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MS derails new trial evidence by pulling witness

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Earlier this week Microsoft pulled several of its witnesses from the States' antitrust trial, letting it be known that this was a sign of its confidence in its case. Yesterday, however, all became clear - it was an ambush.

The critical removal from the witness list was Richard Fade, senior VP for the Microsoft OEM division. Former OEM chief Joachim Kempin produced lucid and damning stuff in the previous phase of the trial, so we could wonder what possessed MS to put Fade on the defence list in the first place, before we start marvelling at the cunning stratagem the company's attorneys have now engaged. Still, it's a good one.

A couple of weeks back it became apparent that the States' attorneys had goofed over scheduling. They'd wanted to introduce supplementary deposition evidence in their case, but the judge ruled that if they'd wanted to do that, they should have put the individuals on their witness list. So, plan B. They then intended to bring this evidence in where it was relevant, during cross-examination of Microsoft's witnesses.

So the defence culled the relevant witnesses, leaving States' attorney Howard Gutman attempting to read out parts of a Dell email in court yesterday. The email is part of a body of new evidence supporting the case that Microsoft is using the terms of the DoJ settlement to beat up the PC companies some more; in 'levelling the playing field,' Microsoft is allegedly prying advantages away from the computer manufacturers who have them, so in general the bigger PC OEMs will be somewhat unhappy, and you'll recall that in the public comment phase Sony said so at some length.

But Fade is the keystone for this evidence, and Fade is no more. If there were any doubts that his removal was a deliberate strategy, MS attorney John Warden dispelled them in his objection: "They can't put them in as the cross examination of Mr. Fade, because he isn't here. They rested their case. They're not entitled to more documents."

The judge hasn't agreed quite yet, but it doesn't look good. ®

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