Comes - January 12, 2007

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

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 �                                                            8294

1           held.)

2           MR. HAGSTROM:  Tammy, what was I

3  saying?

4              (Requested portion of the record

5           was read.)

6           MR. HAGSTROM:  Right, Microsoft

7  counsel examined these experts in full, and

8  what was the word game used by Microsoft

9  counsel in both of these depositions, they

10  didn't ask about communications between experts

11  for purposes of preparing the expert report as

12  is required by the stipulation. They just

13  asked about communications.

14           Well, Your Honor -- Your Honor had

15  asked Mr. Jurata about, well, you're not asking

16  about -- you're not seeking, you know, your

17  Aunt Tilly calling up and saying, well, how is

18  the report going.

19           Well, these E-mails, as testified to

20  by both Professors Noll and Mackie-Mason were

21  that we've been colleagues for years. We've

22  known each other for years. Despite the fact

23  that Professor Mackie-Mason is in Ann Arbor and

24  Professor Noll is out at Stanford, they've

25  communicated for years. �                                                           8295

1           And so, I mean, Your Honor has

2  probably done the same thing. If you go on to

3  CNN or something and you see an article that

4  you find of interest, gives you an option to

5  E-mail it to somebody. That's what they did.

6           If they saw something of interest, of

7  economic interest, whether with regard to

8  Microsoft or not, they would shoot it off.

9           And, of course, when you do that, to

10  my knowledge, you don't -- you know, that --

11  you know, like if I send an E-mail on my

12  computer, I can go into the sent folder and see

13  what I've sent. But when you're doing that

14  through CNN, you don't have a sent folder.

15           So that's been testified to in full by

16  Professors Mackie-Mason and Noll, and it's also

17  been made clear that those E-mails had nothing

18  to do with preparing their expert reports in

19  this case. Nothing.

20           Now, I can throw that up on the

21  screen, their testimony, but I know it's late

22  in the day, and I want to try to get finished

23  here.

24           So these E-mails have nothing to do

25  with the reports. Exchanges pleasantries, �                                                           8296

1  information between the two experts, but

2  nothing to do with these expert reports.

3           So we have disclosed in the letters as

4  -- one by one as they were given to Microsoft.

5  You know, if we're aware of something deleted,

6  we described it in general.

7           For instance, in the letter describing

8  Mackie-Mason deletions, we referred to this

9  issue about E-mails. Same with -- you know,

10  both Mackie-Mason and Noll were done the same

11  thing.

12           The doodling issue has been talked

13  about to death.

14           And other than that, we're unaware of,

15  you know, anything that -- number one, we don't

16  think those items are responsive to the

17  stipulation or the order for the reasons

18  previously stated. Drafting -- the doodling

19  was drafts. E-mails weren't for purposes of

20  preparing the report.

21           But the bottom line is, we're not

22  aware of anything else deleted at all, you

23  know, other than in the ordinary course. But

24  definitely not with regard to materials

25  reviewed or relied upon, looked at, whatever �                                                           8297

1  kind of words you want to use, for purposes of

2  preparing the expert's reports.

3           Now, Mr. Rosenfeld also said, well,

4  Plaintiffs' lawyers instructed not to answer

5  several questions.

6           Well, you know, I don't want to spend

7  the Court's time on it, but I can pull you off

8  volumes of pages where Microsoft's lawyers

9  instructed their experts not to give any

10  answers about drafting or any other thing

11  regarding agreed materials that were not to be

12  produced pursuant to the parties' stipulation.

13           Your Honor, what I want to do is -- I

14  literally can go on and on about this, I'm so

15  perturbed, but what I'd like to do is I'd like

16  to just --

17           Darin, can you put up Slide 73?

18           Just quickly, Your Honor, here's the

19  language from the March 8th stipulation.

20           THE COURT:  Is that Exhibit 18?

21           MR. HAGSTROM:  Yes.

22           All materials reviewed or relied upon

23  by the testifying expert for the purpose of

24  preparing the testifying expert's report.

