MS-DOJ: Gates deposition makes judge laugh

The federal judge presiding over Microsoft's antitrust trial shook his head and laughed during portions of Bill Gates' videotaped deposition played in court yesterday, featuring the company's founder and chairman denying that his company targeted a "jihad" against the Internet browser of rival Netscape Communications.

In a rambling 50-minute segment pulled from Gates' three-day deposition, Gates engaged in a verbal dual with US Justice Department attorney David Boies, splitting hairs over literal interpretations of e-mails and memos and refusing to concede that company officials focused their efforts primarily on Netscape.

Boies confronted Gates with an e-mail the Microsoft chairman wrote to a subordinate on January 5, 1996 that said in part, "Winning Internet browser share is a very, very important goal for us." Gates said he didn't remember writing that specifically. But Boies pressed him about what companies he would include in the term browser share.

"There's no companies included in that," Gates responded.

"Well, if you're winning browser share, that must mean that some other company is producing browsers and you're comparing your share of browsers with somebody else's share of browsers," Boies replied. "Is that not so, sir?"

"You asked me if there are any companies included in that and now --- I'm very confused about what you're asking," Gates replied. After Boies rephrased his question, Gates played the artful dodger. "It doesn't appear I'm talking about any other companies in that sentence," he replied, coyly.

The deposition clip was used by the government in its wide-ranging antitrust case against the world's largest software manufacturer to lay the groundwork for a technical witness expected to take the stand later this morning. That witness, software consultant Glenn Weadock, has testified in a written statement submitted to the court that there are no consumer benefits to Microsoft's integration of its browser, Internet Explorer, with its market-dominant operating system, Windows.

While the tape was rolling, however, all eyes were on US District Court Judge Thomas Penfield Jackson, who audibly laughed and shook his head during the sometimes comical war of words between the argumentative attorney and the hostile witness. Jackson hasn't made much effort to hide his impatience with some of Microsoft's bevy of lawyers from the Wall Street firm of Sullivan & Cromwell, and has chastised some attorneys in open court and pressured others to step up the pace of their cross examination.

At the conclusion of the Gates deposition segment this morning, Jackson asked, "How long did the deposition take?"

"Three days," Boies responded in an exchange that implied that the questioning required so much time because Gates was evasive to the point of appearing confused at numerous points.

Gates was shown a document sent to him by Brad Chase, a Microsoft vice president, on March 13, 1997 that said, "We need to continue our jihad next year…. Browser share needs to remain a key priority for our field and marketing efforts."

"It doesn't say Microsoft," Gates said in his deposition.

"Well," said Boies, "when it says ‘we' there, do you understand that means something other than Microsoft sir?"

"It could mean Brad Chase's group," Gates replied.

Gates was more forthcoming when asked what Chase meant by "jihad." "I think he is referring to our vigorous efforts to make a superior product and to market that product," Gates said.

Some of the exchanges evoked laughter in the courtroom. After introducing the Gates' e-mail into evidence, Boies quizzed Gates about what "non-Microsoft" browsers he was concerned about when he wrote it in January 1996.

Gates said he was confused. "I'm sure --- what's the question? Is it - are you asking me about when I wrote this e-mail or what are you asking me about?"

Said Boies, "I'm asking you about January of 1996."

Replied Gates: "That month?"

Said Boies, "Yes, sir?"

Replied Gates, "And what about it?"

After 20 minutes of bobbing and weaving Boies' questions, Gates testified that he and other company officials were looking at rivals' browsers, including Netscape's then-market dominant Navigator browser and the browser then used by America Online, which was called Booklink.

At another point, Boies pressed Gates on whether he was "concerned" about competition from those browsers. After more back-and-forth about what the term meant, and why the question was being posed, Boies lost his patience. "Is the term ‘concerned' a term that you're familiar with in the English language?"

Outside the courthouse, a Microsoft spokesman said the government was grasping at straws and had decided to play portions of Gates' deposition in order to embarrass the company chairman. "Virtually none of that hour-long videotape had any relevance in this case," said spokesman Mark Murray. "Mr. Gates early in the segment said he viewed Netscape as a competitor… and that the company sought to improve its browser technology to compete head-to-head" with that company. "The remainder of that tape was word games."

Murray said Gates was "not going to allow the government to put words in his mouth" and that's why he was insistent on Boies being precise in his questioning.

But as a sign of how worried Microsoft is about the effect of the videotape, the company brought in a hired gun to talk to reporters about how depositions are typically combative and involve "jousting" and, in that sense, how Gates' deposition was "unremarkable".

"A deposition is fundamentally a very ugly thing," said former US Attorney Joseph di Genova, who Microsoft brought to the courthouse to speak with reporters about how depositions differ from trial testimony. "This is not a work of art."

The government viewed the videotape as part of a successful strategy, although Boies had a hard time explaining the relevance of some of the material played today. He said it was important to determine what the company's chief decision maker was thinking in January 1996, when Microsoft was changing its strategy with regard to the Internet. "This case is not about Bill Gates," Boies said. "It's about Microsoft…. But as the central figure, the chief executive, and decision maker, what he says matters a lot."

Boies deflected questions about why the government failed to call Gates as a witness by saying the government was limited to only 12 witnesses and picked the witnesses that best supported the government's case. Microsoft may still be able to call Gates as a witness, as each side can call two rebuttal witnesses, but Boies declined to say whether that was in the cards.

During the morning session, Microsoft attorney Robert Pepperman questioned government witness Glenn Weadock, president of Independent Software in Colorado, about his qualifications as an expert witness. The questioning led Weadock to admit he had no programming experience or knowledge of source code. In addition, Weadock conceded that some of the 13 companies he interviewed prior to testifying may have a bias "in terms of what will help their business". All of the companies were hand-picked by the Justice Department and include Federal Express, where Netscape President Jim Barksdale used to work, and the Sabre Group, a company that is a member of ProComp, an anti-Microsoft lobby.

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