Microsoft deploys verbal gymnastics

Released documents show evasiveness and waffling

May 02, 1999|By JAMES V. GRIMALDI

WASHINGTON -- Bill Gates isn't the only Microsoft employee who has proved to be less than eager to help government attorneys get answers in their sweeping antitrust investigation.

Take Carl Stork, who was general manager of Microsoft's Windows team from 1995 to 1997. When being questioned by government attorneys before the trial, Stork acted as if uttering the words "Internet browser" were a bad omen, even though it stands at the center of the case.

Like the evasive Microsoft chairman in his pretrial deposition, Stork was sensitive to the semantics because the company maintains that the browser, the software that enables users to navigate the Web, is part of the Windows operating system. It's not a separate product tied to Windows to take advantage of the latter's market dominance, the company contends.

"I'm hesitant to use the word 'browser' because it's so vague," Stork said. "It would be really hard to define something as the browser."

The statement emerged from thousands of pages of documents released Thursday as an example of the verbal gymnastics Microsoft employees went through during pretrial questioning.

At times evasive, combative and waffling, the Microsoft witnesses made the jobs of government attorneys difficult, denying the most serious allegations and occasionally repudiating or reinterpreting their handiwork to mean something other than what common usage might suggest.

After more than four months of a trial that has included two dozen witnesses, hundreds of e-mails and thousands of pages of documents, hardly any Microsoft chip seemed left unturned in the antitrust investigation being pursued by the Department of Justice and 19 states.

But Thursday, thousands more pages were added to the public record as a federal court, acting under orders from an appeals court, released depositions of dozens of witnesses, including Gates and 23 others from Microsoft.

David Boies, Department of Justice attorney, said the more than 10,000 pages of documents, containing the out-of-court testimony of more than 90 people, should contain no surprises: "If you find anything in those pages that is not already in evidence at the trial, we have not done our job," he said.

Still, there was plenty to offer a rare insight into the company and the lawsuit. The records include suggestions of how high-level staff members feel about each other and provide a glimpse into the seemingly fluctuating legal strategy mounted to combat the suit.

Depositions usually are closed to the general public. But this unusual behind-the-scenes look comes thanks to a 1913 law requiring that all depositions taken in antitrust lawsuits filed by the federal government be open to the public. Citing the law, a group of media organizations sued to have the documents released.

Aside from Gates' deposition, which involved legal combat that bordered on high drama and low comedy, most of the questioning featured the kind of humdrum routine necessary in fact-gathering sessions.

Patterns of the defense could be seen in the depositions. Microsoft employees went to lengths to distance themselves from memos that government attorneys used to attempt to show companywide policy. The employees said they were just brainstorming by e-mail or participating in the kind of corporate give-and-take inherent in Microsoft's famous freewheeling style.

When asked what Microsoft hoped to achieve at a June 21, 1995, meeting during which the software giant allegedly attempted to divide the browser-software market with rival Netscape Communications, Microsoft Senior Vice President Paul Maritz dismissed the question.

"You say 'Microsoft.' As I testified repeatedly, there is no consensus," Maritz said. "You had a bunch of people who had different points of view, different levels of optimism and went down there basically on a brainstorming trip to find out more about Netscape's model and try and articulate ... things that Netscape could do."

Strategy of denial

The strategy of denying there was any Microsoft consensus or policy was carried out by Microsoft attorneys and witnesses through several depositions.

When Department of Justice attorney Philip Malone asked Stork what the company had done in a particular circumstance, Microsoft attorney Thomas Burt complained.

"I object to the question as vague and ambiguous with respect to the term 'Microsoft,'" Burt said. "You're asking if Microsoft considered something. I think this witness can talk about what he considered or what he knows other people talked about."

When the evidence began to build, Microsoft employees adopted another tactic: work to discredit their own brethren.

A notable example was in the case of documents from the Microsoft-Netscape meeting.

When some of the most damning evidence of the alleged effort was tied to Dan Rosen, the highest-ranking Microsoft executive at the meeting, other executives, including Gates, characterized Rosen as "naive" or simply wrong about company policy.

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