Trial focus shifts to Gates

Bill Gates will be appearing on videotape next week in the Washington DC Federal courthouse, effectively as a witness for the government. The edited videotape of his deposition will be made available to the media shortly afterwards. For many Americans, there will be immediate parallels with the videotapes of President Clinton being questioned in front of the grand jury. Both men were ill at ease, and both were parsimonious with the facts. Clinton is certainly the better actor, but Gates is much admired in the US because of his wealth, which has been unaffected by the current case as Microsoft's share price has crept up to $107, with investors not expecting any negative effects on the company in the near future. The DoJ has much to learn about media and public relations -- and there could hardly be a better tutor than Microsoft -- but it now seems probable that the timing may be chosen with a view to achieving the maximum impact on television and in the press. Gates does not have a good record as a witness: his performance in the Stac Electronics vs Microsoft case, which Microsoft lost and had to pay $120 million to Stac, was regarded as a disaster. The DoJ could have called him as a witness, as could Microsoft, but evidently the DoJ thinks its case is helped more by the videotape than a public appearance, especially as Gates would behave better in court than in a conference room for three days last August at Microsoft's Redmond headquarters. There, he seems to have been arrogant and suddenly unable to remember even the most basic things. Microsoft had said Gates could only be available for one day, but Judge Jackson said he should be available for as long as the DoJ required. Microsoft's legal team will have weighed his failure to appear in person as a witness for Microsoft, as would be normal in such cases, with the possibility that his performance would be detrimental to the case. Microsoft has been allowed to choose one hour of the first three hours of extracts to be played. The screening had been promised for several days last week, but the slowness of Microsoft attorney John Warden's cross-examination prevented this. Microsoft successfully argued that as the videotape is effectively the same as a witness, the DoJ should be obliged to forego calling one of its twelve witnesses. Judge Jackson ruled that Microsoft would be allowed to have another witness, or introduce an additional deposition, although Jackson said he could not think of anyone as important to the case as Gates. In addition, the DoJ could show all 20 hours of videotape if it wished, Jackson decided, although Boies said the DoJ would try to cut the tape down to six or seven hours. This will make it more difficult for Microsoft to claim convincingly that the tape has been edited out of context. On Monday, Avadis Tevanian of Apple will be the first witness, but DoJ attorney David Boies has said he will no longer try to forecast when the tape would be shown. On Thursday, Warden teased the TV crews who had been waiting for the Gates' tape by showing some videotape of Gates with Steve Case, AOL's CEO, during the announcement of the deal between Microsoft and AOL. It was not the tape for which they had been waiting for outside the courthouse for four days. ® Complete Register trial coverage Click for more stories Click for story index