Friday, November 13, 1998

(TWP)

The Microsoft antitrust trial – whatever the outcome – promises to be precedent-setting, and not just for the technology community.

Staff Writer Rajiv Chandrasekaran has been covering technology – particularly tech policy and the Internet – for The Post for more than two years. He has been in court for every day of the Microsoft antitrust trial, covering the case for The Post and washingtonpost.com.

Chandrasekaran was online today for an hour-long live Q&A session. The transcript follows.

Odenton, MD: Sometimes it seems that presiding judge Jackson is giving Microsoft a shorter leash than DOJ. Do you agree with this observation, or is it a case of the short leash moving to DOJ once the U.S. Government rests?

Second question: if a loss for Microsoft results in an automatic appeal, will this trial EVER bring about actual change in the PC industry?

Rajiv Chandrasekaran: Although it appears that the judge, Thomas Penfield Jackson, is, as you say, holding Microsoft on a shorter leash in the proceedings, I think it's simply because they're the ones doing the cross examination now. Because Microsoft lawyers expect this case to be appealed no matter who wins – and loses – their lawyers want to establish a full factual record. And that entails asking detailed and lengthy questions of witnesses. Sometimes, it appears, the judge just wants Microsoft to get a move on with things. After the judge's outburst at a Microsoft lawyer last week, the comapny this week appeared to move things along much faster. Ultimately, they've got to find the happy medium between moving at a pace that pleases the judge (he doesn't want to let the trial run until next summer) but also allows them to get the factual record they want.
As far as the appeal is concerned, it all depends on whether the appeals court decides to stay the judge's order, should he rule against Microsoft.

Arlington, VA: It seems that the government is trying to make Gates out to be a really evil person (in business practices, not personally). Is this common practice in antitrust cases-- or is Gates special??

Rajiv Chandrasekaran: In many antitrust cases, a company's chief executive voluntarily comes to court to testify. Gates, however, chose not to for a number of reasons, it appears, not the least of which is a poor track record in testifying before judges and senators. As a result, the government chose to rely on the tape. And it actually may be a bigger help that Gates in on tape, because the government can show just the portions they want to. Gates, also doesn't appear very [well] on the tape. For the government, playing the tape serves two purposes. First, it personalizes the case for the judge. Second, it helps the government question the credibility of Gates, by juxtaposing his e-mails with his taped denials.

Arlington, VA: Did Steve McGeady give any direct testimony? The way I understood this trial was that there was to be no direct questioning in the court room, only cross, redirect and re-cross. From what I understand he had no "formal" written direct testimony. I just wonder, then, what was the cross examination based on?

Rajiv Chandrasekaran: Steve McGeady, a vice president at Intel Corp., gave his direct testimony on the witness stand – in the courtroom – on Monday. Although the judge has ordered all witnesses to sumbit their direct testimony in writing, Intel got special dispensation. Intel officials said they didn't want to appear that they were siding with the government because they would have had to work with government lawyers to prepare the written testimony. But when McGeady got on the witness stand, it certainly didn't appear that Intel was taking a neutral stance in the case.

Bangalore, Karnataka,India: Rajiv,

What is the attitude of the Judge in the case? Has he shown any latitude to either the State or Microsoft?

Rajiv Chandrasekaran: The judge hasn't given any indication of how he'll rule in the case, but some of his questions of witnesses suggest that he might be inclined to take a sympathetic view of the government's case. Remember that he did rule against Microsoft in a previous legal dispute last year.

Chevy Chase, MD: Microsoft has responded to several accusations with a technical defense that transcends the ability of the average non-programming individual to make judgement. For example, the company argues that it didn't purposefully cause bugs between Windows 95 and Quicktime software but, rather, simply didn't inform software developers of certain last-minute changes that conflicted with Quicktime. Are there plans to call any neutral expert witnesses in the field of software development to determine whether such responses hold water?

Rajiv Chandrasekaran: No plans to call any "neutral" expert witnesses, although both sides will call a few of their own "experts." The judge, according to my sources, has told lawyers that he might tap a Harvard Law School professor, Lawrence Lessig, to provide a legal brief outlining some of the technical and legal issues in the case. But no formal decision has yet been made on that front. Microsoft had opposed Lessig's involvement in the previous dispute last year and an appeals court eventually put his job on hold.
For the bulk of the technical issues, it appears that the judge – with the help of his law clerks – is going to have to wade his way through them. From the few questions he poses to witnesses himself, it appears that he's getting more technically proficient as the trial drags on.

