The Microsoft Trial continues…

Netscape CEO testimony due to be wrapped up today, and Gates' video evidence should be made public

Judge Jackson expects John Warden, Microsoft's trial lawyer, to wind up his cross-examination of Barksdale today. Warden had said that he needed until Monday at the earliest to finish this, but Judge Jackson -- deliberately misunderstanding Warden, it seemed -- said he was going to hold Warden to his Monday commitment. When Warden said he didn't think he made a commitment, Jackson replied: "You just did." The programme seems to have changed somewhat, with eight hours from Gates' 20 hours of videotaped deposition now scheduled to be shown to the court, probably starting Tuesday. It is expected that the video will be released to the media afterwards, which while perhaps not in the Clinton-tape league, is likely to appeal to connoisseurs of these things. It has already been demonstrated that Gates' videotaped responses did not agree with documentary evidence. Leaks about the Gates' videotape, especially from Stephen Houck, the lead lawyer for the 20 States that are also taking action against Microsoft, suggest that Gates is evasive, non-responsive and disingenuous, and even appear to indicated that he doesn't know what a browser is -- Microsoft likes to talk about browser technology being incorporated in Windows, but is hard pressed to explain whether the mac and Unix versions of Internet Explorer are browsers. Rick Rule, a lawyer retained by Microsoft, said that although documents produced by David Boies, the counsel for the DoJ, appeared to show that Microsoft wanted to crush Netscape, "that doesn't make an antitrust violation". Rule has also apparently mischaracterised Barksdale's evidence by claiming that during his cross-examination, the Netscape CEO had never expected Netscape would generate revenue from the browser market and had instead turned to other areas. Even a superficial reading of Barksdale's testimony and cross-examination shows this is absolutely not the case. It would not be the first time that a Microsoft lawyer has made an unwise remark during the defence of Microsoft. Stephen Holley, a partner of Sullivan & Cromwell, Microsoft's principal external lawyers, was caught passing a document "filed under seal" to Linda Himelstein, Business Week's legal editor in September 1995. Although the document concerned another case, it emerged that Holley could be subject to contempt of court proceedings, and that his firm had lax procedures for handling confidential materials. It was revealed by Milo Geyelin in the Wall Street Journal that Holley contradicted testimony from Himelstein, with the result that a Business Week lawyer produced to a court records of some dozen conversations that Holley had had with Himelstein. Thus it came to be known that Holley had criticised an outfit worn by Ann Bingaman [the former head of antitrust at the DoJ]. The notes show Holley "making biting personal snipes about Ms Bingaman and saying that 'everyone on her professional staff thinks she's out of her mind'." To make matters worse, Holley was appointed to the New York City Bar Association's Committee on Professional and Judicial Ethics in 1992. Holley, it seemed, had been a regular deep throat to Business Week during the Microsoft antitrust case. His firm apologised publicly, but the damage was done. ® Click for Register trial coverage Click for more stories

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