decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


To read comments to this article, go here
A Battle Over Deposing Bill Gates in the Novell v. Microsoft Antitrust Litigation
Sunday, May 24 2009 @ 06:55 PM EDT

So, guess what has been happening in the Novell v. Microsoft antitrust litigation? A battle over deposing Bill Gates. I have the transcript [PDF] for you of the half-deposition that happened already. Yay!

Total fun. Performance art. After the deposition, came the fireworks. The parties fought about doing the other half.

Billg, as you'll see him referred to in the exhibits, well, at the deposition, he don't know nuttin'. Not much, anyway, less in the specificity. I know. Shocker. Asked if he knows what the term evangelizing meant as used by Microsoft, his first answer was that it's used in different ways by different people. His answer when he is pressed for his understanding of the purpose of evangelizing is that it's "usually to convert somebody to a religion belief." Right. That's the ticket.

He must have forgotten the 1997 "Evangelism is War" confidential Microsoft memo. Well, he's a busy guy. His brain is full. Who can recall all this stuff?

Guess what the subject matter at issue is now? Interoperability. Or more exactly, extensibility, shell extensibility in Windows 95. This is the litigation over WordPerfect, if you recall, and the charge is that Microsoft deliberately withheld documentation to make it harder for competitors like Novell to compete. Like *that* would ever happen. What? Further, Novell's claim is that it was Bill Gates who personally decided to "de-document" certain shell extensions. Just as they were getting to that topic at the half-deposition, Novell tells the judge, Microsoft unilaterally halted the proceedings.

Don't be lulled by this all happening more than a decade ago. Instead think about the latest interoperability fiasco, Microsoft's non-interoperable ODF "support" in Office 2007 SP2, and see if the dots align. Plus ša change, y'all.

If you go to our Novell v. Microsoft Timeline page, you'll find all the newest documents, except for a few administrative things that I didn't think you'd care enough about for us to pay for. As I go through the saga, I'll highlight the ones you will particularly find fascinating.

Details: The parties agreed to Gates being deposed for four hours back on March 4, with Novell reserving the right to ask for more time, if necessary. That's what the transcript is from. You are normally entitled to 7 hours under the Federal Rules of Civil Procedure, by the way, unless the court orders more or the parties stipulate. So for Microsoft to start out by saying Novell could only have four is a big deal. On what legal basis? Anyway, that half-deposition happened, or almost fully happened. Microsoft unilaterally called the deposition over after three hours and 16 minutes of Novell questioning and excused Mr. Gates in mid-swim, so to speak, according to Novell's first letter [PDF] to the judge. Normally, if you think a deposition is going into something it shouldn't, you can ask a judge for protective order. You don't just stand up and say buh-bye. The excuse was that he had somewhere to be, but as Novell points out, that's not an option for cutting short a deposition and refusing to continue.

And then the fight really began. Microsoft's lawyers began battling mightily, and, I think I can say, somewhat viciously -- ad hominems a-flying -- to keep Gates from having to answer any more questions. Here's Microsoft's letter to the judge [PDF], giving all the reasons they felt he should not be subjected to more questioning. One excerpt to give you the flavor:

Contrary to Novell's commitment "to try and complete [its] examination of Mr. Gates within the four hours provided" ... Novell instead wasted Mr. Gates' time with frivolous questioning on matters about which other witnesses had previously testified, and about which Mr. Gates had no knowledge. There are many, many examples of what appears to be a deliberate waste of time by Novell during the deposition.

Novell claims in its letter to the Court that "a vast majority" of the documents used in the recent deposition "had never been shown to Mr. Gates in prior depositions or at trial." This is not surprising because Mr. Gates neither wrote nor received 12 of the 15 documents used in his deposition. Instead of asking Mr. Gates about issues on which he has unique personal knowledge -- or any knowledge at all, for that matter -- Novell squandered Mr. Gates' time by asking him to speculate about the content of documents (all of which were written 13 or more years ago) that he had never seen before. The actual authors and recipients of several of the documents shown to Mr. Gates had already testified about what the documents meant, so Novell's questioning of him about such documents was particularly pointless. Novell never even bothered to examine Mr. Gates about his October 3, 1994 e-mail concerning the shell extensibility mechanisms in Windows 95.

In one of many exchanges about a document Mr. Gates had never seen, Novell asked "Do you have any understanding, Mr. Gates, about what Mr. Silverberg is talking about when he says that ISVs really want extensibility?" ... Mr. Gates answered , "No, he does not -- I mean, he gives some general sense, but we'd have to ask him."... Even after Mr. Gates made clear that he did not have any knowledge about this document, Novell continued to ask Mr. Gates to speculate about Mr. Silverberg's intentions. This line of questioning was especially odd given that Novell had already deposed Mr. Silverberg, and Mr. Silverberg testified about the very same document. Such questions suggest that Novell had no intention to "try and complete" Mr. Gates' deposition in a half day....