New York, NY: How long is the trial expected to last?

Rajiv Chandrasekaran: I wish I knew! I want to buy airline tickets to visit my family for the Christmas holidays and fear that there's no way to get one of those can't-change-the-date low fares. But seriously, my best guess is until late January or early February. We've got eight more government witnesses and then 12 from Microsoft, not to mention closing arguements. Then we'll probably have to wait another month for the judge to issue his decision.

Montgomery Village, MD: When is the Judgement on the Microsoft v/s Sun in the Java case due? At least, the interim judgement should be due anytime soon right?

Rajiv Chandrasekaran: Decision in the Sun v. Microsoft case in California is expected any day. Stay tuned.

Oklahoma City, OK: Which side has been helped most by the testimony and cross of McGready?

Rajiv Chandrasekaran: Good question. I think it's hard to say that Microsoft has been helped in any way by McGeady's testimony. The best they can hope for is that they trashed the guy's credibility in front of the judge, depriving the government of any points. (I sort of view this like a volleyball game. It's impossible to score a point when it's not your witness, but you can keep the other side from scoring.) That said, I'm not sure that Microsoft really dented him all that much. David Boies, the government's lead attorney, did a very skillful job of rehabilitating the witness's credibility yesterday afternoon by showing several memos and depositions of other Intel exces that backed up many of McGeady's contentions. At the end of the day, I think the government got a few points, but not as many as they may have hoped.

Washingtonpost.com: We are halfway through our live discussion with Post reporter Rajiv Chandrasekaran. You may continue to submit questions.

Arlington, VA: I read yesterday in the NY Times that Amazon.com employees are being asked to purge all old e-mail– largely because of the type of e-mail evidence that's been subpoenaed and introduced in this trial. Do you think companies will keep a tighter reign on e-mail in the future? Could you speculate as to why Amazon.com would be worried about their internal company e-mail?

Rajiv Chandrasekaran: I think everyone is going to become a lot more sensitive about what they send over e-mail because of this case. I don't think that people realize that mesaages, even if they are deleted in some cases, never die. We're probably going to see more companies implementing e-mail use policies and perhaps installing filtering software. As for Amazon, no speculation here.

University Park, PA: In your opinion, does Microsoft feel this trial hurts their image in the eyes of consumers? If they lose, who stands to gain the most?

Rajiv Chandrasekaran: Public opinion surveys that I've seen – and there haven't been that many of them – show a slight erosion in positive views of Microsoft. But the company still is a darling in the eyes of most people and many investors. It's not clear whether, as more and more government allegations spill forth, consumers will shift their opinions. I think that most consumers opinions actually are shaped by the products they use – and many of them like Windows, Office, IE and other Microsoft stuff.
If they lose, it depends on the rememdy the judge orders. If he breaks up the company – a very remote possibility, according to trial insiders – there could be a huge impact in the tech industry, giving rivals like Sun and Netscape a huge boost in the market. But it all depends on what the government asks for and what the judge orders.

Charlottesville, VA: The Government plans to use the testimony of James Gosling, chief architect of Java. I assume he will detail Microsoft's attempts to compromise Java's multi-platform capabilities. Could the outcome of this trial in any way affect Sun v. Microsoft, which also deals with Microsoft's unwillingness to provide Java-certified solutions?

Rajiv Chandrasekaran: The outcome of this trial isn't expected to affect the litigation between Sun and Microsoft. But if Microsoft loses and if found to have monopoly power, it could open the door for private companies to file lots of their own antitrust suits against the company.
You're right about Gosling.

Woodinville, WA: Sir,

One item that has truly amazed me is the amount of hearsay evidence that has been admitted in this trial. I understand that MS has been objecting to it but that the Court has been allowing it under the concept that the Court can "compartmentalize" the evidence and disregard all the hearsay evidence and only rely on admissable evidence.

1. Have you researched the DC Circuit's rulings on hearsay "retroactive inadmissability" (if you will)? If so, what is your opinion as to the propriety of the Court's rulings regarding this?

