Plenty of Gawkers, But No Main Event
For the second day, the showing of Bill Gates's video testimony is delayed by extended questionings
They were back -- and for good reason. A crowd of onlookers swarmed the Microsoft antitrust trial again on Oct. 29 -- the largest since opening day. The throng came to see videotaped depositions from the Main Man himself, Microsoft Chairman Bill Gates.
Alas, the Main Event never took place. And the fact that longer-than-expected questioning of witnesses edged out the showing of Gates's testimony doesn't bode well for a speedy conclusion of what could be a very long trial.
The Justice Dept. and 20 state attorneys general had planned to air about three hours of the Microsoft Chairman's deposition on Oct. 28, after Microsoft attorney John L. Warden finished cross-examination of David M. Colburn, a senior vice-president of America Online. Instead, Warden's questioning lasted the entire day.
The next day, Justice made the same plan, but Warden's cross-examination, covering much of the same ground of the day before, lasted until 3 p.m. By the time David Boies, Justice's trial counsel, finished his questioning of Colburn and then Warden returned for a new round, it was 4 p.m. And U.S. District Judge Thomas Penfield Jackson, not known for keeping up a speedy pace, adjourned with a "Have a Happy Halloween."
SIX-HOUR SHOW. Both sides believe that the Gates videotape will help their case. A total of six hours of the full 20-hour deposition will be shown. Two of the first three hours were chosen by the government, and one hour was chosen by Microsoft. "We think the videotape will give you a fair opportunity to judge his credibility," Boies said. A Microsoft spokesman said if the government thought that Gates would help its case, Justice should have called him as a witness. As for Microsoft, company officials said they wanted to call witnesses who had first-hand knowledge of the key government accusations -- even though Gates is known as a hands-on exec.
In a two-minute excerpt that the government showed the judge during its opening statement, Gates said he did not know about proposals made at a key meeting with Internet browser rival Netscape Communications Corp. -- an event that's a centerpiece of the government's case -- until he read about it in the newspaper months later.
Internal E-mail showed that Gates was told about details of the meeting. And according to legal experts, if Gates is perceived to be less than candid, that could cast a pall on other Microsoft testimony. It also could have a public-relations benefit for the government: If Justice wins and asks for a broad remedy, the public may be softened up to accept some tough sanctions against Gates, who is considered a popular success story.
The government announced that next week it would call Steven D. McGeady, a vice-president of Intel Corp., to the stand. Also, possibly Glenn Weadock, the government's technology expert (there will be no trial on Election Day). But Boies said after the trial adjourned for the day that there was little chance, at this laconic pace, that the trial would be over within the six to eight weeks that had been earlier predicted. Each side is allowed 14 witnesses. And so far, only two witnesses have been called in the first two weeks of the trial.
HEEL-DRAGGING? Justice officials privately say they are surprised that Microsoft took five days to cross-examine James Barksdale, chief executive of Netscape, and two days to question Colburn. Indeed, much of Warden's questioning seemed repetitious. Microsoft had earlier sought a trial date that started next year, and Justice officials speculate that the tedious questioning may be a tactic to stretch out the trial, with the hope of ensuring that any remedy that could constrain its Windows 98 operating system, which was released in June, would be too late to be relevant.
Microsoft officials hotly deny that and say Warden is covering every point he needs to make to build his case.
During the second day of questioning, Colburn stuck to his story that AOL agreed to "virtual exclusivity" in distributing Microsoft's Internet browser because the software giant agreed to put AOL on the Windows desktop. Without that enticement, he said, AOL would have chosen Netscape's product. Justice is accusing Microsoft of using the power of its operating system to harm Netscape.
By Susan Garland in Washington
|