25           Now, then in the August 21 order -- �                                                           8298

1  well, in between, obviously, Microsoft brings a

2  motion to compel.

3           And in that -- or in our resistance, I

4  put in an affidavit addressing my discussions

5  with Sharon Nelles where we had talked about

6  using different language other than reviewed or

7  relied upon, but that's what we agreed to.

8           Nevertheless, Ms. Nelles submits an

9  affidavit saying, oh, no, reviewed includes

10  rejected.

11           Well, my affidavit said it didn't.

12  And had our stipulation been meant to include

13  looked at but rejected, it should have said so.

14           But more importantly, I would have

15  never ever agreed to it because it's not

16  required by the federal rules. It's not

17  required by the Iowa rules, as I understand it.

18           Nevertheless, we lost the motion.

19           Your Honor issued an order, reviewed,

20  looked at, or used in preparing their expert

21  opinions or reports.

22           So then we produced a couple documents

23  that we really didn't think were responsive,

24  but we decided, okay, we're going to be safe,

25  we're going to produce them. �                                                           8299

1           Then we come to the November 28, 2006

2  order, and Microsoft again argues, well, it

3  isn't just reviewed and relied upon; it's not

4  just reviewed, it's not just relied upon, it's

5  anything possibly seen at any point in time

6  during the course of time that they're working

7  on their expert report.

8           But, oh, by the way, because we,

9  Microsoft, have worked this out with our

10  experts, that we're going to make sure every

11  communication is a quote-unquote draft,

12  Plaintiffs are getting nothing, but we're going

13  to make darn sure that we're going to

14  over-reach and change this stipulation in the

15  courtroom.

16           Here's what happens. Microsoft

17  misleads you about the purpose and scope of the

18  stipulation and all of this extra language gets

19  put in. Saw, read, looked at, or reviewed,

20  whether it was used to prepare their expert

21  opinions or reports or not.

22           The intent of the Court's order was to

23  provide the Defendant not only material used in

24  preparing the expert opinions or reports, but

25  material that was looked at, read, or reviewed �                                                           8300

1  by experts, but was then rejected or not used

2  in preparing the experts' opinions or reports.

3           Let's take a look at Slide 77. Here

4  is the March 8th stipulation.

5           Here's how the stipulation gets

6  modified by reason of the November 28th order.

7           I didn't agree to that. I negotiated

8  this stipulation with Microsoft. I would have

9  never agreed to it, period.

10           Nevertheless, Your Honor, we have done

11  our very best to comply with this language.

12           After this order came out, we spent, I

13  don't even know how many hours, dozens, if not

14  a few hundred hours, going back through

15  everything to make sure that we complied with

16  this November 28th order, despite the fact that

17  Microsoft didn't comply with it and despite the

18  fact that this was not the parties' agreement.

19           So we're left with this order. We

20  don't even think that's -- as Ms. Conlin

21  explained that one day in December, we think

22  that's -- that Your Honor has been led down a

23  path that's even beyond the scope of the Iowa

24  rules and, you know, things like that happen.

25           You know, I think of sort of the �                                                           8301

1  analogy, if you've ever been out somewhere and

2  you want to go walking in the woods, woods you

3  aren't familiar with, and you start walking

4  down a path and you decide that, well, it's

5  time to walk back to the road, maybe you're out

6  hunting, grouse hunting, or what have you, and

7  you decide to turn around.

8           As you walked into the woods, you

9  notice, okay, the sun's at my back. I don't

10  have my compass with me, but, you know, I've

11  got that orientation to walk out.

12           And as I turn around and walk out, you

13  know, there's deer paths and so forth, how they

14  get kind of traveled through the woods, and you

15  think, okay, well, I'm on the same path, and lo

16  and behold, you finally get it back out to the

17  road, and you've taken a different path because

18  you see your car way down the road.

19           You say, well, thank goodness I got

20  out and I'm on the road and I can see my car.

21           But there were things along the way

22  that led you off of the same path. And

23  Microsoft has been successful here in leading

24  the Court off the path.

