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Microsoft Trial: those depositions keep rolling in

Evidence from Caldera, Disney, Sun, NCI and the usual OEMs

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With time on its hands, the court turned to videotapes to entertain itself for a couple of days until it could decently sneak away for the holiday season. A peculiarity of the US legal system is that by agreement both the plaintiffs (the DoJ or the states) and the defendant (Microsoft) can question a witness who is being deposed. This is done at a convenient location for the witness, with a court-certified reporter, videographer or "realtime " reporter present -- but no court official to act a referee, other than perhaps a DoJ paralegal. The person being deposed is usually represented by an employer-supplied counsel, pre-programmed to shout "objection". Either side can depose a witness, and typically the deposition is longer than a 100 pages (of 25 lines to a page), so it is a merciful release that only the highlights are shown in court and become part of the record. A further peculiarity is that either side, subject to the federal rules of procedure, may designate extracts (with the non-deposing side counter-designating extracts). Microsoft used gamesmanship in the depositions shown last week by diluting the carefully chosen sections that the DoJ chose to support its case with a great deal of extraneous baggage. The extracts demanded by Microsoft took four times as long to play as those selected by the DoJ. By contrast in the Gates video extracts, Microsoft struggles to find any extract that can be shown to put Gates in a better light. The judge does not normally get to know which side designated which parts, but there is no absolute rule on this. The attitude of the witnesses is quite interesting, depending on which sideis doing the questioning. In hostile circumstances, they are subpoenaed if they will not submit willingly. There were some displays of what may be politely called individualism, especially where Microsoft attorneys were the inquisitors. Perhaps the most remarkable aspect of the depositions was the ignorance of some of the attorneys on both sides, and their lack of adequate preparation for the depositions.

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