Novell also spent a significant amount of time asking Mr. Gates about the meaning of acronyms that are used widely in the software industry. In just one of many examples, Novell questioned Mr. Gates at some length about the meaning of "API," an acronym for application programming interface, which is universally known among software developers and about which many other witnesses had already testified....

As these examples demonstrate, Novell went to great lengths to squander its opportunity to examine the Chairman of the Board and former CEO of a major corporation. The deposition of Mr. Gates was so scattershot, and the lines of questioning so beside the point, that it is difficult to avoid the conclusion that Novell's purpose was to waste Mr. Gates' time so that it could ask this Court to order him to return for another day of questioning. Indeed, we respectfully submit that Novell's current tactic is a function of the fact that the discovery to date has shown the complete lack of merit of Novell's remaining claims, and that Novell apparently believes that further harassing Mr. Gates is the best way to extract a monetary settlement from Microsoft....

As Chairmann of Microsoft's Board and Co-Chair of the Bill & Melinda Gates Foundation -- the world's largest charitable foundation -- Mr. Gates should be protected from harassing and time-wasting depositions by those who seek to distract him from his important charitable work.

Well. And I would equally respectfully submit, judging from this letter, that it is difficult to avoid the conclusion that Microsoft must send its lawyers to the same charm school as its trolls and shills. I think SCOfolk got to attend on a scholarship, IIRC.

Naturally, Novell responded with ardor in a second letter [PDF], attaching some exhibits [PDF] that Microsoft neglected to present, and Novell tells the judge what they already learned from showing those exhibits to Mr. Gates and precisely why it followed the line of questioning it did. It has to do with Mr. Gates' role in this, not Mr. Silverberg's. And Novell points out that if it didn't get to ask about the shell extensibility, it's because just as they began that topic and asked about it, Gates got up and left, on his lawyer's instructions. Anyway, since when does a party in litigation complain if the other party squanders its opportunities? Novell's lip is curled, as you can imagine. Might there be something deeper going on? In any case, no matter who you are or how rich or busy you might be, a party gets to depose Gates for 7 hours, just like anyone else.

The judge agreed and eventually ordered Gates to endure the full 7 hours of Novell questioning, or another 3 hours and 45 minutes. That was in March. I can't tell if it happened or not, or if they are still fighting, because the rest of the docket is sealed, sealed, sealed. It isn't clear if they are fighting still about the Gates deposition or if Microsoft retaliated by trying to depose some Novell people, but fighting they are, as you can discern from the docket. In time, likely the rest will come out. Meanwhile, let's take a closer look at what is available to us.

Microsoft's Fighting Stance -- Gates Is Too Busy and Important to be Bothered with Any Further Depositions:

The general history of the case so far is set out in Microsoft's March 10, 2009 letter to the judge [PDF], which is why I begin with it now. Novell's first letter simply asked for the rest of its time, the full 7 hours, and Microsoft argues against any further deposition of Bill Gates. Let them count the ways it would not be a good thing.

Microsoft's position at the pre-trial conference back in January of 2008 regarding the discovery schedule, its letter tells us, was that seven months of discovery was enough for this case, because it had turned over to Novell all the materials from discovery in the dozens of other antitrust litigations of the past decade. One of the pieces of discovery was a deposition of Bill Gates. What more could they need?

However, the Court granted more time for discovery, 13 months' total, on Novell's request. That period for fact discovery was up on March 6, 2009. During that time, Novell did 30 depositions of Microsoft folks, current and former, but it had asked for 35, including Mr. Gates. As you recall, this litigation is about WordPerfect and Quattro-Pro applications, and Novell alleges harm from Windows 95, specifically, according to Microsoft, from its decision not to fully document "certain shell extensibility mechanisms in Windows 95". Novell could have asked Gates about all that during his deposition, but it didn't.

Microsoft didn't want Gates deposed anyhow. He'd been deposed 8 times already in other litigation, and he's a busy guy, now that he runs the foundation with his wife. I gather that Microsoft was hoping not to have Gates deposed at all, in a perfect Microsoft world. Maybe they remember the famous deposition in the DOJ antitrust litigation all those years ago. For comparison purposes, here's the video of Gates' deposition in the USDOJ antitrust litigation years ago, and you can find transcripts, if you scroll down, here

But in any case, Microsoft made Gates available for the half-day session, thinking it would be about a 1994 Gates email about shell extensibility, they tell the judge, but Novell wasted the allotted time with "frivolous questions", the letter asserts, on topics other than the one email about shell extensibility that Microsoft expected to be the topic of the half day.

Four hours about one email? That is, in all seriousness, what Microsoft is saying they expected from a deposition? Novell of course tells it differently, but this is Microsoft's letter. We'll get to Novell in a minute.