25           And another thing I'd like you to keep �                                                           8302

1  in mind, Your Honor, is Microsoft never served

2  expert discovery in this case.

3           Under the Iowa rules --

4           72, Darin.

5            -- as Your Honor knows, expert

6  discovery is not mandatory. It has to be asked

7  for.

8           Microsoft never submitted

9  interrogatories or document requests. The

10  Rules 1.508 provide a party to submit such

11  discovery.

12           Now, we had stipulated to an order

13  that -- in the scheduling orders that provided

14  only expert reports and supporting backup

15  material.

16           Nothing in the scheduling orders about

17  reviewed or relied upon, and certainly nothing

18  in the scheduling order about looked at, seen,

19  whether used or rejected, et cetera.

20           And, of course, under the federal

21  rule, it's mandatory.

22           Microsoft never served discovery in

23  this case.

24           And although, Your Honor, the

25  stipulation is dated March 8, 2006, I didn't � 8303

1  sign it till May 26th, about a week before our

2  expert reports were due.

3           I just didn't get around to it, but

4  had I had any idea how Microsoft counsel would

5  twist that stipulation and we would be spending

6  literally hundreds of hours dealing with

7  frivolous motions to mislead this Court, boy,

8  in hindsight, I guarantee you, I would have not

9  signed that stipulation because they would have

10  been stuck with what was in the order, which

11  was just the expert reports and the backup

12  materials.

13           So with all of that, we're down this

14  long road where we're supposedly the bad guys.

15  That's unbelievable to me.

16           We have complied with the stipulation.

17  We have complied to the best of our knowledge

18  and ability with the Court's orders, and

19  Microsoft is in here saying, oh, strike their

20  experts, strike Mackie-Mason because he didn't

21  keep some E-mails exchanged with Doctor Noll or

22  because his draft work plan wasn't produced,

23  even though Microsoft has conceded the drafts

24  are not required to be produced.

25           And I think Mr. Rosenfeld said he � 8304

1  wants to strike Doctor Gowrisankaran because we

2  redacted the name of a nonconsulting expert.

3           Give me a break. I mean, the case law

4  -- case is very, very clear that for purposes

5  of sanctions to strike -- to strike an expert

6  is absolutely extraordinary.

7           Iowa courts have recognized that,

8  quote, exclusion of an expert as a witness is

9  the most severe sanction and should not be

10  imposed lightly. Lambert versus Sisters of

11  Mercy Health Corp., 369 N.W. 2d 417. Jump cite

12  is 421. Iowa 1985.

13           You can also take a look at the Iowa

14  -- Eighth Iowa Practice Civil Procedure Section

15  54.2.

16           There are other cases, like a

17  Minnesota case, R-i-e-w-e, versus Arnesen,

18  381 N.W. 2d 448, jump cite 457. Minnesota

19  Court of Appeals 1986.

20           Exclusion of an expert testimony is a

21  harsh measure reserved for those situations

22  where the failure to disclose is willful and

23  clearly prejudicial to the opposing side,

24  closed quote.

25           Now, Microsoft has trumped up their �                                                           8305

1  claims of all sorts of prejudice -- actually, I

2  don't know that I heard the word prejudice, but

3  I think I heard Mr. Rosenfeld say, well, we've

4  got to take these depositions.

5           Well, we received a notice of

6  deposition for Schulman, but as I understand

7  it, that's for -- resulted from a supplemental

8  report that was submitted -- like I said, I

9  can't keep my dates straight anymore -- within

10  the last few weeks.

11           And, of course, the only reason he had

12  to do a supplemental report this late in the

13  game is because Microsoft took months --

14  Ms. Conlin says years -- to get us the

15  documentation.

16           So where are we at? We're at the

17  point where we write 30 on this issue in

18  journalist's term.

19           This should be the end of it. The

20  parties should act in good faith, and if they

21  see -- if they discover some materials that

22  should be produced and it's responsive, they're

23  under an obligation to do so.

24           We have fully complied to the best of

25  our knowledge and ability. �                                                           8306

1           The items that Microsoft has described

2  are not further producible for the reasons I

3  discussed.

