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MS moves to strike some of new DoJ exhibits

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Just before the United States and the 19 states (plus DC) rested their cases, more than 2,000 pages of exhibits, depositions, and videotapes were offered into evidence. Microsoft had the right to object on certain defined grounds to any exhibit, and wanted to exercise this right. It was pretty certain that Microsoft's objection was to the embarrassment it would suffer when they were made available publicly, so Microsoft claimed - in its legal jargon - they didn't "properly belong in the record". Judge Jackson had seen all this before, many times, and went straight to the heart of the matter. Only in cases of doubt about authenticity would he consider documents individually. The DoJ suggested that in the case of the 60 to 65 documents about which there was disagreement as to admissibility, they be entered in the record but be subject to a Motion by Microsoft to strike them. The judge agreed. As we forecast in The Register, Microsoft did move for judgment and was turned down. Microsoft's grounds were that the DoJ and the states had not established the claims in either of the Complaints. John Warden anticipated failure (or the decision being deferred until the close of all evidence) so Microsoft filed a ten-page summary Motion with no supporting brief, and didn't wish to argue the matter. Warden said that if Microsoft had correctly forecast the desire of the court, then Microsoft was ready to proceed. The judge then dealt with a number of Motions by Microsoft, some of which Microsoft had decided not to post on its Web site. All were denied. Microsoft had asked to strike evidence of a purported pattern or routine corporate practice; to strike portions of the testimony of Avadis Tevanian that related to alleged technical incompatibilities, except that the court would determine "what probative effect, if any, is to be given to that testimony"; to exclude the hearsay deposition testimony of Phil Schiller, except that the court would determine "what effect, if any, is to be given to that testimony"; to strike inadmissible statements in the direct testimony of William Harris; and to strike non-expert testimony in the direct examination of Franklin Fisher, except that the court would determine "what effect, if any, is to be given to that testimony". The DoJ's motion to strike the Representation of Microsoft (that it did no harm to Felten's prototype program to remove IE capability from Windows 98) was denied, simply because "The representation has been controverted, and consequently it is of no probative force or effect at this stage whatsoever other than as a representation as to what purported testimony will be. The DoJ's request of leave to conduct further discovery relating to Jim Allchin and his actions with Felten's program was then discussed. The judge was very reluctant to allow any reopening of discovery. The DoJ argued that it faced a fundamentally different situation, and there was a need to find out just what Microsoft had done to the program before Allchin was cross-examined. Reluctantly, Judge Jackson agreed to allow two hours of deposition and a document request not exceeding one page. Although none of these decisions is unexpected, they do show that Microsoft has certainly not gained any favour with the judge at this stage. He became much more tolerant to the excessive slowness of cross-examination, especially by Michael Lacovara. David Boies has a more interesting style and his redirect examinations have been more interesting and dealt with substantive matters. It has probably come home to the judge that this will be his most important case, so he is taking great pains to avoid missteps that might cause him to be reversed on appeal. Microsoft then opened its defence with Richard Urowsky of Sullivan and Cromwell administering the oath to Richard Schmalensee. Urowsky was a veteran of the first Microsoft antitrust case, and had antagonised former antitrust chief Anne Bingaman and Judge Stanley Sporkin greatly. The case for the United States, and for the states rested in the early afternoon of the 39th day of the trial. Whether the DoJ will take as long with Microsoft's witnesses is uncertain, but judging by the weight of Schmalensee's direct testimony, and if other Microsoft witnesses also produce lengthy tomes, the trial could end, appropriately, around 1 April. ® Complete Register trial coverage

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