I can't imagine a judge reading this letter without smiling. Or frowning, depending on his mood. It's an account hard to credit as being sincere. All I get from it is that Microsoft is very, very worried about having Gates deposed, particularly about his alleged role in withholding documentation. Microsoft gave an example:

...Novell asked "Do you have any understanding, Mr. Gates, what Mr. Silverberg is talking about when he says that ISVs really want extensibility?"
Gates response?
"We'd have to ask him," he answers.
And still Novell kept asking, Microsoft complains. Maybe, just maybe, because they imagined that a CEO of a software company who is known, Novell tells the judge, for micro-managing, would very likely be expected to know what was meant by extensibility in this context and what his underling was talking about? You think?

Novell also wasted time asking Mr. Gates about definitions of such things as API, Microsoft said. Everyone in the industry knows such things. Why bother Gates? Hmm. Just a wild guess, but I'm thinking they were testing his knowledge of terms that might help one to figure out if he knows what extensibility is and whether his answers about that were likely forthcoming or not? And maybe laying the foundation for the next questions in that chain? Well, what do I know?

I learned something though. An email application in Windows 95 was internally code named Capone.

: D

There are no words.

So, to make a long story short, Microsoft accuses Novell of deliberately wasting the half-day deposition, so that it could make him do it again. Why? To harass Gates into paying Novell money to go away. What? You don't believe? Click your heels together, you cynics. They ask that Novell not get another whack at Gates and suggest the court read the attached transcript of the Gates deposition, so the judge can get "the full flavor" of Novell's "tactics".

The Gates Half-Day Deposition:

Oooh. Oooh. Let's do. Here it is, Exhibit A [PDF].

How very much Mr. Gates does not know! Could that explain Microsoft Vista?

To read the transcript, just follow the numbers. But you have to know that each page is divided into 4 sections or pages. It goes top left, then lower left, then top right, then bottom right.

Ah! Now I see what Novell might have been doing. For example, on page 4 (subsection 6, top left), the lawyer asks Gates if he considers himself an expert on litigation. No, says the very busy man. He does not. So the lawyer shows him an exhibit, an email authored by Mr. Gates in which he says he's an expert in litigation in an email to Ballmer 14 years ago:

"I generally try and worry only about the things I have special expertise on (lawsuits, patents, technology, internet) and a few big things we all know about (novell perfect office, lotus notes, smartSuite)," close quote.
"Does that refresh your recollection, Mr. Gates, that you profess special expertise with respects to lawsuits?"

"Yeah...."

Methinks, rather than wasting everyone's time, Novell is attempting to first demonstrate that he'd know about the subject of Novell Perfect Office and SmartSuite, etc., but then to demonstrate a lesser commitment to total truth on the part of a certain former-CEO. Lawyers have been known to do such things at depositions, you know, or so I'm told.

"It's a differential expertise," Gates explains, compared to other executives at Microsoft at the time. Oh. How did he gain that "differential expertise?" He chose, compared to the others, to sit in on more meetings with lawyers.

I'd wager that is 100% true. Lots and lots of meetings with lawyers in the last decade. I totally believe that. Some would call it karma. Others that you reap what you sow.

Novell's Position - Microsoft's Arrogance is Palpable, They Didn't Show The Exhibits, and We Are All Equal Under the Law, Including Mr. Gates:

I showed you Microsoft's letter first, because you will find it illuminating when you read Novell's [PDF] next, even though in real life Novell's original letter was sent to the judge first. To follow along, you'll also need to have handy the exhibits that Novell attached to a second letter to the judge after Novell read Microsoft's letter. These are exhibits that they showed Mr. Gates at the deposition, or tried to. And Novell explains to the judge what they were used for and what Novell learned from the answers.

In Novell's first letter, they told the judge that what actually happened was this: the parties exchanged lists of who they'd like to depose, and with respect to Gates, Microsoft unilaterally offered him for 4 hours only. Novell objected, but agreed that it would, subject to later asking for more time if needed more time, try to fit all its questions into the four hours. Then, just before the day set for the deposition, Microsoft told Novell they'd get only 3 hours, and at the deposition itself, after Novell asked a particularly important question, 3 hours and 16 minutes into the deposition, Microsoft's attorney excused Mr. Gates from testifying further, and of course Novell objected. The reasons the earlier depositions aren't helpful, from Novell's point of view, is because they were about broader issues, and Novell has specific exhibits Gates was never shown before, and they want to ask him about those exhibits. Let me show you the final part of the deposition, beginning on page 41 of the PDF, 154 of the transcript, and you'll want to know that Mr. Holley is Microsoft's lawyer and Mr. Johnson is Novell's on this day:

Q. Turning your attention to the page Bates stamped 800 at the end.

A. 800?

Q. 800, yes. And drawing your attention towards the bottom of the page, it's part of the section about implementing a featured superset of Chicago's Explorer, it states, quote, "The Office Explorer implementation strategy is to leverage the Chicago shell team's work as much as possible. Chicago provides some of the crucial interfaces that will simplify our work; these include," and they talk about the IShell Folder and IShellView interface. Do you recall that those two interfaces were namespace extensions existing in Chicago, sir?

