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Caldera case could cost Microsoft $1.5bn

Figure revealed in application for trial delay

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MS on Trial Microsoft could be liable to damages of $1.5 billion in the antitrust case brought by Caldera over Microsoft's alleged anti-competitive actions towards DR-DOS. Jim Jardine, a lawyer acting for Microsoft, used this hitherto undisclosed damages estimate by an expert witness for Caldera to support Microsoft's request for another continuance (delay) of 120 days. It is hardly surprising that Microsoft is seeking a delay in the Caldera case, which is being heard in the District Court in Salt Lake City -- in view of the Washington trial, the Sun case, the Bristol case and sundry other actions. But what happened was beyond Microsoft's wildest dreams -- it was allowed a six-month delay to 17 January 2000, because Judge Dee Benson has a number of criminal trials in his diary and, by virtue of the Speedy Trial Act, must hear these first. The judge agreed with Microsoft that it was reasonable to grant some delay because Microsoft's Motion for dismissal would not be fully heard until May. Stephen Hill for Caldera argued that the case should not be delayed beyond August, noting that the cost of the litigation was increased by the delay. Although the 7 June trial date was supposed to have been set in stone, and resulted from a number of earlier delays that Microsoft had won with procedural manoeuvring, the January 2000 date is now regarded as unmovable. It was decided that five court days will be allowed in April and May to hear the chopped-up dismissal Motion from Microsoft. Caldera has until the end of March to produce its detailed reply, which will involve considerable work for the legal consortium acting for Caldera. As we suggested in our earlier report, there is indeed concern that Microsoft was laying the foundation for an appeal, hoping to find the appellate court more sympathetic to ruling against antitrust cases with what amounts to judge-made law, rather than Congress-made law (and ironically using notions from the law of equity that derive from English law). Last year the company divided itself into Caldera Systems, focusing on Linux, and Caldera Thin Clients, where developers based in Andover, UK include some of the original DR-DOS developers. If Caldera wins a considerable sum (and it is not limited to $1.5 billion), it could catapult Caldera into major software developer league. Ray Noorda, the former Novell CEO who provided the start-up funds for Caldera, would have the double satisfaction of seeing his old foe brought to heel, and a gaining a handsome return on his investment. Before that could happen however, Microsoft will no doubt kick and scream its way from court to court with interminable appeals and as many delays as possible. Jardine has already used the argument that Microsoft is busy with the Washington trial, and key Microsoft lawyers would need time to prepare the case. Well, that's Microsoft's problem, and not an argument that should be taken into account by the SLC court. There is already evidence on file that Microsoft has destroyed evidence that should have been disclosed to Caldera, and no doubt appropriate weight will be given to this at trial. Caldera's CEO Bryan Sparks said: "They can run, but they can't hide." US Newspapers apply for document release Meanwhile, the controversy rumbles on over the SLC court's earlier request to seal all court documents. This effectively gags detailed reporting. It must have been quite a revelation to the court to read about the documents in the Washington trial. The court did not have time on Friday, 19 February to deal with an unsealing Motion by the Salt Lake City Tribune, now additionally and significantly supported by the San Jose Mercury News. But this should be heard in the next couple of weeks. The public availability of far more sensitive documents in the Washington trial is likely to influence the decision to unseal documents in the Caldera case. ® Complete Register trial coverage

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