4           Like I said, if Your Honor wants to

5  see this redaction on the Gowrisankaran E-mail,

6  you know, we can provide that. We don't think

7  that's -- we don't think it's responsive to the

8  order. We don't think it's responsive to the

9  stipulation.

10           We think it's nondiscoverable,

11  presuming they had served discovery, but, you

12  know, to move the process along, to bring an

13  end to this thing, you know, we'll do that.

14           The stipulation provides for the

15  materials used for the reports reviewed or

16  relied upon for preparing the report.

17           You know, we've been basically in

18  trial mode, getting ready for trial over the

19  last several months.

20           And I think what Mr. Rosenfeld would

21  like to do is to now open the door, open the

22  issue of well, okay, if it's something

23  generated after the report, you've still got to

24  produce it because the expert's seen it, and

25  now they want to preview issues we're thinking �                                                           8307

1  about for trial.

2           And that should not be allowed. It

3  wasn't asked for in any discovery requests by

4  Microsoft, and it certainly was not the

5  agreement of the parties.

6           So I've, hopefully, covered all six

7  categories.

8           Ms. Conlin probably wants to give me

9  something.

10           Two quick final points, Your Honor. I

11  apologize this takes so long, but I'd have to

12  think long and hard -- I've been practicing

13  30-plus years, and I don't think I've ever been

14  in this situation with a sanctions motion.

15  I've brought sanctions motions against opposing

16  parties.

17           We talked about Microsoft quietly

18  producing these materials in December. The

19  reason we used the term quietly producing -- I

20  should say a couple of reasons.

21           Number one, Microsoft has been

22  pounding the table for months saying they have

23  fully complied with the parties' stipulation,

24  fully complied, even though some of these items

25  produced in mid December were identified in � 8308

1  their experts' depositions in September.

2           Then there was the additional Bennett

3  material that wasn't identified in Bennett's

4  deposition.

5           So ask yourself, Your Honor, we ask

6  this of ourselves, why was it that suddenly in

7  mid December this material gets produced, even

8  though both sides knew about some of it?

9           The reason, they understood the

10  stipulation the same way we did, but Your

11  Honor's November 28th order changed the rules,

12  changed the stipulation, as Your Honor saw up

13  there.

14           So Microsoft decided, well, I guess we

15  better start complying with that November 28th

16  order as well. And, of course, we filed our

17  motion that they be required to comply with

18  that order as well, and that's technically up

19  for discussion today, and I don't need to say

20  anything more about it.

21           The obligation should be mutual, but

22  the important point is, by their conduct, they

23  understood the stipulation was just reviewed or

24  relied upon for purposes of preparing the

25  experts' report, not for materials seen and �                                                           8309

1  rejected. Not the additional language that was

2  in that November 28th order.

3           And no matter what they're going to

4  say now about this, actions speak a lot louder

5  than words.

6           And the final point, as Your Honor can

7  guess, if Your Honor struck Professor

8  Mackie-Mason, precluding him from testifying,

9  our case is over.

10           If Your Honor were to strike Doctor

11  Gowrisankaran's testimony, our security

12  vulnerabilities claim is over.

13           That's what they want, but I guarantee

14  you, they're not entitled to it, and they

15  certainly should not be rewarded for misleading

16  me obviously with the intent of the stipulation

17  that I entered into and certainly should not be

18  rewarded for misleading this Court.

19           Thank you.

20           THE COURT:  Rebuttal?

21           MR. ROSENFELD:  Your Honor, I have

22  just a few minutes. I'd like to respond.

23           I'm not going to raise my voice and

24  I'm not going to pound the table, but

25  Mr. Hagstrom talks about putting 30 to this, �                                                           8310

1  whatever that means, and yet he spent 40

2  minutes rearguing the stipulation that Your

3  Honor had ruled on not once, not twice, not

4  three times -- but three times.

