Comes - January 12, 2007
From Techrights
[edit] Interesting bit from transcript of Iowa TP011207
THE COURT: Everyone else may be seated. Good morning, ladies and gentlemen. Mr. Alepin, you may take the stand and you are still under oath.
RONALD ALEPIN, recalled as a witness, having been previously duly sworn, testified as follows:
REDIRECT EXAMINATION (CONT'D)
BY MR. LAMB:
Q. When we broke yesterday we were discussing the AARD code. And yesterday morning Mr. Holley asked you if there was a malfunction in the AARD code. Do you recall that question?
A. I recall a question concerning malfunctioning and the AARD code.
Q. And your response was no, there was no malfunction; right?
A. That's correct.
Q. And you testified that there wasn't a real error. It was a false error; right?
A. That's correct.
Q. Okay. By false error, do you mean that it was not true?
A. Yes.
Q. Now, have you seen evidence in the record that leads you to believe that Microsoft knew that the AARD code was not a true error?
A. Yes.
Q. What did you see?
A. Well, there is a discussion of -- in the record concerning what the purpose was for the code. It was to detect a non-Microsoft operating system, and that in and of itself is -- was not an error. And the purpose for installing the code was not to detect errors, but to detect a different operating system.
..
Q. What type of error message is this?
A. Well, this is an error message that conveys no real information other than telling the user that some error condition has occurred and giving him no basis or ability to respond or react to the error condition on his own or to assess or evaluate the import of the error on his operation, on his continuing use of the computer.
Q. And what's the impact of that when you receive a message like that?
Well, the impact is that you don't know what you did and it's not readily apparent how you're going to fix the problem, so the -- you have a lingering concern or doubt about the stability of the system, something happened, and you don't know what it was, and you don't know whether you're going to see something happen in the future.
But it's an unresolved issue, and you're unaware of it, so it just undermines your confidence in the continuing use of the system.
Q. Okay. Does that raise issues of incompatibility?
A. It undermines your confidence and your use of the system, which is a concern.
This is a new product, Microsoft Windows beta, 3.11, and there's certainly compatibility issues that can explain what's happening here.
And, again, the information is not helpful here other -- but you're trying to install Windows 3.1 on your system. There's a possibility of -- strong possibility there's compatibility issue.
Q. Now, this doesn't happen on MS-DOS; right?
A. This error message does not appear when a user would be installing the Christmas beta on MS-DOS.
Q. It only happens on DR-DOS; right?
A. It only happens on DR-DOS, I believe.
Q. Okay. And who is it created by?
A. It was created by Microsoft, Microsoft employees. Aaron Reynolds, in particular, at the direction of Microsoft.
Q. And AARD, is that an acronym for Aaron Reynolds?
A. That's my understanding, that those were his initials.
..
Q. Okay. And then finally Mr. Mendelsohn says, recently a number of concerns have arisen regarding Microsoft's willingness and ability to extend such support to the new OLE controls technology.
For the reasons listed below, I believe that Microsoft application developers have been given earlier and more detailed access to OCX specifications than we have had here at Lotus. These are serious concerns, and I hope that we can address them with Microsoft promptly.
Do you see that, sir?
A. I do.
Q. So Mr. Holley's reference to Mr. Kliger was suggesting that Lotus didn't have any problems with undisclosed APIs; right?
A. As far as it went, yes.
Q. Right. As far as it went, okay.
But the rest of the story in relation to Mr. Mendelsohn, who was there at Lotus, is he's saying he's having significant problems with undisclosed APIs; right?
A. That's correct. That's correct.
Q. And he's complaining that he's not getting that information and that there's not a separation of church and state?
A. That's correct.
..
What I want to do with 2456 -- this is the DRG summit talk by James Plamondon regarding power evangelism and relationship evangelism.
..
Q. Okay. And this is the particular document where Mr. Plamondon talked about the tactics of evangelism, and he talked about ISVs being pawns in the struggle between platform vendors.
Do you recall that, sir?
A. Yes.
MR. LAMB: Now, if you could just highlight the last paragraph of the first page, sir. Thank you.
Q. And who's Mr. Plamondon talking to?
A. He's talking to, as I understand it, the other members of the developer relations group within Microsoft.
..
Sir, in your opinion, if Microsoft follows the party line as put forth by Mr. Plamondon, is that a dissemination, a distribution of truthful information?
A. No, not --
..
Q. And, again, can you tell the jury who Mike Maples is?
A. He's senior executive in charge of applications for Microsoft.
Q. Applications?
A. Yeah.
Q. And then it's to Brad Silverberg and some other folks. Who is Brad Silverberg?
A. Head of the desktop operating systems group inside Microsoft.
..
Q. .. Mr. Silverberg says to Mr. Maples, I'd be glad to help tilt Lotus into the death spiral. I could do it Friday afternoon, but not Saturday. I could do it pretty much any time the following week. Do you see that, sir?
A. I do.
..
Q. Okay. And this is a document that was seen before, and this is a different time frame and it's relating to a different product?
A. Yes.
Q. Okay. But this is from Bill Gates?
A. Yes.
..
MR. LAMB: And then if you can go down to the call-out where it says .. I have decided that we should not publish these extensions. Okay. So did you understand that Mr. Gates was telling the people in his company not to publish the API extensions regarding Ishellbrowser?
A. That's correct.
..
MR. LAMB: If you could go to the front page, and if you could highlight the message or blow up the message that's from Cameron Myhrvold. The middle one right there, yes.
Q. And Mr. Myhrvold says, to answer your, quote, global question, unquote, we unfortunately cannot hide behind the, quote, it's not an app, it's part of the system, end quote, defense for bullet and bandit .. We .. will be specifically tried for these interfaces.
Ideally, we should document everything the bullet and bandit themselves use. Now, this may sound horrible, but, one, we'll document, but we, all caps, will not encourage, and, in fact, we'll aggressively discourage any use of these interfaces by ISVs and won't be talking about them.
And, two, remember we are not going to stick this doc into a book or even an SDK box. It will be written up as a white paper and, quote, inserted, end quote, into the MSDN CD-ROM containing hundreds of meg of other tech notes.
It will be very, quote, low profile, unquote, but it will provide enough, quote, air cover, unquote, for us to say they are documented.
..
Q. Can you explain to the jury what you believe Mr. Myhrvold is suggesting that they do from a technological perspective?
A. .. What Mr. Myhrvold is suggesting is that the documentation for these, for the large number of APIs that are available in the Windows operating system and used by Microsoft applications, but are not disclosed to the independent software vendor community, will be written up in a document and buried in among the hundreds of megabytes of other information in the CDs that are sent out to the developer community and the Microsoft user community, allowing people to say that the specifications or these interfaces are, in fact, documented.
But they'd be hard to find; right?
I think that's the idea here, yes, that they'd be hard to find.
..
Q. You were asked some questions by Mr. Holley about Slide 796, and I'm referring specifically to SPAD. Can you explain to the jury specifically what SPAD is again?
A. A SPAD is a feature or a function that was introduced into the Windows operating system product around 2002, I believe, that allows users to set program access and defaults.
Q. And does that allow you to remove the visible means of user access?
A. It -- that's its purpose. I understand it to be, yes.
Q. Okay. And does SPAD work to remove the visible means of user access for Windows Media Player?
A. Not entirely, no.
Q. Not entirely. Does SPAD work to remove the visible means of access for Real media player?
A. Yes.
..
Q. Does the add/remove function completely remove the Windows Media Player?
A. No, sir, it does not.
Q. Does add/remove function complete the Real media player?
A. I believe it does.
..
Q. I want to switch gears to BeOS, and there was some testimony that was elicited about that particular operating system in relation to the dual boot being dangerous.
And you were just asked that question, but can you explain to the jury what that means, that the dual boot could be dangerous?
A. Well, let's see, maybe I could use the paper?
Q. Sure.
..
A. .. When most users don't have backup copies of their hard drive .. bad things can happen in the process of moving this information here into this area up here which we're going to reconfigure for Windows only.
If you make a mistake during the process of installing the second operating system .. then you're playing with your own data, with your real data. So anything bad that happens there, you have the risk at least of losing your data and having a dead system, a system that won't boot.
..
Q. Now, Mr. Alepin, what Be was proposing, though, was the dual boot at the OEM level; right?
A. That's correct.
Q. And that's different; right?
A. Yes. In the dual boot of the OEM stage here, what happens is the OEM would install Windows into a partition initially that had been already set aside on the disk drive.
..
Q. Now, that process, the process that Be was actually proposing, is that process dangerous?
A. No, not at all.
..
Q. Okay. Let's focus on the testimony that you gave on redirect about whether or not Windows 95 sits on top of MS-DOS just like earlier versions of Windows.
Do you recall giving that sort of testimony, sir?
A. That sort of testimony, yes.
Q. Yes. And it was your testimony that even though it's called Windows 95, it's actually just Windows 3 sitting on top of MS-DOS held together by what Mr. Barrett called bubblegum and baling wire.
Do you remember giving that testimony, sir?
A. Well, the -- there were improvements to Windows 3.1, the graphical user interface between the Windows 3.1 product and the Windows 95 product.
..
Q. Now, when you were testifying on redirect about portability, I just want to be very clear.
A Java Virtual Machine, the machine itself, this virtual machine written to run on an operating system is in no sense portable, is it?
It is designed to run on the operating system and it calls upon services from that operating system that it then abstracts through its own set of APIs?
..
Q. So when you're talking about portability in the context of Java, what you're talking about is not those gray U's that I and you in your own drawing have called virtual machines.
..
That's correct.
Q. .. If somebody is making native calls to the operating system using these green tunnels that we've talked about and you've talked about on redirect, whether they're doing that using JNI or RNI or J/Direct, that impairs the portability -- that decision by the Java developer impairs the portability of that applet, does it not?
A. To different degrees, but yes.
Q. And you suggested, I believe, but tell me if I'm wrong, on redirect that Microsoft did something to require people writing applets to run on the Windows virtual machine to use the green tunnels?
A. I believe my testimony was that Microsoft encouraged strongly the use of these tunnels and did not provide other mechanisms which were part of the JVM structure that would allow the applications to maintain higher levels of portability.
..
Q. .. You are aware, are you not, that DRI engineers in Hungerford in the United Kingdom spoke to Novell engineers in Provo, Utah, for hours and hours and hours on the telephone directing them in the testing of Windows 3.1 betas on top of DR-DOS?
..
Q. Okay. Now, you spent a long time on redirect talking about the AARD code and the messages displayed by the AARD code.
Do you recall that, sir?
A. I do.
..
Q. .. Now, you testified that developers have this problem that they don't know what they don't know. Do you remember saying that on redirect?
A. Yes.
..
Q. Now, you testified on redirect that Microsoft Office used Ishellbrowser. Did you say that?
A. I did not ..
..
Q. Okay. But I just -- then I want to ask the question, you are aware, are you not, that after Mr. Gates made the decision to B list, in Mr. Belfiore's terms, the Ishellbrowser interface, all Microsoft applications external to Windows stopped using it?
..
Q. Do you have any reason to doubt the statement that after Mr. Gates decided to B list the Ishellbrowser interface, all applications at Microsoft that were not shipped in Windows 95 stopped using the interface?
A. I think I answered the question, yes, I have no reason to believe that applications other than applications in the Microsoft operating system product Windows 95 stopped using the -- continued to use those interfaces.
Q. Now, you testified about a concept of church and state on redirect, and I believe you said that Microsoft, starting in the 1980s, made statements to the market that there was a wall between the operating systems side of the company and the applications side of the company.
Did you say that, sir?
A. I said that, yes, sir.
..
A. .. Everyone in the industry understood that Microsoft's applications barriers would have lunch on the same campus as the operating systems people. It's never been an issue.
http://edge-op.org/iowa/www.iowaconsumercase.org/TP011207.txt
[edit] Full text
8007
1 IN THE IOWA DISTRICT COURT FOR POLK COUNTY
-----------------------------------------------
2
JOE COMES; RILEY PAINT, )
3 INC., an Iowa Corporation;)
SKEFFINGTON'S FORMAL )
4 WEAR OF IOWA, INC., an ) NO. CL82311
Iowa Corporation; and )
5 PATRICIA ANNE LARSEN; )
) TRANSCRIPT OF
6 Plaintiffs, ) PROCEEDINGS
) VOLUME XXX
7 vs. )
)
8 MICROSOFT CORPORATION, )
a Washington Corporation, )
9 )
Defendant. )
10 -----------------------------------------------
11 The above-entitled matter came on for
12 trial before the Honorable Scott D. Rosenberg
13 and a jury commencing at 8:29 a.m., January 12,
14 2007, in Room 302 of the Polk County
15 Courthouse, Des Moines, Iowa.
16
17
18
19
20 HUNEY-VAUGHN COURT REPORTERS, LTD.
21 Suite 307, 604 Locust Street
22 Des Moines, Iowa 50309
23 (515)288-4910
24
25
�
8008
1 A P P E A R A N C E S
2 Plaintiffs by:
ROXANNE BARTON CONLIN
3 Attorney at Law
Roxanne Conlin & Associates, PC
4 Suite 600
319 Seventh Street
5 Des Moines, IA 50309
(515) 283-1111
6
RICHARD M. HAGSTROM
7 MICHAEL E. JACOBS
Attorneys at Law
8 Zelle, Hofmann, Voelbel,
Mason & Gette, LLP
9 500 Washington Avenue South
Suite 4000
10 Minneapolis, MN 55415
(612) 339-2020
11
STEVEN A. LAMB
12 Attorney at Law
Zelle, Hofmann, Voelbel,
13 Mason & Gette, LLP
550 South Hope Street
14 Suite 1600
Los Angeles, CA 90071
15 (213) 895-4150
16 KENT WILLIAMS
Attorney at Law
17 Williams Law Firm
1632 Homestead Trail
18 Long Lake, MN 55356
(612) 940-4452
19
Also present: DANIEL WEST (at 3 p.m.)
20
21
22
23
24
25
�
8009
1 Defendant by:
DAVID B. TULCHIN
2 STEVEN L. HOLLEY
SHARON L. NELLES
3 JEFFREY C. CHAPMAN
Attorneys at Law
4 Sullivan & Cromwell, LLP
125 Broad Street
5 New York, NY 10004-2498
(212) 558-3749
6
ROBERT A. ROSENFELD
7 KIT A. PIERSON
Attorneys at Law
8 Heller Ehrman, LLP
333 Bush Street
9 San Francisco, CA 94104
(415) 772-6000
10
JOHN A. JURATA, JR.
11 DAVID SMUTNEY
Attorneys at Law
12 Heller Ehrman, LLP
1717 Rhode Island Ave. NW
13 Washington, D.C. 20036
(202-912-2000)
14
BRENT B. GREEN
15 Attorney at Law
Duncan, Green, Brown &
16 Langeness, PC
Suite 380
17 400 Locust Street
Des Moines, IA 50309
18 (515) 288-6440
19 RICHARD J. WALLIS
STEVEN J. AESCHBACHER
20 Attorneys at Law
Microsoft Corporation
21 One Microsoft Way
Redmond, WA 98052
22 (425) 882-8080
23
24
25
�
8010
1 (The following record was made out of
2 the presence of the jury at 8:29 a.m.)
3 MS. CONLIN: I was here at 8 o'clock.
4 I had indicated to the defense that we wanted
5 to make a motion at 8 o'clock using the same
6 process by which they call us to Court, and
7 they did not attend.
8 Though I requested that the Court hear
9 me outside the presence of the Defendants, the
10 Court decided that would not be a good thing.
11 So, Your Honor, I do not want to be
12 responsible for keeping the jury waiting, but I
13 do wish to make a motion to strike which I
14 propose that we might try to do in a shortened
15 lunch hour. It will not be terribly long, in
16 my opinion, but I might be wrong.
17 Sharon and I have reached an agreement
18 about the other item, Your Honor, so that does
19 not need to be discussed, the other matter
20 being a complicated matter of who reads what at
21 what point in time in the read jury transcript.
22 THE COURT: Why don't I just tell the
23 jury when we take the lunch that we'll take an
24 extra 15 minutes. Is that okay?
25 MS. CONLIN: Maybe a half an hour just
�
8011
1 because Mr. Holley talks too long.
2 MR. HOLLEY: Well, I don't know if I
3 accept that.
4 MS. CONLIN: Well, I was here at
5 8 o'clock. That extra half an hour in the
6 morning just makes a big difference in my mood.
7 MR. LAMB: So noted.
8 MR. TULCHIN: We'll stipulate.
9 THE COURT: Was Sharon here at eight?
10 MS. CONLIN: No, Your Honor, but she
11 was not due at eight.
12 MS. NELLES: I was here at 8:10, Your
13 Honor.
14 MR. GREEN: Mr. Green was here at
15 eight.
16 MS. CONLIN: Mr. Green was not here at
17 eight.
18 MR. GREEN: Yes, I was.
19 MS. CONLIN: A little bit after.
20 (The following record was made in the.
21 presence of the jury at 8:34 a.m.)
22 THE COURT: Everyone else may be
23 seated.
24 Good morning, ladies and gentlemen.
25 Mr. Alepin, you may take the stand and
�
8012
1 you are still under oath.
2 RONALD ALEPIN,
3 recalled as a witness, having been previously
4 duly sworn, testified as follows:
5 REDIRECT EXAMINATION (CONT'D)
6 BY MR. LAMB:
7 Q. Good morning, Mr. Alepin.
8 A. Good morning.
9 Q. When we broke yesterday we were
10 discussing the AARD code. And yesterday
11 morning Mr. Holley asked you if there was a
12 malfunction in the AARD code.
13 Do you recall that question?
14 A. I recall a question concerning
15 malfunctioning and the AARD code.
16 Q. And your response was no, there was no
17 malfunction; right?
18 A. That's correct.
19 Q. And you testified that there wasn't a
20 real error. It was a false error; right?
21 A. That's correct.
22 Q. Okay. By false error, do you mean
23 that it was not true?
24 A. Yes.
25 Q. Now, have you seen evidence in the
�
8013
1 record that leads you to believe that Microsoft
2 knew that the AARD code was not a true error?
3 A. Yes.
4 Q. What did you see?
5 A. Well, there is a discussion of -- in
6 the record concerning what the purpose was for
7 the code.
8 It was to detect a non-Microsoft
9 operating system, and that in and of itself is
10 -- was not an error.
11 And the purpose for installing the
12 code was not to detect errors, but to detect a
13 different operating system.
14 MR. LAMB: Darin, can you put Slide
15 702 back up again? That's the error message.
16 Q. Now, Mr. Holley asked you if you had
17 seen inflammatory error messages in the
18 industry in general. Do you recall that line
19 of questioning?
20 A. I do.
21 Q. And you said that you had seen
22 impenetrable and half-baked error messages, but
23 you didn't say you'd seen inflammatory.
24 Mr. Holley didn't ask you to explain
25 that. Can you explain what you mean to the
�
8014
1 jury?
2 A. Well, what I intended was there are
3 error messages that don't scare people and
4 there are error messages that can scare users.
5 There are error messages that can
6 inform users and there are error messages that
7 just appear to convey no information that you
8 can understand or use in order to address the
9 issue for which the error message is being
10 presented.
11 So there's a way of conveying
12 information about error conditions, to the
13 extent they are error conditions, in ways that
14 don't cause the user to lose consciousness or
15 to worry about life-threatening or
16 data-threatening conditions when such
17 conditions don't exist.
18 Q. What type of error message is this?
19 A. Well, this is an error message that
20 conveys no real information other than telling
21 the user that some error condition has occurred
22 and giving him no basis or ability to respond
23 or react to the error condition on his own or
24 to assess or evaluate the import of the error
25 on his operation, on his continuing use of the
�
8015
1 computer.
2 Q. And what's the impact of that when you
3 receive a message like that?
4 A. Well, the impact is that you don't
5 know what you did and it's not readily apparent
6 how you're going to fix the problem, so the --
7 you have a lingering concern or doubt about the
8 stability of the system, something happened,
9 and you don't know what it was, and you don't
10 know whether you're going to see something
11 happen in the future.
12 But it's an unresolved issue, and
13 you're unaware of it, so it just undermines
14 your confidence in the continuing use of the
15 system.
16 Q. Okay. Does that raise issues of
17 incompatibility?
18 A. It undermines your confidence and your
19 use of the system, which is a concern.
20 This is a new product, Microsoft
21 Windows beta, 3.11, and there's certainly
22 compatibility issues that can explain what's
23 happening here.
24 And, again, the information is not
25 helpful here other -- but you're trying to
�
8016
1 install Windows 3.1 on your system. There's a
2 possibility of -- strong possibility there's a
3 compatibility issue.
4 Q. Now, this doesn't happen on MS-DOS;
5 right?
6 A. This error message does not appear
7 when a user would be installing the Christmas
8 beta on MS-DOS.
9 Q. It only happens on DR-DOS; right?
10 A. It only happens on DR-DOS, I believe.
11 Q. Okay. And who is it created by?
12 A. It was created by Microsoft, Microsoft
13 employees. Aaron Reynolds, in particular, at
14 the direction of Microsoft.
15 Q. And AARD, is that an acronym for Aaron
16 Reynolds?
17 A. That's my understanding, that those
18 were his initials.
19 Q. Now, Mr. Holley asked if you had seen
20 a declaration of a David Weiss from Microsoft
21 which he claimed listed certain error messages
22 in the Christmas beta.
23 Do you remember that question?
24 A. I do.
25 Q. And despite earlier telling you that
�
8017
1 it would be unfair to you to ask you a question
2 about a document without showing you, he never
3 showed you the declaration of Mr. Weiss, did
4 he?
5 A. No, I don't recall seeing it.
6 Q. Now, the implication of his
7 questioning was that there was lots and lots of
8 errors in the Christmas beta. Do you remember
9 that?
10 A. Lots of error messages.
11 Q. Lots and lots of error messages, okay.
12 Is there a difference between an error
13 message that's normally generated because
14 there's an error which can be fixed and an
15 error message which is false, which as you
16 said, you don't know what you did, you don't
17 know how to fix it, and there's a stability
18 issue?
19 A. Well, there are differences between
20 errors that occur because of a condition that
21 arises that is unexpected by the programmer.
22 I mean, programmers -- for example, if
23 you're reading or writing from a floppy
24 diskette and you open the floppy diskette or
25 you get an error message that informs you that
�
8018
1 you've taken the diskette out -- and in some
2 instances the software developer has written it
3 from the perspective of I can't write to the
4 floppy diskette.
5 In other instances he may say, well,
6 it seems like you took the diskette out.
7 But there's a difference between those
8 kinds of error conditions that are -- or error
9 messages that are precipitated or caused by
10 circumstances that happen as the software is
11 interacting with the user and its environment
12 and other pieces of software and this
13 particular kind of error message here.
14 Q. Are you familiar with a deposition of
15 a Bruce Fryer, an individual that was taken in
16 a prior proceeding relating to Microsoft?
17 A. I believe so.
18 Q. And did you review that?
19 A. At points in time, yes.
20 MR. LAMB: Can you call up number 2,
21 the transcript from Fryer, particularly page
22 111?
23 Q. Starting on line 15, the question is:
24 Did that fact have any impact in 1993, that
25 event that you've told me about, the error
�
8019
1 message in the Windows 3.1 beta, have any
2 impact on the decision in 1993, or the
3 consideration in 1993, with respect to the
4 desktop machine you were contemplating, whether
5 or not to utilize DR-DOS?
6 Answer: It did.
7 And Mr. Fryer was an individual who
8 went to work for Zenith Data Systems. Do you
9 recall that?
10 A. Yes, I did.
11 Q. Can you explain to the jury what
12 Zenith Data Systems was back in the 1993 time
13 frame?
14 A. They were a personal manufacturer.
15 They were an OEM.
16 Q. Okay. Now, in that question and
17 answer, did you understand when he's referring
18 to the error message, he's referring to the
19 AARD error message?
20 A. That's my understanding.
21 Q. Okay. Then it goes on to say at line
22 22:
23 Question: How did it affect it?
24 Answer: When putting together a
25 business proposal, you like to envision
�
8020
1 different scenarios and try to understand the
2 impacts. One of the scenarios that we
3 envisioned, based on the experience with the
4 beta bug, was the fact that Microsoft might
5 intentionally put code in Windows that would
6 cause problems with DR-DOS.
7 Therefore, for those contingencies we
8 allowed additional technical resources to fix
9 those problems, and also we evaluated that
10 there may be a potential that if a Windows
11 release came up, that this particular product
12 line might be delayed to market by a factor of
13 maybe, let's say, 60 days, while we worked to
14 get work-arounds from the bugs that Microsoft
15 introduced into the product. Again this is
16 just a scenario.
17 Now, when he refers to the fact that
18 Microsoft might intentionally put code in
19 Windows that would cause problems with DR-DOS,
20 in your professional opinion what impact does
21 that have on DR-DOS?
22 A. Well, if you can overcome the concerns
23 as an OEM that this might happen and you are
24 willing to take a license to bundle the DR-DOS
25 operating system with your hardware and
�
8021
1 preinstall it, then you are certainly preparing
2 for additional costs associated with providing
3 the DR-DOS system to your customers, as
4 Mr. Fryer is observing; that he has to build in
5 additional contingencies, additional costs,
6 anticipating that this is not going to happen
7 just once, but would happen a couple of times
8 during the period where ZDS, Zenith Data
9 Systems is bringing computers to market that
10 have DR-DOS installed instead of MS-DOS.
11 Q. So would the fact that Microsoft might
12 intentionally put code in Windows that would
13 cause problems with DR-DOS make it more
14 attractive or less attractive for an OEM to go
15 with DR-DOS instead of MS-DOS?
16 A. It would make it less attractive.
17 Q. He goes on to refer to this 60 days,
18 this time period that it might take.
19 Are you familiar with the term time to
20 market?
21 A. Very much so, yes.
22 Q. Can you explain what that means to the
23 jury?
24 A. Time to market is the amount of time
25 from a point -- from a particular date until
�
8022
1 you're able to get a particular product
2 software or hardware into the market and
3 available for consumers.
4 And market here, I mean your retail
5 outlets if you're selling your product through
6 a retail store, are available for users.
7 If they're personal computer
8 manufacturers, it's how long it takes you to
9 get your product available for businesses to
10 order off the Internet.
11 I mean, there's this -- time to market
12 is this idea of how long it takes from when you
13 have something in your hand to your ability to
14 put it in a product and get it out the door and
15 into the hands of your consumers.
16 Q. So the longer the time to market, the
17 worse it is?
18 A. That's generally -- generally true and
19 it's a -- almost always true.
20 Q. And how significant is 60 days?
21 A. 60 days is particularly -- is very
22 significant in the PC business when you look at
23 the introduction of new products.
24 You look at -- we have Christmas
25 buying seasons, we have back-to-school seasons.
�
8023
1 There are some Windows here that are
2 very, very significant for PC manufacturers in
3 particular, and that same kind of importance
4 comes up when it's attached to new products,
5 new product release. 60 days is -- can be an
6 eternity.
7 Q. And do you understand Mr. Fryer
8 conveying concern about potential future
9 incompatibilities?
10 A. He's definitely speaking of the
11 potential condition based on his experience
12 with the Christmas beta.
13 MR. LAMB: If you could call up number
14 6.
15 Q. This was used before. It's the
16 extract of the Corey transcript that was read
17 for you.
18 And do you remember who Mr. Corey was?
19 A. Excuse me. He was, I believe, the
20 vice president of marketing, if I'm not
21 mistaken, for Novell.
22 Q. He was marketing at Novell; right?
23 A. Marketing at Novell.
24 Q. And at some point in time, DRI was
25 acquired by Novell; right?
�
8024
1 A. Yes.
2 Q. Okay. But Novell did product
3 development from what location, sir?
4 A. Well, its principal development
5 facilities were in Provo, Utah.
6 Q. Provo, Utah.
7 And where did DRI do product
8 development?
9 A. Digital Research's R and D, research
10 and development laboratories were in the United
11 Kingdom in England.
12 Q. Now, when Mr. Holley asked you --
13 before he asked you about the Corey transcript,
14 he asked you a question about API
15 compatibility. Do you recall that?
16 A. I know he asked me that question. I'm
17 not sure the sequence.
18 Q. Now, do you see anything in that
19 transcript, in the wording of that transcript
20 that mentions undisclosed APIs or API
21 incompatibility or anything of that nature?
22 A. No, I don't.
23 Q. And again, Corey is in charge of
24 marketing; right?
25 A. Yes, that's my understanding.
�
8025
1 Q. Now, according to this person from
2 marketing at Novell, what he's saying is he's
3 not aware of any instance where they didn't get
4 the beta; right?
5 A. That's what his testimony is, yes.
6 Q. Does he say when he got the betas?
7 A. No, he does not.
8 Q. Okay. Does it matter when you get the
9 betas?
10 A. It does.
11 Q. Tell the jury why.
12 A. Well, the earlier you get the betas,
13 the sooner you can begin work to identify and
14 correct any incompatibilities, as well as the
15 earlier you can get started on trying to take
16 advantage of features and functions in the
17 other beta software to make your product
18 better.
19 So it's not just getting it -- getting
20 it to work without any problems. It's also
21 giving you a chance to make your product better
22 and to take advantage of the new features and
23 functions that are available or will be
24 forthcoming in the new version of the software.
25 So the earlier you get that, the more
�
8026
1 able you are to do both of those things.
2 The later you get that in the cycle,
3 that is to say the closer to the actual launch
4 date of the product, the less you can do in
5 terms of rigorous testing, in terms of complete
6 testing, and the less you can do to improve
7 your product.
8 I need to point out that at this time
9 users -- most users weren't connected to any
10 form of what we take for granted now, any form
11 of Internet.
12 So getting fixes to your users is
13 going to be a difficult problem, and you are
14 going to have to get those fixes out in ways
15 that they can get them that don't rely
16 necessarily on dialing up a telephone number
17 using your computer and downloading the binary
18 files that contain these 1- or 2-bit -- again,
19 these 1 or 2-bit changes that were ultimately
20 the bugs that needed to get fixed.
21 Q. I'd like to show you now Exhibit 9923.
22 MR. LAMB: If you could highlight the
23 date and go down through the second paragraph,
24 if you could.
25 Thanks, Darin.
�
8027
1 Q. Okay. This is a letter from Microsoft
2 to Mr. Leonard Liu, the president of Acer,
3 Incorporated. Do you see that?
4 A. I do.
5 Q. The time frame is 1989.
6 Can you explain to the jury what Acer
7 is?
8 A. Excuse me. Acer is a PC maker, an OEM
9 that has some -- had at the time some business,
10 some substantial business in the United States,
11 but also was a global personal computer
12 manufacturer. Global in the sense that they
13 sold their product to PCs in Asia and in
14 Europe.
15 MR. LAMB: And can you go quickly to
16 the second page so we can just show the to/from
17 line. Be the yours sincerely, Jeremy Butler.
18 Q. Jeremy Butler, senior vice president
19 at Microsoft. Do you see that?
20 A. I do.
21 MR. LAMB: And if you could go back to
22 the first column, Darin.
23 Q. Mr. Butler says to Mr. Liu, attached
24 to this note is your personal copy of our
25 analysis of the ROM versions of DRI's product
�
8028
1 versus Microsoft's.
2 I think you'll see that we have a
3 large advantage over DR-DOS in the size of the
4 operating system kernel. This is surely
5 critical in machines designed to ship with 256K
6 memory. There are several other important
7 strengths mentioned in the document.
8 Do you see that, sir?
9 A. I do.
10 Q. And based on your background in the
11 industry, is it your understanding that
12 Mr. Butler is trying to sell Mr. Liu MS-DOS
13 rather than DR-DOS?
14 A. That's correct. A particular kind of
15 MS-DOS, yes.
16 Q. Okay.
17 MR. LAMB: Can you turn the page?
18 Just highlight the first paragraph there.
19 Q. Mr. Butler says to Mr. Liu in that
20 last sentence, it only takes a couple of
21 reports about noncompatibility to give the kiss
22 of death to a PC. We've seen that on the
23 hardware side, as well as in the operating
24 system area.
25 Do you see that?
�
8029
1 A. I do.
2 Q. Is that phrase, the kiss of death, in
3 relation to compatibility, is that a common
4 industry term?
5 A. It's a common industry term; commonly
6 understood industry term.
7 Q. Can you explain it to the jury,
8 please?
9 A. Well, I believe I had a slide in my
10 presentation, as well, to talk about this --
11 this is the notion that -- that one -- the user
12 perceives a particular software product to be
13 incompatible with another product that he may
14 actually be using or may potentially in the
15 future be using.
16 And a couple of these reports, even
17 though they may not affect what the user is
18 doing or even what the user plans to do, these
19 reports of incompatibility become part of the
20 reputation of the product, and the -- once a
21 product is identified as being incompatible,
22 even though it's not going to affect large
23 sloths of users, it's the kiss of death.
24 That product is labeled or branded in
25 the minds of potential customers as being
�
8030
1 incompatible, and that's the equivalent of the
2 kiss of death from the -- I'm not sure whether
3 it's from the Godfather or not, but that's the
4 idea.
5 Q. I think I got the visual.
6 Now, Mr. Holley, when he talked to you
7 and asked you questions about AARD and Bambi
8 and nested task, he took each of those subjects
9 separately.
10 Do you recall that, sir?
11 A. I do.
12 Q. And when he asked you the question, he
13 said he wanted to change to a different topic,
14 but did you consider AARD, Bambi, and nested
15 task separately, sir?
16 A. Well, in terms of penetrating the
17 particular details, of course, each one of
18 those had to be examined, but they were part of
19 the incompatibility tactic that targeted the
20 DR-DOS and its ability to be incompatible with
21 Microsoft's Windows product.
22 Q. So you considered them cumulatively?
23 A. I considered them cumulatively, as I
24 believe they must be considered.
25 Q. Why do they have to be considered
�
8031
1 cumulatively?
2 A. Well, it's not clear, for example,
3 that you would be able to get the message out
4 of incompatibility relying exclusively, for
5 example, on developer tools.
6 Verify DOS played in the developer
7 tools products initially, although it was
8 certainly planned to be in all of Microsoft's
9 products, and Microsoft's applications
10 executives committed to installing it in all of
11 Microsoft's applications products.
12 It's not clear that the message is
13 going to get out quickly and touch all of the
14 users, so the more chances you have of creating
15 circumstances in which the incompatibility
16 message through the no error error message of
17 AARD or through the warranty message in verify
18 DOS or through the Bambi code, the more chances
19 you have to do that, the more likely the user
20 is going to get the message.
