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‘Cooked’ MS memo – could Gates be in contempt of court?

MS lawyers caught filing made-up 'evidence'

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MS on Trial A highly dubious piece of spinning exposed yesterday could have several Microsoft executives, including Gates himself, and sundry hangers-on taking the rap for contempt of court. A memo from Bill Gates that was written specifically to be leaked via Associated Press had been presented to the court as important and confidential evidence by Microsoft's lawyers. Aside from the legal implications, the crassness and stupidity of the entire gambit is staggering. The original email fell into the clutches of AP last December, and as we said at the time, was an obvious put-up job. In the memo, Gates held forth loudly on the subject of how much the AOL-Netscape deal would hurt the DoJ's case against Microsoft. Last week Microsoft's lawyers tried to introduce the email as evidence, claiming they'd found it in AOL files marked "highly confidential." Anything's possible, of course, but as it had been plastered all over the newspapers six months ago its confidentiality was somewhat dubious. Note however how much this fits in with Microsoft's bizarre view of what is evidence and what is not. Microsoft's defence exhibits, many of which are available on the Microsoft trial site, are stuffed with not very interesting and not terribly relevant magazine and newspaper cuttings. It's a sort of Ronald Reagan 'shoe-box' view of fact. (Note for younger readers - Ronnie's world knowledge was based on a lifetime collection of clippings, many, we fear, from the Readers Digest, which he kept in shoe-boxes) So far so just plain silly. But the DoJ yesterday filed a motion claiming that Microsoft had misled the court over the email, and for added impact included the email exchange between Gates and the Microsoft PR which had led to the construction of the email in the first place. The email was viewed as, effectively, a "press release," and the PR bunny reports to Gates that "if we give it to everyone, it looks cooked so no one will cover it." This incidentally is not true. If you give it to everyone including us, we'll cover it. You just might not like the coverage. But obviously it was "cooked," and Bill Gates cooked it. We must not, of course, take this too far. At the time it was clearly put together as part of the PR campaign to undermine the DoJ's case, and as both sides spin merrily on the courtroom steps, that's fair enough. If it were the case that it had been cooked up specifically in order to be planted as evidence, then it would of course be an entirely different matter. Even excluding Gates' involvement in that, the attempt to file it as evidence is a pretty big cow to swallow. If it really was "found" and then submitted, the defence people involved in submitting it must have been woefully ignorant of the reporting of the very case in which they're involved, and even more specifically, of reporting surrounding the primary plank of their case in the current rebuttal phase of the trial. How on earth could they be that dumb? And if they're not that dumb, just not very good at being sneaky, the judge could get very angry. ® Complete Register Trial coverage

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