MR. HOLLEY: Object to the form of the question.

THE WITNESS: Yeah, most of what's described here, actually -- some of it got done and some of it didn't get done in terms of Chicago. In terms of this Office Explorer work, as I've said, this project didn't succeed.

BY MR. JOHNSON: Q. Mr. Gates, it was a simple question: Do you recognize IShellFolder and IShellView as namespace extension APIs?

A. I don't -- I don't know enough about the IShellView to say it's a namespace extension API. IShellFolder is sometimes talked about that way.

Q. Do you have any understanding why the project manager here would refer to IShellFolder and IShellView as crucial interfaces for the Office Explorer implementation strategy?

A. He was working on a project. He would hope it would succeed, and he had some technical ideas about what he wanted to put into his product.

MR. HOLLEY: Mr. Johnson, I'm sorry to interrupt, but I promised him I would make sure he makes his next appointment, and he needs to leave.

MR. JOHNSON: And without being argumentative, you know we disagree with the fact that we have not been given adequate time with Mr. Gates. In fact, we have not even been given the time that we were promised with Mr. Gates today, but you and I have agreed to disagree with respect to that, and we'll take our disagreement to Judge Botts. And I'm sorry to say, if I win this fight, Mr. Gates, we'll be back here at some point in the future. If I don't, thank you very much for your time.

THE WITNESS: All right, thank you.

MR. HOLLEY: Just so the record is clear, you know, we obviously don't agree with you and we'll take it up at the appropriate time.

MR. JOHNSON: Thanks.

THE VIDEOGRAPHER: This concludes today's videotaped deposition of William Henry Gates III consisting of four tapes. The time is 2:01 p.m. We are off the record.

If you look at the cover page, page 2 of the PDF, you can see that it started at 10:38 a.m. but there were breaks, so to check Novell's assertion of the length, you'd have to do the math that way. For example on page 15 of the PDF, you see they stopped at 11:34 a.m. and didn't resume until 11:41. Presumably, the judge did so, because he ended up giving Novell the time that matched Novell's calculations. So the last question was about the very topic that Microsoft in its letter claimed Novell didn't ask about. It's not the only place in the transcript where I see that topic asked about. For example, look at pages 13 and 14 and 15 of the PDF, which is all about extensibility. Mr. Gates claims he knows in general what that means, but not in terms of the exhibit shown to him, particularly after his lawyer steps in with a hint, beginning on page 14 of the PDF, 46 of the transcript:
Q. So do you have any understanding what is meant by the term "extensibility" when referring to the Chicago shell?

MR. HOLLEY: Object to the form.

THE WITNESS: In general, yes. In this document, no.

BY MR. JOHNSON:Q. Tell me, in general, what you understand.

A. It means the ability to add things....

Q. Looking at Mr. Silverberg's E-mail to Mr. Allchin, and focusing you on the second bullet point -- I guess line item, perhaps, would be a better description than bullet point -- I'm going to read it in, quote, "They *really*," and the word "really" has asterisks around it, "They *really* want extensibility. They continued to press for this in every way, whether cabinet extensibility so they could put in their own right pane handler; add properties to prop sheets; hook find file; etc. What's more, they were afraid and angry that Microsoft would use the hooks for its own purposes (apps, mail, etc) but not provide to isv's. This was a very hot button," close quote. Do you have any understanding, Mr. Gates, what Mr. Silverberg is talking about when he says that the ISVs really want extensibility?

A. No, he does not -- I mean, he gives some general sense, but we'd have to ask him.

Q. Do you have any understanding of what Mr. Silverberg is talking about when he says that the ISVs were afraid and angry that Microsoft would use the hooks for its own purposes (apps, mail, etc) and not provide them to isv's?

A. They are saying they want to use the same hooks, apparently.

Q. Is hooks --

MR. HOLLEY: The question is whether you understand what Brad meant.

THE WITNESS: No, I don't.

BY MR. JOHNSON: You don't have any idea why ISVs would be afraid and angry if MS -- Microsoft used the hooks?

A. Relative to this E-mail, or in a general sense?

Q. Let's try in a general sense.

A. ISVs often had things they wanted.

Q. Is hooks another name for APIs?

A. No, it's actually -- it's used -- I don't think anybody can define what they mean when they say "hooks". They usually mean some way of getting into an event chain.

Q. Would it include APIs?

A. It could include APIs.

Q. Mr. Silverberg says that this was a very hot button. Was this a very hot button that you were aware of, sir? Do you have any recollection of this hot button?

A. In terms of what's a button and the temperature of the button, you're going to have to ask the guy who wrote the thing. I don't think of it as a hot button, no.

