– In a procedural move, Microsoft filed a motion with the US District Judge Thomas Penfield Jackson to rule immediately in its favor ending the case. But even the company’s lead lawyer, John Warden, was clearly not expecting success. If I have indeed forecast your decision, we are prepared to move ahead with our case,” Warden said. You have indeed,” replied Judge Jackson, and the first witness was called.
– Microsoft’s lawyers were reprimanded by Judge Jackson for talking to their witness Richard Schmalensee during the afternoon recess. The two sides had at the start of the trial agreed that witnesses would not be talked to outside the court while still testifying. The matter was brought to the Judge’s attention after Schmalensee had returned from the afternoon break with additional information regarding sales of the Linix operating system. David Boies, the government’s lead attorney then questioned him on where he had got the information from and Schmalensee admitted that he had been reminded of it by Microsoft counsel during recess. Judge Jackson then issued a warning to the Microsoft lawyers.
– Following the reprimand, Microsoft lawyers approached the Judge at the end of the hearing yesterday to argue that the government had also approached witnesses during their testimonies. Microsoft said it was seeking clarification since the majority of the governments witnesses spoke with their own counsel during breaks in their testimony, for example in the cases of Netscape’s Jim Barksdale and IBM’s John Soyring. In both cases it was with their respective companies not the government’s counsel. Microsoft’s witnesses, for the most part, will not have separate company counsel as 9 of the 12 are Microsoft employees.
– In a rare display of emotion, David Boies raised his voice in Court to exclaim: Are you seriously suggesting that this court should consider the palm pilot as a potential competitor to Windows? Schmalensee, who raised the issue, said not as it stands now but that it is the germ of a potential competitor. Moving Boies along, the Judge told Boies the answer was the closest you are going to get.
– In a final jab at Microsoft before they rested their case, government lawyers released more than 1,000 pages of new evidence – mostly emails – and more videotape of Gates during his sworn testimony last summer.
– Microsoft said that during the testimony of Richard Schmalensee, it will seek to have proceedings carried on in a closed court as it again raises pricing information it considers confidential.
– The government believes that Microsoft has made a smart move in putting its summary witness up first in the trial, according to sources close to the team. The government put its summary witness last but the Microsoft move will help to quickly lessen the impact of the final government witness.