21 Q. Okay. So is what you're saying, sir,
22 that even if the incompatibilities are false or
23 real, whether they're true or false, a few of
24 them reported, such as AARD, Bambi, and nested
25 task can have a kiss of death on a product?
�
8032
1 A. Absolutely, yes.
2 Q. And in your professional opinion, is
3 that what happened here?
4 A. Yes.
5 MR. LAMB: Could you put up Exhibit B,
6 I think it's 14 on your call-out, Darin, on
7 your system that you enlightened me on
8 yesterday afternoon.
9 Q. Okay. There were a series of
10 questions from Mr. Holley about documents and
11 documents that you'd reviewed. Do you remember
12 that, sir?
13 A. Yes, I do.
14 Q. And, hopefully, I'll just cover this
15 briefly, but Mr. Holley essentially accused you
16 of only reviewing 501 documents in order to
17 present your testimony to this jury. Do you
18 recall that?
19 A. Well, I think there was some sort of
20 suggestion to that effect, yes.
21 Q. Okay. All right.
22 And you disagreed with that; right?
23 A. Very strongly.
24 Q. Do you think it's fair to claim that
25 you only reviewed 501 documents?
�
8033
1 A. Oh, no.
2 MR. LAMB: Let's just -- if we could
3 just go through this and kind of scroll through
4 it page by page. I'll tell you when to stop,
5 Darin.
6 Keep going. Keep going. Keep going.
7 Keep going.
8 All right. Now stop there for a
9 second.
10 Q. When you looked at the expert report
11 of Doctor David Martin, the first document, did
12 that include documents attached to it?
13 A. A large number of documents.
14 Q. A large number of documents, okay.
15 How about the expert report of Doctor
16 John Bennett?
17 A. Very large, as I remember it. Very
18 large and very many --
19 Q. Tell the jury who Doctor John Bennett
20 is.
21 A. Doctor John Bennett is a -- an expert
22 witness that Microsoft has offered in other
23 proceedings on the matters of -- I believe on
24 the matters of the DR-DOS incompatibilities.
25 Q. Okay.
�
8034
1 MR. LAMB: If you could scroll down
2 again, Darin.
3 Keep going. Keep going. Keep going.
4 Keep going.
5
6 Q. All right. Now, at the end there, it
7 says, I also reviewed the materials from the
8 remedies proceedings in New York versus
9 Microsoft.
10 That's another case; right?
11 A. Yes.
12 Q. And when you say the materials, what
13 do you mean?
14 A. Excuse me. The materials include the
15 submissions by Microsoft and the government --
16 the states, nonsettling states and settling
17 states, the intervenors, people who sought to
18 present information on one side or another
19 favorable to the government or favorable to
20 Microsoft that included deposition testimony,
21 direct testimony during the proceedings,
22 reports filed by experts.
23 It's quite a large record by itself.
24 Q. Did it include exhibits also?
25 A. It did.
�
8035
1 Q. And then in the next block, in the
2 final paragraph you reference the MDL. That's
3 multidistrict litigation?
4 A. That's correct.
5 Q. Another case; right?
6 A. Another case.
7 Q. The California litigation, another
8 case?
9 A. Yes.
10 Q. Caldera versus Microsoft, another
11 case?
12 A. Yes.
13 Q. And then there's several other cases;
14 right?
15 A. Yes.
16 Q. And that includes the pleadings, the
17 reports, the deposition transcripts, trial
18 transcripts if they were included, and exhibits
19 that were submitted by the parties and third
20 parties in those cases; right?
21 A. That's correct.
22 Q. Now, you reviewed all this stuff, but
23 you didn't necessarily rely on all of it for
24 your testimony here in the past week or so;
25 right?
�
8036
1 A. No.
2 Q. Correct?
3 A. That's correct.
4 Q. Now I want to talk about undocumented
5 APIs for a while.
6 Do you remember there was some
7 discussion yesterday about undocumented APIs
8 and documented APIs?
9 A. Yes.
10 Q. Let's take a look at, first, the
11 Kliger extract.
12 MR. LAMB: I think it's your Code 4,
13 Darin.
14 Q. And this is something that was read to
15 you, okay.
16 And before it was read to you,
17 Mr. Holley asked you in the transcript at 7545,
18 line 24, for the record, quote, did you read
19 the testimony of Mr. Kliger, K-l-i-g-e-r, who
20 testified that he was a developer for IBM and
21 then later for Lotus and then for WordPerfect
22 in forming your views about whether Microsoft
23 had undocumented APIs?
24 A. Yes.
25 Q. Do you recall that?
�
8037
1 A. Yes.
2 Q. And I'm looking at this, and I'm
3 trying to see a reference to undocumented APIs.
4 Do you see anything about undocumented APIs?
5 A. No.
6 Q. Do you see anything about APIs?
7 A. No, I don't see it.
8 Q. All right. I want to --
9 MR. LAMB: Can you give them Exhibit
10 2246, please?
11 Q. Now, the line of questioning that
12 Mr. Holley was referring to in terms of Kliger
13 related to undocumented APIs in relation to
14 various disclosures and nondisclosures by
15 Microsoft; right?
16 A. Yes.
17 Q. Was he talking about anything
18 specifically, as you understood it, when he was
19 asking you the questions; any particular set of
20 APIs?
21 A. No, not that I recall.
22 MR. LAMB: If you could pull up
23 Exhibit 2246, please.
24 If you could highlight the to and from
25 and the first paragraph. No. The second
�
8038
1 to/from. Sorry. There you go.
2 Q. This is an E-mail to John Landry,
3 Ilene Lang, and Tom Lemberg from Noah
4 Mendelsohn. Do you know who Noah Mendelsohn
5 is?
6 A. Noah Mendelsohn, I believe, was a
7 developer inside Lotus.
8 Q. And do you know who John Landry, Ilene
9 Lang, and Tom Lemberg were?
10 A. They were executives inside that
11 company.
12 Q. And according to Mr. Mendelsohn, he
13 says, this note summarizes my concerns
14 regarding Microsoft's support for ISVs
15 implementing the new OLE controls, parens, OCX,
16 parens, technology.
17 Do you see that?
18 A. I do.
19 Q. Now, Kliger was, according to
20 Mr. Holley, at Lotus; right?
21 A. Yes.
22 Q. And Mendelsohn is at Lotus; right?
23 A. Yes.
24 Q. Now, can you explain to the jury what
25 the OLE controls were?
�
8039
1 A. Well, the simplest way to think of
2 them is if we are familiar with DLLs, they're
3 like DLLs. They're like dynamic link
4 libraries, but they're used in a somewhat
5 different context.
6 They enable one application to use
7 another application programmatically. So if
8 you want to think about a -- if you have a Word
9 document and you want to put a spreadsheet into
10 that document, you could just copy what it
11 looks like, or you could actually copy the
12 spreadsheet as a -- we call them objects -- and
13 whenever you clicked on the area inside your
14 Word document where the spreadsheet was, it
15 would actually get you to work with the
16 spreadsheet program.
17 So you'd be inside your word
18 processing program and you'd actually be using
19 the spreadsheet program to deal with that
20 portion of the -- of the document.
21 And that kind of capability is
22 provided by a layer of software that is called,
23 in the Microsoft context, OLE, OLE, object,
24 linking, and embedding.
25 MR. LAMB: Okay. Can you highlight
�
8040
1 the next paragraph, Darin?
2 Q. Mr. Mendelsohn goes on to say, OLE
3 controls, which are implemented as enhancements
4 to OLE 2.0, are emerging as the key component
5 architecture for the Windows operating system
6 platform.
7 Microsoft has also disclosed that OLE
8 controls will be used as the basis for the
9 desktop user interface in Cairo, the successor
10 to Windows NT.
11 A. I see that.
12 Q. What are OLE controls -- I mean, how
13 does that relate to the desktop user interface?
14 Maybe there's a way that you can draw it out.
15 MR. LAMB: Is that okay with the
16 Court?
17 THE COURT: Sure.
18 A. So the idea behind the object,
19 linking, and embedding, or OLE, was to be able
20 to create applications software and other
21 software components, sometimes called objects.
22 So object, linking, and embedding.
23 And you would be able to within your
24 application make use of these objects and
25 combine them in certain ways in order to create
�
8041
1 a composite application or an application that
2 was able to reuse these various elements,
3 including, for example, a simple grid.
4 You could -- you could create a
5 control, which the software -- a piece of
6 software, and that control could be used by
7 other pieces of software for the purpose, let's
8 say, of -- the specialized purpose of drawing a
9 grid on the screen, a table, and allowing the
10 user to enter information in a tabular form.
11 Q. Mr. Alepin, I'm not sure the whole
12 jury can see that.
13 MR. LAMB: Can we pull it forward a
14 little bit, Your Honor?
15 THE COURT: Sure.
16 A. So it's the idea of each one of these
17 separate pieces of software being identified as
18 objects and being made available to other
19 applications that these applications can refer
20 to and orchestrate together to perform
21 functions that allow the application to deliver
22 whatever functionality it wants to.
23 So it's -- the initial example that I
24 used for one document, a spreadsheet inside a
25 Word document, imagine that being carried to a
�
8042
1 lower level where you're dealing with elements,
2 for example, of the user -- of the user
3 interface of your application. The grid
4 example being able to reuse some software in
5 your application that draws a grid and
6 interacts with the user as the user is filling
7 data in in the grid for you.
8 Q. You can take your seat now, sir.
9 Thanks.
10 MR. LAMB: If you could call up the
11 next half a paragraph, Darin. The highlighted
12 portion. It starts, Microsoft is publicly
13 committed.
14 Thank you.
15 Q. Mr. Mendelsohn of Lotus goes on to
16 say, Microsoft has publicly committed on
17 numerous occasions to ensuring a fair
18 separation between the application and system
19 groups at Microsoft.
20 Do you see that, sir?
21 A. I do.
22 MR. LAMB: Thank you.
23 Q. Now, this fair separation between the
24 application and system groups at Microsoft, is
25 this the church and state example that you were
�
8043
1 giving earlier in your testimony?
2 A. This relates to the issue of church
3 and state very much, yes.
4 Q. And how important is that separation
5 to church and state in this technological
6 concept to ISVs?
7 A. Well, it's important on two levels,
8 one of which is that you need to -- the
9 applications developers, the independent
10 software vendors needed to know the extent to
11 which the playing field, if you will, the
12 operating systems platform was a -- was level
13 so that their chances to develop application
14 software that would work with Microsoft's
15 operating system were good enough when compared
16 to the -- those available to Microsoft's own
17 applications developers.
18 So the expectation on the part of the
19 independent software development community was
20 that the playing field would be level, and they
21 would have opportunities to develop software
22 that matched those that Microsoft's
23 applications developers had, certainly in terms
24 of the information available and necessary to
25 build their applications.
�
8044
1 Q. Okay. Mr. Mendelsohn goes on to say,
2 specifically they have promised to provide
3 equivalent operating system API support and
4 documentation to application developers working
5 inside and outside Microsoft.
6 Do you see that, sir?
7 A. I do.
8 Q. And is it your understanding that
9 Mendelsohn is saying that Microsoft has
10 promised that they are going to have separation
11 between church and state?
12 A. On several occasions, they had done
13 so.
14 Q. And is that, in fact, true that
15 Microsoft had promised to have that separation
16 between church and state?
17 A. Several times.
18 Q. Mr. Mendelsohn goes on to say, I am
19 concerned that these commitments are not being
20 met in the case of OCX and that Lotus and other
21 ISVs are being put at an unfair competitive
22 disadvantage.
23 Do you see that, sir?
24 A. I do.
25 Q. And that feeling of being put at an
�
8045
1 unfair competitive advantage, is that
2 consistent with you and your understanding in
3 relation to how ISVs were reacting if they were
4 not getting APIs disclosed to them?
5 A. That's my exact understanding, yes.
6 Q. Okay.
7 MR. LAMB: Can we go to the bottom
8 call-out, Darin?
9 Q. Okay. And then finally Mr. Mendelsohn
10 says, recently a number of concerns have arisen
11 regarding Microsoft's willingness and ability
12 to extend such support to the new OLE controls
13 technology.
14 For the reasons listed below, I
15 believe that Microsoft application developers
16 have been given earlier and more detailed
17 access to OCX specifications than we have had
18 here at Lotus. These are serious concerns, and
19 I hope that we can address them with Microsoft
20 promptly.
21 Do you see that, sir?
22 A. I do.
23 Q. So Mr. Holley's reference to
24 Mr. Kliger was suggesting that Lotus didn't
25 have any problems with undisclosed APIs; right?
�
8046
1 A. As far as it went, yes.
2 Q. Right. As far as it went, okay.
3 But the rest of the story in relation
4 to Mr. Mendelsohn, who was there at Lotus, is
5 he's saying he's having significant problems
6 with undisclosed APIs; right?
7 A. That's correct. That's correct.
8 Q. And he's complaining that he's not
9 getting that information and that there's not a
10 separation of church and state?
11 A. That's correct.
12 Q. Now, Mr. Holley said to you yesterday
13 morning at 7792, line 16 through 18, he said:
14 Sir, you agree, do you not, sir, that a company
15 is entitled to tell the truth about defects in
16 its competitive products?
17 A. In its competitor's products, I think.
18 Q. Competitor's products, you're right.
19 A. Yes.
20 Q. And also at 7793, lines 23 through 25,
21 he referred to truthful information and
22 distributing truthful information.
23 A. Yes.
24 Q. Do you think it's important in your
25 industry to deal in truthful information and to
�
8047
1 distribute truthful information?
2 A. I think so, yes.
3 Q. Okay. Now, sir, if you have a
4 documented API, you have it because it's
5 documented; right?
6 A. If -- yes. I guess that's --
7 Q. Even I can grasp that, okay.
8 If it's undocumented, how do you know
9 you don't have it?
10 A. Well, you don't know what you don't
11 know. So there's a problem there that we
12 identify quite often.
13 It's not just -- sometimes you know
14 that you don't know something, but other times
15 you don't know that you don't know.
16 Q. Okay. So ISVs can be having this
17 problem with undocumented APIs and they don't
18 know what the undocumented APIs are; right?
19 A. And that, in fact, was a common
20 problem over this period, yes.
21 Q. I'm going to go back briefly to
22 Exhibit 2456. This was used before.
23 If you'll give them an additional
24 copy.
25 What I want to do with 2456 -- this is
�
8048
1 the DRG summit talk by James Plamondon
2 regarding power evangelism and relationship
3 evangelism.
4 Do you recall that? We went over that
5 a few days back.
6 A. I do.
7 Q. And, again, DRG, what's that, sir?
8 A. Developer relations group.
9 That's the group inside Microsoft
10 responsible for managing the relationship
11 between Microsoft and the developer community.
12 Q. Okay. And this is the particular
13 document where Mr. Plamondon talked about the
14 tactics of evangelism, and he talked about ISVs
15 being pawns in the struggle between platform
16 vendors.
17 Do you recall that, sir?
18 A. Yes.
19 MR. LAMB: Now, if you could just
20 highlight the last paragraph of the first page,
21 sir. Thank you.
22 Q. And who's Mr. Plamondon talking to?
23 A. He's talking to, as I understand it,
24 the other members of the developer relations
25 group within Microsoft.
�
8049
1 Q. Okay. So he's conveying the party
2 line?
3 A. He's extolling the party line.
4 Q. And Mr. Plamondon goes on to say, they
5 are very valuable pawns in the struggle,
6 however. We cannot succeed without them.
7 If you've ever tried to play chess
8 with only the pieces in the back row, you've
9 experienced losing, okay, because you've got to
10 have those pawns. They're essential?
11 So you can't win without them, and you
12 have to take good care of them. You can't let
13 them feel like they're pawns in the struggle.
14 Now, just so we're clear,
15 Mr. Mendelsohn at Lotus would be one of those
16 pawns; right?
17 A. That's correct.
18 Q. Okay. He goes on to say, I mean, all
19 through this presentation previously, I talked
20 to you about how you're using the pawns and
21 you're going to screw them if they don't do
22 what they want, and dah-dah-dah. You can't let
23 them feel like that. If they feel like that,
24 you've lost from the beginning.
25 It's like you're going out with a
�
8050
1 girl; forgive me, it goes the other way also.
2 You're going out with a girl, what you really
3 want to do is have a deep, close and intimate
4 relationship, at least for one night.
5 And, you know, you just can't let her
6 feel like that, because if you do, it ain't
7 going to happen, right. So you have to talk
8 long term and white picket fence and all these
9 other wonderful things, or else you're never
10 going to get what you're really looking for.
11 So you can't let them feel like pawns,
12 no matter how much they really are.
13 Sir, in your opinion, if Microsoft
14 follows the party line as put forth by
15 Mr. Plamondon, is that a dissemination, a
16 distribution of truthful information?
17 A. No, not --
18 MR. LAMB: Can you give them Exhibit
19 1032 and 1031. I think we've already seen
20 1031, but give them 1032 also.
21 Q. Now, the Plamondon talk was done in
22 '96. I want to go back in time a little bit to
23 '91, okay, and I want to reference, tie back to
24 Lotus.
25 A. Okay.
�
8051
1 MR. LAMB: If you can put 1032 up,
2 Darin, and if you could highlight the bottom
3 below.
4 Thanks for your help. Just the whole
5 thing down there, that message. The whole
6 thing all the way down. There we go.
7 Q. All right. This is an E-mail from
8 Mike Maples of October 18, 1991.
9 Do you see that, sir?
10 A. I do.
11 Q. And, again, can you tell the jury who
12 Mike Maples is?
13 A. He's senior executive in charge of
14 applications for Microsoft.
15 Q. Applications?
16 A. Yeah.
17 Q. And then it's to Brad Silverberg and
18 some other folks. Who is Brad Silverberg?
19 A. Head of the desktop operating systems
20 group inside Microsoft.
21 Q. Okay. From --
22 A. In the platforms group.
23 Q. Okay. From church to state?
24 A. Yes.
25 Q. Okay. From church to state.
�
8052
1 And the subject is Excel brainstorm
2 group. Do you see that, sir?
3 A. I do.
4 Q. And according to Mr. Maples, he says,
5 I would like to ask you to invest a half day
6 with me following COMDEX.
7 Can you tell the jury what COMDEX is?
8 A. Back in the 1980s and through the
9 early 1990s, the most popular North American
10 trade show for our business was -- for our
11 business, for personal computer business,
12 certainly was the -- was this show in Las Vegas
13 called COMDEX.
14 And there companies would lease charge
15 blocks of space on the exhibition floors and
16 have lots of bright lights and displays and
17 trying to introduce their new products and
18 technologies and meet with their customers and
19 -- it was a trade show, very popular, very
20 important trade shows in those days.
21 Q. A lot of times product rollouts were
22 announced at these; right?
23 A. Certainly, yeah.
24 Q. Okay. Mr. Maples goes on to say, what
25 I would like to brainstorm is how to push Excel
�
8053
1 over the top and Lotus out of business.
2 Excel is Microsoft's product; right?
3 A. Microsoft's spreadsheet application.
4 Q. And Lotus is a competing Microsoft
5 spreadsheet?
6 A. Lotus is the -- yes, the competing
7 spreadsheet application from Lotus.
8 Q. At this time it was the leading
9 competing spreadsheet application, '91?
10 A. In '91, it was the most widely used
11 spreadsheet application.
12 Q. Mr. Maples goes on to say, I know a
13 half day is valuable. We also have a very good
14 marketing plan. What I was hoping to do is tap
15 the creativity of a group of people who are not
16 involved and see if we can scare out some new
17 ideas, concepts, et cetera.
18 I was thinking about half a day Friday
19 or Saturday of next week. Can I count you in?
20 MR. LAMB: If you could put up 1031,
21 please.
22 Q. And later that same day from Brad
23 Silverberg back to Mike Maples and others. So
24 from state back to church. Again same subject,
25 Re: Excel brainstorm group.
�
8054
1 Mr. Silverberg says to Mr. Maples, I'd
2 be glad to help tilt Lotus into the death
3 spiral. I could do it Friday afternoon, but
4 not Saturday. I could do it pretty much any
5 time the following week.
6 Do you see that, sir?
7 A. I do.
8 Q. And during Mr. Holley's
9 cross-examination, he suggested to you that
10 that might just be a joke. Do you remember
11 that?
12 A. Yes.
13 Q. Do you think that's a joke?
14 A. No.
15 MR. LAMB: If you could go to exhibit
16 -- I don't know if we've shown them 2151.
17 Sorry.
18 Yes, we have. I'm sorry.
19 Can you put 2151 up?
20 All right. If you could go to the
21 from line and the to line and just the first
22 couple paragraphs below that, Darin.
23 There you go. Thanks.
24 Q. Okay. And this is a document that was
25 seen before, and this is a different time frame
�
8055
1 and it's relating to a different product?
2 A. Yes.
3 Q. Okay. But this is from Bill Gates?
4 A. Yes.
5 Q. Okay. And it's to a number of senior
6 executives, and this relates to the
7 Ishellbrowser.
8 Do you remember when we talked about
9 the Ishellbrowser a few days ago?
10 A. I do.
11 Q. And Mr. Gates says, it's time for a
12 decision on Ishellbrowser. This is a tough
13 decision. Okay.
14 MR. LAMB: And then if you can go down
15 to the call-out where it says I have decided.
16 It's one, two, three, four paragraphs down.
17 Thanks, Darin.
18 Q. I have decided that we should not
19 publish these extensions. Okay.
20 So did you understand that Mr. Gates
21 was telling the people in his company not to
22 publish the API extensions regarding
23 Ishellbrowser?
24 A. That's correct.
25 MR. LAMB: If we could go to
�
8056
1 Defendant's Exhibit 1029.
2 Q. Now, remember when we talked about
3 namespace extension decisions?
4 A. Yes.
5 Q. Mr. Holley asked you some questions
6 about that?
7 A. Yes.
8 Q. And he read you some documents and he
9 showed you some documents, and one of the
10 documents that he showed you was from Scott
11 Henson, an E-mail from Scott Henson.
12 A. Yes.
13 MR. LAMB: Go all the way down.
14 There you go. Thanks, Darin.
15 Q. What he did was he read you the next
16 page.
17 This is basically what Microsoft is
18 going to explain to the ISVs about these
19 disclosures that weren't made previously.
20 Do you recall that?
21 A. That's correct.
22 Q. Okay. And do you see where it says
23 there, let's try not to use the word, quote,
24 undocumented, unquote, or private APIs? Do you
25 see that?
�
8057
1 A. I do.
2 Q. And then in the back, what he talked
3 about a lot was the Q and A about the party
4 line of what they're going to explain about why
5 they didn't give it previously.
6 Do you remember that?
7 A. I do.
8 MR. LAMB: If you could go to the next
9 Exhibit 3066, Darin.
10 It's a big one. Okay. And if you
11 would go down to the bottom where it -- there
12 you go.
13 Q. And this is a document -- it's a very
14 thick document, and Mr. Holley showed you
15 portions of it in the back, and we'll talk
16 about those in a second, but in the very first
17 page and when he was talking about whether or
18 not there were -- I think he referred to them
19 as bulletin board entries. This is prior to
20 blogs, there were bulletin boards.
21 It says right there, it looks like
22 there are a large number of undocumented
23 interfaces in the shell?
24 Do you see that?
25 A. Yes.
�
8058
1 Q. And this is from -- if you'd go up to
2 the top -- Curt Hagenlocher from EarthLink.net.
3 Do you have any idea who that is?
4 A. I think he's -- no, I'm sorry. He's
5 at -- he's using Earthlink.net. I don't know
6 that he's an employee.
7 Q. Right. This is just somebody --
8 A. Somebody who thinks --
9 Q. Somebody who's complaining; right?
10 A. Someone who's spreading, yes.
11 MR. LAMB: Okay. Then if you go back
12 to what -- it's on page -- starts on 93, Darin.
13 Q. What Mr. Holley referred you to, and
14 he referred you to a few pages from Joe
15 Belfiore and Andrew Schulman.
16 And again, who is Joe Belfiore?
17 A. He was the senior person in the
18 Windows group.
19 Q. And Andrew Schulman is the gentleman
20 you testified about yesterday, the book; right?
21 A. That's correct.
22 MR. LAMB: Where is the book? Thanks.
23 A. The same one.
24 Q. The one that you didn't read line for
25 line; right, sir?
�
8059
1 A. That's right.
2 Q. Unauthorized Windows 95?
3 A. And other books.
4 Q. And other books, okay.
5 As I look at this response from Joe
6 Belfiore, and it says -- if you go to the PS,
7 the letter of explanation below, has been going
8 out with the doc. This gives the background as
9 to why these have been B-list in the past.
10 MR. LAMB: And then if you go over to
11 the next page. Go ahead and highlight
12 limitations.
13 Q. Limitations with current
14 implementation, and then it goes on.
15 Where are the API extensions?
16 A. I'm sorry, I didn't get your -- where
17 are the API --
18 Q. Well, is this just Mr. Belfiore
19 saying, you know, I'm sorry we didn't give you
20 the API extensions, or is he actually giving
21 them to Mr. Schulman?
22 A. Well, he's describing the limitations
23 of the -- of that particular support.
24 Q. Okay. But does he give Mr. Schulman
25 the API extensions?
�
8060
1 A. It doesn't look like it from here.
2 Q. Doesn't look like it, does it?
3 A. No.
4 MR. LAMB: Let's go to page 95. And
5 highlight that.
6 Q. And this is from Mr. Schulman to
7 Mr. Belfiore; right?
8 A. Uh-huh.
9 Q. And you see where it says, Brad
10 insisted to me that these have been documented,
11 but I and others haven't been able to find any
12 doc?
13 Now, Brad Silverberg is the same
14 gentleman we've been talking about for several
15 days; right?
16 A. That's correct.
17 Q. So Mr. Schulman is complaining that he
18 doesn't have them?
19 A. That's correct. Can't find them.
20 Q. Can't find them.
21 MR. LAMB: Can you give them 2383?
22 If you could put 2383 up, and it
23 starts at the bottom -- if you could just
24 highlight the bottom is the way they added this
25 in.
�
8061
1 Q. This is from Scott Henson to Cameron
2 Myhrvold, then Doug, it looks like Hench,
3 Hendrich?
4 A. Henderson.
5 Q. Henderson. I'm sorry.
6 Now, Scott Henson, that's the same
7 gentleman that you were shown the Defense
8 Exhibit 1029 about. Do you remember that?
9 A. Yes.
10 MR. LAMB: Could you go to the next
11 page, please? And if you could highlight the
12 first paragraphs.
13 Q. And it was suggested to you that
14 Mr. Henson didn't have a problem with these
15 undisclosed APIs before.
16 Do you remember that?
17 A. That's correct.
18 Q. Okay. And he's writing to Mr.
19 Myhrvold -- again, who is Mr. Myhrvold?
20 A. There are two Myhrvolds in Microsoft
21 at this time.
22 Nathan we had E-mails earlier, and
23 Cameron. Cameron was in the developer tools
24 group. He was a -- an executive inside the
25 Microsoft developer tools group, I believe, at
�
8062
1 this time.
2 Q. Okay. And Mr. Henson is saying this
3 mail is intended to summarize what I am seeing
4 internally on this subject and to voice an, all
5 caps, strong concern for our ISVs.
6 Do you see that, sir?
7 A. Yes.
8 Q. So Mr. Henson within Microsoft is
9 concerned about ISVs outside of Microsoft;
10 right?
11 A. They would be independent software
12 vendors, yes.
13 Q. He goes on to say, the problem is that
14 approximately a year ago, we told ISVs that a
15 set of interfaces, known as namespace
16 extensions, were no longer going to be a part
17 of the standard Win 32 API set -- they were
18 moved to an unsupported status or B list.
19 The rationale at the time was that the
20 interfaces were difficult to support,
21 especially on NT. The specific reason is that
22 when an ISV implements a namespace extension,
23 they live in the process space of the operating
24 system. Thus, if an ISV writes their namespace
25 extension poorly, they can bring down the
�
8063
1 entire shell. This is still the case today.
2 Another reason was that the REN team,
3 Office 96 PIM, was going to hold the key for
4 all future shell innovation, thus the split of
5 the Cairo shell team.
6 Given this, we went and told the ISVs
7 that there was a lot that they could do in the
8 system with respect to extensibility, all caps,
9 but they, all caps, could not integrate into
10 the explorer, like the control panel and
11 briefcase, as we had previously mentioned was
12 possible.
13 What's he saying? What's the problem?
14 A. Well, this is picking up from, I
15 think, the E-mail earlier that I talked about
16 with Mr. Holley.
17 The Chicago platform contains these
18 APIs that are intended to allow independent
19 software vendors to do some new stuff with the
20 Windows user interface and the shell, the
21 graphical user interface on top of the
22 computer.
23 Mr. Gates makes a decision about
24 whether those APIs are going to be released or
25 not. His decision is they're not going to be
�
8064
1 released.
2 The -- and there was an explanation
3 that was provided as to why they were not going
4 to be released. And bringing this forward
5 here, this is describing sort of -- the first
6 part of this E-mail talks about that
7 chronology, that history.
8 And here you have a description --
9 another reason was that the Microsoft Office
10 application, the personal information manager,
11 REN, was going to be the -- was going to hold
12 the key -- as Mr. Gates points out in his
13 E-mail -- that there was going to be a link for
14 future innovations and enhancements that will
15 be available on the desktop, but the Microsoft
16 Office applications group is going to be the
17 one that's going to be leading that and doing
18 that.
19 And the final part is that the
20 independent software vendors were told that
21 they could not use those APIs to develop their
22 extensions the way some of Microsoft's software
23 did.
24 Q. So Microsoft is doing it internally,
25 but externally the ISVs are told they can't do
�
8065
1 anything?
2 A. That's the -- that's what the message
3 is, yes. That's what they're told.
4 Q. And is that a church and state issue?
5 A. Well, it's certainly a church and
6 state issue.
7 MR. LAMB: Could you go to the next
8 block or the next two paragraphs under however?
9 Q. Mr. Henson goes on to say, however,
10 this is not the limit of what is going on
11 internally.
12 As I mentioned, there is a lot of
13 internal development going on where various
14 groups are implementing these interfaces to
15 varying degrees. Again, I don't mind if these
16 various groups are doing this development work,
17 as long as it is in the way that MSN is doing
18 it, coming up in their own view, separate from
19 the system.
20 We can then move the interfaces back
21 to the standard Win 32 set and with a little
22 ISV reeducation on our part, all is well.
23 Today, my perception changed
24 drastically. I have just installed Athena, the
25 lightweight PIM from the PSD group, onto my
�
8066
1 system, and to my dismay, they are not only
2 using the namespace extensions, but they are
3 also displaying themselves in the scope, left,
4 pane and view, right, pane.
5 This is the exact thing we told ISVs
6 they could and should not do.
7 So Mr. Henson is essentially saying
8 that we told ISVs they couldn't do it, but our
9 internal applications group is doing it?
10 A. That's correct.
11 Q. He goes on to say, in short, we have a
12 product that will be sold in the very near
13 future that will implement interfaces that we
14 told ISVs they should not use because we would
15 not be able to support them moving forward.
16 In the meantime, we were developing a
17 product that did exactly that. I can't even
18 express how, all caps, bad this is. We loose
19 everything when we do this. Credibility,
20 trust, leverage, the works.
21 What's strange about all of this is
22 that it looks like this product works fine on
23 NT as well.
24 Sir, is this an instance in your
25 opinion of distributing truthful information?
�
8067
1 A. You're referring to the Q and A
2 disclosure?
3 Q. This whole thing.
4 A. It turns out that that's not what
5 happened.
6 Microsoft's public disclosures to
7 independent software vendors were not, in fact,
8 what it did internally and what it had its own
9 developer, applications developers do.
10 WordPerfect, for example, relied on
11 the statements that namespaces -- namespace
12 extensions were not going to be available and
13 threw their development away, considerable cost
14 to them.
15 There's testimony from I think it's
16 Mr. Harral from WordPerfect describing the fact
17 that they had done all of this stuff, using
18 these interfaces, and when they got the message
19 that that's not where we're going, Microsoft
20 says that's not where we're going, they
21 followed Microsoft's statements, even though
22 certainly WordPerfect believed that its
23 implementations were very innovative and very
24 attractive; in fact, that they provided
25 WordPerfect product potentially with some very
�
8068
1 good advantages in the market.
2 They threw that away. Meanwhile,
3 Microsoft's own team, applications team was
4 working on that using those interfaces and
5 developing software that used those interfaces,
6 contrary to the statements to ISVs. And, in
7 fact, they worked. They worked both with the
8 Windows NT software and the Windows 32 Chicago
9 Windows 95 software, contrary to the
10 suggestions in the Q and A that, in fact, it
11 wouldn't work, wouldn't be able to work with
12 Windows NT and Windows 95, so --
13 Q. One of the lines of questioning -- we
14 talked about it briefly already -- that
15 Mr. Holley had to you was this concept that
16 very few people complained, very few people
17 posted on the bulletin boards.
18 Assuming that that's true, does that
19 matter in this instance or is this another
20 instance of we don't know what we don't know?
21 A. Well, certainly it's my experience
22 through the record that it has been developers
23 not knowing all of the details of why an
24 interface is pulled back, why interfaces are
25 not disclosed, whether interfaces that are
�
8069
1 present are being used by Microsoft's
2 applications.
3 So that is -- that's really the case.
4 It is the circumstance; that it is
5 they don't know what they don't know.
6 Certainly some developers have discovered
7 pieces of stuff that they don't know, but they
8 don't have the benefit of being able to see
9 both sides here.
10 Q. And all of this impacts time to
11 market?
12 A. Time to market, quality, capability.
13 The core attributes of the software are
14 affected.
15 Q. So, Mr. Alepin, in your professional
16 opinion, after Microsoft had promised to ISVs
17 that it would maintain this separation of
18 church and state and then failed to keep this
19 separation of church and state and failed to
20 disclose APIs, is that the kiss of death?
21 A. It's -- it leads to incompatibilities,
22 and incompatibilities are the kiss of death.
23 MR. LAMB: Would this be a good time
24 for a break, Your Honor?
25 THE COURT: Take a ten-minute recess.
�
8070
1 Remember the admonition previously
2 given. Leave your notebooks here.
3 Ten minutes.
4 (A recess was taken from 9:50 a.m.
5 to 10:08 a.m.)
6 THE COURT: Please be seated.
7 Mr. Alepin, you're still under oath.
8 Mr. Lamb, you may continue.
9 MR. LAMB: Thank you, Your Honor.
10 Can you put 9923 up? Can you
11 highlight the kiss of death comment? Just the
12 first paragraph.