Q. So sitting here today, you don't have any recollection of ISVs wanting extensibility in Chicago, is that right, sir?

A. Chicago had a lot of extensibility, let's be clear. Chicago is called an operating system, it's full of APIs that people called and used, so Chicago was a successor operating system, and it's the nature of operating systems that they have massive extensibility.

Q. Now could you answer my question, Mr. Gates? Do you have any recollection sitting here today that extensibility was something that the ISVs really wanted?

A. The context of the extensibility being used in this particular E-mail, no. The general idea of extensibility, yes. We gave them masked extensibility.

Q. This convention of using asterisks around words, is that because bold didn't exist in E-mails at the time?

A. I don't know.

Q. You've never seen that convention of putting asterisks around words during this time period?

A. Mostly people use capitals, capital R, capital E, capital A, like that.

Q. So the asterisks around a word mean nothing to you?

A. They tend to call that word out.

It all recalls his performance in the US v. Microsoft litigation. Remember how it went in his deposition? One brief sample:
1 P R O C E E D I N G S

2 THE COURT: MR. BOIES?

3 MR. BOIES: THANK YOU, YOUR HONOR. WE NOW WILL

4 OFFER GOVERNMENT EXHIBIT 1400 AND 1401, WHICH ARE THE

5 PLAINTIFFS' DESIGNATIONS AND MICROSOFT'S

6 COUNTERDESIGNATIONS FROM A PORTION OF MR. GATES'S

7 DEPOSITION.

8 AND WE WILL BEGIN BY PLAYING SOME OF THOSE AND

9 THEN PUBLISHING SOME OF THE EXHIBITS THAT WE INTRODUCED

10 THIS MORNING.

11 THE COURT: ALL RIGHT, SIR.

12 VIDEOTAPED DEPOSITION EXCERPTS OF BILL GATES

13 BY MR. HOUCK:

14 "QUESTION: IN OR ABOUT JUNE 1995,

15 MR. GATES, DID YOU BECOME INVOLVED IN THE

16 PLANNING FOR SOME MEETINGS WITH NETSCAPE?

17 ANSWER: NO.

18 QUESTION: THE E-MAIL I WANT TO ASK YOU

19 ABOUT FIRST, MR. GATES, IS DATED JUNE 1ST, 1995,

20 AND THE VERY TOP PORTION INDICATES THAT THE

21 BOTTOM PORTION IS BEING SENT TO YOU FOR YOUR

22 INFORMATION BY PAUL MARITZ, AND THE BOTTOM

23 PORTION IS AN E-MAIL FROM THOMAS REARDON, DATED

24 JUNE 1, 1995, ON THE SUBJECT OF WORKING WITH

25 NETSCAPE.

5

1 DO YOU RECALL RECEIVING THIS MEMORANDUM OR

2 E-MAIL?

3 ANSWER: E-MAIL, NO.

4 QUESTION: ALL RIGHT. I APOLOGIZE FOR USING

5 MY OLD-FASHIONED TERMINOLOGY.

6 YOU DON'T RECALL RECEIVING THIS E-MAIL

7 PARTICULARLY?

8 ANSWER: NO.

9 QUESTION: THE E-MAIL STATES, `DAN AND BARB

10 AND I MET LATE YESTERDAY TO REVIEW OUR RECENT

11 DISCUSSIONS WITH NETSCAPE AND FORM OUR NEXT FEW

12 ACTION ITEMS. DAN IS MEETING WITH JIM BARKSDALE,

13 THEIR CEO, SHORTLY.'

14 DO YOU UNDERSTAND THE REFERENCE TO DAN TO BE

15 A REFERENCE TO DAN ROSEN?

16 ANSWER: PROBABLY.

17 QUESTION: IS THE REFERENCE TO BARBARA A

18 REFERENCE TO BARBARA FOX?

19 ANSWER: I MEAN, YOU COULD ASK THOMAS.

20 PROBABLY.

21 QUESTION: DO YOU HAVE ANY UNDERSTANDING,

22 SIR?

23 ANSWER: BASED ON--I HAVE NEVER SPOKEN WITH

24 THOMAS ABOUT THIS. I DON'T REMEMBER SEEING THE

25 E-MAIL.

6

1 QUESTION: DO YOU RECALL SPEAKING TO ANYONE

2 ABOUT THE MEETING REFERRED TO HERE BETWEEN DAN

3 ROSEN AND JIM BARKSDALE?

4 ANSWER: NO.

See what I mean? This is performance art. It just doesn't work in a deposition or a courtroom.

