NyTimes
October 30, 1998
Microsoft's Strategy Leaves Gates in the Wings
WASHINGTON -- Two blocks away, it would have been called a filibuster. At the federal courthouse, however, it was simply defensive strategy.
Lawyers for Microsoft Corp. on Thursday engaged in a laborious cross-examination of the second witness in the government's antitrust trial of the company, averting plans by the Justice Department to close the week with the much-anticipated -- or much-dreaded -- videotaped testimony of Microsoft's chairman, Bill Gates.
"I'm not going to second-guess Microsoft's defensive strategy," responded David Boies, the lead Justice Department lawyer, when asked if he felt the company engaged in a filibuster to delay the showing of the videotape.
"I don't want to touch that, not here," Boies said in reference to the courthouse's proximity to the U.S. Capitol.
"We just didn't get to it," he said later, adding, "I'm going to stop saying when we are going to get to it ... and just spring it one day."
Boies on four different occasions this week told reporters he planned to use portions of the taped deposition of Gates -- the world's wealthiest man -- as filler between live witnesses. But on both days it was planned, Tuesday and Thursday, time ran out.
The word filibuster was repeatedly uttered by the politically savvy audience that filled the courtroom on Thursday as Microsoft's lawyer, John Warden, slowly picked apart the testimony of David Colburn, a senior vice president of America Online.
Anticipation of the Gates testimony had brought renewed interest -- and long lines for seats -- back to the courtroom of Judge Thomas Penfield Jackson of United States District Court.
Microsoft officials denied any effort to deliberately delay the playing of the deposition, saying they were simply engaging in a careful cross-examination. But the company has made no secret of its aversion to portions of the Gates deposition being played.
Microsoft filed a motion to try and block the Justice Department from playing the tape, arguing that if the government wants to hear from the billionaire, known for his temper and sometimes combative attitude, that they should call him as one of their 12 witnesses.
Jackson ruled against them on Tuesday, saying antitrust law provides no limitations on the use of depositions of the chief executive of the company on trial.
"It is unfortunate that they want to use the videotape rather than call Bill Gates in person," Mark Murray, a Microsoft spokesman, said outside the courthouse Thursday afternoon.
When the tape is finally shown, Murray said, "You will see a witness who won't the let government put words in his mouth ... who won't be bullied."
Boies said that Microsoft itself should call Gates, saying, "Ordinarily, a company's chief executive officer comes to testify as a witness for the defense."
Gates was omitted from the witness list, Murray said, in favor of eight executives who were more directly involved in the issues raised by the case.
Yet the Justice Department and 20 states contend that Gates is the central figure in Microsoft's strategy in the Internet software market, and his memorandums and e-mail correspondence are a key part of the evidence in the case.
Before the trial, a person who was at the recent videotaping of the deposition of Gates said that Microsoft's lawyers might have determined that putting him on the stand could hurt them more than it helped because Gates was argumentative and contentious. Gates also professed to memory lapses and contended he did not know the level of Microsoft's sales and profits or the share of the operating system market held by Microsoft's Windows.
In snippets of the deposition used by the government in its opening statements in the trial, Gates said he had not known about a June 1995 meeting by his executives with rival Netscape Communication Corp. until he read about it in the newspaper this summer, and that he had never proposed investing in the Netscape. The government then introduced e-mail documents from Gates that indicate he not only knew but directed the agenda for that meeting, including offering Netscape money.
The meeting is a key element of the case, as Netscape's chief executive, James L. Barksdale, has testified that Microsoft executives proposed an illegal division of the market for Internet browser software, then set out to crush his company for refusing the offer.
Boies said the government plans to show in court roughly 8 of the 20 hours they spent questioning Gates. That will include an hour of portions selected by Microsoft lawyers, he said.
"We tried to place what is being said in context," he said. "I think the video will give a pretty good opportunity to judge Gates's credibility."
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