13 Q. And again, sir, this is the exhibit
14 that was the letter from Jeremy Butler, a
15 senior vice president of Microsoft, to Leonard
16 Liu of Acer, and I want to relate this and go
17 back to the questions that you had yesterday
18 where Mr. Holley suggested that a couple of
19 reports of noncompatibility are not significant
20 and read to you what Mr. Butler says.
21 It only takes a couple of reports
22 about noncompatibility to give the kiss of
23 death to a PC. We've seen that on the hardware
24 side as well as in the operating system area.
25 Do you see that, sir?
�
8071
1 A. I do.
2 Q. And do you agree with that statement
3 from Mr. Butler?
4 A. Oh, yes.
5 Q. Also, sir, when you were testifying
6 earlier today, I asked you a series of
7 questions about the documents and the reports,
8 and I want it to be clear.
9 You didn't review every exhibit and
10 every report; right?
11 A. No.
12 Q. But you reviewed that which you felt
13 was sufficient for you to render your opinions;
14 right?
15 A. That's correct.
16 Q. And a number of the reports had
17 exhibits attached, but some of the reports have
18 exhibits referenced in the reports; right?
19 A. That's correct.
20 Q. Okay. And you were capable and could
21 look at them either whether they were
22 referenced or whether they were attached;
23 right?
24 A. Technologically, as I think you've
25 said, I have the capability to do that.
�
8072
1 Q. And as you sit here today, you don't
2 necessarily recall every document you have
3 reviewed; right?
4 A. Not possible to do that.
5 Q. Okay. Thank you, sir.
6 Now, I want to look at a time frame
7 around 2002, 2003 regarding undisclosed APIs.
8 Was there a point in time where
9 Microsoft disclosed a large group of previously
10 undisclosed APIs?
11 A. There have been a couple of those. In
12 2002 there was another one of those episodes.
13 Q. Do you recall how many were disclosed
14 in 2002?
15 A. Hundreds, I believe.
16 Q. Hundreds, okay.
17 MR. LAMB: Can you show them Exhibit
18 1440?
19 Can we put 1440 on the board, please?
20 I want to go back in time. If you could start
21 on the second page first, Darin, because these
22 read chronologically going forward.
23 The bottom message, if you could
24 highlight that and blow that up or blow that up
25 for us.
�
8073
1 Thanks.
2 Q. This is from Cameron Myhrvold, and we
3 had just seen a message from Cameron Myhrvold
4 to Brian V., Doug H-e, Jon Lu, R Segal. Do you
5 know who any of those people are?
6 A. Brian V. I believe is Brian Valentine.
7 R. Segal is Rick Segal. Jon Lu, Jon Ludwig.
8 And, of course, Cameron Myhrvold.
9 Q. And according to Mr. Myhrvold, he
10 says, Paul Ma -- that's Paul Maritz; right?
11 A. That's Paul Maritz.
12 Q. Maritz, I'm sorry.
13 -- thinks we have to document the
14 bullet and bandit stuff and Daniel P. has
15 committed.
16 I do not know time frames, but clearly
17 there is a big exposure with guys like -- it
18 says Andrew Sculman. You understand that to be
19 Andrew Schulman; right?
20 A. Yes.
21 Q. Again, the book, right? Among many
22 others?
23 A. Among others, yes.
24 Q. Okay. There is big exposure with guys
25 like Andrew Schulman running around. If we do
�
8074
1 not do this expeditiously, we lose the value of
2 doing it at all. Brian, Rick, when do we think
3 this will be completed? Cam.
4 Now, do you understand that he's
5 talking about whether or not they're going to
6 disclose previously undisclosed APIs?
7 A. That's correct.
8 MR. LAMB: If you can go to the
9 message above that.
10 Q. And this is the response from Brian
11 Valentine.
12 And according to Mr. Valentine, he
13 says, I want us to be very, very clear here on
14 what is going on, else we are going to dig
15 ourselves a hole and be screwed for the future.
16 What I understand as to what you are
17 doing as far as the white paper is docing
18 undocumented APIs that apps may be using.
19 Well, since mail and -- that's
20 Schedule+, right, SC+?
21 A. That's Schedule+, right.
22 Q. Since mail and Schedule+ are in the
23 OS, they are not apps. So I don't see any
24 reason to doc anything.
25 Now, let's stop there.
�
8075
1 At some point in time Microsoft was
2 taking the position that if an application was
3 in the operating system, then, they didn't have
4 to disclose APIs; right?
5 A. They have taken that position several
6 times, yes.
7 Q. Okay. He goes on to say, Word, Excel,
8 PPT -- PowerPoint; right?
9 A. Right.
10 Q. -- project, et al., just use simple
11 MAPI, MAPI, to add the send on their menu.
12 They don't use anything else.
13 I can see a nice, well-organized white
14 paper that talks about using simple MAPI and
15 how to mail enable apps, et cetera, et cetera,
16 but I don't see it docing any store, address
17 book, et cetera, APIs.
18 Granted, there are literally thousands
19 of APIs that deal with the MMF file, that deal
20 with address book, et cetera, et cetera, but,
21 all caps, we should not, end caps, publish
22 these.
23 Nobody is using them except for mail
24 and Schedule+. We don't publish all the
25 internal Windows APIs or data file formats,
�
8076
1 just the ones that apps have used. So we need
2 to make sure that we are in line on exactly
3 what Rick's paper is going to be.
4 He says in there, we publish internal
5 Windows APIs or data file formats if apps have
6 used them.
7 Do you see that?
8 A. I do.
9 Q. And is that because that application
10 is then out there for the public, and in order
11 for another ISV to deal with that, it has to
12 know what those APIs are?
13 A. I think I understand your meaning, but
14 -- and that is that it's because Microsoft
15 application is using Windows operating system
16 APIs.
17 Q. Right.
18 A. And then Microsoft has to disclose
19 them to other independent software vendors?
20 That's the idea, that's correct.
21 Q. Or they won't be able to operate with
22 that Windows application; right?
23 A. They won't -- they won't be able to do
24 the things the Windows application does.
25 Q. They won't be able to run it?
�
8077
1 A. No, they won't be able to be a word
2 processor, for example, or a mail program or in
3 the ways that Microsoft's application is being
4 a word processor or a mail program when used
5 with the operating system from Microsoft.
6 Q. Okay.
7 MR. LAMB: If you could go to the
8 front page, and if you could highlight the
9 message or blow up the message that's from
10 Cameron Myhrvold. The middle one right there,
11 yes.
12 Q. And Mr. Myhrvold says, to answer your,
13 quote, global question, unquote, we
14 unfortunately cannot hide behind the, quote,
15 it's not an app, it's part of the system, end
16 quote, defense for bullet and bandit.
17 Schulman -- again, Andrew Schulman;
18 right?
19 A. Right.
20 Q. -- took apart all of the Windows shell
21 apps in his book. We, all caps, will be
22 specifically tried for these interfaces.
23 Ideally, we should document everything
24 the bullet and bandit themselves use.
25 Now, this may sound horrible, but,
�
8078
1 one, we'll document, but we, all caps, will not
2 encourage, and, in fact, we'll aggressively
3 discourage any use of these interfaces by ISVs
4 and won't be talking about them.
5 And, two, remember we are not going to
6 stick this doc into a book or even an SDK box.
7 It will be written up as a white paper and,
8 quote, inserted, end quote, into the MSDN
9 CD-ROM containing hundreds of meg of other tech
10 notes.
11 It will be very, quote, low profile,
12 unquote, but it will provide enough, quote, air
13 cover, unquote, for us to say they are
14 documented.
15 It seems to me that Mr. Myhrvold is
16 suggesting that -- well, we have to document
17 it, but let's bury it in a bunch of other
18 documents so no one can find it.
19 MR. HOLLEY: Objection, Your Honor.
20 Leading.
21 THE COURT: Sustained.
22 Q. Can you explain to the jury what you
23 believe Mr. Myhrvold is suggesting that they do
24 from a technological perspective?
25 A. Well, I described the MSDN --
�
8079
1 Microsoft developer network, which included a
2 website, but in addition, it also includes a
3 monthly subscription, if you want and pay money
4 for, that will give you tens, or in some cases
5 probably hundreds, of CDs that contain
6 information and programs from Microsoft.
7 What Mr. Myhrvold is suggesting is
8 that the documentation for these, for the large
9 number of APIs that are available in the
10 Windows operating system and used by Microsoft
11 applications, but are not disclosed to the
12 independent software vendor community, will be
13 written up in a document and buried in among
14 the hundreds of megabytes of other information
15 in the CDs that are sent out to the developer
16 community and the Microsoft user community,
17 allowing people to say that the specifications
18 or these interfaces are, in fact, documented.
19 Q. But they'd be hard to find; right?
20 A. I think that's the idea here, yes,
21 that they'd be hard to find.
22 Q. All right.
23 MR. LAMB: And then can you highlight
24 the top part of the message?
25 Q. This appears to be from Brian
�
8080
1 Valentine in response, and his response is,
2 all's I can say is holy API, Batman, I'm not
3 kidding. We are talking about literally 500 to
4 800 APIs here, no joke.
5 All of layers, all of MAPI, zero,
6 et cetera, and there's virtually no
7 documentation on these right now. It means it
8 will be literally many, many man months to get
9 this done, and all with no resources allocated
10 to do this.
11 Paul Ma. That's Paul Maritz?
12 A. Right.
13 Q. Is this what we really want to do? It
14 will not be a white paper, but a very large
15 white book.
16 Now, in relation to church and state,
17 Microsoft did not always take the position that
18 they were going to have a separation of church
19 and state; correct?
20 A. Well, I think the original church and
21 state comments go back to 1983. So if you're
22 talking about a period before 1983, I don't
23 think it would have been a concern or
24 significant.
25 But I think beginning in and around
�
8081
1 1983, that was Microsoft's executives'
2 communication to the industry.
3 Q. Okay. And you're aware that at least
4 recently Microsoft has taken a position on
5 whether or not it should disclose APIs; right?
6 A. I need a little more specific --
7 Q. I'm referring to the 12 tenets that
8 promote competition, number six, regarding
9 APIS.
10 A. Yes.
11 MR. HOLLEY: Your Honor, leading. If
12 he wants to ask him questions, he can, but he
13 can't tell him the answers.
14 THE COURT: Sustained.
15 Q. Are you familiar with what Microsoft
16 publishes on its website entitled Windows
17 principles, 12 tenets to promote competition?
18 A. I am.
19 MR. HOLLEY: Your Honor, may we
20 approach before anybody looks at this
21 document?
22 (The following record was made out of
23 the presence of the jury at 10:22 a.m.)
24 THE COURT: Mr. Holley.
25 MR. HOLLEY: Your Honor, this
�
8082
1 document, which is on Microsoft's Web site, and
2 I accept that, but he talks about compliance
3 with the U.S. final judgment.
4 And it's my understanding that the
5 Court's ruling of the other day says Mr. Alepin
6 is not going to be testifying about compliance
7 or noncompliance with the U.S. final judgment.
8 And I don't know how he can insert about this
9 paragraph without getting precisely into that
10 subject.
11 If they open the door to this, we are
12 going to come in here and testify about
13 compliance with the final judgment, but it was
14 our understanding that the Court didn't want
15 that to happen.
16 MR. LAMB: Well, that's not what he's
17 going to testify to. And if it would make you
18 happier, is there a section that we can block
19 out that I could have him block out so it
20 doesn't refer to that?
21 MR. HOLLEY: But the whole point of
22 these 113 APIs that he's now eliciting
23 testimony about, Mr. Lamb, is they were
24 disclosed pursuant to the final judgment.
25 They were internal to Windows, and
�
8083
1 Microsoft agreed with the government to
2 disclose them. And, you know, you can make
3 whatever suggestion you want about whether they
4 should have been disclosed earlier, but this is
5 taking us squarely into the U.S. final judgment
6 and what we've done pursuant to the judgment.
7 MS. CONLIN: May I --
8 MR. LAMB: This has nothing to do,
9 actually, with that. What I'm trying to do is
10 establish that at least as of this date, July
11 2006, this is Microsoft's policy.
12 MR. HOLLEY: Okay. But --
13 THE COURT: What are you going to show
14 the jury?
15 MR. LAMB: I was going to show them
16 this, but I'm willing to have certain words
17 excised if that's the problem with the final --
18 THE COURT: Well, the Court had
19 previously ruled that -- I think in regard to
20 Microsoft, that they can show what they've done
21 since the ruling. They can't show that it was
22 done in compliance with any particular order.
23 MR. LAMB: I'm not saying that.
24 MS. CONLIN: If we just started here.
25 If we blocked all of this out --
�
8084
1 THE COURT: But that portion that I
2 just read says they didn't comply. Why are you
3 going against my order?
4 MS. CONLIN: Your Honor, these were
5 not issued -- these 12 tenets were not issued
6 in compliance with the government case, but it
7 does refer to the government case and -- at
8 least that's what Mr. Smith said.
9 THE COURT: I don't want it referred
10 to the government case.
11 MS. CONLIN: But there's a part of it,
12 Your Honor, that if we blocked out the top
13 part -- if we started with the words "going
14 forward," then there's no referencing that to
15 the government case.
16 The 12 tenets, according to what I
17 read of Mr. Smith, who is now the general
18 counsel, these were sort of Microsoft's
19 voluntary effort to go even further than the
20 government case.
21 MR. LAMB: Can I make a suggestion,
22 sir?
23 THE COURT: Go ahead.
24 MR. LAMB: This was not an intention
25 to be a problem.
�
8085
1 Maybe what we can do is because
2 there's concern about posting it, maybe I can
3 read where it says "going forward" to him and
4 ask him if he thinks that's consistent with
5 Microsoft's policy. That's, really, the only
6 thing I'm trying to do.
7 THE COURT: Comment.
8 MR. TULCHIN: May I be heard, Your
9 Honor?
10 THE COURT: Yes.
11 MR. TULCHIN: I know Mr. Lamb had
12 delivered a rather stern lecture to me a couple
13 days ago about two lawyers being heard on the
14 same matter, but in light of the fact that
15 Ms. Conlin was just heard.
16 This has two problems, if I may. One
17 is it does go quite close to the line. I think
18 over the line concerning the Court's prior
19 order about the final judgment. And Ms. Conlin
20 said -- I think it was yesterday, but it might
21 have been Wednesday -- that whenever a party
22 was going to do something that came anywhere
23 close to the line, that party had an obligation
24 to come to the Court first and get it
25 precleared. That's what led to Mr. Holley's
�
8086
1 disclosure of his line of cross-examination,
2 the sort of almost "offer of proof" subject
3 that we had the other day.
4 And, secondly, Your Honor, even aside
5 from the final judgment, what Mr. Lamb is
6 trying to do, in effect, is comparable to a
7 subsequent remedial measure type piece of
8 evidence. The steps had crumbled and someone
9 fell. And subsequent to the accident, the
10 steps are repaired.
11 And the plaintiff seeks to put in
12 evidence that the steps were repaired to show
13 that somehow in the prior period there must
14 have been some negligence.
15 The disclosure in 2006 of these APIs
16 is meant, I think, to create the inference to
17 the jury that there was some obligation to have
18 disclosed APIs in 1991 or '2 or other periods.
19 So I think for both those reasons,
20 this ought not to come in.
21 THE COURT: All 12 tenets?
22 MR. HOLLEY: No, Your Honor. The one
23 relating to APIs.
24 MR. LAMB: I only want -- just to
25 be --
�
8087
1 THE COURT: Go ahead.
2 MR. LAMB: -- just to be clear, I
3 mean, I won't even put the "going forward" if
4 that's an issue.
5 MR. TULCHIN: The whole thing is an
6 issue.
7 MR. LAMB: Well, all I want to
8 establish is Microsoft will ensure that all the
9 interfaces within Windows called by any other
10 Microsoft product such as a Microsoft Office
11 system or Windows Live will be disclosed per
12 use by the developer community general.
13 That means that anything that
14 Microsoft's products can do in terms of how
15 they plug into Windows competing products will
16 be able to do as well. That's it. And is that
17 your understanding of the current Microsoft
18 policy? And I will simply read it. That's all
19 I'm trying to establish, and I apologize if
20 there's any --
21 THE COURT: No. I just want to hear
22 from Mr. Holley.
23 MR. HOLLEY: If that gets read, Your
24 Honor, I just want it to be very clear that
25 when it comes to be our turn, that we can put
�
8088
1 on a witness to testify what Microsoft has done
2 to comply with this tenet as stated on the Web
3 site because as Mr. Tulchin says, the inference
4 will be created that somehow somebody tripped
5 on the sidewalk and the crack was fixed.
6 And we're -- having opened the door to
7 that, then we need to come back in our case and
8 testify about what we've done both before and
9 after. And we will be conscious, Your Honor,
10 of not doing what you told us not to do, which
11 is talk about compliance.
12 THE COURT: Yeah.
13 MR. HOLLEY: But we will need to do
14 that if this is read.
15 THE COURT: I think what I said was I
16 wasn't concerned in my ruling -- I'll go back
17 and look at it -- was that you can say what
18 acts you've done.
19 MR. HOLLEY: We can't claim it's in
20 compliance.
21 THE COURT: You can't claim it is in
22 compliance. I think that was my ruling unless,
23 Ms. Conlin, do you have a different
24 recollection?
25 MS. CONLIN: I do not, Your Honor. I
�
8089
1 have exactly the same recollection.
2 THE COURT: That is fine.
3 MR. HOLLEY: So you just read --
4 THE COURT: Just that part, that's
5 fine.
6 MR. HOLLEY: All right.
7 MR. TULCHIN: I still have an
8 objection to this, Your Honor, for the grounds
9 stated. This is equivalent to the subsequent
10 remedial measure type evidence. This, by the
11 way, comes outside the class period.
12 Mr. Alepin has already testified about
13 events outside the class period. Class period
14 ended June 30, 2006. He's testified about
15 Vista in October and November 2006. He's
16 testified about events that he says will take
17 place in January 2007, all of which has opened
18 the door to our evidence about the events
19 subsequent to the class period.
20 But what Mr. Lamb is trying to do not
21 only I think is improper for the reasons
22 stated, the two prior reasons, but again, we're
23 even outside this 12-year class period. The 12
24 years, you'd think, would be enough.
25 THE COURT: When did the tenets come
�
8090
1 out? It says July 19th.
2 MR. LAMB: Well, I think they were
3 posted before this. This is July 2006.
4 MR. HOLLEY: No. I had a hand in
5 writing these. They came out in July of '06.
6 THE COURT: That's past the period.
7 MR. TULCHIN: They've ignored that in
8 the past, which I find befuddling.
9 THE COURT: It wasn't objected to
10 until now.
11 MR. LAMB: Okay.
12 MS. CONLIN: And offered on intent and
13 on the issue of --
14 THE COURT: That's something after the
15 class period.
16 MS. CONLIN: Your Honor, but if this
17 were a different kind of case where we were
18 talking about the situation that Mr. Tulchin
19 describes, we would still be able to offer
20 subsequent conduct on the issue of punitive
21 damages in such a case.
22 Now, this is a little closer in time
23 than we are generally dealing with, but I think
24 that subsequent conduct cannot be offered to
25 prove negligence. And, of course, that only
�
8091
1 applies -- I'll get my rule out -- because I
2 think that only applies in tort cases, but I
3 could be mistaken about that.
4 But setting that aside, Your Honor,
5 even in a tort case, subsequent conduct can be
6 offered for any reason except to prove
7 liability.
8 MR. HOLLEY: Your Honor, certainly it
9 can't be the plaintiffs' position that in
10 seeking exemplary damages under the Iowa
11 Competition Law they're entitled to talk about
12 things that happened, you know, after the class
13 period because the willfulness had to occur in
14 the 12 years covered by the lawsuit. How could
15 that be?
16 MS. CONLIN: Well, I believe that it
17 not only can be but that it is.
18 MR. GREEN: I think you're talking
19 about comparative trial statute.
20 MS. CONLIN: No, no. We're talking
21 about --
22 MR. GREEN: Well, the prima facie case
23 of punitive damages in Iowa, if you're going to
24 get into that, then we will have a lot of
25 problems with what you're doing. I don't think
�
8092
1 it has anything to do with this.
2 MS. CONLIN: Maybe we should all look
3 at the rules and see if it applies here, but I
4 think it does not. But that would be -- I
5 think that would answer all these questions.
6 MR. LAMB: Maybe -- can I ask this? I
7 mean, if that's the concern, I would be happy
8 to talk about the time period. "And when I
9 refer you to the time period of, say, late
10 2005, early first quarter 2006, is it your
11 understanding whether or not Microsoft had a
12 stated policy regarding disclosing APIs?" And
13 I will ask him --
14 MR. HOLLEY: Not that policy,
15 Mr. Lamb, because that policy did not come into
16 existence until after the end of the class
17 period. That is a new policy. It's a new
18 policy.
19 Ms. Conlin made this point with
20 Mr. Johnson at his deposition in August. Maybe
21 I have the date wrong, but her point was --
22 MS. CONLIN: It went on forever.
23 MR. HOLLEY: Okay. Fine. But your
24 point was that it was a new policy.
25 You just can't resist sometimes.
�
8093
1 MS. CONLIN: Nor can you.
2 MR. LAMB: I mean, I think he's
3 already stated -- he's testified -- Alepin has
4 testified that the public policy of Microsoft
5 was that they were going to maintain church and
6 state and they were going to disclose APIs.
7 THE COURT: When is it your
8 understanding or the witness's understanding
9 that it changed?
10 MR. LAMB: There hasn't been a change.
11 That's -- so I don't think this is a subsequent
12 remedial -- I don't think their policy ever
13 changed. I think their actions changed, but I
14 don't think their policy ever changed. So
15 that's what I'm having difficulty with. He
16 just testified that this started in 1985 in
17 church and state.
18 MR. TULCHIN: I think we have to wait
19 for recross because he's wrong about it. The
20 witness was wrong about it. His testimony is
21 entirely false. But leaving that aside, what
22 Mr. Lamb is doing right now is trying to, with
23 all respect, confuse the issue.
24 The issue of a policy published in
25 2006 can't -- and I haven't heard any argument
�
8094
1 that it is admissible in this case because it's
2 after the class period and for the other
3 reasons I stated.
4 I also do think it's not violative of
5 the Court's order about compliance with the
6 final judgment. Close enough to the line where
7 by Ms. Conlin's rule we should have had a
8 conference on the subject.
9 But going to Mr. Lamb's comment for a
10 moment. The separation of church and state did
11 not pertain directly to whether APIs were
12 disclosed. And maybe there's some confusion
13 here, but for the Court's benefit, if I may,
14 the idea of separation of church and state --
15 and we will see on recross evidence that
16 Microsoft disclaimed that that was the
17 company's policy publicly, the idea of the
18 separation of church and state is that
19 applications developers at Microsoft would
20 learn no more about the APIs of the operating
21 system than outside developers, ISVs.
22 It's entirely different to the
23 question of whether or not APIs had to be
24 disclosed. Mr. Alepin testified on direct
25 examination from Mr. Lamb several days ago that
�
8095
1 there are internal and external APIs, that
2 internal APIs should not, not only need not be
3 disclosed to the outside world, but should not
4 be for good technical and business reasons.
5 And what Mr. Lamb is now doing is
6 arguing to the jury, and it's entirely false,
7 that if you don't disclose APIs, all the APIs
8 to everyone, everyone in the outside world,
9 that somehow that violates the policy of church
10 and state. There wasn't such a policy, but if
11 there had been such a policy, that would only
12 mean that the internal APIs were kept internal,
13 not just for the outside world but for
14 Microsoft applications developers as well.
15 So this is just a massive confusion
16 here. Everyone has acknowledged, including
17 this witness, that internal APIs should be kept
18 internal. This policy, which comes after the
19 government case and was issued in July of 2006,
20 and these plaintiffs asked for a class period
21 that extended through June 30, 2006. They
22 asked for it. That's what the Court gave them.
23 And, knowingly, they're now getting into a
24 period after that, which I must say, after a
25 12-year clear period and their evidence going
�
8096
1 back to 1987 and '88 and other years, well,
2 prior to the class period, they now want to go
3 forward in time past the end of the class
4 period, which I guess requires us to do the
5 same thing and to talk about the Vista
6 operating system that has been shipped to OEMs
7 and will be available publicly within the next
8 week or two. There just doesn't seem to be any
9 limits to where this case begins or ends.
10 MS. CONLIN: Let me first address the
11 undocumented APIs, Your Honor, because there is
12 a misstatement going on in this room but it's
13 not ours.
14 What we contend, what the industry
15 accepts is that any API used by an application
16 of Microsoft's should be documented, and
17 whether it's in the operating system or outside
18 the operating system, if a Microsoft
19 application is calling into the operating
20 system and using an API function inside there
21 to enhance its performance, then that is an API
22 that should be documented and made available to
23 the ISV community, wherever it is.
24 That's our position. I believe that's
25 the position that Microsoft acknowledges in its
�
8097
1 own documents. That's what we were just
2 looking at. A document from Myhrvold saying
3 we've got to document these because they're all
4 over the place. We're using them.
5 So setting that aside, there may be a
6 way for us to approach this that will not --
7 that will not even require the use of the
8 document. But we're going to need a little
9 time to think about it, and as well as to take
10 a look at whether or not the subsequent
11 remedial measures apply, as I believe it does,
12 only to cases under 668.
13 MR. LAMB: I don't need to use the
14 document. I'm just trying to try a case here.
15 And as far as the implication of
16 trying to violate the Court's order, the
17 procedure is I hand you a document, which was
18 handed. You object. We have a conference.
19 That is the purpose of it.
20 The purpose of what the Court said
21 earlier was not to go into a line of
22 questioning or area which I have done before,
23 okay? And I thought I gave you plenty of
24 notice. Obviously, you objected. We're back
25 here. That's what we're trying to deal with.
�
8098
1 There hasn't been a violation of the
2 Court's order.
3 MR. HOLLEY: I don't think anyone said
4 that you had violated the order, but the
5 procedure, as I understood it explained by
6 Ms. Conlin, was that before a question is
7 hanging in the air as it is now and a document
8 is described to the jury as it now has been,
9 it's better to raise the subject with the Court
10 so that we can get it resolved in advance. And
11 that's what I tried to do with the testimony
12 about Ms. Bingaman and the Vaporware and the
13 FUD.
14 And I guess I just ask that the same
15 rules apply to both sides, and I'm certainly
16 not making any bad-faith assertions against
17 anyone. I just want the same rules to apply.
18 MR. LAMB: I think that's what I did.
19 I handed it to you. It's highlighted. You
20 know, I gave you 10 or 15 seconds. You
21 objected. We're back here. I mean --
22 THE COURT: We can do it one of two
23 ways. I can go ahead and rule, and if you want
24 more time to look at it to see if you want to
25 do an offer of proof, that's fine. If you want
�
8099
1 to go to a different subject area and we come
2 back to it, whatever you want to do.
3 MR. LAMB: I'll just go to a different
4 subject area.
5 (The following record was made in
6 the presence of the jury at 10:41 a.m.)
7 THE COURT: Continue with your
8 questioning.
9 MR. LAMB: Thank you, Your Honor.
10 BY MR. LAMB:
11 Q. When you're talking about undisclosed
12 APIs, Mr. Alepin, there was some questioning
13 from Mr. Holley about internal and external
14 APIs.
15 What is the concern about what should
16 be disclosed in relation to APIs?
17 A. Well, the concern in the independent
18 software development community is that the
19 interfaces that are disclosed by the Microsoft
20 Windows operating system be the same as the
21 ones that the Microsoft applications developers
22 are using when they work with the Microsoft
23 Windows operating system.
24 Q. So it doesn't matter so much whether
25 you call it internal or external, it's whether
�
8100
1 it touches an application?
2 A. That's correct.
3 Q. Now, in that instance, can even a
4 small number of undisclosed APIs under that
5 definition make a difference?
6 A. They can and have, yes.
7 Q. And what's the bottom line for the
8 ISVs when that happens? What's the impact?
9 A. Well, the impact is higher development
10 costs, reduced functionality, longer
11 development times, lengthier time to market,
12 less reliable applications in terms of quality
13 of their software, and that's, you know, an
14 especially important attribute of their
15 software that suffers in comparison to the
16 Microsoft product.
17 MR. LAMB: Darin, could we get Slide
18 Number 796, please?
19 Q. You were asked some questions by
20 Mr. Holley about Slide 796, and I'm referring
21 specifically to SPAD. Can you explain to the
22 jury specifically what SPAD is again?
23 A. A SPAD is a feature or a function that
24 was introduced into the Windows operating
25 system product around 2002, I believe, that
�
8101
1 allows users to set program access and
2 defaults.
3 Q. And does that allow you to remove the
4 visible means of user access?
5 A. It -- that's its purpose. I
6 understand it to be, yes.
7 Q. Okay. And does SPAD work to remove
8 the visible means of user access for Windows
9 Media Player?
10 A. Not entirely, no.
11 Q. Not entirely.
12 Does SPAD work to remove the visible
13 means of access for Real media player?
14 A. Yes.
15 Q. Okay.
16 A. RealNetworks media player. I
17 understood that question, sorry.
18 Q. So the first is a Microsoft product,
19 the second is a non-Microsoft product?
20 A. That's correct.
21 Q. Does the add/remove function
22 completely remove the Windows Media Player?
23 A. No, sir, it does not.
24 Q. Does add/remove function complete the
25 Real media player?
�
8102
1 A. I believe it does.
2 Q. Okay. What's the impact of that on
3 ISVs?
4 A. Well, the impact on independent
5 software vendors -- this has multiple impacts,
6 but focusing on independent software vendors
7 for a moment, it tells them that there will be
8 only one media player that will be installed on
9 every Windows computer, and that will be the
10 Windows Media Player.
11 Q. And what's the impact to the user?
12 A. It means that the -- these independent
13 software vendors and independent content
14 providers will have a -- will focus on the
15 Windows Media Player platform more likely than
16 they will focus on the Real player platform;
17 and accordingly, they will be forced to deal
18 with the Windows Media Player even though they
19 may choose a different media player.
20 Q. So that impacts the user's choice?
21 A. It does, yes.
22 Q. I want to switch gears to BeOS, and
23 there was some testimony that was elicited
24 about that particular operating system in
25 relation to the dual boot being dangerous.
�
8103
1 And you were just asked that question,
2 but can you explain to the jury what that
3 means, that the dual boot could be dangerous?
4 A. Well, let's see, maybe I could use the
5 paper?
6 Q. Sure.
7 MR. LAMB: With the Court's
8 permission.
9 THE COURT: Sure.
10 Move the easel so the jurors can see,
11 please.
12 A. So on your computer, you've got the
13 disk drive, and what an OEM, a personal
14 computer manufacturer does is they preinstall
15 an operating system on the disk drive so that
16 when you turn the computer on, you'll go
17 through that initial boot-up sequence that we
18 talked about and then the operating system will
19 load.
20 What OEMs do in a nondual-boot
21 situation typically is that they will something
22 we call partition the hard drive.
23 They will partition the hard drive to
24 allow only one single operating system. One
25 single operating system will own and control
�
8104
1 the entire content of the hard drive.
2 And when the user boots up the
3 operating system, he will not have a question
4 which says which operating system would you
5 like to start. There's only one operating
6 system.
7 In a dual-boot environment, what
8 happens is the hard disk drive here is
9 partitioned so that one operating system, or
10 more, owns a portion of the hard drive and
11 another operating system owns a different
12 portion of the hard drive.
13 And the dual booting software, or part
14 of the job of preparing a computer to
15 accommodate dual booting is the idea of
16 partitioning the hard drive into one spot for
17 one operating system and another spot for
18 another operating system.
19 If you do this at home -- if you do
20 this at home starting from a computer that had
21 only a single operating system on it, what's
22 going to have to happen is you're going to have
23 to take back this part of the disk drive from
24 Windows and move all of the contents that might
25 have been in here up into the portion of the
�
8105
1 hard drive that you're reserving for Windows
2 and create this new partition area for your new
3 operating system.
4 When most users don't have backup
5 copies of their hard drive -- most users don't
6 make backup copies -- bad things can happen in
7 the process of moving this information here
8 into this area up here which we're going to
9 reconfigure for Windows only.
10 If you make a mistake during the
11 process of installing the second operating
12 system or repartitioning the hard drive,
13 getting ready to create the dual-boot
14 environment, then you're playing with your own
15 data, with your real data. So anything bad
16 that happens there, you have the risk at least
17 of losing your data and having a dead system, a
18 system that won't boot.
19 Q. And that's the question that you were
20 responding to when you said it was potentially
21 dangerous; right?
22 A. Yes, absolutely.
23 Q. Now, when you say partition, do you
24 mean physically separate, or are you just
25 talking about the software?
�
8106
1 A. No, it's physically separating these
2 -- although modern -- some modern operating
3 systems don't necessarily store your
4 information consecutively when they look at a
5 disk drive, they actually partition it into
6 physically consecutive locations on the disk.
7 So this is -- what I'm talking about
8 in partitioning is that this is from the
9 beginning to halfway through physically of the
10 disk. So it's an actual physical partition.
11 Q. Now, Mr. Alepin, what Be was
12 proposing, though, was the dual boot at the OEM
13 level; right?
14 A. That's correct.
15 Q. And that's different; right?
16 A. Yes. In the dual boot of the OEM
17 stage here, what happens is the OEM would
18 install Windows into a partition initially that
19 had been already set aside on the disk drive.
20 So the OEM gets the disk drive,
21 installs Windows on a partition, a portion of
22 the hard drive, and reserves the second portion
23 for the BeOS operating system and installs the
24 BeOS system on that second partition before
25 there's any user data, before there's any need
�
8107
1 to move data around or to run any kind of risk
2 of loss of user data.
3 So this process here would be OEM
4 getting the disk drive, partitioning it into
5 two partitions, installing Windows into one
6 partition, installing BeOS into the second
7 partition, and then installing the software
8 that when the system is started says which one
9 would you like to use today.
10 Q. Now, that process, the process that Be
11 was actually proposing, is that process
12 dangerous?
13 A. No, not at all.
14 Q. Can you take your seat again, please?
15 Now, I want to turn to a line of
16 questioning that Mr. Holley asked you regarding
17 certain comparisons that he was asking you to
18 do regarding software.
19 MR. LAMB: Could you put up Slide 785,
20 please?