2. "Traditional" evidence rules have "the best evidence rule" which, as I recall, would prohibit Mr. Gate's deposition UNLESS he was "unavailable." Was there a ruling on this? If so, did the Court rule that Mr. Gate's was "unavailable" because it had limited each side to 12 witnesses AND the US had decided not to call Mr. Gates? If that was the ruling, have you researched its appropriateness under DC Circuit law? If so, what is your opinion as to the propriety of the ruling?

3. You, and others, have written at some length that the Court appears to be on the US's "side." Is that a misreading of your stories or does it appear that the Court is "pro-US"?

4. Do you have any special training in law or anti-trust or trial work? If you do not, how accurate do you believe your stories are regarding the legally important aspects of the case as opposed to the "horse race" aspects of it?

Thank you. (And no, I don't work for MS; I am a member of the Bar; I was a trial attorney but I haven't practiced in years.)

Rajiv Chandrasekaran: Lemme take a quick stab at a few of your questions:
1. The judge has relaxed the hearsay rules for both sides because there's no jury here and a lot of the information is highly technical. He said he'll look at the evidence that might be hearsay and give it the appropriate weight.
2. Haven't researched the rules of the circuit, but the judge is gving both sides a little more leeway with presenting deposition material because of the trial schedule and the limitation on witnesses.
3. I've never said the judge is on the government's side. It's still anybody's guess how he'll rule.

Alexandria, Virginia: Has the government pretty much paraded out what might be deemed the heavy artillery, as far as damaging evidence/witnesses go in the case, or are their other potential witnesses coming up you are aware of that still could be rather damaging to Microsoft?

Second. In that you cover the trial extensively, are you getting a sense that what has come out is all of that damaging to Microsoft, so far as the "buzz" you are hearing from say fellow journalists, legal scholars, analysts? Any bets yet on outcomes, such as do nothing, slap on th wrist, breakup of Microsoft?

Thanks.

Jim R.
Alexandria, VA

Rajiv Chandrasekaran: I think we've seen a lot of the government's most dramatic evidence, but not all of it. I'd expect the witnesses from IBM and Sun to provide us with a few more fireworks.
It's hard to say how damaging all the government's evidence ultimately will be. Microsoft still hasn't shown us its evidence and I'm sure they have a few surprises up their sleeves.

Washington, DC: What's the tension level like in the courtroom? Is the sense of importance of the case really palpable to those observing the trial?

Rajiv Chandrasekaran: The courtroom is still packed on most days, with about 50 reporters and 50 members of the "public," although one's hard pressed to mind many average joes in there. Most of the public seats are taken up by other lawyers, stock analysts and company representatives. I think everyone in there has a sense of what's at stake and that's led to a fair bit of drama and tension. Both sides also have done a good job of putting on a good courtroom show, with tough questions and eye-catching evidence.

Arlington, VA: Rajiv, In your descriptions of Bill Gates during testimony, I am left with the impression that his mannerisms are those of a person who is either lying, or at best hiding something... is this my own bias, is this the manner of a gazzilionaire recluse with no social skills, or does he come off like a liar?? Please tell us more about his manner and how the jury might perceive him.

Thanks.

Rajiv Chandrasekaran: First off, there's no jury here. Judge Jackson will decide the case.
On the tape, Gates don't look all that great – he rocks back and forth, he appears annoyed, his hair is tussled. But you have to remember that he was deposed for three days. You don't go into a deposition trying to make points to the videocamera. You're doing your best to fend off lawyers from the other side who want to trip you up. That said, Gates has shown an amazing lack of recollection of e-mails he sent and meetings he had. The government hopes to show that he's being less than forthcoming. But Microsoft argues that he simply giving legally accurate answers in a tough setting.

Washington, DC: Who are the government's remaining witnesses, and what evidence are they expected to provide?

Rajiv Chandrasekaran: Up next week: Glenn Weadock, the president of Independent Software. He testified in the earlier Microsoft case and he's expected to talk about how the company's business practices affect consumers. After that will be John Soyring from IBM. The government also will call James Gosling from Sun Microsystems and several economists.

Washingtonpost.com: That about wraps up our live discussion with Post reporter Rajiv Chandrasekaran. Thanks to all for participating. Chandrasekaran files daily trial updates for washingtonpost.com, so make sure to check back frequently for the latest from the courthouse.