Microsoft Corp. on Tuesday denied allegations that it had withheld the names of witnesses it had previously selected from the nine dissenting states and the District of Columbia in an effort to obtain some tactical advantage.
Microsofts response follows a hard-hitting request on Monday from the dissenting states who asked Washington District Court Judge Colleen Kollar-Kotelly to issue an emergency order striking 18 of the 23 new fact witnesses named in Microsofts final witness list submitted late last week.
In an eight-page statement of fact posted by the Court on Tuesday, Microsoft said that “in nearly every instance, the new witnesses added to Microsofts final witness list were not selected by Microsoft until the week (and, in most cases, the very day or one day before) the parties exchanged final witness lists.
“That the non-settling States were able to identify the majority of their fact witnesses when they submitted their proposed remedy to the Court on December 7, 2001 should come as no surprise. The non-settling States fact witnesses are employees of the very Microsoft competitors who have spent months crafting the “relief” now advanced by the non-settling States and who would be the principal beneficiaries of such relief if entered by the Court,” Microsoft said.
The non-settling States had began working with competitors like America Online, Sun Microsystems Inc., Oracle Corp., Novell Inc. and Real Networks last fall, while Microsoft was still engaged in around-the-clock mediation with the DOJ. At that time the two sides were attempting to settle the case in accordance with the Courts instructions, the latest filing alleges.
In contrast, Microsofts witness list was thus reactive and was built from knowledge obtained during discovery from the non-settling States and third parties concerning the issues the non-settling States intend to pursue at trial, Microsoft said.
“Microsofts final witness list constitutes the best efforts of Microsofts counsel to represent the interests of its client, while working nonstop since November 6, 2001 to do everything humanly possible to prepare for trial under the aggressive timetable established by the Court,” the filing said.
Microsoft had been unable to even begin identifying its fact witnesses, particularly its third-party witnesses, until after it had received the non-settling States proposed judgment and preliminary witness list on December 7, 2001.
“The preliminary witness list that Microsoft served on December 12, 2001 thus was Microsofts first attempt to identify its fact witnesses, after having examined the States sweeping and draconian proposed remedy and preliminary witness list for only five days,” it said.
In explaining why its list of final witnesses was released only on the required date, Microsoft said that the non-settling States had only, on January 4, 2002, provided it with a very general description of the anticipated trial testimony of most, but not all, of their witnesses. This was Microsoft first notice of the subjects that its witnesses would need to address at trial.
“With that information in hand, Microsoft was finally able to begin in earnest the process of identifying its own fact witnesses. Prior to receiving this interrogatory response, Microsoft had no idea what subjects witnesses like Larry Pearson of SBC Communications, a telephone company, intended to address in their testimony,” Microsoft said in the filing.
“Before agreeing to testify, these third parties quite properly insisted on time to understand the issues in the case and review both the States remedy proposal and the proposed final judgment negotiated by Microsoft, the United States and the nine settling States,” it continued.
Knowing that they then would be subject to subpoenas for documents and deposition testimony, not to mention the subject of intense press scrutiny, third parties did not take lightly the decision to participate in this litigation by producing a witness, and thus most declined to make a final decision until days before Microsoft was required to submit its final witness list, the filing said.
“In short, Microsoft was, and is, doing the best it can under very difficult circumstances. As the non-settling States would admit, the current schedule is grueling. On February 2, 2002, the parties exchanged initial drafts of their disputed and undisputed facts. The non-settling States draft list brought to light dozens of new factual assertions to which Microsoft must respond at trial, highlighting the need for additional witnesses in new areas,” Microsoft said.
Many of those facts “have literally nothing to do with the theory of the case that was tried or the liability determinations affirmed by the Court of Appeals. Indeed, the non-settling States are essentially attempting to present several new liability cases under the guise of pursuing a remedy for the anticompetitive acts found by the Court of Appeals,” it added.
Microsofts counsel had worked around-the-clock during the week of February 4, 2002 to identify its third-party witnesses. Testimony from such witnesses was critical in this case to establish that the States sweeping remedy proposal, if entered by the Court, would damage a broad swath of the computer industry—from system integrators, to OEMs, to ISVs, to customers, Microsoft contended.
“In virtually every case, however, the process of obtaining third-party witnesses required sign-offs at various levels of the third parties corporate hierarchies, including approval from the third parties in-house legal departments, most of which just came in the days leading up to the deadline for filing the final witness list,” it concluded.
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