21 Q. Now, do you recall Mr. Holley, he came
22 in here and he had a version of a Quicken and
23 he showed it to you? Do you remember that
24 version of Quicken?
25 A. I do.
�
8108
1 Q. And he tried to tell you that it was
2 a, quote-unquote, basic version; right?
3 A. I think there was a mention of the
4 basic version.
5 Q. But it wasn't the basic version;
6 right?
7 A. No, it was not.
8 Q. It was a premier version; right?
9 A. Yes, sir.
10 Q. And then Mr. Holley basically asked
11 you to do a comparison between Quicken and the
12 Windows XP Home Edition. Do you remember that?
13 A. Yes, sir.
14 Q. Okay. Now, Mr. Alepin, Quicken is a
15 software product; right?
16 A. That's correct.
17 Q. Okay. It's an application; right?
18 A. Yes.
19 Q. And Windows XP Home is an operating
20 system; right?
21 A. Operating system product, yes.
22 Q. Is Quicken a product that is a
23 reasonable substitute for Windows XP?
24 A. No.
25 Q. Is there any technological reason to
�
8109
1 make a comparison between those two products?
2 A. One's -- one contains an operating
3 system, the other is an application system.
4 There's no reason to compare them
5 technologically.
6 Q. Is that a product that competes with
7 the other product? Does Quicken compete with
8 Windows operating system?
9 A. No.
10 Q. Are they reasonably interchangeable?
11 A. No.
12 Q. Are they reasonable substitutes?
13 A. No.
14 Q. Okay. And then Mr. Holley asked you
15 to do a comparison between Windows XP and
16 Norton Internet Security. Do you recall that?
17 A. I do.
18 Q. And Norton Internet Security, that's
19 an application; right?
20 A. Well, I think I described it in the
21 context of a utility.
22 Q. A utility?
23 A. Yes, but it's a --
24 Q. Is that more accurate, a utility?
25 A. It's a category of software that --
�
8110
1 Q. Okay. And is it an operating system?
2 A. No, it is not.
3 Q. Okay. Is it a reasonable substitute
4 for Windows XP?
5 A. No, it is not.
6 Q. Is it a product that competes with
7 Windows XP?
8 A. No, it does not.
9 Q. Is it interchangeable with Windows XP?
10 A. No, not at all.
11 Q. Is it a reasonable substitute for
12 Windows XP?
13 A. No, it is not.
14 Q. In your mind, is there any reason
15 technologically to do a comparison between
16 Norton's antivirus and Windows XP?
17 A. We were talking about Norton Internet
18 Security just to be clear --
19 Q. I'm sorry, Norton Internet Security.
20 I apologize.
21 A. No, there is not.
22 Q. Now, Mr. Alepin, at the conclusion of
23 your testimony, you put up a number of tactics
24 that Microsoft engaged in in your professional
25 opinion up on the white board.
�
8111
1 Do you remember that?
2 A. I do.
3 Q. And Mr. Holley got a little bit upset.
4 He thought you were erasing the white board,
5 but you didn't erase the white board; right?
6 A. No, I didn't.
7 Q. So it's still there if Mr. Holley
8 wanted to look at it during cross; right?
9 A. I believe it is, yes.
10 Q. And all those tactics you believe
11 still happened; right?
12 A. I do, yes.
13 Q. And in your professional opinion,
14 you're certain to a reasonable professional
15 certainty of all the opinions you've expressed
16 over now it's almost seven days; right, sir?
17 A. Yes, I am certain, and it is almost
18 seven days.
19 Q. My bad.
20 And during the course of your
21 testimony, I have impelled you numerous times
22 to go up on the white board and on the paper
23 and do drawing after drawing after drawing;
24 right?
25 A. Yes.
�
8112
1 Q. I apologize for that. And Mr. Holley
2 made a point of saying save all those drawings,
3 I want to use them; right?
4 A. Yes.
5 Q. He didn't use a single one with you,
6 did he?
7 A. I don't think so, no.
8 MR. LAMB: Thank you, sir.
9 THE COURT: Take our lunch recess at
10 this time.
11 Remember the admonition previously
12 given.
13 Leave your notebooks here.
14 Instead of coming back at 12, please
15 come back at 12:15. There's a matter of law
16 the Court needs to take up. It will take about
17 15 minutes.
18 12:15.
19 (A recess was taken from 10:59 a.m.
20 to 11:57 a.m.)
21 (The following record was made out of
22 the presence of the jury.)
23 MR. TULCHIN: Your Honor.
24 THE COURT: Yes.
25 MR. TULCHIN: I just wanted to
�
8113
1 disclose to the Court that about 20 minutes ago
2 or so, I was outside the courtroom with
3 Ms. Nelles, and one of the jurors,
4 [identification redacted] came up the stairs, and on her
5 way past us, stopped and talked to me and
6 Sharon about the weather.
7 She said it's very, very cold out and
8 made some comment about how it had gotten cold,
9 and then said and my son lives in [redacted] and
10 he tells me that it was -- you know, recently
11 it was over 70 or something like that, and she
12 smiled and she walked on.
13 I was a little surprised that she had
14 stopped to talk to me, and I don't think,
15 honestly, I said anything, except I may have
16 said yes, it got really cold. I was just a
17 little surprised.
18 I don't object to it. I told Ms.
19 Conlin about it immediately, but I just wanted
20 the Court to know that at least one juror felt
21 that she could or should do that.
22 It's not a problem for me. I don't
23 think it is for Ms. Conlin, but in the interest
24 of having everyone know this, that's what
25 happened.
�
8114
1 THE COURT: Thank you for telling me.
2 MS. CONLIN: I had the same experience
3 this morning with [identification redacted], which surprises
4 no one.
5 We were coming into the courtroom at
6 the same time, and the total exchange was good
7 morning, Mrs. Conlin, to which I responded good
8 morning, [identification redacted].
9 And I believe he also made a comment
10 about the weather, with which I had agreed. If
11 he said it was sunny and bright and 70 degrees,
12 I wouldn't have agreed, of course, but I
13 believe he said it was cold.
14 THE COURT: All right. I'll remind
15 them not to converse with you.
16 MS. CONLIN: I don't think they
17 understand the word pleasantries, Your Honor.
18 MR. TULCHIN: I don't want [identification redacted]
19 to feel that she did anything wrong. I don't
20 think she did.
21 THE COURT: Don't bring it up?
22 MR. TULCHIN: I'd rather you didn't.
23 I just wanted the Court to know. If it gets
24 beyond this, then, you know, I think she
25 should.
�
8115
1 THE COURT: I'm going to read the
2 admonition again.
3 MS. CONLIN: Your Honor, I don't think
4 we can handle this in 15 minutes, and I am
5 concerned about keeping the jury waiting, so I
6 want to bring up a couple of things, and then I
7 would like to do the motion to strike when
8 Mr. Alepin is done, if that's permissible,
9 depending on when it is.
10 We've got -- we've got depositions
11 ready to go, as well, and so we can go till
12 three without any trouble.
13 THE COURT: All right.
14 MR. HOLLEY: Your Honor.
15 MS. CONLIN: Without any problem.
16 MR. HOLLEY: I didn't mean to
17 interrupt Ms. Conlin.
18 Just as a matter -- and just obviously
19 I will change my plans if I have to, but I was
20 hoping since I am not arguing any of the
21 motions that I thought were on the calendar, I
22 was going to run to the airport.
23 I can change that or if we could do it
24 first thing Monday morning at eight or
25 something.
�
8116
1 MR. TULCHIN: Tuesday.
2 MR. HOLLEY: Tuesday morning, Your
3 Honor, at eight. Whatever Ms. Conlin wants.
4 My own personal preference would be to
5 leave at three or whenever Mr. Alepin's
6 finished. But, as I say, I'm at the Court's
7 disposal.
8 MS. CONLIN: I don't want to
9 inconvenience Mr. Holley, but I would hate to
10 put it off, so perhaps the answer is to stop a
11 little bit early today. Perhaps that's the
12 better answer.
13 THE COURT: What time is your flight,
14 Mr. Holley?
15 MR. HOLLEY: Your Honor, it's at 4:39.
16 I'm already checked in and I don't have any
17 bags; and as Your Honor knows, it doesn't take
18 any time to get to the airport, barring some
19 disaster.
20 THE COURT: We'll break early.
21 MR. HOLLEY: Can we play it by ear,
22 Your Honor, and just see how we are going?
23 MS. CONLIN: And be real conscious of
24 your situation.
25 THE COURT: We'll see how it goes,
�
8117
1 Mr. Holley.
2 MS. CONLIN: Here's the deal on what I
3 did want to take up, Your Honor.
4 You will recall that I offered
5 exhibits, a long list of exhibits, and the
6 Court has not ruled on those, and I would ask
7 the Court to do so. And then -- I have to
8 stand up.
9 I've now distracted myself.
10 One of the things that I hope is not
11 necessary, and I'm sure that the Defendants
12 will agree it's not necessary, is for the Court
13 to not read the numbers into the record.
14 What I would propose is we mark the
15 list itself as Court Exhibit A, or something of
16 that sort, so that we'll all know what's in and
17 the like, but it will avoid having the Court
18 rule, and maybe the Court can give a very brief
19 explanation to the jury of what we're doing and
20 why.
21 Ordinarily, you know, Your Honor, you
22 say the numbers, or somebody says the numbers,
23 but we -- Mr. Holley would have to cancel going
24 home if we started reading those numbers, Your
25 Honor.
�
8118
1 THE COURT: I agree with that.
2 Mr. Hagstrom did indicate this
3 morning, though, that Tuesday was all right.
4 MR. HAGSTROM: Microsoft had asked if
5 they could double-check the list till Tuesday
6 morning, Your Honor.
7 MS. CONLIN: That's fine, Your Honor,
8 but I want to -- here's the reason for asking
9 you to make a ruling subject to their checking
10 the accuracy of the list.
11 It's because we have a three-day delay
12 between the time the exhibits are admitted and
13 the time we can post them, and we wanted to
14 work on that.
15 And I'm assuming that if there are any
16 errors Microsoft discovers, they would let us
17 know promptly, or if there's something they
18 want to withhold in this list. They've been
19 over them quite recently, so I'm assuming they
20 made notes as they went.
21 But I would like to have them admitted
22 today subject to checking the accuracy.
23 MR. TULCHIN: Your Honor, I think we
24 agreed this morning -- it was off the record --
25 with Mr. Hagstrom that we would do this
�
8119
1 Tuesday, and the reason for that is that there
2 are more than 3,000.
3 I don't think there are going to be
4 any problems, but I'd like to have until
5 Tuesday to just double-check that there are no
6 objections to each and every one of those and
7 then have the three days start running from
8 then about confidentiality.
9 Let me say two things about that.
10 One, I'm a little hesitant to ask
11 people to work over a three-day weekend on this
12 project. We've worked, you know, every weekend
13 on one project or another, but this seems like
14 something that ought not to prevent people from
15 getting away for a three-day weekend.
16 And, secondly, honestly, I don't think
17 there will be many of the 3,000 documents as to
18 which we'll have any concerns about
19 confidentiality. I don't think there will be
20 many.
21 There may be a few, but to do this job
22 properly really does require a person or
23 persons to sit there with the documents and to
24 read each and every one, and it's just a
25 tremendous volume.
�
8120
1 What I could do, if this helps,
2 Ms. Conlin, is to say, we'll do it, let's say,
3 two days from Tuesday, rather than three.
4 So for this one time, we'll shorten
5 that by a day. But at least, then, the people
6 who are planning to go home or have a nice
7 three-day weekend don't have to cancel.
8 MS. CONLIN: Well, Your Honor, there
9 shouldn't be any delay because -- in terms of
10 the privacy concern because they have just read
11 them all for the purpose of making their
12 objection.
13 I'm having some difficulty
14 understanding what the problem is. I wouldn't
15 mind a delay until Tuesday as long as we can
16 post on Tuesday, assuming that there are no
17 problems. We wouldn't post anything with which
18 there was a problem.
19 But this doesn't strike me as a
20 difficult, and certainly I don't -- while I
21 intend to work all over the three-day weekend,
22 I don't expect anyone else to do that.
23 So I'm not concerned -- I want to be
24 respectful of other people's needs, but it is
25 important to us that the documents be posted.
�
8121
1 That's why I offered them weeks and weeks ago.
2 And it is important to the computer software
3 community that they be posted and to the public
4 that they be posted.
5 And so my offer of a solution is that
6 they have until Tuesday, but when they're
7 admitted, we can post them.
8 THE COURT: Anything else?
9 MR. TULCHIN: I hate to drag this out,
10 Your Honor. I don't want to be petty about
11 this.
12 Yesterday we asked, because it would
13 have been much more convenient for us to argue
14 a motion Thursday afternoon. Mr. Hagstrom's
15 response -- I don't know if I'm quoting it
16 exactly -- was something like it can't be, I'm
17 not prepared, and on that basis, that was
18 deferred until this afternoon.
19 And we're really not asking much here.
20 I just -- I know Ms. Conlin thinks we should be
21 able to do this by Tuesday, but the review of
22 the exhibits for purposes of making objections
23 and the review for purposes of this
24 confidentiality issue are a little bit
25 different. We just want a little more time.
�
8122
1 MS. CONLIN: Well, Your Honor,
2 Mr. Tulchin makes a good point. If we can do
3 the two days, I think that's reasonable, David.
4 I think that's reasonable.
5 THE COURT: Very well.
6 MR. TULCHIN: Thank you, Your Honor.
7 THE COURT: Thank you for your
8 courtesy.
9 MR. HOLLEY: Your Honor, Mr. Lamb
10 informs me that he's done asking questions and
11 all he's going to do is introduce exhibits, and
12 I was wondering if it might just save us some
13 commotion if I moved over there now. Is that
14 all right, Your Honor?
15 THE COURT: That way you won't trip on
16 anything.
17 MS. CONLIN: Is this because you want
18 to be close to Mr. Lamb?
19 MR. HOLLEY: We are getting along
20 great.
21 MR. LAMB: He misses me.
22 THE COURT: He tried to trip you once.
23 MR. HOLLEY: He tried to clip me.
24 THE COURT: Illegal block in the back.
25 MR. LAMB: Depends on your
�
8123
1 perspective, Your Honor.
2 (The following record was made in
3 the presence of the jury at 12:15 p.m.)
4 THE COURT: Everyone else may be
5 seated.
6 Mr. Alepin.
7 Mr. Lamb, do you have any other
8 questions, sir?
9 MR. LAMB: I have no further
10 questions, Your Honor, at this time, but I
11 would offer the following exhibits into
12 evidence.
13 THE COURT: Go ahead.
14 MR. LAMB: 9923, 2246, 1032, 2383,
15 1440.
16 THE COURT: Any objection?
17 MR. HOLLEY: No objection, Your Honor.
18 THE COURT: Very well. 9923, 2246 --
19 I was going too fast. She gave me a dirty
20 look -- 1032, 2383, 1440 are hereby admitted.
21 You may recross.
22 RECROSS-EXAMINATION
23 BY MR. HOLLEY:
24 Q. Good afternoon, Mr. Alepin.
25 Do you recall, sir, on your redirect
�
8124
1 examination being asked about the case
2 Commercial Data Servers against International
3 Business Machines Corporation?
4 A. I do.
5 Q. And some questions were asked to you
6 about a threshold attack that IBM made on your
7 testimony, and it was pointed out that the
8 Judge declined to throw the testimony out
9 completely.
10 Do you recall that, sir?
11 A. I believe that was the thrust of the
12 discussion, yes.
13 Q. And I'd like to look one more time at
14 Slide 771 that we looked at on your
15 cross-examination, and in particular the block
16 on the right-hand side.
17 And what Judge McMahon said here is,
18 expert testimony rooted in hypothetical
19 assumptions cannot substitute for actual market
20 data. Likewise, the speculative affidavits of
21 Mr. Alepin and Mr. Reed do not overcome for the
22 lack of hard evidence.
23 And it is the case, is it not, sir,
24 that even though Judge McMahon rejected IBM's
25 effort to throw your affidavit out in its
�
8125
1 entirety, he concluded upon consideration of
2 your affidavit that it was speculative and
3 lacked hard evidence?
4 A. I believe I have indicated that I did
5 not follow the proceedings after that, and so,
6 I mean, I'm not sure how to respond to the
7 question.
8 I can read the text on there, but the
9 purpose, as I understood my affidavit at the
10 time, would be that my statements would have
11 been -- it's my understanding here, it's a
12 legal process, but would have been supported by
13 evidence that's -- in this particular case the
14 CDS company would have presented to demonstrate
15 that the statements in my affidavit had
16 occurred in this particular -- in their
17 particular case, but, again, I don't want to
18 reach out beyond my knowledge of what the Judge
19 wrote in the process of the -- of how you
20 support or use affidavits in that particular
21 context.
22 Q. In any event, you have no reason to
23 doubt that Judge McMahon wrote what's up there
24 on the screen, which is that your affidavit was
25 speculative and did not overcome for lack of
�
8126
1 hard evidence?
2 A. No, I have no reason to -- subject to
3 what I just said, I have no reason to believe
4 that he didn't write that.
5 Q. Now, on redirect examination, I
6 believe you testified that graphical user
7 interfaces are not part of operating systems
8 because they do not provide services to other
9 applications.
10 Did I understand that correctly, sir?
11 A. That was not the intent.
12 They, like other software, can provide
13 interfaces. Microsoft's Office applications
14 provide interfaces. It was not my intention to
15 say that the Windows graphical user interface
16 does not provide APIs.
17 The browser provides APIs. Other
18 software provides APIs. Word processing
19 software provides APIs, or can.
20 Q. And as we saw on cross, the user
21 interface APIs exposed by Windows to do things
22 like create drop-down menus -- excuse me -- and
23 other UI elements are relied on by thousands
24 and thousands of applications; correct?
25 A. That's probably correct, yes.
�
8127
1 Q. Now, could we see Slide 715, which you
2 were shown on redirect, please?
3 Now, I think it's probably not too
4 blunt to say that you were suggesting that I
5 fabricated the user interface on the upper
6 left-hand corner.
7 Was that the intent of your testimony?
8 A. No. It was to -- no, it was not. If
9 I can explain.
10 Q. I just want an answer to my question.
11 Were you suggesting that I fabricated
12 that?
13 A. No.
14 Q. Now, did you have occasion to go on
15 the web before you said what you said on
16 redirect to figure out where that slide came
17 from?
18 A. No, I didn't.
19 Q. So you don't know that there's a
20 website called Lynucs, L-y-n-u-s-c, dot org
21 where that screen shot appears?
22 A. It may well appear there.
23 Q. And you are familiar, sir, are you
24 not, with the user interface for Linux called
25 Gnome, G-n-o-m-e?
�
8128
1 A. I am.
2 Q. And you also know, do you not, sir,
3 that one of the features of Gnome is that you
4 can change the cosmetics of the desktop to make
5 it look like Mac OS X; correct?
6 A. I do. I know that.
7 Q. Okay. You didn't say that on
8 redirect, did you, sir?
9 A. I was not asked that question.
10 Q. No, you weren't.
11 Now, you said on redirect that
12 Mr. Schulman, in the excerpts that I showed
13 you, was actually saying things inconsistent
14 with other parts of his book.
15 Do you remember saying that?
16 A. Well, there were excerpts from the
17 same book, and so they have a particular
18 context in his book.
19 However, the particular excerpts, I
20 think, did not place the -- did not provide the
21 context or the thrust of the book is what I
22 think I said.
23 Q. Okay. Let's focus on the testimony
24 that you gave on redirect about whether or not
25 Windows 95 sits on top of MS-DOS just like
�
8129
1 earlier versions of Windows.
2 Do you recall giving that sort of
3 testimony, sir?
4 A. That sort of testimony, yes.
5 Q. Yes. And it was your testimony that
6 even though it's called Windows 95, it's
7 actually just Windows 3 sitting on top of
8 MS-DOS held together by what Mr. Barrett called
9 bubblegum and baling wire.
10 Do you remember giving that testimony,
11 sir?
12 A. Well, the -- there were improvements
13 to Windows 3.1, the graphical user interface
14 between the Windows 3.1 product and the Windows
15 95 product.
16 So, I mean, I would -- subject to
17 improvements in the Windows 3.1 component of
18 the Windows 95 product, that's fine.
19 Q. Well, did you have occasion to look at
20 what Mr. Schulman wrote in any part of this
21 book about what Windows 95 was architecturally
22 and whether it was fair to describe it in the
23 terms that Mr. Barrett did as two pieces of
24 software held together with bubblegum and
25 baling wire?
�
8130
1 A. I don't find Mr. Barrett's
2 descriptions to be inconsistent with my
3 understanding.
4 Q. Well, let us --
5 A. Maybe -- I'm sorry. I'm not sure I'm
6 responding to your question quite properly,
7 but --
8 Q. No, I'm not sure you are either, so
9 let me be --
10 A. I apologize.
11 Q. No, and maybe it's because I'm being
12 unclear.
13 What I wanted to know is whether you
14 looked at Mr. Schulman's book to see whether
15 Mr. Barrett's description of Windows 95, which
16 you testified about on redirect as two pieces
17 of software, Windows 3.X improved and MS-DOS
18 held together with bubblegum and baling wire?
19 That's my question.
20 A. At points in time, I have considered
21 what Mr. Schulman has said there and in other
22 places on the issue of the degree of
23 integration between Windows and DOS in
24 particular in this time frame, and
25 Mr. Barrett's description is a fair
�
8131
1 description.
2 Q. I'm going to put up on the screen, but
3 I want to give you the book so you can look at
4 whatever you want.
5 MR. HOLLEY: May I approach the
6 witness, Your Honor?
7 THE COURT: Sure.
8 Q. So the excerpt I'm interested in
9 appears in the preface, and we're going to put
10 it up on the screen. It's Slide 1011.
11 MR. HOLLEY: Excuse me. May I
12 approach, Your Honor?
13 Q. So it's in the preface.
14 A. Yes.
15 MR. HOLLEY: And can we see Slide
16 1011, please?
17 Apparently we don't have it.
18 A. What was the page number while you're
19 getting that up?
20 Q. The page number is Roman XV, but it's
21 in little tiny type.
22 If it would speed things along, I'm
23 happy to hand you --
24 MR. HOLLEY: Your Honor, may I
25 approach?
�
8132
1 A. Oh, I see it. Roman XV, I found it.
2 It's on the black portion.
3 Q. Yeah, it's strange pagination.
4 A. Yes.
5 Q. What I'm interested in, sir, is the
6 third complete paragraph, which begins this
7 book will show you that Windows 95 continues.
8 A. Yes. Well, wait. There's another
9 paragraph on that page. I've got it now, thank
10 you.
11 Q. And, sir, reading whatever you want to
12 read in the book, did you take into account
13 Mr. Schulman's opinion that even though there
14 continues to be some use of real mode DOS in
15 Windows 95, that it is not some thing on a
16 thing, but employs a reasonable, legitimate
17 operating system architecture?
18 A. I did.
19 Q. And you just disagree with
20 Mr. Schulman in this respect; is that correct?
21 A. Well, one can architect a piece of
22 software using principles for -- that are used
23 by the designers of operating systems, which is
24 what Mr. Schulman is saying here, but employs
25 reasonable, legitimate operating system
�
8133
1 architecture -- indeed, the Windows 3.1 product
2 and the Windows 95 product employ a kernel, and
3 they have various other elements that would
4 follow an architecture that someone would use
5 when architecting an operating system. That's
6 not a disagreeable proposition.
7 Q. Well, let's look at what Mr. Schulman
8 says. And this is -- I apologize, this is
9 slightly above the highlighting this time.
10 It says, this book will show you that
11 Windows 95 continues to rely on DOS; that is,
12 Win 32 kernel -- and there is a kernel up in
13 Windows, right? -- continues to rely on the
14 Win 16 kernel and that, surprise -- exclamation
15 mark -- this is okay.
16 My goal is not to prove that Windows
17 95 continues to use DOS and, therefore, isn't a
18 genuine operating system.
19 And what he's saying there, sir, is he
20 not, is that Windows 95 is a genuine operating
21 system? All of the pieces together are a
22 genuine operating system, and that it is not
23 some thing on a thing, but rather employs a
24 reasonable legitimate operating system
25 architecture? That's what it says, doesn't it?
�
8134
1 A. Well, I don't think that that's quite
2 what I said.
3 Q. I appreciate that, sir. That's my
4 point.
5 You, in giving the testimony that you
6 gave on redirect, said something that is flatly
7 inconsistent with what Mr. Schulman is saying
8 here, didn't you?
9 A. I don't think so. I think Mr.
10 Schulman says that Windows continues to rely on
11 the DOS operating system, which is something
12 that I put forward and Mr. Barrett similarly
13 put forward and others have put forward,
14 including here the text from Mr. Schulman.
15 It continues to rely on DOS. It
16 continues to rely on another operating system
17 in order to deliver the functions and
18 compatibilities capabilities that users want.
19 I don't think there's too much a disagreement
20 between us there.
21 Q. That is not what this says, is it?
22 He's talking about a product called
23 Windows 95.
24 A. Uh-huh.
25 Q. And he is speaking directly responsive
�
8135
1 to the notion that Windows 95 is nothing more
2 than MS-DOS sitting underneath Windows 3.X,
3 improved as you say.
4 That's what he's talking about, and
5 what he says is, my goal is not to prove that
6 Windows 95 continues to use DOS and therefore
7 isn't a genuine operating system.
8 His view is the opposite. It doesn't
9 matter that there's some small real mode DOS
10 kernel for backward compatibility reasons
11 inside Windows 95. That doesn't make it
12 anything other than a genuine operating system,
13 not some thing on a thing, but instead, a
14 legitimate operating system that employs a
15 reasonable legitimate operating system
16 architecture. That's what he says, right?
17 A. As I continue to read through this and
18 I'm -- I apologize that -- I've been trying to
19 do that as we've been talking.
20 His approach is really as he describes
21 it subsequently, it's pragmatic. It's -- well,
22 let's put to one side for a moment what genuine
23 -- that they, the Windows and DOS, don't
24 conform to certain principles, that might tell
25 us that there's something wrong, but like it or
�
8136
1 not, together they define what's the product in
2 the market and what operating systems actually
3 look like in the world today.
4 He's not attempting to describe, it
5 seems to me, the -- or to focus on the
6 particular point that I have been focusing on,
7 and he seems to be entirely consistent.
8 It says, by understanding that Windows
9 95 is not a complete rewrite is still partially
10 based on DOS, has 16-bit code in its kernel.
11 You'll be able to understand better how Windows
12 95 works.
13 I mean, it's still partially based on
14 DOS. It requires DOS to run. He's not
15 disagreeing with me, I don't think.
16 Q. You don't see any contradiction
17 between what you said on redirect and what
18 Mr. Schulman says?
19 A. No, I don't.
20 Q. Now, when you were shown the
21 deposition testimony of Mr. Barrett and you
22 commented on it, were you seeking to convey to
23 the jury the impression that Mr. Barrett knew
24 anything about Windows 95?
25 A. Mr. Barrett had -- it's my
�
8137
1 understanding from his position and from his
2 testimony, as well as other parts of the
3 record, that he had knowledge of Windows, the
4 Windows development plans, and -- so yes.
5 Q. So it will come as a shock to you to
6 learn that Mr. Barrett was never on the Windows
7 95 development team. Did you look at any
8 deposition testimony from Mr. Barrett where he
9 said that?
10 A. That he was not on the Windows 95
11 development team, the Chicago team?
12 Q. That's correct.
13 A. Yes.
14 Q. So he doesn't know anything about
15 Windows 95. He was never on the development
16 team, was he?
17 He left Microsoft to become an
18 executive of RealNetworks before Windows 95
19 shipped. You didn't tell the jury that, did
20 you, on redirect?
21 A. I believe that Mr. Barrett's
22 responsibilities included the development of --
23 or close involvement in the development of DOS
24 7.
25 DOS 7 was Microsoft DOS 7 which was
�
8138
1 intended to be a product to be released by
2 Microsoft that would have been available to
3 OEMs and other users who didn't want the
4 combination of Windows and DOS.
5 That product didn't come out, but it
6 was -- but the DOS element that was part of the
7 product was used by Microsoft in the
8 development of Windows 95. That's certainly my
9 understanding.
10 Q. Well, let's see if that understanding
11 changes after I show you the following
12 testimony from Philip Barrett dated May 31,
13 2002.
14 (Whereupon, the following video was
15 played to the jury.)
16 Question: And is it correct that you
17 were on the Windows 95 team for a total of
18 about five out of the 40 months of that
19 project?
20 Answer: I actually don't believe I
21 was on the Windows 95 team. I worked in
22 Silverberg's organization. And if technically
23 that made me part of the Windows 95 team, then
24 I guess I would answer your question yes.
25 Question: And, in any event, however
�
8139
1 you want to characterize that, your employment
2 as part of that group lasted about a total of
3 about five months before you gave this notice
4 that we discussed earlier?
5 Answer: Yeah, that's about right.
6 Question: And that's, to put that in
7 perspective a little bit, that's out of a total
8 over three years that this product is in
9 development, Windows 95?
10 Answer: I have no knowledge of the
11 length of time that Windows 95 was in
12 development.
13 Question: And is it also true that
14 you left the Windows 95 group, however you want
15 to characterize it, about a year before that
16 product actually got finished and released to
17 the market?
18 Answer: Approximately.
19 Question: Now, in October 1994, you
20 went to work for RealNetworks; is that right?
21 Answer: Yes, that's correct.
22 Question: And I think your testimony
23 was that you're now -- you're an officer of
24 that company?
25 Answer: Yes, I am.
�
8140
1 Question: And Microsoft is now a
2 direct competitor of your company's?
3 Answer: Give me a minute. Let me
4 understand. There are parts of RealNetworks'
5 business that are competitive with parts of
6 Microsoft's business.
7 Question: Well, in fact, sir,
8 wouldn't you -- don't you consider as an
9 officer of the company, don't you consider
10 Microsoft one of your company's major direct
11 competitors?
12 Answer: I would say there's a
13 competitive, strong competitive nature between
14 the two companies, yes.
15 (Whereupon, the playing of the video
16 concluded.)
17 Q. Mr. Alepin, on redirect examination
18 when you were asking the jury to accept
19 Mr. Barrett's characterization of Windows 95 as
20 something two other products held together with
21 baling wire and bubblegum, you didn't tell them
22 that when he gave the testimony he was working
23 for one of Microsoft's competitors, did you?
24 A. Mr. Barrett has provided testimony, I
25 believe, on a couple of occasions, and in
�
8141
1 particular on occasions where the company that
2 he's working for, RealNetworks, was a very
3 close partner with Microsoft.
4 And I believe Mr. -- some of
5 Mr. Barrett's information was provided while he
6 was still a member of Microsoft, so Mr. Barrett
7 has both written contemporaneously in the
8 record E-mails and other material during this
9 period from 1991, I believe, going forward, and
10 provided testimony where Mr. Barrett was, in
11 fact, a partner of Microsoft where Microsoft
12 was bundling their software on -- with their
13 operating system.
14 So Mr. Barrett's not been inconsistent
15 over that period of time in his testimony.
16 Q. Well, let's focus on the baling wire
17 and bubblegum testimony, which is the testimony
18 that you were asking the jury to accept.
19 That testimony was given on the 31st
20 of July of 1997.
21 So if he left Microsoft a year before
22 the August 1995 ship date of Windows 95 as he
23 testified, he wasn't at Microsoft when he gave
24 the testimony; correct?
25 A. If I've got your -- you correctly,
�
8142
1 you're talking about '97?
2 Q. I'm talking about July 31, '97, and he
3 testifies that he left roughly a year before,
4 August of '95.
5 A. So you're right, yes, it would have
6 been while he was -- after he had left
7 Microsoft, yes.
8 Q. And by July 31 of 1997 Microsoft and
9 RealNetworks were at swords' points with one
10 another over media software, were they not?
11 Didn't you say that on direct, sir,
12 that the inclusion by Microsoft of media
13 playback software in Windows had caused a
14 serious rift between the two companies?
15 A. The -- you're very close to the dates
16 where the rift emerged, but you're also very
17 close to the dates during which time Microsoft
18 had, in fact -- was licensing the software.
19 So I'd have to -- I'd have to lay this
20 out on a map, or I'd have to be able to see the
21 dates precisely before I could give you the
22 answer here.
23 It's just that the dates are very
24 close, I'm sorry, and before I said anything
25 further, I'd need to see or refresh my
�
8143
1 recollection on them.
2 Q. All right.
3 Let's move to the subject of Java, and
4 I'd like to put up again what you drew on
5 redirect and sort of my slightly prettier, in
6 my view, version of it, Slide 1004.
7 A. No disagreement on esthetics.
8 Q. Now, when you were testifying on
9 redirect about portability, I just want to be
10 very clear.
11 A Java Virtual Machine, the machine
12 itself, this virtual machine written to run on
13 an operating system is in no sense portable, is
14 it?
15 It is designed to run on the operating
16 system and it calls upon services from that
17 operating system that it then abstracts through
18 its own set of APIs?
19 A. Putting to the one side the reference
20 implementation, that is correct; that the
21 virtual machine is intended to, as you say,
22 provide a layer of abstraction to which
23 applications write, and then the virtual
24 machine translates the interfaces into machine
25 -- operating system and hardware dependent
�
8144
1 interfaces.
2 Q. Okay. So nothing Microsoft did in
3 creating the Microsoft virtual machine that
4 only ran on Windows was even vaguely unusual,
5 was it, because all virtual machines are
6 specific to the operating system that they're
7 written for?
8 A. Excluding the reference
9 implementation, that's correct. Microsoft's
10 virtual machine implementation was tied to the
11 Windows platform, and that is the role of the
12 -- of virtual machines generally, to buffer and
13 to -- to buffer the particular services of the
14 operating system for the applications.
15 Q. Right. So when Sun writes a virtual
16 machine for Solaris running on SPARC, they
17 don't for a moment think that you could take
18 that virtual machine and move it to Mac or
19 Windows; right?
20 A. They don't expect that that's what
21 would happen, that's correct.
22 Q. And, in fact, that would be a big
23 porting job to move a virtual machine written
24 for UNIX to Windows or the Mac OS?
25 A. Well, here we go to -- I mean, there's
�
8145
1 a difference between just the porting of it,
2 because the reference implementation is
3 intended to achieve that purpose, but there's
4 an optimization process that in order to take
5 advantage of the particularities of the
6 platform and to make your virtual machine
7 perform well, the answer is yes.
8 Q. So when you're talking about
9 portability in the context of Java, what you're
10 talking about is not those gray U's that I and
11 you in your own drawing have called virtual
12 machines.
