Newest Supreme Court Pick Represented Microsoft In MS-DOS Case

Harriet Miers defended Microsoft in a class-action suit in the mid-1990s.
In a tech industry version of the parlor game "Six Degrees of Separation," Harriet Miers, President Bush's nominee to the Supreme Court and John Roberts, the new Chief Justice, are just a step apart, linked by the biggest name in the technology business: Microsoft.

But unlike Judge Roberts, who represented 19 states in the government's antitrust case against Microsoft and argued before the Supreme Court on that issue in 2001, Miers took Microsoft's side in the 1990s, and defended the Redmond, Wash.-based developer in an important class-action suit.

In 1993, Microsoft debuted MS-DOS 6.0, the first version of the company's DOS which included a disk compression feature, dubbed "DoubleSpace." Later that year, Microsoft released an update, MS-DOS 6.2, which featured a revised DoubleSpace.

The DoubleSpace bug made the list in a 1995 TechWeb piece titled "Notorious Bugs," which noted that the flawed compression feature "corrupted data, was incompatible with certain BIOSes, and crashed programs and networks."

Two years, later, in 1995, a class-action suit was brought against Microsoft by users who claimed the company didn't adequately test DoubleSpace before releasing it. In some cases, users said, data had been destroyed by the faulty DoubleSpace. Those involved in the class action didn't seek damages for lost data, but instead asked for the $9.95 Microsoft charged for the MS-DOS 6.2 update.

Harriet Miers, who was nominated Monday to the high court, was involved with the case, titled "Microsoft Corp. v. Manning, et. al.," in 1995 as her firm, the Dallas-based Locke Purnell Rain Harrell, was hired to represent Microsoft.

"Harriet was always flying to Seattle [home of Microsoft]," Lawrence Littwin, the Texas Lottery director who Miers fired in 1997, told The Observer in an early 2001 story. (Miers had been appointed by Bush, then the governor of Texas, to serve as the chairwoman of the Texas Lottery Commission in early 1995.)

Miers filed a brief with the trial court -- which had taken up the class action suit again after an appellate court had refused Microsoft's request to "de-certify" the class-action suit, in other words to deny it class-action status -- and convinced the judge the previous decision was flawed.

Amongst other arguments, her brief stated that "the lower courts upheld certification without determining whether the novel theory of the case was proper for a class action suit."

Microsoft's idea, that only those people who had actually lost data, not the millions who had bought MS-DOS 6.0, had a right to sue, was upheld. After that, the class-action plaintiffs withdrew their suit.

During that time, a long-time friend, U.S. District Judge Ed Kinkeade of Dallas, recalled in a 2003 article for the Texas Lawyer, he had reached Miers on the phone years before when she said, "Ed, can you give me just a minute? I've got Mr. Gates on the line. I'm doing a little work for Microsoft."

Kinkeade told the Texas Lawyer that rather than interfere with a call to the world's richest man, he told Miers he'd call back later.

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