Gates' memory problems causing concern

The Gates deposition is a cause for concern in the Microsoft camp, and very interestingly, to Judge Jackson as well. Microsoft lawyers had asked for a conference in the judge's chambers, to complain about the repeated playing of short extracts rather than one long extract. Jackson said he "found it very effective to have Mr Gates' testimony on the subject as to which the next witness is going to testify before me immediately in advance of that testimony". John Warden, Microsoft's lead lawyer in the case, said the DoJ was using the video "for the purpose of an audience outside the courtroom and for the purpose of creating news stories day after day after day". [This is exactly what we said yesterday: naughty DoJ.] "Your objection is overruled," the judge said. "If anything, I think the problem is with your witness, not with the way in which his testimony is being presented. I think its evident to every spectator that, for whatever reasons, in many respects Mr Gates has not been particularly responsive to his deposition interrogation." Another yellow card for the Microsoft legal team from their employers was likely after Judge Jackson noted: "Everybody at your table [ie the defence lawyers] has reflected scepticism as the testimony is presented." Ouch. Mindful of the court of appeals one floor above his courtroom, Jackson added that he was "making no judgement" in his remark about the significance of Gates' testimony. But Jackson's head shaking and body language generally when Gates has said he couldn't remember receiving or writing key emails would appear to be a reliable indicator of how he will judge Gates' deposition. Davis Boies, the DoJ's ace lawyer, tried to help: "I think my good friend John Warden is carrying his company's PR water on this" and pressed the argument that Gates' "astonishing lack of recall" was limited to "issues of critical relevance" - a memory of convenience, it would appear. The particular interest in the fourth extract (below) of Gates' deposition was the repetition of Gates' replies, such as "I don't remember", which occurred half a dozen times in a ten minute clip played just before John Soyring gave his evidence. It certainly appeared as though Gates had been given advised by Microsoft's legal team, for he used the strange (for him) phrase "in terms of specifics, I wasn't sure" or a variant using "specifically" to diminish the precision of his response. The clip was one segment only, which frustrated the Microsoft legal team's arguments about clever editing of the extracts. Microsoft's concern was not confined to actions by the lawyers. The Microsoft PR team was also on the field, it would appear, and arranged a late-night interview with Associated Press for Gates to attempt some fence repairs. Gates deposition extract: Boies: Let me ask you to look at a document previously marked as government exhibit 400. The second item here is a message from you to Steve Ballmer, Paul Maritz, Jim Allchin, Christine Turner, on the subject of IBM, dated October 30, 1997; is that correct? Gates: It appears to be. Boies: Did you send this message, sir? Gates: Let me look at it. (Witness reviews document.) Gates: I don't remember specifically, but this kind of topic was being discussed, so I have no reason to doubt this is a piece of e-mail that I wrote. Boies: This relates to a conversation you had with Gary Stimac; is that correct? Gates: Not strictly. Boies: Does it relate, in part, to that? Gates: Yes. Gates: And did Mr Stimac tell you that he was thinking about taking a job with IBM? Gates: I think he did. Boies: And did he tell you that one of his concerns was whether IBM's relationship with Microsoft would be a problem? Gates: I see that in the e-mail. I don't remember it specifically. Boies: Do you remember people at IBM being concerned about IBM's relationship with Microsoft being a problem? Gates: No. Boies: Do you remember Mr. Stimac telling you that he was concerned about whether IBM's relationship with Microsoft would be a problem, either here or --or at any other time? Gates: No, I don't remember that. Boies: In response to that, you say that you told him that the Java religion coming out of the software group is a big problem. Do you see that? Gates: Umm-hmm. Boies: Did you tell Mr Stimac that? Gates: I don't remember telling him that. Boies: Now, when you talk about the Java religion coming out of the software group, you're talking about the IBM's software group; correct, sir? Gates: I'm not sure. Boies: Well, this sentence immediately follows Mr Stimac purporting to be concerned about whether IBM's relationship with Microsoft would be a problem and immediately precedes a sentence in which you say that you told him that IBM refused to buy anything related to BackOffice. Gates: Yeah, that doesn't relate to the IBM software group. Boies: But it relates to IBM; correct, sir? Gates: Yes. Boies: This whole paragraph relates to IBM; correct, sir? Gates: Primarily. Boies: So, when you say that you told Mr Stimac that the Java religion coming out of the software group is a big problem, do you really have any doubt that you were talking about IBM's software group? Gates: well, there was a lot of joint work between IBM people and Sun's people and other companies, and so it's very hard to draw a line between the IBM software groups and other people's software groups. Boies: Does that mean that it is your testimony here under