5           There was a stipulation.

6           The reason we have these problems to

7  begin with is not because Microsoft changed its

8  position, it's because Mr. Hagstrom and his

9  colleagues played fast and loose with the

10  ordinary meaning of the English language.

11           The notion that reviewed and relied

12  upon was construed by them to mean relied upon

13  -- and not merely relied upon in the broad

14  sense, but in preparation of your report, and

15  that Doctor Netz had the temerity to say in the

16  deposition that she interpreted reviewed to

17  mean looked at twice and didn't even keep

18  documents that worked -- and Mr. Reece said on

19  the stand in this courtroom that he supported

20  that interpretation.

21           Your Honor, you did not get it wrong.

22  You were not misled. Mr. Hagstrom's

23  interpretation is beyond laughable. It's

24  preposterous.

25           In every case in which I have ever �                                                           8311

1  been involved in, the parties always

2  understand, and the rules governing the

3  admission of expert testimony focus on the fact

4  that an expert is not only supposed to consider

5  evidence that supports his or her position, but

6  is supposed to make a balanced inquiry by

7  looking at evidence that also doesn't.

8           And the notion that you could limit

9  what you produce to the other side to simply

10  the material that supported your position is a

11  joke. It is simply a joke.

12           And the using reviewed and relied upon

13  in the ordinary course of the English language

14  and the way we interpreted it meant if the

15  expert got it, if the expert got it, it was

16  turned over to the other side.

17           That issue has been resolved by this

18  Court.

19           Microsoft did not take the contrary

20  view. Indeed, we argued to this Court as early

21  as August, once we found out in the deposition

22  that the Plaintiffs were taking this position

23  regarding the meaning of the word reviewed, we

24  argued in a deposition that that was not

25  consistent with the stipulation, and then we � 8312

1  came to this Court.

2           We never ever, ever took the other

3  view, nor would anybody else who reads and

4  understands the King's English.

5           Now, with regard to Mackie-Mason.

6           Mackie-Mason said in his deposition,

7  he talked about the drafting process. In the

8  process of drafting my reports, I worked with

9  my staff. They suggested edit or changes or

10  insertions or deletions. They always leave

11  track changes on, and then I review that, and I

12  either accept or reject those changes.

13           So I review various drafts of the

14  report that we were collaboratively editing.

15           And then he said, I asked him, so you

16  did not get any summaries, memos, any other

17  kind of written report relating to the work

18  that was being done by your staff?

19           And he said -- first he said, I don't

20  believe he did.

21           And then he said, actually in this

22  line of questioning I think I may have

23  remembered one thing that I had forgotten

24  earlier.

25           And then he discusses this work plan �                                                           8313

1  that he got a year earlier, a year earlier.

2           It wasn't in connection with drafting

3  his report. This is after-the-fact word games.

4           Mackie-Mason said under oath what the

5  work plan was. It wasn't a draft of the

6  report. It was setting out what they were

7  going to do to investigate the allegations.

8           And yes, they've been working on this

9  for seven or eight years around the country,

10  but this wasn't a draft. It was a work plan.

11           And that's what Mackie-Mason said

12  under oath. And he didn't come in here and he

13  didn't say to the contrary under oath.

14  Notwithstanding the fact the Plaintiffs have

15  briefed this issue before this Court.

16           As to Martin, the cases Plaintiffs

17  cite have to deal with a case where an expert

18  is designated and then withdrawn. Martin

19  provided a report. It was relied upon by other

20  experts.

21           When he tendered that report, it was

22  in the game, in this case for our use, and he

23  had to comply with the discovery obligations.

24           The cases they cite don't deal with

25  that issue. �                                                           8314

1           We are entitled to the discovery, and

2  if he reviewed things, we ought to get them

3  even if he didn't rely upon them, just like we

4  should get them from every other expert.

5           With regard to Doctor G., Doctor

6  Gowrisankaran -- I'm sorry -- the identity of

7  the individuals who do the work for the experts

8  has been fair game in this case from the very

9  beginning.

10           We have testified about it, they've

11  asked our experts about it, and we have asked

12  their experts about it.