13 You're talking about the ability to
14 take one of those yellow boxes, one of those
15 Java applets, and move it from one Java Virtual
16 Machine to the other; correct?
17 A. That's correct.
18 Q. Okay. Now, in the case of -- and
19 let's pretend that the middle diagram doesn't
20 say Windows. It could be any operating system.
21 If somebody is making native calls to
22 the operating system using these green tunnels
23 that we've talked about and you've talked about
24 on redirect, whether they're doing that using
25 JNI or RNI or J/Direct, that impairs the
�
8146
1 portability -- that decision by the Java
2 developer impairs the portability of that
3 applet, does it not?
4 A. To different degrees, but yes.
5 Q. And you suggested, I believe, but tell
6 me if I'm wrong, on redirect that Microsoft did
7 something to require people writing applets to
8 run on the Windows virtual machine to use the
9 green tunnels?
10 A. I believe my testimony was that
11 Microsoft encouraged strongly the use of these
12 tunnels and did not provide other mechanisms
13 which were part of the JVM structure that would
14 allow the applications to maintain higher
15 levels of portability.
16 Q. Now, some people like Java because it
17 had -- as a programming language, they like it
18 because it has features that make it easier to
19 use and harder to make mistakes in than some
20 programming languages like C++. Do you agree
21 with that?
22 A. Yes. It is a development language
23 that several people have found -- many people
24 find to be superior in those records.
25 Q. And so -- I'm going to give you a
�
8147
1 hypothetical, and then I'm going to ask you a
2 question about it.
3 I am a Windows developer. I don't
4 care about Macintosh, I don't care about Linux,
5 I don't care about UNIX. I have made a
6 business decision to target Windows.
7 But I've got a bunch of new developers
8 coming out of college, and they got taught how
9 to write in Java, and they like it, so they
10 want to write a Windows application in Java,
11 and they don't care at all about portability
12 because they don't ever want to port their
13 application.
14 Those people love those green tunnels,
15 don't they, because they permit them to write
16 in Java and call Windows services?
17 A. Well, there are -- it is a
18 hypothetical, and I think so there are some
19 problems with that, the first of which is that
20 they probably like to run -- if they've learned
21 how to program in Java, then they like to
22 program in Java and use the services of Java
23 rather than learning the particularities of the
24 Windows APIs which are -- will be for them an
25 extra level of information they'll have to
�
8148
1 learn about.
2 So there's some issues with whether
3 they will enjoy doing that or not because they
4 have to learn more stuff rather than just
5 relying on Java and the Java classes.
6 Q. Well, if they don't want to be reduced
7 to the least common denominator of
8 functionality available on all potential target
9 operating systems, but they want to take
10 maximum advantage of the functionality provided
11 by Windows, and they don't care about
12 portability and they do want to write in
13 Java -- those are all my assumptions.
14 Don't care about portability, want to
15 take maximum advantage of Windows, and want to
16 write in Java, don't those people love those
17 green tunnels because they allow them to do all
18 of those things?
19 A. See, my experience is that you really
20 don't want to do things that go beyond the
21 bounds of the tools that you're using or the
22 platform's intent.
23 So, for example, if you were -- if you
24 were writing in a programming language where it
25 wasn't intended to permit you to manipulate
�
8149
1 string information, text strings, that working
2 around that and operating on these strings has
3 little bits of numbers led to code that was
4 very difficult to read and maintain, and, in
5 fact, it would become problematic for you.
6 So it was best to stick within the
7 scope of the tools that you were using, and
8 that way people who followed you would be able
9 to pick it up and understand it.
10 And, you know, going forward, you'd be
11 able to take your -- when I grew up, your COBOL
12 programs and move them off of an IBM mainframe
13 computer and put them on a Windows computer,
14 but you'd be able to take the programming
15 language statements from that COBOL program and
16 move them over to Windows.
17 Q. The most popular Java development
18 tools in history are from Microsoft. They're
19 called Visual J++.
20 And are you saying that your opinion
21 trumps the buying decisions of all the
22 developers who bought Visual J++ so that they
23 could use the green tunnels?
24 A. I think the characteristics and
25 features of Microsoft's Visual J++, which I
�
8150
1 used and evaluated, provided a product that was
2 better than the -- than some of the competitor
3 products, not because it offered the tunnels,
4 but because it provided a better development
5 environment.
6 J++, Visual J++ is what we called a
7 integrated -- provides an integrated
8 development environment, which means that it's
9 kind of a world in which you can organize your
10 software development project. You get to put
11 files here that are part of that and you get to
12 see it all and manage it.
13 And Visual J++ from Microsoft included
14 an integrated development environment that was
15 good. It worked well for developers and it --
16 I don't think it necessarily follows that the
17 buying decisions of the people involved relied
18 on the tunneling capabilities.
19 There are so many other things that
20 they could have looked at, and I know that they
21 looked at, to inform their decisions.
22 Q. Do you know, even in rough terms, what
23 percentage of developers who chose Microsoft's
24 Visual J++ over other Java developers took
25 advantage of the green tunnels?
�
8151
1 A. In the mid or in the late 1990s I had
2 some sense of that, but I would not -- it would
3 not be something I'd feel comfortable talking
4 about.
5 Q. Okay.
6 A. As my memory is too dim.
7 Q. All right. Let's move over to DRI
8 from Java now.
9 You are not testifying, are you, that
10 DRI had no access to the beta test versions of
11 Windows 3.1 in the hands of its corporate
12 parent Novell?
13 A. I'm sorry, but that's a little hard to
14 digest.
15 Q. If that's obtuse, let me ask it in a
16 slightly simpler way.
17 You are aware, are you not, that DRI
18 engineers in Hungerford in the United Kingdom
19 spoke to Novell engineers in Provo, Utah, for
20 hours and hours and hours on the telephone
21 directing them in the testing of Windows 3.1
22 betas on top of DR-DOS?
23 A. I have heard -- I'm sorry -- read
24 something in that regard, something having to
25 do with a very awkward arrangement.
�
8152
1 Q. But you're aware that the arrangement
2 existed and that the testing occurred, are you
3 not, sir?
4 A. Well, I mean, that testing such as it
5 is or such as it's described is something of
6 which I was aware, yes.
7 Q. Okay. Now, you spent a long time on
8 redirect talking about the AARD code and the
9 messages displayed by the AARD code.
10 Do you recall that, sir?
11 A. I do.
12 Q. And you spoke a little bit about FUD
13 and vaporware, but it remains your opinion as
14 you expressed it to me at page 7799 of
15 transcript and carrying on to 7800, that
16 whatever Microsoft did to DRI, it was heading
17 into a brick wall anyway because the world was
18 moving to protected mode graphical operating
19 systems and DR-DOS was not one of those;
20 correct?
21 A. I think it went on from there, but the
22 thrust was that DR-DOS was going to need to do
23 more, yes.
24 Q. Well, don't you recall this exchange?
25 I said to you:
�
8153
1 You are aware, are you not, sir, of
2 documents created by executives of Digital
3 Research observing that unless they are able to
4 develop a protected mode graphical operating
5 system capable of competing with Mac OS,
6 Windows, and Linux, they are not going to
7 survive in the marketplace?
8 Answer: I think that independent of
9 those documents, that would be my conclusion.
10 A. That's correct.
11 Q. And you're not backing one step away
12 from that conclusion, are you, sir?
13 A. No. It's not my --
14 THE COURT: Talk into the microphone.
15 THE WITNESS: I'm sorry.
16 A. And it wasn't -- I didn't mean to
17 suggest it in response. It's just very simple.
18 Q. All right. Now, you testified --
19 MR. HOLLEY: Can I approach the
20 witness, Your Honor?
21 I just want to take
22 Mr. Schulman's book back, if I could.
23 Now, you testified that developers
24 have this problem that they don't know what
25 they don't know. Do you remember saying that
�
8154
1 on redirect?
2 A. Yes.
3 Q. This whole book is about things that
4 Mr. Schulman discovered, undocumented
5 interfaces in Windows that he discovered using
6 the sorts of tools, hex viewers, and
7 disassemblers that you said you used in
8 preparing for your testimony in this case;
9 isn't that true?
10 A. That's correct.
11 Q. Okay. So there's this whole big book,
12 and all it's about are things that Mr. Schulman
13 found using ordinary development tools
14 available to everybody in the industry; isn't
15 that right?
16 A. That's correct.
17 Q. Now, you were asked some questions
18 about some E-mails that I referred to on my
19 cross-examination relating to the rigging of
20 the tests by Sun for Java, and this may prove
21 that you should be careful what you wish for,
22 but have you reviewed Sun internal documents on
23 the question of what Sun did in October of 1996
24 when Mr. Muglia of Microsoft wrote to
25 Mr. Barrett of Sun and said, hey, you are in
�
8155
1 breach of our licensing agreement and you
2 better do something about it?
3 Are you familiar with that exchange of
4 correspondence?
5 A. I think I mentioned in response to an
6 earlier question I'd need to be able to see the
7 documents, and I guess that's what I wished
8 for.
9 Q. All right.
10 MR. HOLLEY: Your Honor, may I
11 approach the witness?
12 THE COURT: Yes.
13 Q. Now I apologize for the quality of the
14 copy, but I think it's legible.
15 This is a letter from Mr. Muglia, vice
16 president of Microsoft, to Mr. Alan Baratz,
17 president of JavaSoft, Inc.
18 And just so it's clear to the jury,
19 JavaSoft at that time was a subsidiary of Sun
20 Microsystems that was engaged in promoting
21 Java; is that right?
22 A. That's correct.
23 I apologize, I wasn't paying full
24 attention, but I was trying to read --
25 Q. That's my fault. I shouldn't ask you
�
8156
1 questions while you're trying to read.
2 Have you now had an opportunity to --
3 A. Actually, no, I was kind of time
4 sharing.
5 Q. You were multitasking?
6 A. Yes.
7 Q. Why don't you read the letter and I'll
8 be quiet.
9 A. All right.
10 There's one -- a couple of words here
11 which I can't decipher on this second line.
12 Q. Our license agreement is to ship class
13 libraries?
14 A. Right. That run blank blank virtual
15 machines.
16 Q. On our virtual machines.
17 A. Okay. So I've read it now. Thank
18 you.
19 Q. Okay. So were you aware before you
20 read this document that there was a dispute
21 between Microsoft and Sun Microsystems in
22 October of 1996 about whether supplemental
23 classes, these new subroutines I think as you
24 described them, that Sun was seeking to add to
25 its Java platform ran on Microsoft's virtual
�
8157
1 machine as the contract between the two
2 companies required?
3 A. There were, I think, differences that
4 came out through various Microsoft and Sun
5 executives in the early going of the contract.
6 This contract, I believe, began
7 sometime in 1996 between Sun and Microsoft and
8 that there were some issues that got discussed
9 publicly on both sides.
10 Q. Okay. I'd like to show you this,
11 which is an E-mail --
12 MR. HOLLEY: May I approach the
13 witness, Your Honor?
14 THE COURT: You may.
15 Q. Now, this is an E-mail from a man
16 named Eric Chu at Sun to John Kannegaard.
17 And you've heard that name, haven't
18 you, sir, in connection with Java-related
19 matters?
20 A. Yes. We mentioned him.
21 Q. The other day?
22 A. The other day, yes.
23 Q. He was the vice president reporting to
24 Mr. Baratz at Sun in this JavaSoft subsidiary;
25 correct?
�
8158
1 A. Uh-huh. That's my understanding.
2 Q. Now, take as much time as you need to
3 read -- I'm interested only in the first E-mail
4 in this chain, which is an E-mail sent at 8:17
5 p.m. on the 22nd of October of 1996 from
6 Mr. Chu to Mr. Kannegaard.
7 And if you want to read that whole
8 E-mail before we start, or if you want to just
9 have me direct you to particular portions, I'm
10 happy to do it however you'd like.
11 A. So it's a backwards to forwards. This
12 is the most recent E-mail in the front?
13 Q. That is the most recent and the -- I
14 think you'll see, but satisfy yourself that
15 there is an E-mail from Mr. Bowen, much more
16 detailed, which is then summarized in the
17 E-mail from Mr. Chu to Mr. Kannegaard, the vice
18 president.
19 A. Well, I've got the context now. Maybe
20 you can point me to specifics.
21 Q. Sure, sure.
22 So in this E-mail to Mr. Kannegaard,
23 Mr. Chu says in the first sentence --
24 MR. LAMB: Your Honor, may we
25 approach?
�
8159
1 (The following record was made out of
2 the presence of the jury at 1:06 p.m.)
3 MR. LAMB: Your Honor, there are no
4 exhibit numbers on these documents at all.
5 MR. HOLLEY: That's correct.
6 MR. LAMB: So they haven't produced
7 these to us. They aren't part of the record.
8 MR. HOLLEY: They've been produced to
9 you. We just haven't designated them yet.
10 MR. TULCHIN: Start with our next
11 number.
12 MS. CONLIN: Your Honor, they don't
13 have to disclose to us in advance, of course,
14 what they're going to use in cross-examination.
15 But I would ordinarily think that an exhibit
16 number would be applied to any document that is
17 shown to the jury of this sort.
18 MR. HOLLEY: I haven't shown it to the
19 jury yet.
20 MS. CONLIN: Do you intend to?
21 MR. HOLLEY: I guess we will find out.
22 MR. LAMB: The next point is this.
23 The issue that this was relating to was Sun rig
24 testing. I don't see anything in this e-mail
25 about rigging testing any more.
�
8160
1 MR. HOLLEY: What we will establish
2 through this testimony is that Sun found itself
3 in October of 1993 in a terrible position.
4 They had negotiated a contract with Microsoft
5 which required them to make sure that anything
6 they added to the Java platform be compatible
7 with Microsoft's Virtual Machine. That's what
8 the contract said, and they signed that
9 contract, the record will show, because they
10 believed that they had at least a year's lead
11 time on Microsoft in developing the Virtual
12 Machine.
13 They realized after the contract was
14 signed -- to their horror is probably the right
15 word -- that Microsoft already had a Virtual
16 Machine and therefore Sun had to show that any
17 new additions and new classes added to Java
18 were compatible with Microsoft's Virtual
19 Machine.
20 Mr. Kannegaard's tenets gave them in
21 this memo two options of how to deal with what
22 they called a breach, that there's terms we are
23 in breach of this contract, here are two
24 approaches we can take. And the next e-mail,
25 dated 30 minutes later from Mr. Chu, comes up
�
8161
1 with the new idea, which was to rig the test.
2 So that's where I'm going, Your Honor,
3 and I think it's perfectly relevant.
4 Mr. Alepin said -- he basically
5 challenged me on redirect that I made this up.
6 And in having opened the door to that, I'm
7 entitled to now show Mr. Alepin that I didn't
8 make it up. It's in the document.
9 MR. LAMB: Your Honor, I don't see
10 anything in here about rig testing. This is
11 recross.
12 MR. HOLLEY: No.
13 MR. LAMB: He made a claim in
14 cross-examination that there were internal
15 e-mails that say that Sun is rigging testing.
16 MR. HOLLEY: You don't have this yet,
17 Mr. Lamb, because it's the next exhibit I'm
18 going to use. But it's 30 minutes later, and
19 what he's saying is we can't enhance the test
20 suite to invalidate any implementation we don't
21 like.
22 And then the next thing that happened
23 was that the very next test suite had 8,000
24 tests for compatibility, which was 25 more
25 compatibility tests than in the prior set of
�
8162
1 tests. And among the tests that Sun added was
2 ones that they knew Microsoft would fail.
3 Now, the evidence will show in this
4 case that that is a rigging of the test. When
5 you multiple the number of tests by 25 in light
6 of this evidence of intent and you add a test
7 that you know Microsoft's machine is going to
8 fail and you do it because you know you're in
9 breach of a contract you don't like, that, at
10 least, in any normal sense of the word, is
11 rigging, and that's what happened.
12 MR. LAMB: Your Honor, this directly
13 conflicts with Conclusions of Law 411 and 412.
14 411 says deceiving Java developers
15 about the Windows specific nature of Java
16 developers impeded the improvement of Java
17 technology. This is during the precise time
18 period, and he's trying to go through and
19 disturb and overturn and attack the conclusions
20 of law. There can be no other point to that.
21 MR. HOLLEY: No, Your Honor. It is
22 not the case that all discussion of Java is
23 collaterally estopped. There are two
24 collaterally estopped conclusions of law.
25 One is that Microsoft failed to tell
�
8163
1 developers that the use of those green
2 tunnels -- I just guess that's easier, at least
3 virtually, for me -- was going to tie those
4 apps to Windows. And we're bound by that, and
5 that's a conclusive finding for purposes of
6 this litigation.
7 The other one is that Microsoft
8 mow-mowed Intel and told them to stop
9 developing for Java. I'm not talking about
10 either of those topics. I'm far away from it.
11 What I'm talking about is the idea
12 that Sun, who has been painted by Mr. Alepin as
13 some sort of Mother Teresa figure, was actually
14 engaged in all sorts of deceitful tactics, once
15 they figured out that they were in trouble
16 having signed a very bad contract with
17 Microsoft.
18 This witness has asked the jury to
19 believe that there is something called the Java
20 community and it's all goodness and right.
21 It's anything but. This is an out-and-out
22 nasty competition. This is the sort of thing
23 that Judge Posner once referred to me as "two
24 scorpions in a sack."
25 But the idea that the picture has been
�
8164
1 painted of Sun as some sort of charitable
2 institution and Microsoft is the nasty entity
3 that did something bad to Sun, which is exactly
4 what Mr. Alepin is asking the jury to believe,
5 we are entitled to impeach him on this. And
6 Mr. Lamb should not on redirect have basically
7 accused me of fabricating the story if he
8 didn't want the story to come out.
9 MR. LAMB: Your Honor, it's also in
10 direct conflict with 394, Finding of Fact 394,
11 which states -- Okay. I won't read it.
12 MS. CONLIN: All of them between 394
13 and 409.
14 MR. LAMB: That is an attempt
15 improperly to collaterally attack.
16 What Mr. Holley just said is that Sun
17 deceived Microsoft. The only purpose for that
18 testimony is to rebut the conclusions of law
19 that says that Microsoft deceived Java
20 developers.
21 THE COURT: Anything else?
22 MS. CONLIN: Yes, Your Honor. If I
23 may speak to this issue to put the Sun contract
24 in some context.
25 The Sun contracts, which Mr. Holley
�
8165
1 has interpreted, are subject to differing
2 interpretations. Allan Baratz, whose name was
3 mentioned on our witness list, I can assure the
4 Court that his interpretation is different.
5 And one further thing, Your Honor,
6 Microsoft settled the breach of contract case
7 that Sun brought against Microsoft for a
8 substantial amount of money. Certainly we may
9 take the position in the future with warning,
10 of course, appropriate to the Court, that by
11 going into this subject matter we are free to
12 discuss the terms of that settlement. And it
13 deals in part with exactly the issues that
14 Mr. Holley has talked about in here.
15 Now, I understand that doesn't open
16 the door, Mr. Holley, so don't jump on me for
17 that. But it does depend on what he said in
18 front of the jury, obviously, but I do want to
19 call the Court's attention to the fact that
20 what Microsoft is contending here is -- what
21 they contend is Sun I -- and the Court grants
22 an injunction against Microsoft with respect to
23 this matter in November of 1998 -- may I finish
24 Mr. Holley?
25 MR. HOLLEY: Okay.
�
8166
1 MS. CONLIN: Thank you. As I was
2 saying before I was interrupted, Sun granted an
3 injunction to Microsoft in November of -- I beg
4 your pardon -- Sun granted -- the Court granted
5 an injunction to Sun in November of 1998.
6 And, Your Honor, that injunction
7 proceeding is referred to in the collaterally
8 estopped findings of fact. So I just want to
9 put that in context for the record.
10 I have nothing further to say.
11 MR. HOLLEY: Well, to complete the
12 context. Here is the context. There is one
13 lawsuit called Sun I colloquially, and there's
14 one called Sun 2.
15 The settlement that this relates to,
16 the dispute in Sun I, the large amount of money
17 paid to settle was in Sun 2 and the cases are
18 very different.
19 Mr. Tulchin and I were counsel in
20 Sun 2 and so we know that the claims were very
21 different than the claims raised in Sun I.
22 There is no ruling by Judge White in
23 the Northern District of California other than
24 the ruling where he says that Microsoft is
25 correct. It's a preliminary ruling, and I want
�
8167
1 to be candid about that. It's not a final
2 judgment, but Judge White issued a ruling where
3 he said that Microsoft's interpretation of
4 these provisions is correct.
5 And I will be delighted if Mr. Baratz
6 wants to come and testify, but what his two
7 lieutenants told him was in summary, I believe,
8 we're in violation of the Microsoft contract.
9 And Judge White looked at this, and
10 Judge White came to the conclusion that, yes,
11 indeed that was correct subject to further
12 decision and then the case settled.
13 Now, the injunction issued by Judge
14 White had to do with requiring Microsoft to
15 support JNI Sun's version of the green tunnels
16 and requiring Microsoft to put a big
17 notification in Virtual J++ which says if you
18 use the green tunnels, you're tied to Windows.
19 And I'm not going to touch that subject because
20 those are collaterally estopped.
21 You know, whatever Judge White said,
22 this Court has told the jury that we're bound
23 by the idea that Microsoft deceived Java
24 developer by not giving sufficient disclosure
25 about the green tunnels.
�
8168
1 I do not intend to go there. This is
2 a different topic, and it's, frankly, one that
3 they asked for and having -- you know, having
4 challenged us to prove, you know, to come
5 forward with these e-mails, well, here they
6 are.
7 MR. TULCHIN: Your Honor, if I could
8 just add one small thought, though. I think
9 it's important.
10 Ms. Conlin says that Mr. Baratz is on
11 her witness list. And if he's coming to
12 address this subject, then how can it be off
13 limits to ask their expert about it on cross?
14 MS. CONLIN: He's not coming to
15 address this subject, Mr. Tulchin. If he
16 comes, he will address this subject because you
17 have opened the subject. That was not the
18 purpose for which he was being brought to
19 court.
20 THE COURT: Anything else?
21 MR. HOLLEY: No, Your Honor.
22 THE COURT: I'm going to rule at this
23 time. I find it to be proper impeachment. You
24 may proceed.
25 MS. CONLIN: How about marking all of
�
8169
1 them as exhibits?
2 THE COURT: If you are going to offer
3 it, I wish it marked. You better mark it
4 anyway.
5 MR. TULCHIN: Your Honor, small point
6 on a slightly different subject before I
7 forget.
8 Shouldn't we at some point mark each
9 of the tear sheets as some sort of exhibit for
10 identification just so there is a record of
11 what Mr. Alepin sketched?
12 THE COURT: I guess you can mark them
13 if you want to.
14 MR. TULCHIN: Thank you, Your Honor.
15 (The following record was made in the
16 presence of the jury at 1:17 p.m.)
17 THE COURT: You may proceed.
18 BY MR. HOLLEY:
19 Q. Mr. Alepin, we're back looking at this
20 E-mail from Mr. Chu to Mr. Kannegaard, and what
21 it says is that Dave Bowen -- and I'm looking
22 at the first paragraph now.
23 Dave Bowen and I have looked at the
24 contract last night and I have attached his
25 summary below.
�
8170
1 And as I pointed out to you, that's
2 next, if you want to look at it.
3 The next paragraph says, both Dave and
4 I concluded that based on the contract, we have
5 full rights to enhance the Java technology as
6 long as class is not clearly specified in the
7 contract work with their VM.
8 And it's your understanding that their
9 VM means Microsoft's virtual machine; correct?
10 A. That's -- Microsoft's Java Virtual
11 Machine.
12 Q. And then Mr. Chu continues, this
13 substantially limits our ability to introduce
14 new technologies since almost all new
15 technologies require a new class.
16 And just to be clear, these classes
17 you refer to sometimes as subroutines, right,
18 or blocks of code that perform particular
19 features?
20 A. Right. For simplicity sake, yes. As
21 long as we're using it as the descriptive,
22 that's correct.
23 Q. Got it.
24 Then Mr. Chu goes on to say, in
25 addition, our attempt to introduce the new
�
8171
1 category extension might not work simply
2 because the definition of supplemental classes
3 -- excuse me -- supplemental Java classes is
4 very, very broad.
5 In summary, I believe we're in
6 violation of the Microsoft contract and our
7 attempt to reclass things as extensions will
8 have limited success.
9 I don't believe we can afford to take
10 an aggressive approach with Microsoft unless
11 we're willing to forego over $15 million of
12 revenue over the next four-plus years with
13 possible high legal costs to consider.
14 Now, when you testified about this
15 question of what was more reliable, the Sun
16 test suite or the PC Magazine test suite, did
17 you take into account this E-mail talking about
18 how Sun believed that it was in violation of
19 the license agreement with Microsoft for Java?
20 A. Well, there's a couple of things that
21 are sort of not tied together here.
22 This is -- we're very early in the
23 contract period, as I understand it, between
24 Microsoft and Sun, and I believe the review
25 that I was looking at was a later review
�
8172
1 dealing with products that have been developed
2 subsequent to this.
3 I mean, there is a significant dispute
4 or there -- after this, some time after this,
5 and perhaps a year later, there was, as we saw
6 earlier, Microsoft divorced Sun and that became
7 a proceeding in a Court pursuant to the
8 contract.
9 But this here is -- this is simply
10 discussing, as I read it, and it was part of
11 the -- the subject matter was part of the
12 discussions in the public between Microsoft's
13 executives and Sun's executives.
14 This is just working -- I believe
15 they're trying to work things out or get a
16 better understanding -- work things out in
17 their own minds, get a better understanding of
18 their obligations under the agreement.
19 That's the way I understand the
20 E-mail. I understand the issues to have been
21 in -- some of these issues to have been in the
22 public.
23 Q. Okay. Now, Mr. Chu lays out for his
24 boss, Mr. Kannegaard, two possible approaches
25 to negotiating this dispute with Microsoft, and
�
8173
1 he calls those the assumed semicorporative --
2 maybe he meant cooperative. I don't know what
3 a corporative approach is.
4 And the other one is assumed hostile.
5 Do you see that?
6 A. Well, he had a similar problem with
7 hostile.
8 Q. Yeah, his elementary school teacher
9 would have something to say to him, right.
10 Okay. But you see that his two
11 approaches are assumed semicooperative and
12 assumed hostile; correct?
13 A. I'm assuming that, yes.
14 Q. Right. Now, do you know whether Sun
15 adopted the semicooperative versus the hostile
16 stance set out here by Mr. Chu?
17 A. To go back -- there was an awful lot
18 that was going on in the early days of the
19 contract in the public.
20 This was a very -- this was a very
21 important time when Microsoft decided to take a
22 license for Java.
23 And so my recollection is to just --
24 there were ups and downs in the relationship.
25 My recollection as to just what
�
8174
1 happened here versus another E-mail that might
2 come out a little later in time, I don't
3 remember how that -- what precisely happened
4 and how they addressed.
5 I mean, there are a number of issues
6 associated or identified, some of which were,
7 as I recall, readily handled.
8 The internationalization issue, for
9 example, was one that was readily disposed of
10 between the parties.
11 There are a bunch of things that
12 needed to get worked out.
13 Q. And one of the things that needed to
14 get worked out was that Microsoft took the
15 position that JNI, the Java native interface,
16 was not something that Microsoft had any
17 contractual obligation to implement in its Java
18 Virtual Machine; correct? There was a dispute
19 about that?
20 A. I recall reading about a dispute, yes,
21 over JNI, RNI.
22 Q. Okay. And the question was whether
23 they were supplemental Java classes as that
24 term was defined in the contract; correct?
25 A. Well, I wasn't reading and
�
8175
1 interpreting the contract. I was reading and
2 interpreting where the interfaces were.
3 Q. Right.
4 Now, in -- you said there might be an
5 E-mail that would come out in a minute, and I
6 want to show you now an E-mail that came out 30
7 minutes later.
8 THE COURT: Would you mark it, please?
9 MR. HOLLEY: Yes, Your Honor.
10 MR. LAMB: I thought we'd agreed that
11 these would all be marked by exhibit number.
12 THE COURT: I'd like to have them all
13 marked.
14 MR. HOLLEY: I just need to know what
15 the next number is.
16 MR. TULCHIN: Next available number,
17 Your Honor, is Defendant's Exhibit 6750.
18 Q. Just so it's clear, the E-mail from
19 Mr. Chu to Mr. Kannegaard, which is the first
20 one I talked about, is Defendant's Exhibit
21 6750 and then the --
22 MR. LAMB: I apologize, Your Honor,
23 but the first one that was referred to was a
24 letter, the Muglia letter.
25 MR. HOLLEY: I stand corrected. I
�
8176
1 appreciate that, Mr. Lamb. I made a mistake.
2 So the letter from Mr. Muglia to
3 Mr. Baratz will be DX 6750. Then the first
4 E-mail, the one from Mr. Chu to Mr. Kannegaard
5 at 8:17 p.m. on October 22nd, 1996, will be
6 DX 6751, and then the E-mail that Mr. Chu sent
7 Mr. Kannegaard approximately 30 minutes later
8 that day will be DX 6752.
9 MR. LAMB: Thank you.
10 MR. HOLLEY: Thank you.
11 Q. I'd like to show you what has been
12 marked as Defendant's Exhibit 6752.
13 Now, this is an E-mail from Mr. Chu to
14 Mr. Kannegaard at 8:48 on October 22, 1996, and
15 the other one was at 8:17 that same date;
16 correct?
17 A. That appears to be correct, yes.
18 Q. And what -- what Mr. Chu is laying out
19 here is a third possible approach; correct?
20 A. I didn't read it, other than make --
21 get them sorted out as to which one was which.
22 I'm sorry.
23 Q. Let's focus on what he's suggesting
24 here.
25 He says the definition of the Java
�
8177
1 test suite is extremely broad.
2 If negotiation with Microsoft is not
3 going well, we can possibly enhance, in
4 quotation marks, the Java test suite to
5 invalidate any Java implementation that doesn't
6 support certain desired new features.
7 I believe this should be one of the
8 last card -- he says card -- we play if
9 negotiation goes badly.
10 So this was a third approach.
11 There was the assumed semicooperative
12 approach, there was the assumed hostile
13 approach, and then there was the idea that
14 Mr. Chu had 30 minutes later, which was to
15 enhance the Java test suite in order to
16 invalidate any Java implementation that Sun
17 didn't like; is that correct?
18 A. Well, I don't think it's that Sun
19 didn't like.
20 It's saying that -- I mean, they're
21 describing desired new feature, which -- to
22 invalidate a Java im -- anybody's Java
23 implementation that didn't support certain
24 desired new features, yes.
25 Q. Including JNI?
�
8178
1 A. Including any new -- any desired new
2 feature, whatever -- or however that term is
3 understood.
4 Q. Now, just so it's clear, you testified
5 before that JDK stands for Java development
6 kit?
7 A. Yes.
8 Q. Okay. And you're aware, are you not,
9 sir, that there were different versions of the
10 JDK starting with 1.1?
11 A. I testified to that, yes.
12 Q. Yes. And you're also aware, are you
13 not, sir, that there was something called the
14 Java test suite that was sent out with
15 different iterations of the JDK; correct?
16 A. That's correct.
17 Q. Are you aware that after Mr. Chu made
18 his suggestion about enhancing the Java test
19 suites, that the next version of the test
20 suites that went out with a JDK had 8,000
21 individual tests, more than 25 times the number
22 of tests in the previous Java test suite, and
23 that one of the things those 8,000 tests were
24 looking for was JNI, which Sun knew was not in
25 the Microsoft virtual machine?
�
8179
1 A. Well, I was intimately aware of the
2 fact that the Java community had identified the
3 lack of test suites as one of the key issues
4 that was preventing or -- not preventing, but
5 inhibiting cross-platform portability for
6 applications.
7 And they had provided to Sun as one of
8 the important things that Sun had to get done
9 between these releases to provide a broader
10 test suite that would exercise more of the Java
11 platform so that the various implementers would
12 be able to test their implementations to ensure
13 cross-platform compatibility and portability
14 for these applications.
15 So I'm -- I know that the community
16 wanted those tests and didn't have enough of
17 them. 8,000 wasn't enough. We needed more.
18 Q. Is it your testimony, Mr. Alepin, that
19 there is no connection between the suggestion
20 that Mr. Chu made to Mr. Kannegaard about the
21 third approach to dealing with the breach of
22 contract situation of enhancing the Java test
23 suites and the fact that the very next set of
24 test suites was increased by a multiple of 25?
25 A. No.
�
8180
1 Q. All right. I'd now like to move to
2 this Ishellbrowser document that you were shown
3 on redirect, and it's that very long one.
4 THE WITNESS: Would it be okay to --
5 I'm sorry, moving to a new topic, is it
6 possible to take a break?
7 THE COURT: Ten minutes for our
8 recess.
9 At this time remember our admonition
10 previously given.
11 Thank you. Thanks for reminding me.
12 (A recess was taken from 1:31 p.m.
13 to 1:44 p.m.)
14 THE COURT: Everyone else may be
15 seated.
16 Mr. Alepin, you're still under oath.
17 You may continue, Mr. Holley.
18 MR. HOLLEY: Thank you, Your Honor.
19 BY MR. HOLLEY:
20 Q. Mr. Alepin, you were shown on redirect
21 Defendant's Exhibit 3066, which is this big
22 stack of paper relating to Ishellbrowser and
23 the namespace extensions in Windows '95.
24 Do you remember that, sir?
25 A. I remember a document like that. I'm
�
8181
1 not sure if it's exhibit whatever, but --
2 right.
3 MR. HOLLEY: Can we see, please,
4 Defendant's Exhibit 3066 and page 93 on the
5 upper right-hand side?
6 Q. Okay. And I'd like you to look at the
7 E-mail from Mr. Belfiore to Mr. Schulman that
8 you were shown on redirect.
9 In the third paragraph there, it says,
10 here's the doc itself; correct?
11 A. Yes.
12 Q. And what Mr. Belfiore is saying is
13 that he is enclosing with his E-mail the
14 documentation of the namespace extensions;
15 right?
16 A. I don't know.
17 Q. Okay. Well, look at what Mr. Schulman
18 then says to --
19 MR. HOLLEY: Let's move one E-mail up
20 on this page, if we could, please.
21 Can we highlight just the one that
22 says Mark -- well, yeah, you can do that,
23 Chris. Thank you.
24 Q. So this has the same title as the next
25 E-mail, i.e., creating namespace doc. That's
�
8182
1 the heading on Mr. Belfiore's E-mail.
