In what is essentially the first major flare-up in the Microsoft Corp antitrust case, the Justice Department has charged that the software giant is attempting to impose unreasonable limits on pre-trial depositions by executives, including chief executive Bill Gates, and on other evidence to be produced in the discovery period. In a motion filed by Justice, government lawyers are seeking access to the source code to Windows 95 and Windows 98 and have asked that they be allowed to depose Gates – one of 17 Microsoft employees in total – for two days. But, according to the filing, Microsoft has tentatively made Gates available to testify on August 12 for no more than eight hours. The government also charges that the company refuses to schedule more than seven (of the fifteen) depositions in addition to those of Gates and company president Steve Ballmer. On the issue of the source code, Justice asserts that Microsoft’s refusal to turn over the code is unreasonable and based on improper objections. According to the filing, Microsoft has argued that the code is not relevant to the proceedings, which the government categorically refutes. Microsoft’s other objection is on the grounds of confidentiality and protection of trade secrets. Both sides had already agreed to a protective order covering such issues and Justice is angered that the company didn’t fully voice its concerns before entering such an agreement. Microsoft is now asking for what resembles a commercial license agreement with strict non-disclosure guidelines before it will produce any source code. Justice lawyers have countered with the argument that Microsoft, in attempting to procure documents and testimony related to the case from Novell Inc, had tried to force that company’s compliance by asserting that the very same protective order it had agreed upon with Justice should be adequate to allay Novell’s confidentiality concerns. US District Judge Thomas Penfield Jackson, who is presiding over the case, has warned both sides that such disputes in the discovery stage of the trial will not be tolerated and has strongly encouraged both sides to work them out on their own. Jackson appears determined to keep the trial, which is scheduled to begin September 8, on schedule. Microsoft, which had originally asked for a trial date in December, would like nothing more than to see it delayed. It has argued all along that the government has had about 18 months to prepare while it has only been given four.
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