So Rashomon to the max, the letters. Which one seems more accurate to you? Me, too. So, here, as text, is the second Novell letter, after Novell read Microsoft's letter about their very busy guy, Mr. Gates. They don't mince words, and when you see a lawyer quoting Shakespeare, I think it means he is expecting to prevail, which, forsooth, he did:

*******************************

DICKSTEIN SHAPIRO LLP
[address, phone, fax, email]

March 11, 2009

VIA FEDERAL EXPRESS & ELECTRONIC FILING

The Honorable J. Frederick Motz
United States District Judge
United States District Court for the District of Maryland
[address]

Re: Novell, Inc. v. Microsoft Corp., Civil Action No. JFM 05-1087, MDL No. 1332

Dear Judge Motz:

Having read Microsoft's nine-page discourse chronicling why William H. Gates III is somehow immune from the truth-seeking processes embodied in the Federal Rules of Civil Procedure, one can only conclude, with apologies to William Shakespeare, that Microsoft "doth protest too much, methinks."

Mr. Gates is the Chairman of the Board of Microsoft. During the relevant time period, Mr. Gates served as President and CEO of Microsoft. A notorious micro-manager, Mr. Gates' fingerprints are all over the anti-competitive conduct that is at the heart of this action. The conclusion that Mr. Gates is a principal witness and actor to the events giving rise to the complaint is shared by Microsoft, who identified Mr. Gates in response to contention interrogatories as a person with knowledge of the facts.

Mr. Gates personally ordered the de-documentation of certain API's known as shell extensions from the operating system code-named Chicago (later Windows 95) that would have enabled Novell and other ISV's to build office productivity applications that would have threatened Microsoft's operating system monopoly. The evidence will show that he did this for the express purpose of disadvantaging Novell in order to own "the key 'franchises' built on top of the operating systems" to "dramatically widen the moat that protects the operating system business." See Novell Incorp. v. Microsoft Corp., 505 F. 3d 302, 310 n. 15 (4th Cir. 2007). It is now allegedly inconvenient, disruptive and an imposition on Mr. Gates' busy schedule for him to be questioned about those facts. The arrogance of Microsoft is palpable.

In the 3 hours 16 minutes of examination "permitted" by Microsoft, we learned some things about the anti-competitive scheme perpetrated by Microsoft at the direction of Mr. Gates. It

DICKSTEIN SHAPIRO LLP

The Honorable J. Frederick Motz
March 11, 2009
Page 2

is quite notable that Microsoft failed to provide you with the exhibits actually used at the deposition, while complaining long and hard that they were somehow irrelevant to Mr. Gates' personal knowledge. We attach to this letter the exhibits used thus far. As the Court will see, some are documents authored by Mr. Gates, some name Mr. Gates and talk about decisions he made, and some memorialize the work done in carrying out his orders. All are relevant to this action. We review Mr. Gates' testimony about a few of those documents here.

On June 10 through June 12, 1993, Microsoft held an Executive Retreat at Hood Canal. Exhibit 2 to Mr. Gates' deposition was a slide presentation by Mike Maples, Jon Lazarus, Tandy Trower, Steve Madigan, David Cole, Chris Graham, Ed Fries and Nathan Myhrvold that, we have reason to believe, was presented at the Executive Retreat. This group of Microsoft employees notably includes both applications and systems executives. Microsoft complains that we had the temerity to ask Mr. Gates about the positions and responsibilities of these individuals. We must treat the deposition as a trial deposition, which necessarily requires laying a foundation. In this instance, the positions and responsibilities of these high-level Microsoft executives leave little room for debate on the importance of the proposal made.

In an apparent attempt to hide the presentation from outside scrutiny, the slide show was labeled: "Note: Client-Attorney Privileged Material." We were able to confirm through Mr. Gates that none of the team members was an attorney. One of the slides presented a proposal entitled "The Radical Extreme: The Office Shell." The "Basic Approach" presented was to "[h]old extensible shell for Office," Microsoft's suite of office productivity applications. In order to preserve this differentiation feature for Office, the Chicago shell (Windows 95) would be "non-extensible." The excuse to be offered ISV's for Chicago being non-extensible was "we couldn't get it done in time...'".

Mr. Gates professed ignorance about the meaning of "extensible shell." "I don't know what they are referring to here. Extensibility is just the general idea that you can add something in addition to what's already there." Gates p. 30. He claimed not to remember the executive retreat or the plan to withhold extensibility from the Chicago shell and use it in the Office shell. Gates p. 32-34.

On June 14, 1993, Dennis Adler, a Chicago Program Manager, sent notes from the Hood Canal Executive Retreat to Brad Silberberg, the Microsoft Vice-President responsible for Chicago, and David Cole, the Group Program Manager for Chicago. Gates Exhibit 6. Under the heading "Notes from Breakout Presentations & wrap-up 6/12/93," the following bullet point appears:

  • Ship extensible shell in Office!!! Wire the features we need for Chicago into the Explorer (e.g. mail integration, printman, CPanel, Fonts, etc.). Billg sez do it! (emphasis in original).