2 And here Mr. Schulman says, Mark, I've
3 just received this from Joe B. at Microsoft. I
4 haven't looked at it yet, so I don't know if
5 it's the real thing or not.
6 And what Mr. Schulman is forwarding to
7 this other gentleman is the documentation of
8 the namespace extensions, isn't it?
9 A. I don't -- I don't know. There's a
10 discussion back and forth about a document that
11 contains something.
12 It was not what Mr. Schulman had. As
13 I understood the correspondence, it wasn't what
14 Mr. Schulman wanted.
15 He wanted documentation of use, I
16 believe.
17 Q. Well, but on redirect examination --
18 maybe I missed the point -- but I thought what
19 you were saying is that Mr. Belfiore didn't
20 really send any documentation at all.
21 Is that what you were trying to say?
22 A. No. I was trying to say that he did
23 not send the interfaces that Mr. Schulman was
24 inquiring after.
25 I think that's the succession of
�
8183
1 things that happened.
2 Q. Well, how do you know that? How do
3 you know whether Mr. Schulman got what he
4 wanted from Mr. Belfiore? What's the --
5 there's no basis in this document to reach that
6 conclusion, is there?
7 A. But I've discussed this particular
8 issue with Mr. Schulman on a couple of
9 occasions.
10 Q. You've discussed this E-mail exchange
11 with Mr. Schulman?
12 A. I've discussed whether Mr. Schulman
13 received from Microsoft the full documentation
14 of the Ishellbrowser.
15 It was an issue that came up in other
16 matters, and we were going over what his view
17 was. I had asked him about this and this
18 particular set of programming interfaces.
19 It was -- it was something that was of
20 interest, as I indicated, in a different
21 proceeding.
22 Q. But if anyone took from your
23 testimony on redirect that nothing was sent by
24 Mr. Belfiore to Mr. Schulman, then, that was
25 not what you meant to convey; correct?
�
8184
1 A. That's correct, yes.
2 Q. Now, you also referred to Defendant's
3 Exhibit 1029 on redirect, and I'd like to put
4 that up on the board, please.
5 This is the Scott Henson exchange.
6 But I'd like to look at the upper part
7 of this, which is an E-mail from Brad Struss to
8 Mr. Chase, Mr. Freedman, Rogers Weed, and
9 various other people.
10 Brad Struss is another person in the
11 developer -- or was at the time another person
12 in the developer relations group; correct?
13 A. I believe that's the case.
14 Q. And it says here -- and this is
15 October 1994 -- per Paul Ma -- that's Paul
16 Maritz -- we're now in the process of
17 proactively notifying ISVs about the namespace
18 API change, open paren, will not document them
19 and they'll go away slash change, closed paren.
20 So far Stac, Lotus, WordPerfect, Oracle, SCC
21 appear to be okay with this.
22 Did you take into account in forming
23 your opinions this document which says that
24 Microsoft proactively notified WordPerfect and
25 Lotus about a change that was going to be made
�
8185
1 in the status of the namespace extension APIs
2 and that they seemed to be okay with it?
3 A. I did, yes.
4 Q. Now, you testified on redirect that
5 Microsoft Office used Ishellbrowser. Did you
6 say that?
7 A. I did not. I said that in particular,
8 the Office REN product was going to serve --
9 and it's in the E-mail, but I said that they --
10 the intention for UI improvement was -- the
11 intention of Microsoft for UI improvement was
12 that it was going to be carried through REN,
13 which was the Office PIM, the Office personal
14 information manager.
15 If we could look at that, that text
16 again, that's what drove the -- what I said,
17 and I simply paraphrased it, I thought.
18 Q. Okay. But I just -- then I want to
19 ask the question, you are aware, are you not,
20 that after Mr. Gates made the decision to
21 B list, in Mr. Belfiore's terms, the
22 Ishellbrowser interface, all Microsoft
23 applications external to Windows stopped using
24 it?
25 A. Well, that's the difficulty with the
�
8186
1 discussions that go on afterwards, and that is
2 that Microsoft appears to continue to use the
3 Ishellbrowser extensions in the -- I think it's
4 in the Athena project, among others, but that's
5 my understanding from the record.
6 Q. Okay. But other than what you read in
7 E-mails and interpret, do you have any reason
8 to question the statement that after Mr. Gates
9 issued the order to B list the Ishellbrowser,
10 Microsoft Office, and all other Microsoft
11 applications that were not part of Windows 95
12 stopped using the Ishellbrowser interface?
13 A. Microsoft -- Microsoft applications
14 that were not part of the Windows 95 operating
15 system product.
16 Q. That's correct, sir.
17 A. I see no reason for the distinction
18 between applications and the operating system
19 product.
20 There were applications in the Windows
21 95 product that continued to use them.
22 Q. If you can answer the question yes or
23 no, please do. And then if you feel that you
24 need to explain your answer, please do. But
25 let's answer the question that I asked.
�
8187
1 Do you have any reason to doubt the
2 statement that after Mr. Gates decided to
3 B list the Ishellbrowser interface, all
4 applications at Microsoft that were not shipped
5 in Windows 95 stopped using the interface?
6 A. I think I answered the question, yes,
7 I have no reason to believe that applications
8 other than applications in the Microsoft
9 operating system product Windows 95 stopped
10 using the -- continued to use those interfaces.
11 Q. Now, you testified about a concept of
12 church and state on redirect, and I believe you
13 said that Microsoft, starting in the 1980s,
14 made statements to the market that there was a
15 wall between the operating systems side of the
16 company and the applications side of the
17 company.
18 Did you say that, sir?
19 A. I said that, yes, sir.
20 Q. Okay. When you said that, did you
21 take account of what is contained in
22 Defendant's Exhibit 2771?
23 MR. HOLLEY: And may I approach the
24 witness, Your Honor?
25 THE COURT: You may.
�
8188
1 Q. Among the things you said you relied
2 on in testifying about this church/state
3 separation was what you read in the trade
4 press; correct?
5 A. Well, in this particular case, the one
6 I'm referring to from 1983, that was Business
7 Week, which is not a trade press article or
8 trade press magazine per se. It was an
9 interview, I believe, with Mr. Maples in the
10 Business Week.
11 Other trade press interviews with
12 Microsoft executives during that period and
13 continuing forward contain similar information,
14 but to be careful, it was the Business Week
15 article that started --
16 Q. That started it?
17 A. This one, yes.
18 Q. Okay. Now, this all came up in the
19 context of Noah Mendelsohn's memo in 1997,
20 which I'll show you if you want, but, I mean,
21 that's what you were talking about at the time,
22 and that was Plaintiffs' Exhibit 2246, which
23 is --
24 MR. HOLLEY: May I approach the
25 witness, Your Honor?
�
8189
1 THE COURT: Yes.
2 Q. You were talking about church/state
3 separation in the context of a memo that
4 Mr. Mendelsohn wrote in 1995.
5 If it's possible, and I know you have
6 no table, but I'd kind of like to talk about
7 the two of them at the same time, or not
8 literally at the same time, but, you know, in
9 context.
10 A. Okay.
11 Q. What I'm trying to establish is that
12 you were saying that there was -- there were
13 statements to the market by Microsoft in the
14 1995 time frame that Mr. Mendelsohn wrote his
15 memo and that you were aware of those; is that
16 correct?
17 A. There were statements in the
18 marketplace -- in the developer community, yes,
19 to that effect.
20 Q. Okay. Now, let's look at the second
21 page of Defendant's Exhibit 2771, and there's a
22 picture of a smiling Mr. Maples, and the
23 headline says, Maples, no Chinese wall at
24 Microsoft.
25 Do you see that in this January 1992
�
8190
1 of Infoworld?
2 A. I see the headline, yes.
3 Q. And let's go down from the headline.
4 And, again, I don't know why the copy is as bad
5 as it is.
6 But at the bottom it says -- there is
7 a question from the interviewer. It says,
8 other companies are saying privately, quote,
9 these are systems issues, but they are coming
10 from the apps division, so there really isn't a
11 Chinese wall over there, and that's what scares
12 us in competing with Microsoft, closed quote.
13 And then what Mr. Maples says in
14 response is, there is no Chinese wall. We
15 don't want there to be a Chinese wall, and I
16 don't think we've ever claimed that there is a
17 Chinese wall. Microsoft is a single company.
18 We have a single executive in Bill.
19 And that's a reference to Mr. Gates;
20 correct?
21 A. I'm sure he would be referring to
22 Mr. Gates.
23 Q. Okay. We don't try to pretend that
24 there is a Chinese wall any more than there is
25 at Apple or -- excuse me -- at IBM or Apple or
�
8191
1 any other company.
2 This is a statement made to the market
3 by Microsoft in 1992 that there is no wall at
4 Microsoft; correct?
5 A. This apparently is a statement about
6 that, yes.
7 Q. Okay. And you didn't tell the jury
8 when you said that Microsoft from 1983 to the
9 present had talked about the existence of a
10 barrier inside the company about this kind of
11 statement being made by one of the most senior
12 executives at Microsoft debunking the idea that
13 there was ever a wall inside Microsoft, did
14 you?
15 A. Let's be -- I think I need to make
16 sure that we're clear here.
17 I said church and state in that the --
18 Microsoft executives references beginning in
19 '83 were to church and state and that there
20 would be a separation with respect to whether
21 there would be favoritism or not to the
22 applications that would make it less possible
23 for applications developers to develop their
24 applications in competition with Microsoft's
25 applications on the same Microsoft platform.
�
8192
1 And the issue for the industry, as I
2 understand it, and continues, it's reflected in
3 Mendelsohn's -- Mr. Mendelsohn's testimony.
4 It's also reflected even in the question here.
5 And that is that it's not fair.
6 Whether it's fair or not is not the
7 same question as whether there is some sort of
8 barrier between the people who are having lunch
9 together.
10 Everyone in the industry understood
11 that Microsoft's applications barriers would
12 have lunch on the same campus as the operating
13 systems people. It's never been an issue.
14 Q. They work at the same company, don't
15 they?
16 And you're not here to make normative
17 judgments about what is fair and what is not
18 fair, are you, sir?
19 A. I'm not making normative judgments
20 about what is fair. I'm using the words I
21 thought that were in the commentary from
22 Mr. Mendelsohn and from others at the time that
23 they made them over the past 20, 25 years,
24 close to.
25 Q. Okay. And you have no reason to
�
8193
1 disagree with Mr. Maples' statement -- I'll
2 take those back from you, sir.
3 MR. HOLLEY: May I approach the
4 witness, Your Honor?
5 THE COURT: Yes.
6 Q. You have no reason to disagree with
7 Mr. Maples' statement in this article in
8 January 1992 in Infoworld that there is no
9 Chinese wall any more than there is at IBM or
10 Apple or any other company? You said that on
11 cross, did you not, sir?
12 A. I said it to you on cross and I --
13 Q. And it remains your view; correct?
14 A. It remains my view.
15 Q. Now, let's turn to the question of
16 Mr. Mendelsohn at Lotus.
17 When you talked about the Mendelsohn
18 memo and -- which he sent to Mr. Lemberg, the
19 general counsel of Lotus and various other
20 people, did you explore other evidence in the
21 record about what happened after this memo got
22 written?
23 A. Well, yes, I'm sure that I looked at
24 what happened after nineteen -- is it 1996?
25 Q. Obviously, but, I mean, in terms of
�
8194
1 this discussion about OLE, OCX technology, did
2 you look at what happened between Lotus and
3 Microsoft in terms of getting the OCX
4 technology that Mr. Mendelsohn said he needed?
5 A. There are many iterations of the OLE
6 technology, but there was some back and forth
7 about getting them additional and improved
8 material to Lotus.
9 Q. And, in fact, that happened, didn't
10 it, in very short order?
11 After this memo that you were shown by
12 Mr. Lamb, Plaintiffs' Exhibit 2246, Microsoft
13 gave Lotus the information about OCX technology
14 that Lotus wanted?
15 A. I don't know whether it got all the
16 information, but it got more information than
17 it had had to work with in the preceding
18 period.
19 Q. Okay. Did you look at Mr. Kliger's
20 testimony, the man who was running the OCX
21 development effort inside Lotus, about what he
22 thought about Mr. Mendelsohn's memo?
23 A. Well, that's -- there's some
24 circularity in that -- not in the question, but
25 in the circumstances, because Mr. Kliger
�
8195
1 defers in his testimony, I believe, to
2 Mr. Mendelsohn's knowledge of the facts on the
3 ground -- I think Mr. Kliger believes that
4 Mr. Mendelsohn -- this is now all very distant
5 here, but I think Mr. Mendelsohn is identified
6 by Mr. Kliger as a more authoritative source on
7 the information and the issues. He was closer
8 to the technology at the time, closer to using
9 it.
10 Q. Well, let's look at this testimony
11 from Scott Kliger from April 26, 2002, and then
12 I'm going to ask you a question about it.
13 (Whereupon, the following video was
14 played to the jury.)
15 Question: Do you have any reason to
16 dispute Mr. Mendelsohn when he writes for Lotus
17 that the primary topic of the meeting -- first
18 paragraph -- Microsoft applications and tools
19 seem to have an unfair advantage using OCX?
20 How did Microsoft release container apps when
21 nobody was supposed to have sample code yet.
22 Do you have any reason to dispute
23 that?
24 Answer: I don't recall that being the
25 case. The work that I was doing within the
�
8196
1 next generation products group, we were able to
2 make the progress that we needed to make based
3 on the information that was available to us
4 from Microsoft or information that became
5 available to us during our development.
6 I would imagine that the follow-up
7 from this meeting was additional information
8 that was forthcoming from Microsoft.
9 And at no time were we not able to
10 continue the development work that we needed to
11 do.
12 Question: And did you take this --
13 when you read this memo at the time or here
14 today, that at least Mr. Mendelsohn thought
15 that Microsoft was enjoying application
16 advantages using OCX that were not enjoyed by
17 Lotus?
18 Answer: I don't know what
19 Mr. Mendelsohn was referring to. My
20 recollection is that Microsoft wasn't using OCX
21 themselves; that no one was using it at that
22 point in time.
23 It had just -- it had just been
24 released as a preliminary specification, there
25 was one sample program that was available, and
�
8197
1 it had been discussed as a framework for future
2 technology improvements moving forward.
3 But to the best of my recollection, it
4 didn't exist in anybody's product.
5 Question: Well, do you believe that
6 prior to February 1995, Lotus was getting all
7 of the information it needed to compete fairly
8 with Microsoft applications as to information
9 as to OLE 2.0 and OCX?
10 Answer: Lotus started developing its
11 container strategy and its component strategy
12 with the work that I began doing in January of
13 1996, so if on -- I'm sorry, January of 1995 --
14 so if on February 3rd of 1995, a month later,
15 we had a meeting with Microsoft and asked for
16 additional information and more support from
17 them, that would indicate to me that we had
18 some questions from the early investigation
19 that we did, we asked the questions, and my
20 recollection is we were provided with the
21 answers because we didn't sit around and
22 twiddle our thumbs from February of 1995 until
23 I left at the end of July of 1995. We were
24 writing OCX applications. We were making them
25 work.
�
8198
1 (Whereupon, the playing of the video
2 concluded.)
3 BY MR. HOLLEY:
4 Q. Now, in the process of trying to
5 figure out what happened after Mr. Mendelsohn's
6 memo was written in February of 1995, you
7 didn't mention to the jury on redirect, did
8 you, sir, that Mr. Kliger, who, as he
9 testified, was in charge of this project,
10 thought that Microsoft gave Lotus everything
11 that they needed, that nothing impeded Lotus's
12 development in terms of information that
13 Microsoft failed to provide?
14 A. I had considered extensively the
15 testimony that Mr. Kliger gave, and, frankly,
16 there's simply not enough to support that view.
17 The facts are, in my view, quite contrary.
18 Q. You're saying that Mr. Kliger lied in
19 his deposition and you know that based on
20 reading documents in the record? Is that your
21 testimony?
22 A. I'm sorry if that was the impression I
23 gave. I didn't -- certainly didn't intend for
24 that to be the case. I didn't intend for my
25 remarks to be suggesting that Mr. Kliger was
�
8199
1 not telling the truth.
2 My statements were intended to convey
3 the fact that I don't believe he knew all of
4 the facts associated with this and that my
5 investigation indicated that things were
6 different.
7 Q. So this is another instance where you,
8 based on your review of documents and reading
9 depositions, say that you know more than
10 Mr. Reiswig at IBM knew about DPMI and Windows,
11 more than Mr. Corey at DRI Novell knew about
12 access to betas, and more than Mr. Kliger at
13 Lotus knew about the development of OCX
14 applications?
15 Is that what you're saying, that you
16 know better than the people who were engaged in
17 these businesses?
18 A. I'm saying I know more. There was a
19 larger record and more information, and I've
20 had the benefit to speak to many, many more
21 people than the people who -- than the
22 individual experiences of those people.
23 And I've come to conclusions that are
24 different based on my weighing of the
25 information from these sources, as well as my
�
8200
1 own investigations.
2 So I'm not saying other than I have
3 had access to more information. I've had
4 opportunity to speak with more people, to
5 discuss these issues fully, and to reach the
6 conclusions that I've reached.
7 Q. Which is a long way of saying yes to
8 my question, which is you have -- are asking
9 the jury to believe that you know more than
10 Mr. Reiswig, the president of the IBM PC
11 products division; than Mr. Corey, the vice
12 president of marketing at Novell DRI; and
13 Mr. Kliger, the senior developer at Lotus on
14 OCX technology? You know more than they do
15 about their own businesses. That's what you're
16 saying, isn't it?
17 A. I know more about the particular facts
18 on which I've testified and more about these
19 matters, I believe, than the impact that Mr.,
20 in this particular case, Kliger felt.
21 I spoke with Mr. Mendelsohn and others
22 from Lotus Corporation. I've read and reviewed
23 the testimonies from other companies who were
24 in similar positions to Lotus.
25 So to the extent that Mr. Kliger's
�
8201
1 experience is limited to those interactions
2 that he's had, I've had the benefit of being
3 able to speak with many, many more people and
4 to review the testimony of many more people on
5 these particular issues.
6 Q. Okay. One last topic.
7 You were asked on redirect about the
8 relative price of Norton Internet Security and
9 Windows XP Home, and you were asked a series of
10 questions about the functionality in those two
11 products and whether they were overlapping or
12 substitutes for one another. Do you remember
13 that?
14 A. I remember the line of questioning.
15 Q. And you would agree with me, would you
16 not, sir, that some of the functionality of
17 Norton Internet Security has been in Windows XP
18 since the release of Service Pack 2; correct?
19 A. Some of the functionality being -- you
20 had in mind --
21 Q. The firewall, for example.
22 A. Windows XP SP2 introduced something
23 called the Windows firewall.
24 Q. And there's a firewall in Norton
25 Internet Security; correct?
�
8202
1 A. There is something called a firewall
2 in Norton Internet Security.
3 Q. And you would agree with me that
4 Norton Internet Security is a tiny subset of
5 the functionality provided by Windows XP Home,
6 and yet its price is almost 75 percent of the
7 price of Windows XP Home? That's right, isn't
8 it?
9 MR. LAMB: Objection as to pricing.
10 Outside the scope.
11 THE COURT: Sustained.
12 Q. You would agree with me that the
13 functionality provided by Norton Internet
14 Security, which you testified about on
15 redirect, is a tiny subset of the functionality
16 provided by Windows XP Home?
17 A. And you're -- are you talking about in
18 terms of the value or the number of lines of
19 code?
20 I mean, we had a discussion on my
21 estimates of the lines of code, and so I'm not
22 sure which unit of measure I should use in
23 responding to the question.
24 Q. In terms of functionality supplied to
25 other software products, there's no comparison
�
8203
1 at all; right? Because Norton Internet
2 Security is not a platform in any sense?
3 A. I think that that's probably fair. In
4 almost any sense it's not a platform. There
5 are some things that you can build on top of
6 it. But that's -- you're correct. That's --
7 yes.
8 Q. So in terms of platform functionality,
9 you have Windows XP Home, on one hand, exposing
10 thousands and thousands of APIs for use by
11 developers and you have Norton Internet
12 Security exposing basically zero APIs?
13 A. That's okay, yes.
14 Q. And then from the standpoint of
15 computer manufacturers, you have Windows XP
16 Home being the brain of the PCs that they ship
17 and Norton Internet Security being basically a
18 possible option they could choose, but they
19 probably don't care much about; correct?
20 A. Well, in our business, the brain of
21 the computer is typically called -- we reserve
22 the title of brain to the CPU maker, so I don't
23 think I've heard Windows referred to as the
24 brains, but --
25 Q. Okay. Well, traffic cop, let's call
�
8204
1 it that.
2 Windows XP Home from the standpoint of
3 computer manufacturers is the piece of
4 software -- I think you said this on direct --
5 that manages the interaction with various
6 peripheral devices, schedules the
7 microprocessor, and provides services to
8 applications; right?
9 A. That's the function -- that's its
10 function, resource management and control.
11 That's among the list that you just gave, yes.
12 Q. So Windows XP Home does all that for
13 OEMs.
14 And in terms of Norton Internet
15 Security, all it does is provide a superset of
16 some of the security features that are already
17 in Windows; is that right?
18 A. Well, I mean, I have to be careful in
19 terms of time because as we discussed, the
20 firewall, for example, was not something that
21 was in Windows XP when it was first released,
22 and I think that when you say all that, it
23 provides as a superset, it's a very important
24 piece of software that's missing from the
25 Windows computers, and its absence is something
�
8205
1 that users note and feel the need to resolve by
2 purchasing the additional software.
3 So, I mean, it's not all that it does.
4 It does a very important thing for users who
5 are accessing the Internet using Microsoft's
6 operating system software.
7 Q. Okay. I can agree with that.
8 But you have said on direct that
9 Windows is a must-have in terms of OEMs.
10 They have, according -- OEMs,
11 according to you, must have Windows in order to
12 be able to market their products.
13 That is not at all true of Norton
14 Internet Security, is it? They don't need it?
15 A. They don't -- that's correct. They
16 don't need it.
17 Q. And from the standpoint of end users,
18 Windows XP Home provides a whole range of
19 functionality to end users, both directly in
20 terms of what they can do with the operating
21 system like copying pictures from their digital
22 camera to the hard drive, and also derivatively
23 in the sense of all of the functionality that
24 it provides to applications running on top of
25 it; correct?
�
8206
1 A. That's correct. It provides those --
2 provides some stuff that you can do
3 immediately, as well as serving as the platform
4 for other software.
5 Q. And Internet security from Norton --
6 Norton Internet Security -- excuse me -- from
7 Symantec provides basically just the security
8 functionality that's identified on the box that
9 we looked at yesterday; right?
10 A. We keep calling this basically and
11 stuff, but it provides important antivirus,
12 antispam, antiphishing security that improves
13 the user's ability to use the computer for
14 purposes of doing one of its most important
15 functions, which today for users is getting on
16 the Internet.
17 So it's -- I mean, it's a very -- it's
18 like -- I mean, seat belts, you know, part of
19 -- it's an important piece of stuff that you
20 need.
21 Q. Okay. But the relative functionality
22 offered to end users is precisely the same as
23 the analogy you chose; it's a seat belt to a
24 car.
25 Windows XP Home is the car and Norton
�
8207
1 Internet Security is the seat belt, and there's
2 a lot more functionality provided by the car
3 than there is by the the seat belt, bearing in
4 mind that the seat belt is important?
5 A. It was the seat belt to the passenger
6 I was trying to get across.
7 The seat belt to the passenger, not
8 the seat belt to the car.
9 It was to prevent you from being
10 harmed when you were driving. That's the
11 intention of my analogy. Not the seat belt to
12 the car.
13 Q. Okay. But my analogy is equally
14 correct, is it not?
15 A. Then it's your analogy, it's not mine.
16 Q. But I'm asking you, sir, whether it's
17 one that you can agree with.
18 The relative functionality provided by
19 Norton Internet Security vis-a-vis Windows XP
20 Home is of the same order of magnitude as the
21 functionality provided by a seat belt relative
22 to the functionality provided by a car?
23 A. You know, I like to think -- I mean, I
24 don't find that a particularly helpful analogy
25 in explaining what's going on.
�
8208
1 So, I mean, it can -- you can continue
2 to use it. Obviously, I'm not giving you
3 permission.
4 Q. I'm glad for your permission, but I'm
5 wondering if you can answer my question, which
6 is, you don't have any basis to disagree that
7 the relative functionality provided to end
8 users by Symantec's Norton Internet Security,
9 on the one hand, and Windows XP on the other is
10 of the same order of magnitude as the
11 functionality as provided by a seat belt versus
12 the functionality provided by a car?
13 A. I guess I would disagree with it
14 because we don't think of operating systems in
15 terms of a car, and we don't -- I mean, to the
16 extent that we -- to the extent that I would
17 try and embrace your analogy here, I might
18 think of an operating system as an engine,
19 maybe, or an alternator on a fan belt or
20 something like that, but I would think of the
21 operating system more like that part of the car
22 than the car itself.
23 Q. You don't understand the concept that
24 I'm trying to present to you in the question?
25 You don't understand the notion of
�
8209
1 relative functionality provided by Symantec's
2 Norton Internet Security, on the one hand, and
3 Windows XP Home on the other and trying to
4 gauge that relative functionality in terms of
5 something that people might be slightly more
6 familiar with?
7 Are you not understanding that, sir?
8 A. Well, I'm trying to, and I'm trying to
9 use as much as I can of the -- of what you're
10 describing.
11 I have to tell you that I think of
12 operating systems to the extent that I would
13 use that as an engine controlling or as a, you
14 know, fan belt or accessory drive mechanism in
15 an automobile and that you have different
16 things that you put on top of the engine.
17 I mean, that's a way of doing it. And
18 Symantec isn't making an engine, if you want to
19 use that.
20 Q. So your answer is you just can't
21 answer my question, which is the relative
22 functionality provided to end users by Norton
23 Internet Security, on the one hand, and Windows
24 XP Home on the other is in general order of
25 magnitude similar to the functionality provided
�
8210
1 to users of cars by seat belts versus the
2 entire car itself?
3 A. Gosh, I can agree that there are many
4 more interfaces that the Windows operating
5 system does, as we talked about; provide a
6 platform and the ability to use some stuff,
7 that it has many more programming interfaces,
8 many more lines of code.
9 I'm not sure that I can -- I just -- I
10 don't -- I haven't counted up how many parts in
11 a car.
12 I haven't, you know, thought about it
13 in terms of -- in terms that you're trying to
14 have me think about it. I just haven't. I
15 don't.
16 MR. HOLLEY: Fair enough.
17 I have no further questions, Your
18 Honor.
19 THE COURT: Thank you.
20 Mr. Lamb, anything else.
21 MR. LAMB: A few questions, Your
22 Honor.
23 I'll try. I apologize, Mr. Alepin.
24 FURTHER REDIRECT EXAMINATION
25 BY MR. LAMB:
�
8211
1 Q. You know, following that analogy, sir,
2 when you buy a car, are you more concerned
3 about the car or are you more concerned about
4 what you want out of the car?
5 A. What I want out of the car.
6 Q. In the last decade, have you ever
7 bought a car without seat belts?
8 A. No.
9 Q. Why not?
10 A. They're part of the car.
11 Q. Okay. Mr. Holley was referring to
12 some Kliger deposition testimony in relation to
13 what you were able to opine in this case, and
14 I'd like to read some deposition testimony from
15 that deposition and ask you if that impacted
16 your opinion as you expressed it to the jury
17 here in response to Mr. Holley's questions.
18 Starting at 229, 16.
19 Question: So would you have this jury
20 conclude that Mr. Mendelsohn was telling an
21 untruth when he wrote that the primary purpose
22 of this meeting was with reference to an unfair
23 Microsoft advantage?
24 Answer: I've always known
25 Mr. Mendelsohn to be a person of high
�
8212
1 integrity.
2 Question: So in that sense, you
3 believe that when he wrote this, it was written
4 by someone of high integrity and truthfulness;
5 is that right?
6 Question: And so Mr. --
7 Whoop. There was an objection.
8 Okay, then another question.
9 So Mr. Mendelsohn is saying here
10 between 1992 and 1995 the Microsoft disclosure
11 problem was getting far worse?
12 Answer: I don't read it that way, and
13 you are really asking me to speculate about
14 what Mr. Mendelsohn thought or didn't think,
15 and I would encourage you to ask Mr. Mendelsohn
16 those questions.
17 Did that impact you?
18 A. Yes.
19 Q. In what way?
20 A. Well, I considered the knowledge of
21 Mr. Mendelsohn and Mr. Kliger's deferral to
22 Mr. Mendelsohn with respect to information that
23 Mr. Mendelsohn would have.
24 Q. And did you view Mr. Kliger as
25 essentially saying that the person with the
�
8213
1 most information about this was Mr. Mendelsohn?
2 A. Well, I think there is additional
3 information in the record that that's my
4 understanding and my understanding from other
5 sources concerning Mr. Mendelsohn's knowledge
6 and roles.
7 Q. Mr. Holley asked you about DRI trying
8 to test Win beta 3.1 over the phone with the
9 Novell engineers. Do you recall that, sir?
10 A. That's correct, I do.
11 Q. And first, Novell had a right to have
12 that beta; correct?
13 MR. HOLLEY: Objection. Calls for a
14 legal conclusion.
15 THE COURT: Sustained.
16 Q. Do you have any reason to believe that
17 Novell shouldn't have had that beta?
18 MR. HOLLEY: Same objection.
19 THE COURT: Sustained.
20 Q. Mr. Holley told you that they had the
21 beta; right?
22 A. Yes.
23 Q. So you assumed that they had the beta?
24 A. I did. This is Novell --
25 Q. Novell.
�
8214
1 And Mr. Holley wasn't suggesting to
2 you that there was some problem with them
3 having the beta; right?
4 A. No.
5 Q. Why wasn't it good enough to test the
6 beta over the phone?
7 A. Well, the problem that the Digital
8 Research folks with their laboratory in England
9 faced was -- and this is before the day of net
10 meeting and videoconferencing and things like
11 this -- was that the Digital Research
12 developers had to provide test suites, if you
13 will, test programs and test scenarios that
14 they could have the Novell folks, who are at
15 the other end of the telephone, run on the
16 computer, and then they'd have to get the
17 results back and say whether this worked or
18 didn't work or what the consequence of the
19 particular thing that they were trying with
20 Windows 3.1 beta and the Digital Research
21 product, what was the result of doing that.
22 So they were basically flying blind is
23 the way I understood the circumstances.
24 One man at the other end of the
25 telephone saying, all right, try this test and
�
8215
1 what happened, and then another man saying try
2 this test and what happened.
3 And those reports are relayed -- I
4 mean, when we do normal software testing and
5 normal software development, you've got the
6 product on your computer and you can, as I had
7 talked about with Mr. Holley, you can use
8 debuggers, you can do file dumps. You can do
9 all these other kinds of things interactively
10 and pursue the leads and understand what had
11 happened.
12 And it's one thing to script out a
13 series of tests, it's another thing to run a
14 test, be able to find out where that leads and
15 what that information tells you and follow that
16 path.
17 And so I'm doing this over the
18 telephone eight, seven hours of time zone
19 difference. Flying blind is a very difficult
20 task.
21 Q. Now, DRI then didn't have the benefit
22 of the internal E-mails described in this
23 process; right?
24 A. I'm sorry, I don't -- know what the --
25 Q. You're talking about doing this over
�
8216
1 the phone so there's E-mails that go back and
2 forth between Microsoft that relate to this
3 debugging; right?
4 A. There are E-mails that go back and
5 forth within Microsoft about the debugging.
6 Q. And did DRI have those?
7 A. DRI didn't have access to that record,
8 no.
9 Q. Let's shift to the whole issue
10 regarding the Sun documents and the rigging of
11 the testing.
12 You saw some Sun documents -- you saw
13 some documents in some E-mails today; right?
14 A. I did.
15 Q. Was there any test rigging mentioned
16 in there?
17 A. I didn't see any test rigging.
18 Q. Okay. Did you consider that to be
19 test rigging?
20 A. I think I told you -- I told you -- I
21 told Mr. Holley that the community had been
22 beating on Sun in a nice way to get more tests,
23 to get more test suites, to get more elaborate
24 test suites in order to reduce problems
25 associated with portability in the infancy of
�
8217
1 the Java platform.
2 Rigging is -- test suites rigging is
3 just not the sense -- no, so it's not. It's
4 not at all the idea.
5 Q. What is the sense that you had that
6 they were doing, sir?
7 A. They were responding to the
8 communities' very real need to help establish
9 what it meant to be Java compliant so that you
10 could offer the users the -- you could deliver
11 on the promise of write once, run everywhere,
12 and to do that, you needed to be able to test
13 the meets and bounds of all of that.
14 You needed to be able to confirm that
15 they -- that everyone who is implementing a
16 Java Virtual Machine and being -- and calling
17 themselves Java compliant will produce the same
18 results on as many possible different
19 combinations of interfaces and uses as
20 imagination can generate.
21 Q. And is this to keep the standard from
22 being polluted, as you put it earlier?
23 A. It has one of the -- as one of its
24 very important effects to prevent pollution of
25 the standard, yes.
�
8218
1 MR. LAMB: Can I see Slide 1004 that
2 you used again, please?
3 Q. Okay. This is the green tunnel slide;
4 right, sir?
5 A. Yes.
6 Q. Okay. I'm not going to put it up on
7 the board, but I'm just going to read you
8 Conclusion of Law 4.1 again.
9 Microsoft maintained the monopoly
10 power in the operating systems market by the
11 following, quote, anticompetitive conduct, end
12 quote, i.e., conduct which caused harm to the
13 competitive process and thereby harm to the
14 consumers.
15 11, deceiving Java developers about
16 the Windows-specific nature of Microsoft's Java
17 developer tools.
18 Sir, the green tunnels, is that the
19 Windows-specific nature of Microsoft's Java
20 developer tools?
21 MR. HOLLEY: Your Honor, he's now
22 being asked to interpret this.
23 THE COURT: Overruled.
24 A. That is in part the -- what is
25 intended by my Java -- by my green tunnels.
�
8219
1 They are the Windows-specific programming
2 interfaces.
3 Q. Now, there was some discussion --
4 there was some questioning earlier this
5 afternoon with Mr. Holley about this concept of
6 church and state and timing and when this
7 happened.
