MS/DoJ: Gates ready to testify if called

If Microsoft chairman and CEO Bill Gates knew his videotaped deposition would be shown during the US Government's antitrust trial against his company, he would have done it differently.

Gates said he might have smiled more and asked for a better camera, but today he otherwise defended a performance that has evoked laughter in the courtroom and criticism by US District Court Judge Thomas Penfield Jackson for his evasive answers.

Gates talked -- via a televised satellite feed from his Redmond, Washington, office -- about the government's antitrust case today at a Microsoft-organised press conference in Washington.

Gates answered only a few questions from reporters, and his remarks followed a lengthy attack on the government's case by Bill Neukom, Microsoft's chief legal counsel, and the company's lead trial counsel, John Warden.

Warden, in particular, lashed out at the government's use of the Gates videotape, calling it an "ad hominem grudge attack".

But Gates said he had no immediate plans to testify in the US vs Microsoft antitrust case, now in its eighth week.

Microsoft also said that it planned to seek documents from America Online, Netscape Communications and Sun Microsystems relating to AOL's $US4.2 billion purchase of Netscape. The company said it planned to file a discovery motion -- a demand for documents.

Two key government witnesses in the antitrust case are executives from companies involved in the merger -- James Barksdale, the president and CEO of Netscape and David Colburn, a vice president at AOL.

Microsoft officials also praised the decision by South Carolina to withdraw from the lawsuit -- a decision, the state said, that was particularly motivated by the AOL/Netscape deal. South Carolina was one of 20 states and Washington, D.C., to join the US Department of Justice in the antitrust lawsuit.

But the focus at the afternoon press conference was on Gates, whose videotaped deposition has been used by the government to try to undermine the credibility of Microsoft's CEO.

Gates said it was his understanding that the video of his 20-hour deposition would not be used in court. Gates also said he expected that lead government trial counsel, David Boies, would ask him questions about history of the browser, and how technology companies compete during the deposition.

"He did not focus on those things at all," said Gates. Instead, Boies presented him with pieces of e-mail and asked for his recollections. "I get over 10,000 pieces of mail every year," said Gates, who added that he couldn't remember everything he had received.

"They (the government) didn't take the opportunity to depose" the people who sent the e-mail, Gates said.

In talking about the company's decision not to use him as a witness, Gates said the 12 witnesses picked by Microsoft to represent that company in the trial, many of whom are company employees, have the most direct knowledge of company operations.

"The government has the chance, and continues to have the chance, to call me as a witness," said Gates. "If they choose to call me as a witness, that's fine. I will be there and address any issues that they ask for."

Microsoft officials, however, aren't ruling out the possibility of calling Gates as a rebuttal witness. The judge will allow each side up to two additional witnesses.

Gates said the problem with some of his answers in the deposition was due to the questions asked by the government's lead trial counsel, David Boies.

"You have to understand that Mr. Boies made it clear . . . in the negotiations leading up to the case, that he is really out to destroy Microsoft," said Gates.

"He was asking questions in ambiguous terms," said Gates. But Gates also said that he "would have smiled a little bit" and made sure "that the camera working the thing" was decent if he had known that the tape would become public.

Warden said Gates' deposition has added nothing to the government's antitrust case except to try to hurt public opinion of Microsoft.

"I am now convinced that the deposition of Mr. Gates was designed by the government for the sole purpose of turning this case into a personal attack on one of the nation's great business innovators," said Warden.

Regarding the AOL/Netscape deal, Neukom said Microsoft wants to see merger documents "so we can defend ourselves against the notion that somehow Microsoft or any other company single company could possibly hope to control access to the Internet."

The discovery, said Neukom, "may also give us all a better understanding about what was occurring ... when witnesses, executives from those companies, were on the witness stand under oath in this litigation."

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