DICKSTEIN SHAPIRO LLP

The Honorable J. Frederick Motz
March 11, 2009
Page 3

In his deposition, Mr. Gates denied that there was any plan to ship an extensible shell in Office, claiming that there was some confusion in Mr. Adler's notes, and that what Mr. Adler meant when he said "Ship extensible shell in Office" was having Office take advantage of a shell that is part of an operating system. Gates p. 65-66. Mr. Gates' obscuration becomes manifest from documents created after the Hood Canal Retreat.

In a document dated July 3, 1993, Chris Graham, one of the team members proposing the "Radical Extreme" produces a paper entitled "Office Shell Ideas and Issues." Gates Exhibit 3. Mr. Graham states that the proposal "originated at a senior technical retreat at Hood Canal in June/93." The plan called for an enhanced Windows shell to be bundled with the next major version of Office to ship after Chicago. "The Office shell would be functionally a superset of the Chicago shell." Enhancements to the proposed Office shell included "increasing the extensibility of components such as the Explorer, the Desktop and the Tray." It would be only after the Office shell ships that the enhanced shell would become the next standard Windows shell for both Chicago and Cairo (Windows NT). The new shell would not be "initially available with Windows itself."

The Chicago shell, on the other hand, would have "limited extensibility." Trays would be "not [be] extensible, and not replaceable." Chicago would not include "[e]xtensibility e.g. Explorer not extensible (Capone [MS Mail] hardcoded into explorer)." Why do this? Mr. Graham expressly states the motivation:

  • Office gets a big jump on competition in creating apps optimized for the new shell.
  • We could gain a much bigger advantage from the Office shell. We could pull off the "UI Paradigm shift" to document centricity possibly two years sooner than if we did not follow this plan.... This would give us a very significant lead over our competitors, and make our competitors' products look "old".
At the same time that Mr. Gates was ordering the creation of the Office shell, the Systems Group, together with the Developer Relations Group (DRG) at Microsoft, was busy evangelizing the benefits of Chicago and its shell to the ISV community, including the people at WordPerfect. Mr. Gates acknowledged at his deposition that Microsoft spent hundreds of millions of dollars, evangelizing its operating systems products to ISV's during the 1990's. Brad Silverberg, the Microsoft executive in charge of Chicago, reported the results of a Chicago UI [user interface] design preview event with ISV's in July of 1993. Gates Exhibit 4.

Silverberg writes that "ISV's thought we were on the right track.... They *really* want extensibility. They continued to press for this in every way, whether cabinet extensibility so they could put in their own right pane handler, add properties to prop sheets; hook find file; etc.

DICKSTEIN SHAPIRO LLP

The Honorable J. Frederick Motz
March 11, 2009
Page 4

What's more, they were afraid and angry that Microsoft would use the hooks for its own purposes (apps, mail, etc) but not provide to isv's. This was a very hot button." (emphasis added). As events would unfold, the ISV's fear and anager that Microsoft would use the hooks for its own purposes but not provide them to ISV's proved prescient.

In several email chains in September of 1993, the Microsoft internal debate about whether to publish or document to ISV's the mechanisms available in Chicago for extending the Chicago shell came to a head over Microsoft's email product known as Capone. Not surprisingly, Gates attempted to downplay the significance of Capone, referring to it as a "little toy mail thing." Gates p. 69. Tom Evslin, the General Manager of the Workgroup Division (in charge of the Microsoft Mail product family), inquired whether there was anything Microsoft has "done in integrating capone with Chicago that a 3d party (Lotus, for example) won't be able to do." Gates Exhibit 7. This inquiry was bumped up to Joe Belfiore, the Chicago Product Manager who reported that "[t]here's no schedule (or even plan) to publish any of these interfaces now. They aren't ready for regular use..." Mr. Evslin responded by asking what made the interfaces "not ready for regular use," asking for a quick response because it was on a list of things "for me to discuss with billg tomorrow." (emphasis added).

Mr. Belfiore replied:

It's unclear whether we'll publilsh them or not for our release. Bill is *very* aware of this issue, so you can bring it up with him. He may be instrumental in deciding whether or not it's important for us to do the work to make these "palatable." (emphasis added)
The email chain is joined by Jonathan Lazarus, the Vice President for Systems Strategy (overseer for the DRG) who makes his feelings on the issue unambiguously clear. "If we use them we have to publish them."1

Tom Evslin has the last word, reporting on his conversation with Mr. Gates:

I went over this in some detail with Bill yesterday and he says "no" since Capone is part of Chicago. If you [Mr. Lazarus] think this is wrong, you should talk to him about it.... The Chicago guys own the API's. As of now, there are interfaces used in Capone which Chicago does not plan to publish." (emphasis added)

DICKSTEIN SHAPIRO LLP

The Honorable J. Frederick Motz
March 11, 2009
Page 5

The debate over publishing the extensions being used by Microsoft's mail product Capone continued within the Systems Divisions and the DRG. Doug Henrich, the head of DRG, in an email dated September 25, 1993, let Brad Silverberg, Dennis Adler and David Cole know about the potential downside of not publishing the API's Capone was using. Gates Exhibit 8:

I am not sure what your thinking is about publishing the interfaces/API's that Capone uses but I know Lotus will make a big deal of this. (Manzi has already mentioned it to Billg). And I am afraid that the press will have another field day with this. (emphasis added)
Manzi refers to Jim Manzi, who was at that time the President of Lotus. Mr. Gates claimed categorically that he was certain the subject of not publishing the API's Capone was using never came up with Mr. Manzi. Gates p. 85-86.

