WASHINGTON, D.C.—Microsoft Corp.s decision to withdraw Richard Fade may make it difficult for lawyers for the states to introduce evidence they say it crucial to their case.
Attorneys for Microsoft and the states battled in court Tuesday morning over whether documents related to Fades testimony could be entered into evidence. Fade is vice president of Microsofts OEM division.
Microsofts agreements with OEMs are key to the states case and central to their proposals regarding Microsofts conduct with OEMs going forward. The nine states and the District of Columbia, which did not sign the settlement reached last year between Microsoft and the U.S. Department of Justice, maintain that the software giant has continued using many of the anti-competitive practices it was said to have done with OEMs before its liability trial. In fact, the states maintain that Microsoft may have done even more.
Howard Gutman, an attorney for the states who argued for inclusion of some of the documents the states had planned to bring into evidence with Fades testimony, read from one of the documents, in which a Dell Computer Corp. employee allegedly writes: “We cannot imagine that the intent of the decree was even greater control for Microsoft.”
The states had planned to use Fades testimony to hammer at Microsoft and its proposed settlement with the Justice Department and a group of other states.
Sources close to the non-settling states said Fades deposition includes passages potentially troublesome to Microsoft. By removing him as a witness, the Redmond, Wash., company avoided any such troubles.
However, the states lawyers said they wanted to have the right to enter into evidence documents it planned to admit during Fades testimony.
Microsoft objected vociferously.
“Theyre trying to make Mr. Fade their witness,” said John Warden, an attorney representing Microsoft. “This is our case.”
Warden told U.S. District Court Judge Colleen Kollar-Kotelly she had said the states could use “only designations for witnesses Microsoft actually calls. The mere fact that a witness was on our list did not mean we would actually call them as a witness.”
“They cant dump in documents,” Warden argued. “It has to be part of cross [examination]. Time for them has passed, they have rested. For them to inject new evidence in the middle of our case is highly prejudicial to us.”
Warden said the states were “presenting a moving target to the defense.”
Gutman argued that the documents “could not be less of a moving target” because “they were put up on the screen in our opening” argument.
Kollar-Kotelly said she would rule later, but told Gutman: “You generally admit documents during your part of the case, they admit during their part. You dont ordinarily admit documents during their part of the case.”
Meanwhile, the states continued its cross-examination of Robert Short, Microsofts vice president in charge of Windows Core Technologies.
Laurie Fulton, an attorney for the states, continued to try to chip away at Shorts claims that Microsoft promotes interoperability between Microsoft platforms and those of others. She cited Microsofts Kerberos support as one area the companys interoperability comes up short. But Short disagreed, saying Microsoft does as much as it can to support interoperability.
Fulton later moved in on Short regarding Windows XP Embedded, a technology he is responsible for and one that Microsoft Chairman Bill Gates last week in court acknowledged was a componentized version of Windows with functionality to run applications.
Fulton asked Short whether Windows XP Embedded was based on the same code as Windows XP Professional. He said it was. She then asked whether a componentized operating system is more reliable. Short said yes, because there are “less moving parts.” In addition, he said performance was typically better for similar reasons.
Fulton tried to get Short to agree that by using Windows XP Embedded and the “Target Analyzer for Windows XP Embedded,” a user could create an operating system that meets the requirements of the states proposal for a modular version of Windows. The Target Designer features 10,835 components that can be added to Windows XP Embedded.
While a user could design versions of the operating system that would work, Short said “interdependencies” that exist in the Windows code do not go away with XP Embedded. He said the same interdependencies would exist as the various components were added to the system and without all of them some things would not work properly.
On Tuesday afternoon, Microsoft intends to show video deposition testimony of Tom Green, assistant attorney general of California.
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