Feeds

Microsoft gets Caldera evidence excluded from trial

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

  • alert
  • submit to reddit

Boost IT visibility and business value

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

The Power of One Brief: Top reasons to choose HP BladeSystem

More from The Register

next story
Stick a 4K in them: Super high-res TVs are DONE
4,000 pixels is niche now... Don't say we didn't warn you
BBC goes offline in MASSIVE COCKUP: Stephen Fry partly muzzled
Auntie tight-lipped as major outage rolls on
Philip K Dick 'Nazi alternate reality' story to be made into TV series
Amazon Studios, Ridley Scott firm to produce The Man in the High Castle
iPad? More like iFAD: We reveal why Apple fell into IBM's arms
But never fear fanbois, you're still lapping up iPhones, Macs
Amazon Reveals One Weird Trick: A Loss On Almost $20bn In Sales
Investors really hate it: Share price plunge as growth SLOWS in key AWS division
Bose says today is F*** With Dre Day: Beats sued in patent battle
Music gear giant seeks some of that sweet, sweet Apple pie
There's NOTHING on TV in Europe – American video DOMINATES
Even France's mega subsidies don't stop US content onslaught
You! Pirate! Stop pirating, or we shall admonish you politely. Repeatedly, if necessary
And we shall go about telling people you smell. No, not really
Too many IT conferences to cover? MICROSOFT to the RESCUE!
Yet more word of cuts emerges from Redmond
prev story

Whitepapers

Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Consolidation: The Foundation for IT Business Transformation
In this whitepaper learn how effective consolidation of IT and business resources can enable multiple, meaningful business benefits.
Application security programs and practises
Follow a few strategies and your organization can gain the full benefits of open source and the cloud without compromising the security of your applications.
How modern custom applications can spur business growth
Learn how to create, deploy and manage custom applications without consuming or expanding the need for scarce, expensive IT resources.
Securing Web Applications Made Simple and Scalable
Learn how automated security testing can provide a simple and scalable way to protect your web applications.