13           And never ever, ever before did they

14  say you can't get it. On this they did not

15  instruct in the deposition, but they gave us

16  names, just like we did. Never did they say

17  before you're not entitled to the names. It's

18  only with regard to Doctor G.  And you know

19  what -- Doctor Gowrisankaran.

20           And you know what, it makes me quite

21  suspicious because maybe it was the child of

22  one of the lawyers, or maybe it was somebody

23  else who had some affiliation and would give

24  rise to legitimate cross-examination about

25  whether this person was qualified to do the �                                                           8315

1  work, whether it was reliable. That's why you

2  ask those questions.

3           And the fact that only with regard to

4  Doctor Gowrisankaran that they have drawn this

5  line is all the more reason why this

6  information needs to be provided to us.

7           Now, with regard to materials after

8  the expert report, this Court's order said

9  preparation of the expert's report or opinions.

10           The depositions in this case were

11  designed to get at the experts' opinions.

12  That's why we produced that information, and

13  the notion that they didn't, in light of this

14  Court's order, I think is just wrong.

15           Now, at the end of the day Mr.

16  Hagstrom can say I never would have agreed to

17  this; I never would have agreed to it.

18           He's a very experienced lawyer. He

19  speaks English quite well. Reviewed and relied

20  upon means what it says.

21           The fact that we didn't serve

22  interrogatories or seek expert discovery in

23  other ways is irrelevant.

24           We entered into a stipulation for

25  discovery in this case to supplant the �                                                           8316

1  underlying discovery rules on expert discovery.

2  That's what we did. That's what we adhered to.

3           And so the fact that the underlying

4  rules wouldn't provide for this discovery or

5  this approach to discovery is beside the point.

6  We had a stipulation, and, Your Honor, you

7  interpreted that stipulation exactly right.

8           You saw right through the fact that a

9  game was being played here; that they were only

10  going to give us what was relied upon and then

11  only in preparation of their expert reports.

12           Hunting metaphors or stories to the

13  contrary notwithstanding -- I'm not a hunter --

14  the stipulation said what it said. The

15  language was crystal clear. And you got it

16  right, and it is time -- well past time to stop

17  rearguing that point.

18           They lost three times. They now have

19  to play by the rules, and the three key

20  examples we have cited here make it clear that

21  they haven't.

22           Now, if they have checked and we've

23  gotten a list of all the deleted information,

24  that's fine.

25           But their conduct -- their repeated �                                                           8317

1  conduct and their repeated efforts to get out

2  of a stipulation they have signed warrant

3  sanctions.

4           I'm done.

5           THE COURT:  So I assume that Defendant

6  has no objection to the Plaintiffs' motion to

7  compel Defendant to produce expert discovery in

8  accordance with my orders?

9           MR. ROSENFELD:  I'm sorry?

10           THE COURT:  I assume Microsoft has no

11  objection to the Plaintiffs' motion to compel

12  Microsoft to produce expert discovery in

13  accordance with the Court's orders of August

14  21st and November 28th?

15           MR. ROSENFELD:  No, we do not object.

16  We have done it.

17           THE COURT:  Then if I enter an order

18  to that effect, you will abide by it; right?

19           MR. ROSENFELD:  Absolutely. We have

20  done it.

21           THE COURT:  And that issue is

22  foreclosed.

23           Anything else.

24           MR. HAGSTROM:  Can I have two minutes?

25           THE COURT:  Just two. �                                                           8318

1           MR. ROSENFELD:  Thank you.

2           MR. HAGSTROM:  Number one on

3  sanctions.

4           As Your Honor knows, there has to be

5  some willful intent. There is clearly no

6  willful intent, and clearly in light of the

7  history of the stipulations and the Court's

8  order, the November 28th order, as we've

9  already shown, changes significantly the

10  stipulation.

11           Next, Mr. Rosenfeld is quite accurate.

12  I can understand the King's English, and when I

13  look at the definition of review in the English

14  language dictionary, nowhere does it say

15  reject.

