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Exclusive: We reveal Gateway exec's secret MS evidence

You could call it von Holle's 'white' deposition...

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MS on Trial James von Holle, Gateway's director of software and Internet services, has been deposed three times by the DoJ. The first was on 23 September 1997, a month before the DoJ launched the contempt case, when he said that Gateway wanted to offer users a choice of browsers, but Microsoft was being difficult about it. The second was on 30 April 1998, but we know very little about this. The third deposition of James Von Holle, at Gateway, was taken on 6 October 1998 at Sioux City, South Dakota, two weeks before the Microsoft trial started. We can reveal that not only are there three versions of it, with increasing degrees of revelation, but The Register can disclose to readers, if they promise not to tell anyone, what Gateway still does not want the world to know. The first version to be made public consisted of 154 pages, nearly all of which were blank in the version released in April. Following protests by a number of news organisations, a considerably fuller second version was made available by Gateway, but some ten per cent of the content was still redacted. The Register requested a copy of this version, which was emailed by Gateway in MS Word format. Most people working with legal documents use WordPerfect because of its superior capabilities for handling text, so we duly converted the file to our preferred word processor. Using the "reveal" feature of WP, we examined the redacted pages that were blank when printed and found the missing text was protected by "Color: white" codes that can easily be deleted to allow the hidden text of what we shall dub version three to be printed. Just one small part that was not revealed because it had been previously removed. It consists of just 30 lines, and we now have some clues about the content of the fragment on pages 88 and 89. Close examination of the versions provides some most interesting insights into the fear that Gateway has for Microsoft, we can reveal. The awful truth - fear Study of what Gateway was able to insist "be treated at the highest level of confidentiality under the current and any prospective protective orders in this case" shows Gateway's paranoia about upsetting Microsoft. When the DoJ filed its Contempt Petition on 20 October 1997, it had a supporting Memorandum with 31 exhibits, nearly all of which remained under seal. However, the DoJ chose to reveal some startling evidence in the form of correspondence between Microsoft and three OEMs. In one example, Microsoft told Compaq to replace the MSN and IE icons in Windows 95, or have its Windows licence terminated. In a second example, Micron detailed how Microsoft would not allow it to remove IE. And in the third example, the DoJ revealed some juicy parts of von Holle's first deposition and additional written testimony from Gateway executives in response to DoJ Interrogatories. (See story) This evidence was important to the DoJ's case because in the past it had proved difficult to persuade OEMs to testify against Microsoft, even if subpoenas were issued. The reason was perfectly simple: all needed to license Windows, and Microsoft could demand any financial terms it wished, delay the licensing and the supply of betas (as happened with IBM), or refuse outright to license Windows. It was against this background that Gateway, chastened by the unfettered power that Microsoft had to control its future (and no doubt having received a tongue lashing from the Microsoft bully boys for being so silly as to answer the DoJ's questions truthfully) nervously braced itself for von Holle's third deposition It is most likely that Microsoft's legal team had offered some "advice", since it was clearly a nervous von Holle who faced questions from Karma Giulianelli of the DoJ. Stephanie Wheeler of Sullivan & Cromwell, for Microsoft, objected to every question beyond name, rank and serial number. It was as though von Holle had been instructed to be very sparing in his response if she objected to a question. ® Related stories Bringing Gateway to heel Give in or we'll audit you Complete Register Trial coverage Complete Register Trial coverage

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