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Microsoft has egg on face, says DoJ

Company accused of mounting 'cynical attempt to distract attention'

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"Microsoft has egg on its face": so said the DoJ in a plain-spoken Response to a Microsoft motion asking for sanctions to be imposed against the government because, Microsoft alleged, the DoJ had not produced documents as required. Microsoft submitted the Motion at the beginning of proceedings in the court yesterday, and in its response filed late yesterday, the DoJ said that Microsoft's motion was "a cynical attempt to distract attention from a document that damages its defence" and that Microsoft had made "unsupported (and unsupportable) charges about the Government's good faith in document production". The problem for Microsoft was that an important letter dated 23 June 1995 (now Government exhibit 1259) from Gary Reback, a lawyer with Wilson, Sonsini, Goodrich & Rosati (and who had been retained by Netscape), had not been requested by Microsoft as part of its discovery process, as the DoJ demonstrated in its own Response to the court late yesterday. Even worse for Microsoft was that it had been "expressly told that the Government's document production did not include other investigations". Reback's letter was obtained from another investigation that the DoJ was undertaking - the 1995 investigation of MSN, as it turns out. The DoJ received a copy of the Reback 23 June 1995 letter last Friday by fax after Raback had learned from press reports that Microsoft was trying to take another letter of his, dated 28 July 1995, out of context. Together with Microsoft own documents, the content of Reback's letter - nothing less than Marc Andreessen's typed notes from the 21 June Netscape meeting with Microsoft at which market splitting had been proposed by Microsoft - "proves that Microsoft's outlandish assertion that the market division aspect of the June 21 meeting 'was invented or imagined' after Mr Reback's July 28 letter is flatly untrue", the DoJ says in its response. This is a considerable blow against Microsoft, and resulted in a new conspiracy claim being made in court yesterday by Microsoft. ® Complete Register trial coverage Click for more stories

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