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Our Graham is surprised by Judge Jackson's AOL Netscape ruling

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Some subtle messages from Judge Jackson have been overlooked in the general end-of-term atmosphere in Washington. Judge Jackson has started referring to "Gates" and not to "Mr Gates". Such subtleties are found in criminal trials in the UK when after a verdict of guilty, the prisoner is referred to by surname only. Fancy that. On the other hand, the judge is looking much more relaxed about the length of the trial, since he said, for example, that he "would rather err on the side of excess" [in the length of video extracts] "than running the risk of not playing counter-designations" . Microsoft head lawyer Bill Neukom sloped off at lunchtime on Wednesday: perhaps he had been summoned by Bill, but it could be that he was just going shopping. Judge Jackson said that it was "perfectly all right" that he had been replaced by Tod Nielson as the Microsoft representative. Depositions from Philip Barrett (VP of RealNetworks), John Romano (operating manager, HP home products division, Asia-Pacific), Mal Ransom (VP marketing, Packard Bell NEC), and Curtis Sasaki (group marketing manager, consumer and embedded technologies, Sun) were admitted but not played. Extracts from the deposition of Joseph Kanicki of Dell were included in the transcript, but the deposition has not yet been released by the DoJ. Admitting rather than showing the deposition extracts allowed everybody to leave for the break a day earlier. One of the results of the stampede was that the exhibits associated with the depositions were not admitted before the break. Justice was not exactly seen to be done, as the extracts shown in court would of course have a greater impact than those for which just a transcript was provided. An additional 15 so-called non-party depositions are likely to be admitted rather than played in court, after the recess. John Warden for Microsoft said that Microsoft had filed a Motion to exclude the deposition of Phil Schiller of Apple as it was, in his view, based on hearsay. Judge Jackson reserved judgement. Another document that Microsoft was about to file, Warden said, was Microsoft's Representation about allegations by Edward Felten that Microsoft had made "some change to the Windows update site that he believed interfered with is add/removal program". It was interesting that Felten never used the word "add" – just "remove". It was, in effect, an admission that Microsoft had failed in its cross-examination of Felten. Judge Jackson then turned to two pending Motions. The plaintiffs (both the DoJ and the states) wanted the judge to allow cross-examination by two attorneys. The judge said he did not want to change his rule that there should be one cross-examiner, but remained willing to listen to further argument, particularly if the claims by the DoJ and the states differed on the issue being cross-examined. Steve Houck for the states told the judge that a very important area where there were differences between the DoJ and states' case was with respect to remedies. Because the states wanted to secure effective relief to overcome violations of the law, he thought it important to ensure that the record would support the relief the states sought. Judge Jackson said: "We are a long way from any relief at this point. we are not dealing with relief." Interesting that the judge had not phrased this "if he found for the plaintiffs" – It seemed to be a telling moment. Judge Jackson added that he did not like the idea of collusive cross-examination or a co-counsel with "fresh wind" cross-examining a witness after exhaustive examination by the lead counsel. Microsoft had a pending Motion requesting access to documents in the AOL Netscape acquisition. It was very surprising how little all the lawyers present in court, and the judge, knew about the likely procedure so far as any regulation of the Netscape acquisition by AOL was concerned. It was therefore even more surprising when the judge ruled that Microsoft could see, subject to any protective order, the terms and conditions of the transaction. It seemed probable that Microsoft would get access to secret business information that might help it competitively in the future. Should there be a protective order for the documentation, theoretically the information will only be accessible to Microsoft lawyers. Houck noted that there was a lot of confidentiality associated with the documents, and that he wanted the states to have the same access as Microsoft to the documentation. The judge agreed. ®

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