Gates Exhibit 11 memorialized an evangelizing event led by David Cole and members of the DRG to WordPerfect's offices in November of 1993 to talk to them about creating an application for Chicago. In it Mr. Cole reported that WordPerfect "will be on Chicago, they've never had any doubt about that." Moreover, "[t]hey were very happy about us deciding to document the shell extensions." (emphasis added). In all the depositions of Microsoft executives taken in this case (or any other case for that matter), no one has acknowledged making the decision to document the shell extensions in Chicago and selling ISV's on their use. Mr. Gates was no exception. He repeatedly refused to give straight answers to any question about who made the decision to tell WordPerfect developers that Microsoft had decided to document the shell extensions. Gates p. 107-115

Microsoft correctly observes that we didn't even get the chance to get to the point in the chronology when Mr. Gates personally makes the decision to de-document the shell extensions needed by Novell/WordPerfect to create office productivity applications that would have threatened Microsoft's Operating Systems monopoly. The last document that Microsoft allowed Mr. Gates to be partially examined on showed that the Product Manager charged with creating the Office shell for use in office 96 was intent on using the very shell extensions that Mr. Gates had de-documented. Gates Exhibit 15. "The Office Explorer implementation strategy is to leverage the Chicago shell team's work as much as possible. Chicago provides some of the crucial interfaces that will simplify our work, these include IShellFolder [and] IShellView."

We also didn't get a chance to discuss Mr. Gates' knowledge and approval of the continued use of the same shell extensions by Microsoft application products. We have yet to cover the half-truths and lies told to ISV's about the reasons for de-documenting the shell extensions. We have not been able to go through the documents which show that the shell extensions were not republished in any form until long after Windows 95 shipped. None of these subjects was covered because Microsoft apparently believes it has the power to unilaterally limit a deposition without applying to the court for a protective order.

DICKSTEIN SHAPIRO LLP

The Honorable J. Frederick Motz
March 11, 2009
Page 6

Moreover, even if Microsoft had sought a protective order prior to Mr. Gates' scheduled deposition, it could not have met the good cause requirement, which this Court has defined as a "high hurdle for proponents." Baron Fin. Corp. v. Natazon, 240F.R.D. 200, 202 (D. Md. 2006). This Court has noted that protective orders "should be sparingly used and cautiously granted" only when justice requires an order "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Id., FRCP 26(c). There has been no showing that Mr. Gates is being annoyed, embarrassed, oppressed or subject to any undue burden or expense. Indeed, the only undue burden and expense falls on Novell, who will now have to pay for another expensive trip to Seattle, Washington to complete Mr. Gates' deposition.

Finally, it is somewhat curious that Microsoft engages in lengthy ad hominem attacks, repeatedly accusing me of wasteful questioning, squandering opportunities and harassing Mr. Gates as "the best way to extract a monetary settlement from Microsoft." While I don't agree with the characterizations, I can't remember an occasion when defense counsel was unhappy over plaintiff's counsel squandering opportunities or wasting questioning. I also can't remember a single case where I was able to extract a monetary settlement from an opponent by harassing its Board Chairman through a deposition. Perhaps there is something deeper at work here.

Mr. Gates is one of the richest and most powerful persons in this country. His foundation is engaged in good works. Yet we are all equal under the law. Despite his central role in this action, we have requested nothing more than would be expected of any other litigant, a deposition not exceeding 7 hours in length in accordance with Fed. R. Civ. P. 30(b)(1). Novell thus respectfully requests that Mr. Gates be required to appear for the completion of his deposition at a mutually agreeable time and place sometime over the next 30 days.

Very truly yours,

[signature]
Jeffrey M. Johnson

JMJ/csg

Encl.

cc: David B. Tulchin, Esq. (by First class and electronic mail)
Steven L. Holley, Esq. (by First class and electronic mail)
G. Stewart Webb, Jr., Esq. (by First class and electronic mail)

__________

1 In an email three days later, Mr. Silverberg expressed his complete agreement with Mr. Lazarus to various systems executives. Gates Exhibit 9. "We clearly have to publish whatever api's capone uses." Mr. Lazarus responded privately: "Thanks, sanity is refreshing."


  View Printable Version


Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )