States Cancel Final Witnesses Against Microsoft

Microsoft indicated that it planned to prolong the protracted anti-trust remedy case because of evidence delivered this morning by the plaintiff states, only to have the states withdraw the witness responsible for creating the mound of evidence.

In a day filled with courtroom twists, Microsoft Corp. today indicated that it planned to prolong its already-protracted anti-trust remedy case by several weeks because of evidence delivered this morning by the plaintiff states, only to have the states later withdraw the witness responsible for creating the mound of evidence.

The rare courtroom drama in the eight weeks of consistently staid hearings evolved out of an effort by the nine states and District of Columbia – which are pursuing tough anti-trust remedies against Microsoft for its anti-competitive conduct – to bring two final expert witnesses to the stand to demonstrate how Microsoft can comply with a proposal to create a modular Windows, i.e. one in which the operating system would be unbundled from the companys middleware. The witness, an independent software tester named James Bach, had planned to demonstrate how Windows XP Embedded could be used to create an operating system with removable middleware without degrading any functionality.

Judge Colleen Kollar-Kotelly earlier this week said that she would allow the states to present the witnesses, but she did not hide her displeasure at the states for not letting the court know earlier of their plan. When Microsoft complained at mid-day today that they had been inundated with 40 gigabits of data from the states, which would take weeks to examine, the judge made it clear she was not pleased with the prospect of the case lasting even longer than anticipated.

"This is absolutely astounding," Kollar-Kotelly said after hearing Microsofts objections. She berated the states for expecting that the examination of their new witness and accompanying evidence could be done quickly and for not advising her earlier on how they planned to use the witness work.

"Its obvious that this was planned all along to be done in rebuttal," the judge said. "I cannot tell you that Im happy about the way this has been done."

At 5 p.m., after the days hearing ended, Brendan Sullivan, lead attorney for the states, surprised the courtroom by announcing that his team had changed their minds about calling the two final expert witnesses. "We made a decision not to call the rebuttal witnesses," he told the judge.

The states surprise decision was based on two factors, said Tom Greene, an assistant attorney general for California. First, they feel comfortable that theyve already made a strong case and they do not want to prolong the hearings unnecessarily, he said. "Our sense is that were in as good a shape as were going to be," Greene said. "We dont need to risk credibility problems with this judge. Our sense is that shes ready to conclude."

Second, the states confidence in their position regarding the feasibility of creating a modular Windows grew with the testimony of Microsofts final witness, John Bennett, a computer science professor who took the stand today. Bennetts testimony aimed to show that several of the remedy proposals set out by the states are technically infeasible. But in court today, Bennett testified that he did not conduct tests or experiments with XP Embedded. "He didnt do anything with it," Greene said.

In cross-examining Bennett today, Steven Kuney, attorney for the states, grilled him on what operating system functions, if any, would be degraded or impaired if various middleware products were removed from Windows XP. When Kuney asked him what operating system functions would be degraded if the email client software, Outlook and Entourage, were removed, Bennett said "none come to mind right now."

When Kuney asked the same question with regard to media creation, instant messaging, voice recognition, digital imaging and directory software, Bennett responded each time that the functionality of that particular software would be impaired if it were removed, but that he could not name other functionalities that would be degraded or impaired.

When Kuney asked him whether he had done experiments or testing to see what functions in Windows XP would be degraded or impaired if code for Internet Explorer were removed, Bennett replied: "I have done no experiments."

The cross-examination of Bennett is expected to conclude tomorrow, wrapping up eight weeks of testimony in the case. Next week the court will hear arguments regarding the enforcement provisions of the states proposal and the proposed federal settlement that Microsoft and the Department of Justice agreed to in November, as well various motions by the parties, including Microsofts motion to dismiss the states case entirely.