oath that when you refer to the software group in this sentence, you don't know whether you were talking about the IBM software group? Gates: I'm certainly talking about software groups that IBM is, at least, a part of. Boies: You go on to say that they continue to use their PC's to distribute things against us. Is the 'they' that you are referring to there IBM? Gates: I think so. Boies: And is the 'us' there Microsoft? Gates: I think so. Boies: And you then in the next sentence say that you told Mr Stimac that they are dabbing in NCs in a way we don't like. Is the 'they' there, again, IBM? Gates: Apparently. I don't know what 'Dabbing' is. Boies: I was going to ask you that. The next paragraph you say, quote, overall, we will never have the same relationship with IBM that we have with Compaq, Dell, and even HP because of their software ambitions. I could deal with this just fine if they weren't such rabid Java backers. Now, when you refer in that sentence to 'they' as in I could deal with this just fine if they weren't such rabid Java backers, you're again talking about IBM; correct? Gates: Parts of IBM. It's important to distinguish different groups in IBM. Boies: And the different groups in IBM would include, perhaps among others, the software group as one and the PC group as another; correct? Gates: That's right. Boies: At the end of that you say that you are willing to take some risk in improving the relationship, and you think that steps ought to be taken to approach them, and you end by saying, quote, we should position it as let's do some things that are good for both of us but which require some of the rhetoric to be lowered on both sides. On their side, I mean Java and NC and 'their side,' you're talking about IBM side? Gates: I think so. Boies: And what you're saying is that you want a message conveyed to IBM that in order to improve the relationship, you want some of their rhetoric lowered on Java and NC? Gates: No. Boies: No? Did you want IBM to lower their rhetoric on Java? Gates: I actually explain in this message that I thought the rhetoric was actually hurting IBM itself, independent of Microsoft. Boies: Did you think it was hurting Microsoft? Gates: I wasn't sure. In terms of specifics, I wasn't sure. Boies: when you say that you could deal with IBM's relationship just fine if IBM wasn't such rabid Java backers, weren't you saying that you thought that IBM's rabid backing of Java was bad for Microsoft? Gates: I know at this time we thought some of the claims around Java were just plain false and weren't doing customers any favors by leading them down a belief that certain things were solved that were not solved. Boies: My question, Mr. Gates, is: in October of 1997, did you believe that what you refer to here as IBM's rabid backing of Java was something that was hurting Microsoft? Gates: I can't point to any particular hurting that it was doing. We didn't think it was accurate in terms of what technically could be achieved with Java. Boies: Let me put the question this way: in or about October of 1997, did you want to stop IBM from being what you refer to here as a rabid Java backer? Gates: we thought some of the rabidness was hurting IBM as well as the industry as a whole. Boies: Did you believe it was hurting Microsoft, or were you just doing this as sort of a public-spirited company to try to help IBM from hurting itself? Gates: I can't point to any particular damage, but we certainly would have preferred if the more extreme statements we didn't think were true, if they weren't pushing those forward. Boies: Mr. Gates, let me put it this way: in October of 1997, were you trying to get IBM to reduce its public support for Java? Gates: I say in here that under some circumstance the rhetoric should be lowered on both sides, but I think that's--you know, that makes sense in certain circumstances. Boies: I don't think you actually say 'In certain circumstances,' do you, sir? You may have meant that. I'm not saying you didn't mean it. I'm just saying, those words don't appear here, do they? Gates: No. It's all about I'm willing to take some risk in improving the relationship and think you should approach them on steps for improvement. It's in that vein that I talk about rhetoric being lowered on both sides. Boies: And then you go on to say that on IBM's side, you mean they lowered the rhetoric on Java and NC; correct? Gates: The rhetoric. Boies: And by 'rhetoric,' you're talking about public rhetoric, were you not? Gates: Definitely public rhetoric. Boies: And is it fair to say that in October of 1997, you were trying to get IBM to reduce its public rhetoric in support of Java? Gates: I don't know what you mean by 'trying.' I talk about a circumstance in which both sides would lower your rhetoric. Boies: And you are offering to lower your rhetoric if they would lower their rhetoric; is that fair? Isn't that what you say right here? Gates: In the context--this is about improving the overall relationship which is not focused on the rhetoric. It says that in the context of that improved relationship, I think that both of us should lower our rhetoric. Boies: Indeed, you say that the improved relationship will, quote, require some of the rhetoric to be lowered on both sides. Gates: That's a statement about human dealing that if our rhetoric is so high, it will be hard for them to do their side of improving the relationship and vice versa." ® Complete Register trial coverage