8 And are you familiar with and have you
9 reviewed essentially a speech by Steve Ballmer
10 called systems software where he talked about
11 this issue, church and state, Chinese wall and
12 the separation?
13 A. Do you have the date for me?
14 Q. Sure. March 1988.
15 MR. HOLLEY: Your Honor, I'll just
16 observe for the record that there is no date on
17 this document and, therefore, what's the
18 foundation for counsel asserting the date of
19 the document?
20 THE COURT: Rephrase your question.
21 Q. Do you recall Mr. Ballmer giving such
22 a speech?
23 A. I recall a speech on those subjects,
24 yes.
25 Q. Do you recall approximately when it
�
8220
1 happened?
2 A. Late 1980s there was -- it was an
3 important topic.
4 Q. I'm going to read -- and who is Steve
5 Ballmer again?
6 A. Steve Ballmer is now the chief
7 executive at Microsoft. He was the head of
8 sales in the 1980s. Very senior Microsoft
9 employee for a very long time.
10 Q. Okay. And do you know what he was in
11 relation to Mr. Maples?
12 A. I believe he was a -- gosh, I want to
13 say I believe he was a peer, but he might have
14 been under Mr. Maples as a senior executive at
15 the time.
16 Q. How about now?
17 A. Mr. Maples has left the company -- has
18 been gone for 10, 15 years now, Mr. Maples.
19 Q. And Mr. Ballmer is the number two
20 person?
21 A. Well, I think now practically he's the
22 number one person, although --
23 Q. Don't tell Bill that.
24 A. Although I would not want to -- would
25 not want to say that.
�
8221
1 Q. I'm going to read portions of this to
2 you.
3 On page 5, in the second paragraph he
4 says, as we move forward, Microsoft continues
5 to believe in the open system philosophy.
6 What's your understanding of what an
7 open system philosophy is?
8 A. That the people will be able to
9 develop products to work on and with the
10 Microsoft products.
11 Q. The bottom of the page he goes on to
12 say, when we say open systems, we're talking
13 about something that's just a little different.
14 We're talking about software products that are
15 open in the sense that we document all of the
16 programmatic interfaces.
17 A. Yes.
18 Q. What does that mean to you,
19 documenting all of the programmatic interfaces?
20 A. We document all of the APIs that are
21 available on our platform.
22 Q. He goes on to say in the middle of the
23 page, for years Microsoft has walked the line
24 with our competitors in the applications
25 business who ask the question, are you being
�
8222
1 really open? Is there really a separation
2 between your systems work and your applications
3 work?
4 He goes on a couple sentences later to
5 say, this really is an open platform and that
6 all third-party application developers have an
7 equal opportunity to do real exciting great
8 applications.
9 What is your understanding of what an
10 open platform is?
11 A. Well, open platform is a platform that
12 would be -- would enable third parties,
13 independent software vendors, to attach
14 products that would be -- have been developed
15 using the same amounts of information, same
16 quality and the same timeliness of information
17 as that would be available to the Microsoft
18 developers who were developing applications.
19 Q. Okay. And what does that mean in
20 terms of access to APIs?
21 A. Means that there's -- that they have
22 the access to the same amount of information.
23 Q. Mr. Ballmer goes on to say at the top
24 of page 8, in the context of what I just said,
25 I don't own the applications software, and
�
8223
1 there really is this separation of church and
2 state.
3 Okay. And is that consistent with
4 what your understanding is of what Microsoft
5 had said during that time period?
6 A. That's entirely consistent with the
7 understanding -- my understanding and I believe
8 the understanding of industry participants, or
9 at least it was devoutly wished by the industry
10 participants.
11 MR. LAMB: And that's Exhibit 8742 for
12 the record.
13 May I approach, Your Honor?
14 THE COURT: Yes.
15 Q. I've handed you what's been marked as
16 Plaintiffs' Exhibit 619, and it appears to be
17 an E-mail from w-Claire to Cameron M. and some
18 others?
19 A. Uh-huh.
20 Q. Do you see that, sir?
21 A. I do.
22 Q. Now, again, the w-Claire, that's the
23 PR firm?
24 A. Weggener Edstrom, and Claire is an
25 employee of that firm.
�
8224
1 Q. So that's the company that basically
2 puts forth the public relations of Microsoft;
3 right?
4 MR. HOLLEY: Objection, Your Honor.
5 Leading.
6 THE COURT: Sustained.
7 Q. What is it that you understand that
8 company does, sir?
9 A. As I mentioned before, Weggener
10 Edstrom was Microsoft's public relations firm
11 with a significant responsibility in
12 interacting with the trade press and the media.
13 Q. Okay. And this is dated March 21,
14 1991; right?
15 A. It was.
16 Q. And then it says to Cameron M., Jon
17 L., and then MSFTPR. Is that a group?
18 A. That's a -- yes, that would be a mail
19 group, Microsoft public relations.
20 Q. Okay. So the internal public
21 relations folks; right?
22 A. The people who are signed up on that
23 mailing list, yes.
24 Q. The last person, who is that to?
25 A. Steve Ballmer.
�
8225
1 Q. Steven Ballmer.
2 And the subject is trip report by SPA
3 press interviews by Cameron M. Do you see
4 that?
5 A. Yes.
6 Q. This is basically telling you what
7 Mr. Cameron M. said when he went out; right?
8 A. If you let me --
9 Q. Go ahead, take a look at it.
10 A. Thank you.
11 Yes, yes.
12 Q. So Cameron Myhrvold posted some
13 meetings in San Francisco for the press; right?
14 A. Among other things, this is at the
15 software publisher association meeting.
16 Q. What's the software publishers
17 association?
18 A. I think if I've got this correct, it's
19 the -- I think it's the -- well, SPA is in our
20 industry, it's a trade association where --
21 that -- of software publishers, and they do
22 other things in addition to helping people
23 count how many -- how much total sales there
24 were in a software category, for example.
25 Q. Under key messages, bullet point six
�
8226
1 is, it's in Microsoft's own best interest to
2 make sure that all the major applications
3 support MS systems software. There is nothing
4 to gain from giving MS apps an unfair
5 advantage. The Chinese wall is real.
6 Do you see that, sir? First page,
7 number six.
8 A. Number six, yes, I do.
9 Q. And is that consistent with your
10 understanding of what Microsoft was telling the
11 community?
12 A. That this is, in fact, the message
13 that Microsoft was seeking to convey.
14 Q. Okay.
15 A. To make the Chinese wall, as people
16 who use that term, have intended it. To make
17 it appear to be real.
18 Q. Okay. So Microsoft is telling the
19 world that it's real; right?
20 A. That's correct.
21 I mean, these -- at the top, the six
22 points or so, the key messages that we have to
23 convey include we love ISVs and there is a --
24 there is a Chinese wall.
25 Q. Okay. We love ISVs and there is a
�
8227
1 Chinese wall?
2 A. Uh-huh.
3 Q. Okay. And at least in your
4 professional opinion, in actuality there was no
5 wall; right?
6 A. That's quite correct. That's very
7 correct.
8 Q. Okay. Now, really, the last thing
9 that Mr. Holley asked you about was -- we went
10 back to these Quicken and Norton comparatives,
11 and he asked you some questions about them, and
12 I just want to be clear.
13 And you testified earlier that you
14 reviewed a lot of information in relation to
15 this case, and one of the things that you did
16 was you reviewed some of the jury instructions;
17 right?
18 A. I did.
19 Q. Okay. Jury Instruction 6, the first
20 paragraph only, says as to the first element, a
21 relevant product market consists of all the
22 products that are reasonable substitutes for
23 one another; that is, products that compete
24 with each other.
25 In other words, the relevant product
�
8228
1 market includes the products that a consumer
2 believes are reasonably interchangeable or
3 reasonable substitutes for each other for the
4 same purpose. Products need not be identical
5 or precisely interchangeable as long as they
6 are reasonable substitutes. Okay.
7 Now, again, sir, Quicken, is that a
8 product that's a reasonable substitute, in your
9 opinion, for Windows XP?
10 MR. HOLLEY: Your Honor, I object to
11 the preamble to the question. It's for the
12 Court alone to tell the jury what the law is.
13 THE COURT: Sustained.
14 Q. Sir, is Quicken a reasonable
15 substitute, in your opinion, for Windows XP?
16 A. No, it is not.
17 Q. In your opinion, is Quicken reasonably
18 interchangeable with Windows XP?
19 A. No, it is not.
20 Q. In your professional opinion, sir, is
21 Norton Internet Security a reasonable
22 substitute for Windows XP?
23 A. No, sir, it is not.
24 Q. In your professional opinion, sir, is
25 Norton Internet Security interchangeable,
�
8229
1 reasonably interchangeable with Windows XP?
2 A. No, it is not.
3 MR. LAMB: I have no further
4 questions.
5 MR. HOLLEY: Can I ask just one, Your
6 Honor?
7 THE COURT: Yes, Mr. Holley.
8 RECROSS-EXAMINATION
9 BY MR. HOLLEY:
10 Q. I'd like to take you to this speech by
11 Mr. Ballmer entitled systems software on page
12 7. Do you still have that up here?
13 A. I never --
14 Q. No one ever gave it to you. I'm
15 sorry.
16 MR. HOLLEY: May I approach the
17 witness, Your Honor?
18 THE COURT: Yes.
19 Q. So Mr. Lamb read you in his last
20 examination -- I've lost track of where the
21 tennis ball is at the moment, but he read you
22 various statements from this document, correct?
23 Including the one on the top of page 8 that
24 said there really is this separation of church
25 and state. Do you recall that?
�
8230
1 A. I'm just getting my hands around the
2 document.
3 Q. Fine.
4 A. Just a second. You're on page 8?
5 Q. I am at the top of page 8, which is, I
6 believe, where Mr. Lamb read from, and he said,
7 in the context of what I just said, I don't own
8 the application software and there really is
9 this separation of church and state.
10 You recall being asked about that
11 statement; correct?
12 A. I do.
13 Q. You do not recall because you weren't
14 read the following statement on the prior page:
15 We put an incredible amount of time,
16 as I said, into our work with people like Lotus
17 and Ashton/Tate and WordPerfect and Borland and
18 Software Publishing, et cetera, et cetera, and
19 that will certainly continue.
20 People are sometimes surprised.
21 Frankly, I think I spend more time working with
22 the development groups of some of our
23 competitors than I do with our own applications
24 group. That may say something about our own
25 applications group's overwhelming competence,
�
8231
1 but we certainly spend a lot of time with our
2 competitors. I'm responsible for the piece of
3 the business that owns the systems software.
4 Now, Mr. Ballmer does not say that he
5 is unable to talk to our own applications group
6 because they're on the other side of some wall;
7 correct? He doesn't say that?
8 And, in fact, he says he spends time
9 with Microsoft's applications developers just
10 like he does with the applications groups at
11 companies like Lotus, Ashton/Tate, WordPerfect
12 and Borland; correct?
13 A. Yes.
14 MR. HOLLEY: No further questions,
15 Your Honor.
16 THE COURT: Anything else?
17 MR. LAMB: No, sir.
18 THE COURT: Consistent with
19 Preliminary Instruction No. 28, is there any
20 written questions by any members of the jury?
21 If so, raise your hand.
22 The two prior questions that were
23 given to me some time ago, which I've passed on
24 to counsel, have those questions been answered
25 or do you wish me to pose them to the witness?
�
8232
1 Very well. You may step down. This
2 witness is excused.
3 You're excused due to the lateness of
4 the day. Was there anything else before I let
5 the jury go?
6 MR. LAMB: Your Honor, before you let
7 the jury go, we'd offer Exhibits 874 and 69 --
8 619 into evidence. I'm sorry, 874, 619.
9 THE COURT: I'm sorry? It's 874, 169?
10 MR. LAMB: I'm sorry, sir. Try again.
11 874. Next exhibit, 619. I apologize.
12 THE COURT: Two exhibits?
13 MR. LAMB: Yes, sir.
14 THE COURT: Very well. Any objection?
15 MR. HOLLEY: No objection, Your Honor.
16 And at this time Microsoft would move
17 the admission of Defendant's Exhibit 6750,
18 6751, and 6752.
19 THE COURT: Any objection?
20 MR. LAMB: Oh, I'm sorry, I misspoke.
21 It's 8742.
22 MR. HOLLEY: No objection, Your Honor.
23 THE COURT: 87 --
24 MR. LAMB: I'm sorry. 8742. My
25 mistake.
�
8233
1 THE COURT: All right. Do you have
2 any objection to 8742?
3 MR. HOLLEY: No, Your Honor.
4 THE COURT: 6750, 6751, 6752 are
5 admitted.
6 MR. TULCHIN: Those are Defendant's
7 exhibits, those numbers.
8 THE COURT: Right.
9 Members of the jury -- did you get it
10 right? Was there anything else?
11 MR. LAMB: No, Your Honor.
12 THE COURT: I will let you go for the
13 weekend. It's a long weekend, I believe, so I
14 won't see you till Tuesday at 8:30 a.m.
15 Your notebooks will be quite safe.
16 Before we go, I'm going to read to you
17 the admonition as I promised.
18 On your oaths as jurors in this case
19 you are admonished that it is your duty not to
20 permit any person to speak with you on any
21 subject connected with this trial -- with the
22 trial of this case.
23 You are not to talk with any of the
24 parties, their attorneys or witnesses during
25 the trial, even upon matters wholly unrelated
�
8234
1 to this trial.
2 Should anyone try to discuss this case
3 with you or in your presence, you should not
4 listen to such conversation. You should
5 immediately walk away. If a person should
6 persist in talking to you, try to find out
7 their name and report it immediately to the
8 Court.
9 You also are admonished not to
10 converse among yourselves or with anyone,
11 including family members, on any subject
12 connected with the trial of this case.
13 You should not form or express an
14 opinion on this case and you should keep an
15 open mind until you've heard all of the
16 evidence, the statements and arguments of
17 counsel, the instructions of the Court, and the
18 case is finally submitted to you and you have
19 retired to your jury room to deliberate.
20 Not only must your conduct as jurors
21 be above reproach, but you must avoid the
22 appearance of any improper conduct.
23 You must avoid reading, listening to,
24 or watching news accounts of this trial. You
25 also should avoid any interest or looking at
�
8235
1 any websites concerning this trial, if there
2 should be any.
3 Sometimes such accounts are based upon
4 incomplete information or contain matters which
5 would not be admissible in Court and could
6 unduly influence your ultimate decision.
7 You may not -- this doesn't apply
8 here, but you may not visit or investigate the
9 scene of this occurrence unless you're directed
10 to do so by the Court, but that's the standard
11 language they put in.
12 As a jury you are the Judge of the
13 facts, while the Court is the Judge of the law.
14 During the course of this trial I will be
15 required to decide legal questions, and before
16 you leave to deliberate this case, the Court
17 will instruct you on the law to follow in
18 reaching your verdict.
19 You should give careful attention to
20 all of the testimony as it is presented to you,
21 for you will only hear it once and you must
22 depend upon your recollections of the testimony
23 when deliberating in your jury room. But, as
24 stated before, do not form an opinion and keep
25 an open mind until all of the evidence has been
�
8236
1 received.
2 Time to time during the trial, the
3 Court will be required to confer with the
4 attorneys upon points of law that require only
5 the consideration of Court -- of the Court.
6 These conferences will be conducted
7 outside the presence of the jury. It is
8 impossible to predict when these conferences
9 will be required or how long they may last.
10 However, these conferences will be
11 conducted so as to consume as little of your
12 time as possible while still being consistent
13 with the orderly progress of the trial.
14 Also, from time to time during the
15 trial the Court will be required to rule on
16 objections or motions of the lawyers. You
17 should not infer anything by reason of the
18 objection, nor may you infer anything from the
19 rulings on the objections or that the Court has
20 any opinion one way or the other concerning the
21 merits of the case.
22 If an objection to a question of the
23 witness is made and the objection is sustained
24 and the witness is not permitted to answer, you
25 should not speculate on what the answer may
�
8237
1 have been nor may you draw any inference from
2 the question itself.
3 Additionally, in your jury room, you
4 must not refer to or give consideration to any
5 testimony which may have been given, but then
6 was stricken from the record by the Court.
7 Also, the lawyers in this case are
8 under an obligation not to talk with you. Do
9 not consider them to be aloof if they do not
10 greet you outside of the courtroom. They are
11 merely abiding by their own rules of ethics and
12 the rules of this Court.
13 Each time we recess, I will ask you to
14 remember the admonition.
15 Have a very nice weekend. Drive
16 careful.
17 We'll see you at 8:30 a.m. on Tuesday.
18 You're dismissed. Thank you.
19 All rise.
20 (A recess was taken from 2:55 p.m.
21 to 3:07 p.m.)
22 (The following record was made out of
23 the presence of the jury.)
24 MS. CONLIN: Your Honor, Mr. West is
25 an attorney with the Zelle, Hofmann law firm.
�
8238
1 He's an attorney in good standing. He has not
2 been formally pro hac viced, but will not be
3 participating orally in the proceedings, but in
4 an excess of caution, Your Honor, at this time
5 I move for the admission of -- the provisional
6 admission of Mr. West pro hac vice
7 THE COURT: Any objection?
8 MR. ROSENFELD: No objection.
9 MR. GREEN: Your Honor, I don't have
10 an objection, but just out of other caution for
11 you, I don't think you can do that under the
12 new rules.
13 THE COURT: The rules have been
14 changed by the Iowa Supreme Court recently.
15 MR. GREEN: There's very specific
16 things that you have to do.
17 MS. CONLIN: I'm aware of that, Your
18 Honor, and I'm not even sure that it's
19 necessary for him to be pro haced, because a
20 legal assistant could sit up and hand papers.
21 So if it's not a comfortable thing for the
22 Court to do, then, that's fine. I just wanted
23 to --
24 THE COURT: Despite the no objection,
25 I think I have to decline at this time. I
�
8239
1 think Mr. Green is correct, the rules were
2 changed, what, two months ago, wasn't it?
3 MR. GREEN: Yes.
4 THE COURT: But he's allowed to sit up
5 here. He's like a legal assistant anyhow.
6 Sorry to demote you.
7 That does not give Mr. Hagstrom free
8 reign to decrease your salary for the time
9 you're here.
10 Mr. Rosenfeld, you have a motion?
11 MR. ROSENFELD: Thank you, Your Honor.
12 And I at least am cautiously
13 optimistic that we could get this done
14 expeditiously and everybody can make their
15 respective planes, and I think it's regrettable
16 that we're here.
17 This is exactly to the day one month
18 after your order of December 12th, your third
19 order with respect to Microsoft's initial
20 motion to get the Plaintiffs to comply with
21 their discovery obligations, their expert
22 discovery obligations in this case.
23 You issued prior orders on November
24 21st and November 28th, and then on December
25 12th, told them, in no uncertain terms, to, if
�
8240
1 you will, get the job done.
2 Unfortunately, we still find ourselves
3 in a situation where Plaintiffs have failed to
4 fully comply with their obligations with regard
5 to expert discovery, and they persist in
6 playing word games and taking positions that
7 are simply not consistent with what this Court
8 has ordered.
9 And I will go into that in detail
10 momentarily, but I want to put this in context.
11 These violations of the discovery
12 rules and other tactics that the Plaintiffs
13 have engaged in are particularly problematic
14 here because -- and I think, Your Honor, you
15 may have gotten your first taste of it with
16 Mr. Alepin.
17 Plaintiffs have a lot of experts, but
18 they are -- there's almost a web of
19 interdependency among them. They all in one
20 way or another rely for a core part of their
21 analysis on yet another member of the
22 Plaintiffs' expert team.
23 So Mr. Alepin relied on Mr. Martin,
24 Mr. Schulman.
25 Mr. Noll -- Professor Noll relies on
�
8241
1 Mr. Alepin.
2 Professor Mackie-Mason relies on
3 Professor Noll, Mr. Schulman, and Mr. Alepin.
4 Doctor Netz relies on Professor
5 Mackie-Mason and Professor Noll, among others.
6 Professor Stiglitz, who we are
7 deposing on Monday in New York, relies on
8 Mr. Alepin, Doctor Warren Boulton, Professor
9 Noll, Professor Mackie-Mason, and Doctor Netz.
10 And on and on it goes, with Doctor
11 Gowrisankaran who relies on Mr. Smith, Mr.
12 Martin, and Doctor Netz, and so on.
13 In that context, getting the materials
14 that these experts relied upon in forming their
15 opinions is particularly critical.
16 And we are now at the beginning of the
17 beginning, I guess, of the Plaintiffs' case.
18 We've heard their first expert, and we are
19 still fighting over expert discovery.
20 And, indeed, we still have to take at
21 least one, and we suspect several more
22 depositions of Plaintiffs' experts.
23 Now, as we noted in our papers, there
24 are about five specific incidents here that we
25 think constitute a violation of your order, and
�
8242
1 I want to walk through them.
2 The first one has to do with what we
3 call the Pfau memo. This is -- Mr. Pfau is a
4 staff member who worked with Doctor
5 Mackie-Mason in the preparation of his report.
6 THE COURT: How do you spell his name?
7 MR. ROSENFELD: P-f-a-u.
8 THE COURT: Okay.
9 MR. ROSENFELD: In the deposition I
10 examined Doctor Mackie-Mason.
11 First we discussed the drafting
12 process, and consistent with the stipulation
13 between the parties, we did not inquire into
14 the details of the drafts, comments on the
15 drafts, notes relating to the drafts, because
16 both sides had agreed that that was not fair
17 game, and so we respected that in the
18 deposition.
19 During the course of my examination,
20 however, I asked Doctor Mackie-Mason, excluding
21 drafts, if there was anything else, and in the
22 course of giving his answers, and I believe
23 this is reflected in Exhibit A to our reply
24 memo, he said, you know, in thinking about
25 this, I now recall a memo that I got from
�
8243
1 Mr. Pfau, and this memo in rough terms was --
2 and I think this is the exact phrase Doctor
3 Mackie-Mason used -- a work plan.
4 He referenced that I think he got it
5 almost a year ago, and it was a recitation of a
6 number of issues that needed to be
7 investigated, research that needed to be done,
8 and so on in connection with Doctor
9 Mackie-Mason providing his expert report.
10 Now, what is significant about that is
11 that that discussion of that work plan was
12 separate from the discussion of the drafting
13 process and, indeed, quite distinct from that
14 drafting process.
15 Professor Mackie-Mason said the way I
16 do the draft is I get it online. I work with
17 my staff. They have on there track changes. I
18 look at what they've said. I either accept it
19 or I reject it. That is my drafting process.
20 And consistent with our understanding,
21 we inquired no further.
22 This discussion of the working draft
23 -- excuse me -- of the work plan was separate
24 and distinct from that drafting process.
25 It's quintessentially what you want
�
8244
1 when you're inquiring into the work that an
2 expert is doing because you want to know what
3 issues were investigated, what things the
4 expert decided to pursue, what things the
5 expert decided not to pursue, what work he
6 requested that he got, and what work he
7 requested that he didn't get, and so on.
8 It is part and proper expert
9 discovery.
10 Plaintiffs have refused to provide
11 this working -- this work plan to us.
12 They've said this is a draft.
13 Contrary to what Doctor Mackie-Mason said, they
14 have maintained that this is a draft, and
15 therefore -- or part of the drafting process,
16 and, therefore, we are not entitled to it.
17 Now, you will look in vain, if my
18 memory serves me, for any declaration from
19 Professor Mackie-Mason saying this work plan
20 was a draft.
21 There is no such sworn statement with
22 this motion. There is only one sworn
23 statement. That is Professor Mackie-Mason's
24 testimony in his deposition where he
25 distinguished this from the drafting process
�
8245
1 and identified it as a work plan.
2 Plaintiffs have refused to provide it
3 in the face of a request from us. That one
4 seems (a) material to which we are clearly
5 entitled. The refusal is in contravention of
6 this Court's repeated orders in connection with
7 expert discovery. It is inexcusable.
8 Inexcusable.
9 Second, another of the Plaintiffs'
10 experts, Mr. Martin --
11 THE COURT: This is the second
12 instance?
13 MR. ROSENFELD: Yes, this is the
14 second one.
15 Mr. Martin, as I said in describing
16 this interlocking web of experts, all of whom
17 rely on each other, Mr. Martin provided an
18 expert report. He is also a partner of Mr.
19 Smith, another of the experts.
20 He also was a go-between and
21 communicated directly with Doctor
22 Gowrisankaran.
23 It's kind of interesting we've had to
24 piece that together. Doctor Gowrisankaran
25 never acknowledged that he got any help, but
�
8246
1 Mr. Smith and Mr. Martin -- excuse me --
2 Mr. Smith explained that Mr. Martin was the
3 go-between.
4 Mr. Martin provided an expert report
5 on June 2nd. At that time he was obligated to
6 provide the discovery, the background materials
7 that he reviewed or relied upon in connection
8 with that report.
9 On August 21st you ordered production
10 by September 1st of those materials.
11 Three months later, in the midst of
12 the trial, on December 15th, and without
13 producing any materials, any additional
14 materials pursuant to the Court's order, we got
15 a letter from Mr. Reece -- I believe this is
16 Exhibit N to Microsoft's motion -- where he
17 simply says we are withdrawing Mr. Martin as an
18 expert.
19 Now, presumably that is an effort to
20 avoid providing the discovery that we would
21 otherwise be entitled to, but it is simply too
22 late.
23 Mr. Martin in this case provided an
24 expert report. By so doing, he incurred the
25 obligation to comply with the discovery
�
8247
1 requirements that the parties had agreed to and
2 that this Court has enforced to make available
3 to us materials that he reviewed or relied upon
4 in connection with his report.
5 Plaintiffs have taken the position
6 that they are no longer subject to that
7 obligation because they have withdrawn him as a
8 witness.
9 Now, this is particularly problematic
10 because, as I said before, a number of the
11 experts in this case rely on Mr. Martin's
12 report.
13 Indeed, it was very interesting this
14 morning when Mr. Lamb was examining Mr. Alepin,
15 and you'll recall he went through Exhibit B,
16 which is the list of materials that were
17 reviewed or relied upon.
18 Mr. Lamb was attempting to bolster the
19 credibility of Mr. Alepin by suggesting that he
20 had relied on lots and lots of materials, and
21 just coincidentally, he stopped at the
22 reference to Mr. Martin's report, which is
23 listed in Doctor Alepin's Exhibit B as
24 something that he reviewed or relied upon.
25 But Mr. Lamb didn't stop there. He
�
8248
1 said and you didn't merely look at his report,
2 you looked at the exhibits that were attached
3 to his report.
4 Mr. Alepin is not the only one. He
5 actually wrote sections, so we've learned, of
6 Mr. Alepin's report. He provided information
7 to Mr. Alepin. He provided assistance to
8 Mr. Smith. He provided assistance to Doctor
9 Gowrisankaran. Doctor Warren Boulton also
10 indicated that he had reviewed Mr. Martin's
11 report.
12 Under these circumstances where a
13 report was tendered, it was relied upon by
14 others on the Plaintiffs' expert team. We are
15 entitled to get the material that Mr. Martin
16 reviewed and relied upon.
17 If he is not going to testify, sobeit.
18 Others are relying on his work, and we ought to
19 have the ability to know and to be able to
20 assess the quality and credibility and bona
21 fides and basis and support of that work.
22 And it just doesn't work at the
23 eleventh hour to say we're not going to do what
24 the Court ordered us to do.
25 We're not going to do not once, not
�
8249
1 twice, but three times ordered us to do. We're
2 not going to comply with an obligation that
3 ripened many, many months ago. We're just
4 going to conveniently withdraw him and deny
5 Microsoft the ability to have the underlying
6 materials.
7 That -- I think that conduct actually
8 speaks for itself. That's number two.
9 That's number two.
10 Number three, and this one is, I
11 think, utterly perplexing.
12 This has to do with Doctor
13 Gowrisankaran, who you will remember, Your
14 Honor, is Plaintiffs' damage expert in
15 connection with their security claim.
16 He did calculations relating to the
17 so-called security damages. He's the subject
18 of many, many of the summary judgments and
19 motions in limine.
20 Plaintiffs produced to us, and I
21 believe it is Exhibit B -- excuse me -- Exhibit
22 P to the original memo, our original memo. And
23 this is one it might be useful to look at.
24 They produced to us in connection with
25 the Court's order, I believe this was on the
�
8250
1 15th of December; is that correct? 14th or
2 15th. -- E-mails as part of producing
3 documents that not only were reviewed -- excuse
4 me -- not only relied upon, but were reviewed.
5 But if you look at those E-mails,
6 mysteriously there are redactions on them.
7 There is material that apparently was
8 in these E-mails, one of which is an E-mail
9 from Mr. Reece from the Zelle, Hofmann firm,
10 the materials that have been redacted.
11 So we said given that there is no
12 privilege with an expert, what you give the
13 expert you have to produce. There's no basis
14 for redacting these documents.
15 And we were told, well, it's simply
16 transmittal information. It's the name of
17 nontestifying consultants.
18 That may all be the case, but it is
19 not a reason for not producing the material.
20 There is no privilege, there is no
21 provision in the stipulation, and it was not
22 done by Microsoft.
23 They've also suggested there should be
24 an in camera review by the Court. While we
25 have great confidence in Your Honor, in camera
�
8251
1 review is appropriate when a privilege is at
2 issue.
3 There is no privilege here.
4 Now, it's interesting that these
5 redacted materials were provided to us the same
6 day that Mr. Martin was withdrawn as an expert.
7 Now, we don't know why we don't have
8 much of an insight into what's motivating this
9 conduct, so we're trying to piece together the
10 the connections, and that's one piece of the
11 connection.
12 But the other thing I would say is
13 that in the course of expert discovery in this
14 case, Microsoft has provided precisely the kind
15 of information that Plaintiffs are refusing to
16 provide.
17 Exhibit B to our reply memo, for
18 example, is testimony by Mr. Hubbard, Doctor
19 Hubbard, Professor Hubbard, where he's asked
20 who did you get information from, who did you
21 work with, and he provided all of that
22 information.
23 Simply put, there is no basis
24 whatsoever for denying us this information.
25 And, again, it seems to be of a piece
�
8252
1 with Plaintiffs' efforts to at the margin
2 continue to skirt the discovery obligations
3 that you have explained now three times.
4 The fourth incident has to do with
5 handwritten notations on documents.
6 Microsoft has produced, and we were
7 chided for quietly producing -- I believe this
8 was on December 14th -- quietly producing the
9 underlying reports that our experts reviewed,
10 the underlying reports that have been presented
11 by the Plaintiffs, and we produced them because
12 we learned that our experts had written on
13 them.
14 They had made notes in the course of
15 going through and reading them. They had
16 underlined and they had made notes. And so we
17 said Plaintiffs are entitled to that, and we
18 produced it to the Plaintiffs.
19 Plaintiffs said we did it quietly. I
20 don't know what noisily would have been, but
21 we'll take a quiet production from the
22 Plaintiffs. All we want are the documents.
23 Now, Plaintiffs have said to us we're
24 informed that nobody made such notations on the
25 documents. And that may be, but given the past
�
8253
1 history here, we think the Court ought to
2 require the Plaintiffs to make an unequivocal
3 and clear inquiry of all of their experts to
4 satisfy themselves and the Court, and
5 incidentally, us, that they have, in fact,
6 requested that information if it exists and
7 that it has been provided to us.
8 That has not been done. We did that
9 for two experts, Professor Bennett -- and I
10 think these were voluminous stacks of reports
11 that have been annotated -- and Professor
12 Morrison-Paul.
13 Fifth category -- and I think I was
14 not quite correct, I think there's six instead
15 of five, Your Honor.
16 Fifth category, and I think this one
17 actually explains a great deal. These are
18 materials looked at after the filing of the
19 expert report.
20 Again, on August 30th, well before the
21 Court's orders, certainly the latest of them,
22 the two orders, Microsoft produced from its
23 experts, two experts, materials that the expert
24 had reviewed after the expert report was
25 submitted, but prior to the deposition.
�
8254
1 And this document is Exhibit D to our
2 reply brief, and I think it is worth looking at
3 because it's short, but it speaks volumes.
4 On August 30th we wrote to
5 Mr. Hagstrom, and we said, find additional
6 backup material for Sharon Oster, one of our
7 experts, and Kathy Morrison-Paul another, that
8 these experts have reviewed or relied upon
9 subsequent to the filing of their expert
10 reports.
11 Although these are not materials that
12 were reviewed and/or relied upon for the
13 purpose of preparing their expert reports, they
14 were subsequently reviewed or relied upon in
15 connection with their expert work in this
16 matter, and we're producing them to you.
17 And we did it. And we did that before
18 their depositions.
19 Plaintiffs didn't say to us, well,
20 that's a mistake on your part, Microsoft.
21 You're not obligated to produce those documents
22 to us. They didn't say that.
23 Indeed, at the deposition,
24 particularly, I believe, at the deposition of
25 -- is it Morrison-Paul? Oh, excuse me, Wright.
�
8255
1 Excuse me. It's Wright and Oster; I'm sorry.
2 In the deposition of Wright because we
3 also provided similar materials, and that's
4 reflected in Exhibit E.
5 They also didn't send that back.
6 Instead, at her deposition, they
7 questioned her about those materials. And that
8 was fine and that was proper because the
9 depositions were designed to provide
10 information about the expert opinions. That's
11 why we had it.
12 If there were materials that were
13 reviewed after the report, that's fair game for
14 questioning at the depositions, and we made
15 them available and they were questioned about
16 them.
17 Now, what did Plaintiffs do in
18 response to this?
19 Well, you'll remember, Your Honor, on
20 December -- I think it was the 12th. Excuse
21 me, the 15th.
22 December 15th, when Plaintiffs came to
23 give a status report on their production,
24 Mr. Hagstrom mentioned at the end of that
25 report, he said, of course this doesn't have to
�
8256
1 do with materials that are used to prepare our
2 experts to testify at trial because we're all
3 in the process of preparing our experts, and it
4 doesn't.
5 And Mr. Holley said, very quickly, no,
6 we agree with that, and you said so, as well,
7 Your Honor, and that's reflected in Exhibit L
8 to our opening brief.
9 Everybody agreed that materials that
10 we were all using to prepare our experts to
11 testify at trial fell into a different
12 category.
13 Plaintiffs, however, didn't stop
14 there, but they did what they did throughout
15 the process, and that is that they took the
16 language and they pushed it beyond what
17 everybody had agreed to.
18 And if you look at -- I believe it's
19 Exhibit 8 to Plaintiffs' resistance, it's a
20 letter to Mr. Jurata from Mr. Reece.
