Judge Denies Microsoft Request to Delay Case

Judge Colleen Kollar-Kotelly denied Microsoft's request to delay by four months the antitrust lawsuit pursued by nine states and the District of Columbia.

Judge Colleen Kollar-Kotelly denied Microsoft Corp.s request to delay by four months the antitrust lawsuit pursued by nine states and the District of Columbia, which are seeking tougher remedies than agreed to by the Department of Justice in November.

In a hearing this morning in Federal District Court for the District of Columbia, Kollar-Kotelly said she did not have any specific reason to believe Microsoft could not comply with the schedule already established. "No one can claim that they lack resources--on both sides--as far as Im concerned," she said. "Although Microsoft claims that [the states document requests] are burdensome, they did not provide in the pleading any specifics."

In seeking the additional time, Microsoft argued that the states had expanded the case beyond the scope addressed by the U.S. Court of Appeals. Dan Webb, outside counsel for Microsoft, told the judge at the hearing that he has had some trouble getting information subpoenaed from third parties that are included on the states preliminary witness list. "I seriously doubt were going to have substantial compliance with third parties until mid-February," he said.

Kollar-Kotelly issued a stern warning to third parties to cooperate in the case. "I want to make it clear that third parties cant cooperate with the states and then turn around and stonewall Microsoft," she said. "I certainly am not going to hear from them if they are not cooperative. ... If they end up delaying this case, I will simply preclude them."

Objecting to the delay motion, the states had charged that Microsoft was stalling so that it could benefit from continued monopolistic conduct. In written opposition, they said that the motion was a "recycling of Microsofts previously rejected arguments for delay." Brendan Sullivan, attorney for the states, told the judge today that extra time is unnecessary because problems had been worked out.

Kollar-Kotelly also rejected a request from Microsoft to order expert witness lists in sequence, beginning with the states. Webb made the request, arguing that the states had broadened the case to include new products, new markets and new issues. "Because of the scope of the [proposed] remedy, it is impossible to get discovery done [in the allotted time]," he said. "I have no basis on which to prepare an expert report."

In denying the request for sequencing, the judge told the parties they should talk to each other. "I still think all of this is in the universe of what this case is about, in the larger sense," she told Microsoft. "I think you should be able to at least file what you think your own experts are going to say about your own plan."

The case is complicated by the courts parallel schedule to rule on the November settlement agreement between Microsoft, the Department of Justice and nine other states. The settlement approval proceeding, called the Tunney Act proceeding, includes a public comment period, which closes Jan. 28. The Justice Department will file with the court a summary of the comments at the end of February. The judge may choose to hold evidentiary hearings before ruling on the settlement, and she is under no official deadline to issue a ruling.

According to some legal experts, if the states litigation and the Tunney Act proceeding coincide, it would be logical for the court to postpone the settlement ruling until after the states arguments are heard. That is what several senators on the Judiciary Committee called on the judge to do in a committee hearing in December.

This morning, Kollar-Kotelly asked both parties to submit on Feb. 13 a joint report outlining the factual information that is disputed and that which is not disputed.