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Microsoft gets Caldera evidence excluded from trial

Stephanie Reichel's MS v Caldera testimony ruled out, for now...

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Microsoft made a plea on Wednesday to have testimony excluded. It was not evident from the court transcript what this was all about, but The Register can reveal what was missed entirely by the media. Microsoft's Web site just happens not to mention a Microsoft Motion considered by the court on Wednesday. John Warden, the lead lawyer for Microsoft from Sullivan & Cromwell, turned up in court with just one copy -- none for the DoJ or judge -- of a list of designations (extracts from depositions) and asked the judge to exclude them from the trial. Warden was at his most unctuous, squeezing even three "your honours" into one sentence. Warden claimed that the designations were "highly prejudicial" and should be excluded. Judge Jackson said that admissions or material facts should be admitted. He said that he had not gone through the depositions designation by designation, which was a pity in view of the content of at least one deposition. Warden then claimed that "the procedures adopted by this court have departed from the rules in the ordinary course of judicial proceedings... one is the use of written directs and the other is the limitation on witnesses". Judge Jackson was not letting him get away with this: "I first proposed a limit of ten witnesses, and both sides came back and said, 'Can we have 12'? I said, 'Yes'." Warden blundered into it: "We came back to ask for 12 because we thought that your honour would not be receptive to more than that..." The judge responded: "What makes you think I wouldn't have been receptive?" Microsoft will not like this failure to extract the maximum number of witnesses from the judge, and it seemed probable that an application will be made by Microsoft to increase the number. Microsoft's general strategy seems to be to spin the case out for as long as possible. This was, however, a side issue, since Warden's main desire was to ensure that a deposition by Stephanie Reichel taken in the Caldera v Microsoft case was not used. Warden told the judge Reichel was "not employed by Microsoft at the time of their deposition in that case and therefore not in a position to make admissions on behalf of Microsoft. I take it they are excluded." The judge agreed they would be. Warden became positively oleaginous: "Thank you, and I assure your honour that whatever your honour's ultimate--" But the judge interrupted him: "Who are 'they', by the way? Who are 'they'?" They are Mr Barrett and Ms Reichel. The secret was out, but went unrecognised. Reichel, a former Microsoft employee in Germany, had been obliged to give evidence, according to Wendy Goldman Rohm, who first disclosed the connection in her book The Microsoft File. The DoJ confirmed some time ago that it had subpoenaed the tapes of the interviews (DoJ subpoenas Gates' former girlfriend over Vobis) because it is interested in emails that appear to have been deliberately destroyed. The incriminating evidence is said by Rohm to have contained details of Microsoft's dealings with Vobis and other German OEMs, and Microsoft's efforts to "persuade" Vobis to switch to MS-DOS from DR DOS. The deposition could contain evidence that Microsoft had tried to obstruct justice by destroying evidence, or give supporting evidence that Microsoft had used anti-competitive measures. Rohm has also claimed that Gates did instigate a revised policy for document destruction. Reichel was deposed by Steve Hill, a lawyer acting for Caldera. He said he was unable to give any detail about her responses to questions because of a protective order that Microsoft has obtained, which also points to the seriousness of her evidence. The courts take a dim view of deliberately destroying evidence. It was probably no accident that Charles Rule, a legal consultant to Microsoft, complained that the issue wasn't in the original Complaint [in May] and should therefore not be included. David Boies, for the DoJ, seemed to be not unduly dismayed, saying that he accepted the court's ruling that the Caldera evidence be excluded at this time, but was granted leave to pursue the matter later under rule 804(b)(1) if he so desired. Whether he is seeking further confirmation of document destruction is not known, but Microsoft's nervousness in the matter is, we hope, at least clear to readers of The Register, if not yet to the judge. ® Complete Register trial coverage

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