21 It's dated December 18th, a mere three
22 days after the Court's last hearing and after
23 the mutual understanding about documents used
24 to prepare experts to testify.
25 And Mr. Reece says at the end of the
�
8257
1 first paragraph, consistent with the parties'
2 mutual understanding as discussed in court, no
3 materials subsequent to the reports or for the
4 purpose of trial preparation need to be
5 produced.
6 I'm going to read that again.
7 No materials subsequent to the reports
8 or for the purposes of trial preparation need
9 to be produced.
10 That's not what the parties agreed to,
11 and that's not what you said a mere three days
12 before.
13 This is a quintessential example of
14 how Plaintiffs have played with the Court's
15 orders and with the stipulation that the
16 parties agreed to.
17 We did not agree the documents that
18 were reviewed subsequent to the expert reports
19 and, for example, prior to the depositions were
20 not fair game.
21 We produced them. They knew we
22 produced them. It's appropriate that we all be
23 provided with that material and have the
24 opportunity to cross-examine the experts on
25 materials they looked at after their report,
�
8258
1 and certainly before their deposition.
2 Not only haven't Plaintiffs produced
3 those materials, but they attempted to play
4 fast and loose with what was said in open court
5 to skirt that obligation.
6 They should be required to produce
7 those materials for all of their experts.
8 This to me is the most transparent
9 example of the way in which Plaintiffs have
10 dealt with this Court's orders and with the
11 general obligations for expert discovery.
12 Finally, the Court has ordered on a
13 number of occasions a list of deleted or
14 destroyed documents, and we've gotten in
15 various letters a statement about this witness
16 or that witness.
17 We haven't gotten any of the detail
18 that the Court asked for, just a generalized
19 statement, and we think Plaintiffs ought to be
20 required to confirm in writing that they have
21 asked their experts, each and every one of
22 them, including Mr. Martin, what they destroyed
23 and deleted and should make a good faith effort
24 to specify the subject matter that was
25 involved.
�
8259
1 Indeed, that is what this Court
2 ordered, I believe, on the 12th of December and
3 on the 28th of November.
4 Now, I want to be clear, I'm not
5 taking the position that destroying notes or
6 what have you -- it happens. I mean, it
7 happened. It happened on our side too. And we
8 told them.
9 And in the deposition when that
10 happened, we allowed full inquiry of the
11 witness into the circumstances of the
12 documents. What was involved; what did you
13 say. We didn't instruct; we didn't limit the
14 examination.
15 Plaintiffs did. They did on the basis
16 of their construction of the original
17 stipulation.
18 The things that were reviewed, however
19 you define that term, didn't count.
20 And since these documents were not,
21 according to their various experts, relied
22 upon, we were not allowed to inquire as to the
23 circumstances surrounding the destruction or
24 the deletion of the documents or the subject
25 matter.
�
8260
1 Their witnesses were instructed
2 repeatedly not to answer the question.
3 In Doctor Mackie-Mason's deposition,
4 Mr. Reece instructed in excess of 20 times in a
5 context where there is no privilege, and that
6 pattern persisted and persisted.
7 So this requirement for Microsoft to
8 get the detailed information about destroyed or
9 deleted documents is all the more critical,
10 precisely because we were denied the
11 opportunity to inquire into the circumstances
12 in the depositions.
13 Of course, that list was originally
14 requested in our first motion and repeatedly
15 referenced, Your Honor, in what is now your
16 three orders dealing with this discovery
17 situation.
18 That brings us to the end of my
19 presentation, except to talk about our request
20 for sanctions.
21 And we have repeated this request and
22 repeated this request and repeated this
23 request, and we've had it repeated because we
24 still -- what is it, seven months after this
25 discovery was supposed to be made available,
�
8261
1 two months into trial; and as we all know,
2 Plaintiffs go first, so we're dealing with
3 their experts, one of whom, because of his
4 travel schedule, we're having to depose in the
5 middle of trial.
6 We have first requested to the extent
7 that there are significant new materials
8 provided to us, and there have been -- in the
9 case of Mr. Schulman, I believe there are
10 potentially a thousand or more pages. Mr.
11 Smith, the same thing. These are new
12 productions postdeposition.
13 We've requested in the case of
14 Mr. Schulman already that we have a deposition.
15 Now, I grant you, Microsoft produced
16 materials relating to source code late in the
17 process.
18 We're not complaining that
19 Mr. Schulman provided an expert report after
20 the deadline. We're not complaining about that
21 at all. We simply want an opportunity to
22 inquire.
23 And he used the excuse of providing a
24 supplemental report to provide and present new
25 opinions that didn't have anything to do with
�
8262
1 the source code.
2 We've requested his deposition. We've
3 been rebuffed, predictably, by the Plaintiffs,
4 and we filed a motion to get that deposition.
5 We think we will also need a
6 deposition of Mr. Smith and potentially,
7 potentially several others of the Plaintiffs'
8 experts.
9 And we believe, and I think we said
10 this in our papers, that Plaintiffs should not
11 be allowed to put their experts on the stand
12 until 30 days after we've been given that
13 opportunity to depose them. Because we should
14 not be prejudiced by their failure to comply
15 with the rules.
16 We've also requested the exclusions of
17 Mackie-Mason -- Professor Mackie-Mason, Doctor
18 Netz, Doctor Gowrisankaran because of the
19 evidence in this case, particularly relating to
20 Doctors Mackie-Mason and Netz that they were
21 following different rules relating to what you
22 are obligated to -- excuse me.
23 I'm informed that I didn't ask for
24 Netz; that we asked for -- oh, Mr. Alepin --
25 it's just Mackie-Mason and Gowrisankaran.
�
8263
1 Excuse me.
2 Because it does appear that they were
3 following different rules in terms of what they
4 were obligated to make available.
5 Microsoft consistently interpreted the
6 stipulation the way the Court did and
7 consistent with its plain language and plain
8 meaning, review and/or rely upon. And we
9 produced materials that were reviewed, as well
10 as those relied upon.
11 And, frankly, the production on
12 August 30 of the materials after the expert
13 report, our production is the best evidence of
14 that. There wasn't any order that
15 reinterpreted that point. That was our
16 unilateral action because we thought both sides
17 understood the plain meaning of review and rely
18 upon.
19 We have adhered to that stipulation.
20 So under these circumstances, it's --
21 I think perplexing is about the mildest word I
22 can come up with as to why we find ourselves
23 here, on the 12th of January, a month after
24 your last order, which was quite in fact, why
25 Plaintiffs still seem to be skirting the order,
�
8264
1 skirting the rules, trying to withdraw experts
2 and thereby deny us of discovery,
3 mischaracterize testimony to deny us materials,
4 redact E-mails when there is absolutely no
5 basis to do so.
6 Under these circumstances, we think
7 sanctions are in order, and we also think these
8 materials must be produced without further ado,
9 and the Court ought to get an assurance that
10 there aren't going to be any more games.
11 I think, Your Honor, that sums it up.
12 This is, I hope, the last chapter in
13 what I think has been a pretty sorry story.
14 I'll stop with that.
15 THE COURT: Mr. Hagstrom?
16 MR. HAGSTROM: Your Honor, it is
17 regrettable that we are here because this is
18 another example of Microsoft negotiating a
19 stipulation with the Plaintiffs and then
20 twisting it and not living up to it and
21 misrepresenting it to the Court.
22 And I will get into that a little bit
23 more in detail in a few minutes.
24 It's also quite ironic that Microsoft
25 can dribble source code to us over -- for
�
8265
1 months. And part of that source code has
2 viruses that had we not caught it, it would
3 have destroyed our data bases. Fortunately, we
4 caught it.
5 They never told us about that. We had
6 to tell them.
7 They go ahead and contact class
8 members in direct contravention of your several
9 orders. The orders didn't matter.
10 And so what happened? Your Honor did
11 give them the benefit of the doubt. No
12 sanctions were imposed.
13 I'm going to go through the six
14 categories that Mr. Rosenfeld has referred to,
15 but I also want to go through the history of
16 this because as Your Honor may recall, about
17 four weeks ago, Ms. Conlin, at the end of the
18 day, talked about the discovery rules and the
19 stipulation and kind of how we got there and
20 how this is so far off track, it's
21 unbelievable.
22 Let me first take a look at the first
23 issue, the Pfau memo.
24 And, unfortunately, my computer just
25 shut down. It's got this ridiculous thing that
�
8266
1 if you don't move a key within a certain period
2 of time, it shuts down on you.
3 The stipulation between the parties,
4 there is no question, and I heard Mr. Rosenfeld
5 concede this --
6 Darin, can you put up Exhibit 18?
7 This is the original stipulation. It
8 talks about there in the first paragraph, for
9 each expert designated to testify in this case,
10 opposing counsel will receive the testifying
11 expert's final report and copies of all
12 materials reviewed and/or relied upon by the
13 testifying expert for the purpose of preparing
14 the testifying expert's report.
15 Let me just stop a moment there.
16 The reports, Plaintiffs' reports were
17 submitted June 2nd. That's where the
18 obligation ceased. So I'm going to get into
19 that a little bit later with regard to this
20 other category of postreport documents, but let
21 me focus you down on the next highlighted area.
22 The parties shall not be entitled to
23 discover, receive, or use, and the parties or
24 experts are not obligated to retain (a) drafts
25 of the testifying expert's reports, affidavits,
�
8267
1 declarations, or written testimony.
2 (B) written communications or notes of
3 discussions regarding a draft or final expert
4 report, affidavit, declaration, or written
5 testimony.
6 You have the benefit that it's up
7 there on the screen.
8 Now, it was made clear by Mr.
9 Rosenfeld, and it was also made clear by
10 Mr. Jurata in the hearing on June 9, 2006, I
11 want to make very clear that Microsoft is not
12 seeking draft reports. Microsoft is not
13 seeking an expert's notes regarding draft
14 reports or any other people's notes regarding
15 draft reports.
16 Any other people's notes regarding
17 draft reports.
18 Now, I should have provided a copy of
19 the pages from the Professor Mackie-Mason
20 deposition.
21 And Microsoft gave you a portion of
22 that deposition, page 60, where the Pfau memo
23 is discussed.
24 But if you go to the prior page, the
25 whole lead-in of the discussion, Mr. Rosenfeld
�
8268
1 asking the questions concerns the drafting
2 process.
3 And on page 59, he testifies, and then
4 in the course of drafting my report, based on
5 my understanding of what the issues were, my
6 understanding being largely the questions I
7 have formulated that I thought were relevant, I
8 started to structure the report around those
9 questions, those issues, then asked my staff to
10 provide the facts that we discussed that seemed
11 relevant to those issues.
12 Then I reviewed the documents, the
13 sources, source material for those facts,
14 reviewed other source materials to make sure I
15 was getting sort of a complete nonbiased
16 summary of the facts and engage in a
17 collaborative drafting process with my staff to
18 incorporate the material we had learned into
19 the report in an expositive of what we had
20 hoped was a readable fashion.
21 He then goes on to testify about --
22 that there were communications with his staff,
23 and then he goes on and says at page 60, I
24 believe -- yes, he talks about then quite some
25 time ago, maybe about a year ago, I believe
�
8269
1 that I prepared an outline, if you will, of
2 topics I thought we would want to address. In
3 other words, in the report.
4 I'm adding that language.
5 And then one of my staff annotated
6 with his thoughts about what issues were
7 important, what worked, what sort of evidence
8 might be out there, where we might go look for
9 it. It was part of developing a work plan.
10 That's precisely what it was, and I'm
11 going to go in a few minutes here to what
12 Doctor Murphy, Kevin Murphy, Microsoft's expert
13 did.
14 Well, so what happened here was, as
15 what's true with their experts, not all of
16 them, and was true with not all of our experts,
17 there were expert reports in the Minnesota
18 case.
19 This case is somewhat different.
20 You've heard Microsoft complain, oh, this case
21 is so much different, it's broader, et cetera,
22 et cetera.
23 Well, the Minnesota reports were the
24 base, if you will, the starting point for the
25 Iowa reports.
�
8270
1 So then the next step in the drafting
2 process is to identify those items, outline
3 what we're going to be drafting.
4 And this is precisely the draft plan,
5 the drafting process that Microsoft has
6 conceded in Court, as well as conceded in our
7 stipulation that is not discoverable.
8 Now, I mentioned Doctor Murphy. He,
9 in his deposition, identified approximately 19
10 people who were helping him with his report.
11 And you know what, they didn't
12 exchange a single E-mail. Nothing in writing,
13 and nothing was produced. Amazing, 19 people
14 working with Doctor Murphy and everything was a
15 draft.
16 So let's take a look at -- let's take
17 a look at Exhibit 32, Darin.
18 Let's first go to page 123.
19 And Doctor Murphy is Microsoft's
20 liability expert.
21 And you see Mr. Reece. I'm just
22 looking -- I just want to make sure we've got
23 all the written documents identified. I think
24 what -- to be fair, I think what you've said is
25 you've looked at other written documents, but
�
8271
1 they have either been drafts of your report or
2 notes about your report; is that fair?
3 Answer: Yes, they pertain to -- yes,
4 drafts or notes about this particular report.
5 Question: About the literal report?
6 Answer: About what's going to be in
7 that report, yes.
8 About what's going to be in that
9 report.
10 As I read for you from Doctor
11 Mackie-Mason, the work plan was what was --
12 what the report was going to contain.
13 It was an initial outline for the
14 changes from the Minnesota report, and Doctor
15 Murphy didn't produce any of these documents.
16 Microsoft did not produce any of these
17 documents.
18 And at the November 9, 2006 hearing,
19 Mr. Jurata told the Court that Doctor Murphy
20 did not see anything in writing from his staff;
21 that he only communicated orally.
22 Let's take a look at that, Darin, 29B.
23 What I was not very well articulating
24 was that Mr. Reece was talking about the fact
25 that there are not any E-mails or memorandums
�
8272
1 from Professor Murphy's staff that were turned
2 over with Professor Murphy's report. And
3 that's because he did not ask for any such
4 E-mails or memos from his staff.
5 He did his own work. When he dealt
6 with his staff, he dealt with them orally. And
7 every document that he looked at was produced
8 with his expert report.
9 So 19 people working on a report, I
10 guess what they did, they must have had this
11 master document and everybody writes their
12 little notes on there or types them in
13 electronically so that every possible
14 communication was in the form of a draft.
15 And yet somehow when they do a draft
16 work plan, that's not producible, but
17 Mr. Pfau's memo, at the direction of
18 Mackie-Mason, along the lines of the draft
19 outline of the issues he wants to cover in his
20 report is supposedly producible.
21 It's regrettable that we are here on
22 this issue.
23 Let's take a look at Doctor Martin.
24 Doctor Martin was an expert in
25 Minnesota. Doctor Martin was an expert in the
�
8273
1 California case. Doctor Martin's deposition
2 was taken in California and Minnesota.
3 Mr. Alepin referred to two tiny little
4 pieces in Doctor Martin's report. One was
5 definitional and the other, I forget, it was
6 about some computer file and that -- it was
7 DOS+. And Doctor Martin was extensively
8 examined on that, and I believe Mr. Alepin was
9 examined on that.
10 Microsoft's experts refer to each
11 other's reports. They refer to experts --
12 expert reports that aren't even included in
13 this case, I believe. I mean, this is no
14 different than an expert citing an article.
15 Mr. Alepin cited Doctor Martin's
16 report. Microsoft has claimed that they need
17 this discovery for purposes of
18 cross-examination.
19 They've already taken the depositions
20 of Doctor Martin. They have his report. And
21 you heard, Your Honor, Microsoft, Mr. Holley
22 asking Mr. Alepin about things regarding Doctor
23 Martin.
24 Now, there's no question that if we
25 look back at the stipulation that it refers to
�
8274
1 testifying experts.
2 Now, let me just explain a little bit
3 about what Plaintiffs had anticipated Doctor
4 Martin's role to be in this case.
5 In Minnesota, he was the only
6 technical expert, but you know a fair amount of
7 his Minnesota report --
8 THE COURT: Go ahead. Sorry.
9 MR. HAGSTROM: No problem.
10 -- was definitional, really explaining
11 terms, sort of -- you know, sort of a primer,
12 if you will, of computer terms and so forth.
13 We determined that here in Iowa, if he
14 was going to be called at all, he would provide
15 -- be providing that primer.
16 Alternatively, it could have been
17 offered by Mr. Alepin.
18 We had a stipulation -- I guess we
19 still do have a stipulation with Microsoft, in
20 principle, that -- and that was executed on
21 July 10th -- that the experts in this case, to
22 the extent they had been previously deposed in
23 a prior case, the material couldn't be covered
24 again; only changes to the expert reports could
25 be the subject of a deposition in this case.
�
8275
1 Well, what happened from Doctor
2 Martin's Minnesota report to Iowa was instead
3 of being like this, covering a lot of these
4 technical acts and so forth that Mr. Alepin has
5 discussed over the last week, it was compressed
6 for purposes of Iowa to just the primer.
7 Microsoft chose not to take Doctor
8 Martin's deposition in Iowa. And, of course,
9 we took the position that, you know, we don't
10 think you need it because, sure, there's a
11 couple of words changed in the primer part, it
12 would be a waste of everybody's time.
13 So Microsoft did not take Doctor
14 Martin's deposition.
15 And ultimately we determined that in
16 light of the pace of this trial and where we
17 think we're going to be, we had been
18 considering dropping Doctor Martin for a period
19 of time, and we finally notified Microsoft.
20 Now, that's not to say, Your Honor,
21 that when we provided Doctor Martin's report on
22 June 2nd he had an extensive list -- I think it
23 was Appendix B or C -- of articles referenced,
24 documents reviewed, et cetera.
25 So those materials were previously
�
8276
1 provided. Or, obviously, the agreement of the
2 parties was we didn't physically provide them
3 again if Microsoft already had them from a
4 prior case. I mean, that was the agreement
5 both ways.
6 So we have the stipulation that
7 Microsoft is only entitled to materials from
8 testifying experts. Well, they've got the
9 materials.
10 Their only complaint now is that,
11 well, there must be something that Doctor
12 Martin looked at but rejected.
13 I'll get into the November 28th order
14 because that's -- that's the modification.
15 That's different than what the parties
16 stipulated to.
17 And the only things that Alepin cited
18 to in Martin are things that are no longer in
19 the Iowa report or things that are already
20 examined -- that Microsoft already examined --
21 had already conducted an examination on in
22 Minnesota.
23 So they clearly weren't discoverable
24 per the stipulation.
25 So we've got the stipulation of the
�
8277
1 parties that discovery is only as to testifying
2 experts. That's the agreement. Doctor Martin
3 is not a testifying expert.
4 That should be the end of the story.
5 Nevertheless, if that isn't enough --
6 and Your Honor has commented about why do the
7 parties do stipulations in this case, nobody
8 seems to live by them.
9 Well, I'm beginning to understand your
10 frustration, Your Honor.
11 I have to tell you that weekly I ask
12 myself why do we bother stipulating to
13 anything.
14 But beyond the stipulation, case law
15 says that a party can withdraw an expert and
16 the other side is not entitled to their -- to
17 that expert's materials.
18 Again, despite the fact that we've
19 already provided materials, Minnesota and with
20 the June 2 Iowa report.
21 For instance, there's a case called --
22 I'm not sure if I'm going to pronounce it
23 correctly. I don't know why it seems to be
24 that when I get away from the antitrust cases I
25 get these strange names that I don't know how
�
8278
1 to pronounce.
2 It's Mantolete, M-a-n-t-o-l-e-t-e,
3 versus Bolger, B-o-l-g-e-r, 96 Federal Rules,
4 Decision 179. The jump cite is 181. It's out
5 of the Federal Court, Arizona, 1982.
6 And in that case it says, while
7 pretrail exchange of discovery -- Your Honor,
8 can we hand up the copy of the case? And we'll
9 provide one to Microsoft counsel.
10 THE COURT: Thank you, sir.
11 MR. HAGSTROM: While pretrial exchange
12 of discovery regarding experts to be used as
13 witnesses aids in narrowing the issues,
14 preparation of cross-examination and the
15 elimination of surprise at trial, there is no
16 need for a comparable exchange of information
17 regarding nonwitness experts who act as
18 consultants and advisors to counsel regarding
19 the course the litigation should take.
20 Then Microsoft has cited to a case
21 called Squealer Feeds versus Pickering.
22 I didn't hear Mr. Rosenfeld mention it
23 today, so I don't know if they're still relying
24 upon it, but it's in their opening brief.
25 It's totally irrelevant.
�
8279
1 The case dealt with the issue of
2 whether the designation of a former attorney as
3 a testifying expert in the same case waived the
4 attorney/client privilege for documents in the
5 insurer's claim file. It has nothing to do
6 with this case.
7 But, in fact, the Squealer Feeds Court
8 recognized that a party can withhold discovery
9 from a withdrawn expert.
10 It cited, for instance, the Nelson
11 Drainage case versus Bay.
12 And this talked about once an expert
13 had been withdrawn, there wasn't an allowance
14 for defendants to depose the plaintiff's
15 experts once the plaintiff decided not to call
16 him as a witness at trial.
17 That's 470 N.W. 2d 449, jump cite 452.
18 That's a Michigan Court of Appeals, 1991.
19 THE COURT: That's the Nelson case?
20 MR. HAGSTROM: Yes, Nelson Drainage
21 versus Bay.
22 MS. CONLIN: Your Honor, excuse me. I
23 need to get my coat or I'm going to get sick
24 again.
25 THE COURT: Go ahead.
�
8280
1 MR. CONLIN: It's freezing in here.
2 Go right on. I just wanted to ask the Court's
3 permission before I come back here.
4 THE COURT: Go ahead, Mr. Hagstrom.
5 MR. HAGSTROM: So, as I mentioned,
6 Microsoft's argument is that it needs to have
7 Doctor Martin's additional materials,
8 supposedly something we haven't produced.
9 We believe we fully complied with the
10 stipulation so that they can cross-examine
11 other experts.
12 Well, they've deposed Doctor Martin.
13 They have his materials.
14 We've withdrawn Doctor Martin as we're
15 entitled to do, and under the parties'
16 stipulation they're not entitled to anything
17 further with regard to him.
18 And under the case law, once an
19 expert's -- testifying expert is withdrawn,
20 they're not entitled to further material.
21 Now, if -- actually, I can go on and
22 on and on about Doctor Martin, but basically as
23 I mentioned, Doctor Martin is cited in
24 Mr. Alepin's report, and Microsoft had full
25 opportunity to take discovery with regard to
�
8281
1 Doctor Martin.
2 So let's move -- let me move on to the
3 next topic.
4 We might have to come back to Doctor
5 Martin for a minute.
6 But Doctor Gowrisankaran -- and I hope
7 Tammy has the spelling.
8 The issue there is that when we
9 produced further information in response to the
10 November 28th order, one of the E-mail
11 exchanges had the identification of a
12 nontestifying consultant, somebody that did
13 research for us, and then along with that, you
14 know, transmittal information, you know, time,
15 who from, et cetera. That was redacted. We
16 told Microsoft that was redacted.
17 Under virtually any discovery rule I
18 know, federal rules, Minnesota state rules, I
19 think Iowa rules, the identification of a
20 nontestifying consultant is not discoverable.
21 That's why we redacted it. It's pure and
22 simple.
23 That's all there is with regard to
24 Doctor Gowrisankaran.
25 And, you know, it's rather interesting
�
8282
1 that, you know, Microsoft has said it needs
2 these extra materials, it needs the
3 identification of this consultant, I don't
4 know, for purposes of cross-examination. I
5 don't think so.
6 I mean, that's been their whole
7 mantra, that they need this extra stuff for
8 purposes of cross-examination.
9 I mean, the identity of this person
10 that did some research, pulled some articles,
11 which have been produced, by the way, even
12 though they were not called for with regard to
13 the stipulation. They've been produced.
14 So redacting the name of somebody and
15 the related transmittal information is entirely
16 proper.
17 And we wrote in our brief, Your Honor,
18 that, you know, if you want to take a look at
19 the document yourself, we're happy to do that.
20 We just don't think we're required to turn it
21 over to Microsoft.
22 And I should also mention that on the
23 one hand, Microsoft seems to be taking the
24 position that they want to see everything that
25 somebody looked at, but then on the other hand,
�
8283
1 like on November 9, 2006, I think Your Honor
2 was a little bit puzzled about that.
3 And you asked, you don't want things
4 like a letter from someone's aunt or uncle
5 saying, by the way, how is your report going?
6 You're not getting that ridiculous with me, are
7 you?
8 Mr. Jurata: No, Your Honor, we're not
9 looking for every document that the expert ever
10 looked at.
11 But essentially with some of this
12 material, that is precisely what Microsoft is
13 doing.
14 Sure, Doctor Gowrisankaran saw the
15 name of this nontestifying consultant. It was
16 in an E-mail. But it's been redacted by us.
17 We believe that that's entirely appropriate.
18 Now, I'm really sick and tired of the
19 word games that Microsoft plays, and yet what
20 does Mr. Rosenfeld turn around and do, oh,
21 Plaintiffs are playing word games.
22 This is just unbelievable.
23 This next category has to do with
24 handwritten annotations.
25 And we went -- after the November 28th
�
8284
1 order, we went and either discussed, had
2 lengthy telephone discussions with each of the
3 experts or met personally with them to go over
4 any possible additional document that would be
5 responsive to the order.
6 The only one that had handwritten
7 notes on these documents was Mr. Schulman, and
8 we produced those documents, but that ain't
9 good enough for Microsoft.
10 And let me just say that during this
11 same time frame -- let me back up.
12 Microsoft's experts' depositions were
13 taken -- I'm trying to recall -- it was in
14 September of 2006, and Microsoft's experts had
15 a lot of notes on things, as we found out, not
16 in August, not August 2nd when the reports were
17 due, not any time in August, not any time in
18 September, except when some of their experts
19 disclosed taking notes, one expert said, yeah,
20 I took notes on the Plaintiffs' reports, but,
21 gee, I threw them away. My counsel didn't tell
22 me to keep them.
23 So they were gone. We didn't get a
24 list from Microsoft detailing every note that
25 was made or when it was made or when it was
�
8285
1 deleted or thrown away or thrown in the
2 fireplace or whatever was done with it.
3 So we heard about some notes then.
4 We included those -- that reference in
5 our briefing on these issues.
6 Microsoft comes into Court and -- on
7 November 9th and makes -- throws its hands all
8 around, waving their arms, making arguments
9 about how Plaintiffs aren't producing
10 materials.
11 Meanwhile, we just kept saying, well,
12 you've identified -- we've seen things in your
13 experts' depositions you haven't given us.
14 Then we have the -- I forget my
15 dates -- December 11th discussion, 11th and
16 12th when Mr. Jurata got on the stand;
17 Mr. Reece. It was about that time, in any
18 event.
19 And Mr. Holley's pounding the table
20 talking about how this is absolutely absurd
21 that Microsoft hasn't gotten the documents.
22 Absolutely absurd, it's horrible.
23 And Mr. Rosenfeld is right, we wrote
24 in our brief that in the meantime Microsoft is
25 just quietly producing these documents with the
�
8286
1 notes on that had been identified in previous
2 depositions three months earlier.
3 And, of course, all the time
4 representing to Your Honor that as soon as we
5 find something, we turn it over. Not true.
6 So additionally -- so this is --
7 remember, 11th, 12th -- if I'm recalling
8 correctly, the 11th was a Monday, Mr. Jurata
9 was on the stand. Tuesday, the 12th, Mr. Reece
10 was on the stand.
11 Well, on the 14th Microsoft quietly
12 gives us some documents. And on the 15th
13 Microsoft quietly gives us some documents.
14 And with regard to on the 15th, I
15 believe, Mr. West here, hopefully, will correct
16 me if I'm wrong -- so the burden is on you --
17 we got a whole bunch of materials with notes on
18 that we never heard about before. I think
19 these were some Morrison-Paul notes -- I'm
20 sorry, I got Bennett and Morrison-Paul
21 reversed. I apologize.
22 So we got notes from Doctor Bennett.
23 And you heard about Doctor Bennett today, Your
24 Honor. He's Microsoft's -- one of their
25 experts.
�
8287
1 So we get notes from Morrison-Paul
2 months after they are identified in a
3 deposition. We get notes from Bennett months
4 after his deposition is taken, but, you know,
5 never, never disclosed in the deposition.
6 We get another document on the 14th
7 from Microsoft that talks about a meeting that
8 Microsoft had with Doctor Bennett, and that
9 document includes the identification of
10 attendees and so forth, including Mr. Holley,
11 and yet he's in here pounding the table about
12 how Plaintiffs inexcusably have not produced
13 documents.
14 Your Honor, it is regrettable we're
15 here on this issue.
16 So suffice it to say, to the best of
17 our knowledge, we have produced documents
18 responsive to Your Honor's order with any
19 handwriting on them. The only documents I
20 believe we produced in such fashion in the mid
21 December time frame was Mr. Schulman.
22 Obviously, if we become aware of
23 something else, we will produce it.
24 The next category, materials looked at
25 after filing of the expert report. So we'll
�
8288
1 just refer to these as the post -- postreport
2 documents.
3 Well, again, Your Honor, we have a
4 stipulation. And what does Microsoft do?
5 They're trying to move the goalposts again.
6 Can we have the stipulation up, Darin,
7 18?
8 For each expert designated to testify
9 in this case, opposing counsel will receive the
10 testifying expert's final report and copies of
11 all materials reviewed and/or relied upon by
12 the testifying expert for the purpose of
13 preparing the testifying expert's report.
14 I think it's very straightforward that
15 if something is prepared, you know, looked at
16 for purposes of your order, but more
17 importantly for purposes of the stipulation,
18 reviewed or relied upon, it can't happen after
19 June 2, 2006, with regard to Plaintiffs.
20 Now, let me clarify that a little bit
21 further.
22 As you have heard, Microsoft has, you
23 know, dribbled out information in response to
24 motions to compel and so forth; dribbled out
25 the source code.
�
8289
1 We had to do a supplemental report of
2 Doctor Netz. She had to do a supplemental
3 report because of some additional information.
4 Doctor Warren -- I'm trying to think,
5 Doctor -- excuse me, Mr. Schulman did a
6 supplemental report just in the last few weeks
7 because of the dribbling out of source code.
8 Now, with these supplemental reports,
9 the materials reviewed or relied upon were
10 provided to Microsoft.
11 So when Mr. Rosenfeld has talked about
12 well, you know, certainly Microsoft provided
13 supplemental reviewed or relied-upon materials,
14 number one, I'm not quite sure which materials
15 he's referring to. But we have provided --
16 we've provided supplementation where it is
17 required by the parties' stipulation, or,
18 indeed, after the November 28th order. We
19 believe we have fully complied with that.
20 So if a party's stipulation means
21 anything, it's clear by the words of the
22 stipulation that you can't review or rely upon
23 something generated afterwards for purposes of
24 your report.
25 Now, during this past summer, we
�
8290
1 started working with our experts about trial
2 planning because we knew trial planning was
3 necessary to begin because we knew we were
4 going to be busy.
5 And 2006 was an incredibly busy year.
6 I hate to tell you how many hours I've put in,
7 and the entire team has put in.
8 And so as a result, we started talking
9 to our experts about trial preparation with the
10 understanding that anything that we talked
11 about was not covered by our stipulation.
12 I think our stipulation is clear in
13 that regard.
14 The sixth category, the list of
15 deleted documents.
16 We have provided -- what we did, Your
17 Honor, is during the mid December time frame,
18 we went through and talked to the experts and
19 tried to identify anything that had not
20 previously been produced. And I really need to
21 describe what was supplemental.
22 THE COURT: Just a minute.
23 (An off-the-record discussion was
24 held.)
25 THE COURT: Go ahead.
�
8291
1 MR. HAGSTROM: So, in the mid December
2 time frame, as I mentioned, we contacted every
3 expert.
4 What had been previously produced in
5 response to our stipulation with Microsoft that
6 we honored in full -- the production had
7 already taken place. But Your Honor's November
8 28th order modified that stipulation.
9 It provided that we were to -- I don't
10 have the exact words right in front of me. But
11 anything that was looked at or seen for
12 purposes of preparing the expert report, but
13 was rejected.
14 So, for instance, Mr. Smith, the
15 security expert, you know, he had done a lot of
16 searches on the web about, you know, different
17 articles and so forth that he didn't really
18 review or rely upon, but he'd seen them,
19 determined that they weren't applicable,
20 nevertheless went back and reconstructed that,
21 and we produced, you know, many, many pages. I
22 think over a thousand pages for Mr. Smith.
23 Electronic articles from the web and so forth
24 that really have nothing to do with his report.
25 He didn't rely upon them. They were simply
�
8292
1 seen.
2 And the same is true of other experts
3 that had supplementations.
4 So there was Mr. Smith, Mr. Schulman
5 went back. I mean, same kind of thing.
6 He had been doing lots and lots of
7 research on Microsoft's source code. That was,
8 as Your Honor knows, produced in dribbles over
9 the period of a lengthy period of time.
10 So he was operating under the -- you
11 know, the very tight confidentiality
12 restrictions of the revised protective order,
13 and so he had to write his own code for
14 purposes of, you know, examining that source
15 code.
16 He ran different programs looking for
17 undocumented APIs. And it's my understanding
18 that he's gone through and even his own
19 proprietary searching code has now been
20 produced to Microsoft.
21 So we've done, you know -- we've done
22 the best possible job we can.
23 Yet, Microsoft continues to complain.
24 So I was getting to this category six
25 of deleted documents.
�
8293
1 So once we went through this with the
2 experts, the only identified -- or I should say
3 identifiable, and maybe the only identified
4 documents that may have been deleted were
5 really items identified in the depositions of
6 Roger Noll, Professor Mackie-Mason, and Doctor
7 Janet Netz.
8 Now, Mr. Rosenfeld made a big thing
9 about well, gee, if we had some deletions, we
10 let Plaintiffs' counsel ask questions about it.
11 Well, Doctor Janet Netz, she brought
12 up in her deposition she had recalled oh, yeah,
13 you know, in the drafting process, I think she
14 said, well, I was double-checking something and
15 I doodled something, confirmed, threw it away.
16 Well, Microsoft counsel, Mr. Smutney,
17 who is here in the courtroom, you know examined
18 Doctor Netz for several pages on that
19 particular doodle. Wasn't any restriction.
20 With regard to E-mails, Microsoft made
21 a huge deal about deleted E-mails between
22 Professor Mackie-Mason and Professor Noll.
23 Well, Microsoft counsel was able to
24 examine --
25 (An off-the-record discussion was