16           If they wanted to reject, it should

17  have been in the stipulation, and as I said, I

18  wouldn't have agreed to such a stipulation.

19  But review does, in fact, say to review or see

20  again, to examine or study again, to reexamine

21  judicially, to look back on, take a

22  retrospective review of, to go over or examine

23  critically or deliberately.

24           And Doctor Netz went on to explain

25  just because somebody does this and he might �                                                           8319

1  see that momentarily, that's not review. It's

2  to look at judicially, to examine critically.

3  So rejected wasn't in there.

4           The Mackie-Mason work plan. As they

5  know, Professor Mackie-Mason was retained for

6  purposes of this case a couple of years ago,

7  two to three years ago.

8           What was the purpose of the work plan?

9  To prepare his report. He knew he was working

10  on a report. He knew he had to do a report.

11  That's the purpose.

12           Your Honor, like I said, on this

13  Gowrisankaran thing, you know, oh, gee, maybe

14  it's a family member or somebody at Applicon or

15  whatever. I can assure you it isn't -- again,

16  we're more than satisfied to give Your Honor

17  unredacted version and tell you who the person

18  is and assure you -- I'll put in an affidavit,

19  to the best of my knowledge this person doesn't

20  know any of the experts or any of their staff

21  or what have you.

22           Of course, I better check that to make

23  sure.

24           But the person lives in Minneapolis.

25  None of our experts lives in the Twin Cities. �                                                           8320

1  Actually, I don't even know if she's in

2  Minneapolis. But in the Twin Cities.

3           We agreed to modify the rules of

4  discovery. As my affidavit said, our intent,

5  per my discussions with Sharon Nelles, was to

6  narrow the discovery. Narrow. And yet, you

7  know, in retrospect, I understand now what

8  Microsoft did.

9           My view is this was entirely a setup

10  because they now -- they come in and argue for

11  words that aren't in the stipulation.

12           And in the meantime, with their

13  experts, they say ha, ha, ha, everything's

14  going to be a draft other than obviously

15  documents that are in the record, you know,

16  with the Bates numbers and all those kind of

17  things, publicly available articles.

18           But our means of communication solely

19  are going to be in the form of a draft report

20  or comments on that report.

21           It's a trap, unfortunately set, and

22  it's -- you know, hunting metaphors I think are

23  entirely appropriate here.

24           And just, finally, I mentioned the

25  July 10th stipulation. �                                                           8321

1           That's Exhibit 17, Darin.

2           The only reason I point this out is

3  with regard to Doctor Martin.

4           Microsoft fully examined Doctor Martin

5  in California and Minnesota, and we agreed no

6  party shall depose an expert offered by the

7  other party on any topic about which that

8  expert was previously deposed in any indirect

9  purchaser case -- or excuse me -- action

10  against Microsoft.

11           They've had full discovery with regard

12  to Doctor Martin.

13           Thank you for your patience, and thank

14  you, Tammy, for staying late.

15           MR. ROSENFELD:  On that I agree with

16  Mr. Hagstrom. Thank you both.

17           MS. CONLIN:  Thank you, Your Honor.

18  Have a nice weekend.

19           (Proceedings adjourned at 5:10 p.m.)

20

21

22

23

24

25 �                                                           8322

1             CERTIFICATE TO TRANSCRIPT

2           The undersigned, Official Court

3  Reporters in and for the Fifth Judicial

4  District of Iowa, which embraces the County of

5  Polk, hereby certifies:

6           That she acted as such reporter in the

7  above-entitled cause in the District Court of

8  Iowa, for Polk County, before the Judge stated

9  in the title page attached to this transcript,

10  and took down in shorthand the proceedings had

11  at said time and place.

12           That the foregoing pages of typed

13  written matter is a full, true and complete

14  transcript of said shorthand notes so taken by

15  her in said cause, and that said transcript

16  contains all of the proceedings had at the

17  times therein shown.

18           Dated at Des Moines, Iowa, this 12th

19  day of January, 2007.

20

21

22                  ______________________________                                Certified Shorthand Reporter(s) 23

24

25 