can only infer that Microsoft's purpose in serving this latest subpoena is again to harass and burden AOL, one of its major competitors," AOL lawyer James W. Draughn wrote in a Jan. 11 letter.

Asked to respond to Microsoft's motion Thursday, AOL executive John Buckley would only say: "We're not going to dignify it with a response." The federal government and nine other states settled their antitrust claims with Microsoft last year. The states that did not sign onto that settlement are Iowa, California, Connecticut, West Virginia, Utah, Minnesota, Kansas, Florida and Massachusetts. Those remaining states, as well as the District of Columbia, decided to hold out for stricter penalties.