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DoJ stirs pot over MS sabotage denial

Microsoft's attempt to neuter Felten's testimony seems to be misfiring badly

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After Microsoft cut short the cross-examination of Edward Felten last month, it filed a Representation to the court that it had not sabotaged Felten's prototype program to remove browsing capability from Windows 98. The DoJ has now filed a very strongly-worded Response asking for Microsoft's Representation to be struck from the record as it is "little more than a Microsoft press release, improperly captioned as a pleading… containing erroneous and misleading attempts to introduce facts through unsworn testimony of Microsoft's counsel". The DoJ claims that Microsoft wanted Felten off the stand so that it could create its own spin about what was, no doubt, some entirely coincidental and innocent tampering with how Felten's program ran. It would have helped Microsoft's case though if it had not admitted that the testing of Felten's program was completed in September 1998, rather than December 1998 as had been previously claimed. It was also a pity that Microsoft VP Jim Allchin, who is slated to give evidence to oppose Felten's, had not claimed when he was deposed that the testing of Felten's program "was not complete" so that he couldn't (and wouldn't) answer any questions about it. It now appears that he may have been obstructing the DoJ. Meanwhile, Judge Jackson is being asked by the DoJ to allow it to investigate further by interrogating Allchin again and undertaking additional discovery to ascertain the facts before Allchin is cross-examined by the DoJ. Alternatively, the DoJ wants this part of Allchin's deposition to be struck (with the implication that perjury is at issue). The DoJ is extremely indignant about this apparent lying in the Response, and draws attention to Microsoft's heavy-footed spin doctoring by means of attempts to introduce unsworn testimony from Microsoft's counsel, as well as making "frivolous and defamatory" statements about what Felten was purported to have said. It would seem that Microsoft thought it could get away with filing a Motion that was intended to help it smooth over a very troublesome aspect of the case -- the removal of browsing from Windows 98 -- but it has misfired badly. ® Complete Register trial coverage

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