05:54 PM ET 08/06/98
Judge orders Microsoft to produce officials, code
By Tim Dobbyn
WASHINGTON (Reuters) - A federal judge ordered Microsoft
Corp. Thursday to make available top executives, including
Chairman Bill Gates, and key software code to government lawyers
building an antitrust suit against the software giant.
U.S. District Judge Thomas Penfield Jackson sided with the
government, which had sought better access to Gates and a longer
list of other company officials.
Jackson also granted the government's request for access to
the source code for versions of the company's Windows 95 and
Windows 98 personal computer operating software.
``I do not intend to place a time restraint on the length of
time Mr. Gates may be deposed,'' Jackson said.
Microsoft attorney John Warden warned Jackson that the
Redmond, Wash.,-based company would seek dismissal of the entire
case in papers to be filed Monday.
But Jackson indicated he was not predisposed to dismissal.
''I'm going to be finding facts here,'' the judge said, adding
that a dismissal request ``will not withhold your responsibility
of commencing trial on Sept. 8.''
Government lawyers said outside the court that Microsoft's
intention to seek dismissal was a standard tactic. ``Every
defendant wants to file a motion for summary judgment,''
government lawyer David Boies said.
In May, the federal government and 20 states filed a broad
antitrust suit against Microsoft, accusing the company of
illegally maintaining its monopoly in personal computer
operating systems and using that position to gain monopolies in
other areas.
Thursday's pretrial hearing was the latest in a series of
legal skirmishes leading up to next month's trial.
Last week the Department of Justice asked the court to make
Gates available for two days of deposition testimony and sought
access to 16 other top officials.
Microsoft responded that it had offered Gates for a
reasonable eight hours of deposition-taking and offered eight
additional executives. The company also objected to allowing
access to the closely guarded source code.
Jackson said he would guard against any abuse of the
deposition process, even offering the courtroom as a venue for
the Gates deposition Aug. 12. ``Time is growing short and we
need to get things done,'' he said.
Microsoft believes it has a strong case for dismissal of the
antitrust suit based on an appeals court ruling in June and
evidence it has uncovered so far in preparation for this case.
The federal appeals court interpreted a 1995 agreement
between the federal government and Microsoft to allow
integration of applications software such as its Internet
Explorer web browser with its Windows 95 operating system.
The federal government and the states have accused Microsoft
of illegally stifling competition in the Internet browser
market.
In particular, they say Microsoft officials included
Internet Explorer with Windows when they realized the threat
posed by Netscape Communications Corp.'s competing Netscape
Navigator.
In an article published in Thursday's edition of the New
York Times, Microsoft said it had documents and witnesses to
show its Internet plans were well underway before Netscape had
made its mark in the browser market.
The Times said Microsoft would acknowledge that its tactics
did eventually hurt Netscape, but would argue that was a
byproduct of its plan to improve its products and benefit
consumers, the newspaper said.
``We believe the combination of the appeals court ruling and
the factual record will enable us to seek dismissal of the
entire case,'' Microsoft spokesman Mark Murray told Reuters
after the hearing.
But government officials are confident they have already
obtained plenty of Microsoft e-mails, interviews and depositions
to contradict the company's position that its web browser plans
were underway before Netscape's creation.
Boies, the attorney for the government, also downplayed the
appeals court decision on the 1995 consent decree.
``The court of appeals goes out of its way to say that it
doesn't have the facts and what's going to happen at this trial
is we are going to find the facts,'' Boies told reporters.
^REUTERS@
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