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Behind Bill Gates' ‘cooked’ email

DoJ Motion reveals more MS shenanigans

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MS on Trial Just occasionally the curtains are drawn back and we get to see just what is really happening behind the scenes in the Microsoft trial. Further extraordinary information has now come to light as a result of a June Motion by the Department of Justice asking that Microsoft be compelled to produce documents in response to an April 1999 DoJ subpoena. The DoJ's Motion asks Judge Jackson "to compel production of documents or, in the alternative, for an in camera inspection of documents". The documents concerned a defence exhibit that John Warden, Microsoft's lead counsel, offered when he was conducting the rebuttal examination of David Colburn of AOL. Just before Warden offered the document, Judge Jackson had gleefully chided him: "The best person to call you don't want to call [meaning Gates]. And I don't blame you." Perhaps Warden thought it would be clever to try to turn the tables by producing the next best thing: the word of the young master himself. Warden said: "I ask that the witness be shown, and I offer, defendant's exhibit 2533, an email from Bill Gates to his executive staff, dated Tuesday, December 1, 1998... and stamped by AOL 'highly confidential'". The Gates email essentially sets out Gates' views about the Netscape-AOL-Sun deal. David Boies, the DoJ's special trial counsel, objected to the admittance of the email: Boies: Your honour, this is a statement by Mr Gates during this litigation. It is, I think, from the reading of it, a self-serving statement. Mr Gates has chosen not to subject himself to cross-examination by coming to testify at trial, and I don't think that they could get this in by having -- no matter who they sent it to. Warden: Your honour, I think this is a very interesting document to have produced from AOL, and I would like to examine the witness about it. Judge Jackson: It may very well be an interesting document, but it was not sent to AOL... there is a standing objection to this document. Warden: I'm not -- the document has not been admitted; I understand that. Your honor hasn't ruled, but I assumed you were going to sustain the objection, but I think I'm entitled to ask him if he agrees with certain statements. Judge Jackson: Objection is sustained. The judge added: "Without some testimony to give it some context, it doesn't prove anything to me... You have got to have a witness that can give it some context who have some knowledge about it, before it becomes probative evidence. Just a free-floating document doesn't prove anything to me." As we remarked in our commentary in The Register on the 14 June proceedings at the trial: "It was very strange that the memo should have found its way to AOL, by whom it was marked 'highly confidential', and from whom it was 'discovered' by Microsoft. The most likely explanation was that it was deliberately leaked... by Microsoft so that it could be offered in evidence." It turns out that we were right. Warden's innuendo was that there was something underhand about AOL having a copy of the "highly confidential" email. Although Warden almost certainly knew that the email had been deliberately leaked, and that AOL would have been given a copy by the media in an attempt to get a story from AOL, Warden evidently had no intention of informing the court about this. The DoJ's Motion has some very interesting attachments. A telling email from corporate mouthpiece Greg Shaw on 1 December noted that "reporters will be upset that we just gave it to AP" and that Adam Sohn would give it to reporters if asked. Associated Press has been used as a conduit for Microsoft's propaganda more than once, so that its stories about Microsoft must now be seen in a new light. On 3 December, a petulant and self-important Gates emailed Shaw, Paul Maritz, Tod Nielsen and Mich Mathews saying: "I am really surprised that we restricted distribution of this [1 December email] so much. My comments are the best tool we have to shift the dialog and get people to understand who gave consumers the fair price [ie. a 'free' predatory price] for browsing. Just putting it in AP doesn't have much impact I don't [sic] think. At least we should give it to the MAGAZINE people also." Mich Mathews, the VP for PR and Gates' minder, hasn't figured much in the trial but she was probably much involved in drafting the 1 December email for Gates. It certainly bears her fingerprints. Gates was purporting that it contained "his" comments, so it would not have been drafted by Shaw. Shaw replied to Gates within the hour that the email was the main focus of a Washington Post story, as well as a sidebar in the New York Times. He wrote: "It's a dilemma. If we give it to everyone it looks cooked and no one will cover it. If it appears as a breaking story everyone feels they have to cover it." The DoJ complained in its Motion that an earlier email from Shaw to Maritz and Nielsen, sent three hours after Gates' "cooked" email, was marked by Microsoft "Privileged Material Redacted". The DoJ wanted to see the redacted email, and "at least four" other redacted or withheld emails. It appears that in his email, Shaw was forwarding another email, since we know he wrote "fyi". The DoJ maintained in its Motion that Microsoft had refused to provide the redacted email, referred a second request to "lawyers in Redmond", and refused to provide a written claim of privilege. It was clear that the content must be highly damaging to Microsoft, but the claim of privilege, the DoJ maintained, could not be sustained since Microsoft had not established a basis for the privilege. Furthermore, a claim for privilege is only valid for narrowly defined purposes concerned with legal advice, and not with respect to hiding embarrassment. Finally, the DoJ claimed that since Gates' email had been used in the trial, Microsoft's failure to produce what is called a privilege log should be considered to be a waiver of the privilege. Alternatively, the court should be shown copies of the material for in camera review as to whether the documents were privileged. So far, Judge Jackson has not ruled on the Motion. A letter from DoJ lawyer John Cove on 15 June asked Michael Lacovara of Cromwell & Sullivan to reconsider his position, and to produce by the end of the day a written claim of privilege for the document. Lacovara accused Cove of wanting him to produce a document that the DoJ could use in court the next day, and that it was "a trial stunt, and I shall not facilitate it". He suggested that Cove was fishing, and challenged him to file a Motion, but he did not provide the information that Cove had legally required, referring the matter to "Redmond lawyers", which suggests some embarrassment and possibly that there was dissent between Sullivan & Cromwell and Microsoft lawyers about the matter. Cove called his bluff, and did file the Motion, which is why we now know about these curious events. Only Microsoft knows what was redacted, but it seems likely that Microsoft head lawyer Bill Neukom (or possibly some other Microsoft lawyer), might have sent an email to Shaw in response to Gates' cooked memo pointing out the problems in trying to use the contrived email. It could also be that Neukom was pointing out that Warden had not been told that the memo was deliberately leaked by Microsoft. The procedural aspect is nothing short of an attempt to mislead the court. The irony is that Colburn was a great mistake as a rebuttal witness for Microsoft. He said he had never seen the document before, and did not know how it came to be in AOL's files. It remains to be seen whether Microsoft will now apply the tar and feathers to its ace legal team from Sullivan & Cromwell. Another question that may soon be resolved is whether Bill Neukom will be the next Microsoft executive to go walkabout. ®

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