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States' team blows foot off over modular Windows demo

Bach shan't go to the ball after all...

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The unsettling states' brief triumph over modular Windows evaporated yesterday evening, when their legal team abandoned plans to stage a demonstration by testing consultant James Bach. California assistant attorney general put a brave face on the switch, claiming that the case against Microsoft was strong enough, and didn't need Bach's evidence, but earlier events in the courtroom tell an entirely different tale - essentially, the states' attorneys fouled this one up, handed Microsoft's legal team enough weaponry and more derail them, and then found themselves with no choice other than surrender.

Bach was retained by the states in February, and has been working on modular implementations of Windows, based on XP Embedded, since then. According to the states' attorneys the initial intent in hiring him was to provide them with background information to use during the case. The decision to actually call him as a rebuttal witness was only made recently, and the request itself was made this week. After consideration, Judge Colleen Kollar-Kotelly agreed, but this victory for the states turned out yesterday to be one they couldn't take advantage of.

So, over to Microsoft attorney Steve Holley:

"Good afternoon, Your Honor. At approximately 11 a.m. this morning Williams & Connolly delivered to Sullivan & Cromwell, in response to our discovery request relating to Mr. Bach's testimony, a physical computer with a power cord containing multiple Windows XP Embedded runtime images, at least 10. We haven't gotten it up and running yet, so we're not quite sure how many images are on that machine.

"In order to deal with Mr. Bach's testimony, which is anything but narrowly tailored, we are going to have to look at each and every one of those Windows XP runtime images and test them with a broad range of hardware configurations and software products, much broader than Mr. Bach bothered to do.

"In addition to that physical computer, we also received 67 CD-ROMs of data. For the court's information, a CD-ROM contains approximately 650 megabytes of information. This means that what Williams & Connolly provided us a matter of hours ago equates to 40 gigabytes of information. If you want to think about what that equates to, that's roughly 36,000 400-page books."

Ouch. Under the circumstances, does Microsoft have even the slightest chance of getting any objections in by the end of next month, never mind by today's 10am deadline? Holley lards it some more by pointing out he hasn't even been given copies to send to Redmond, he's going to have to get them duplicated, he's got three senior engineers from Seattle who flew in last night... But you get the picture.

CKK is not a happy bunny. "All right. Let me hear from the plaintiffs. It does sound like you've been doing this for the last couple of months, doesn't it, without telling anybody?" Tut tut. Steve Kuney squirms lamely. "Well, Your Honor, I think we had -- a couple of points. The first, to be candid, is I've been here and I don't know what has been produced. I don't know what is on the 67 CD-ROMs. And I was not apprised of a need to have someone who has been involved in the discovery here to actually respond. So, with respect to any detail I simply don't have at my fingertips. If the court wants someone down here later this afternoon to discuss these issues, I can certainly call back to the office and get someone here." He slowly deflates.

CKK: "This is absolutely astounding; you know, not to have said anything whatsoever during this period of time in terms of the scheduling or anything else. Would it not have occurred to you that if somebody was spending this much time testing for 60 days -- okay? -- and perhaps even longer, but certainly 60 days, that to expect in a couple of days, which is the schedule we had discussed, that they would be prepared to respond to this."

This continues for a little longer, a testy CKK sets 5pm as the deadline for further discussion, and at 5pm or thereabouts, having decided the horse is too maimed ever to run again, the states' team puts a bullet in it. It has been a tactical masterpiece... ®

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