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Novell v. Microsoft Trial Transcripts - Day 7, Oct. 26, 2011 (Gibb) ~pj
Thursday, June 14 2012 @ 08:01 PM EDT

Here are the next transcripts from the WordPerfect antitrust trial between Novell and Microsoft as text, making it day 7, October 26, 2011. The transcripts for this day represent the testimony of Gary Lawrence Gibb, who worked at WordPerfect and then Novell and then Corel, first on WordPerfect for Mac and then in what was called the engine group, then as director over the entire WordPerfect suite at Novell. His testimony is that Novell missed the launch deadline for Windows 95 because of the lack of cooperation from Microsoft, not because of Quattro Pro developers quitting, as Microsoft's lawyer stated in his opening statement:
Q: Now, during the opening statements in this case, Microsoft's counsel made a reference to a document that stated that numerous Quattro Pro developers had submitted resignations before the PerfectOffice 95 product shipped and suggested that this was a cause for the delay in PerfectOffice 95 shipping, some 10 months after Windows was released. Do you recall this incident of Quattro Pro developers resigning?

A: Yes.

Q: And do you recall when that incident took place?

A: So it was like the end of the year, right end of '95. December-ish, in there.

Q: And can you tell -- can you tell me sort of what impact, if any, that had on the PerfectOffice suite delivery?

A: Well, you know, it wasn't good. I mean, it's not like it was good news. But they had fixed -- you know, they were basically code completed and had basically everything in there. And so again, it surprisingly wasn't Critical Path for releasing the product, even though the bulk of the team quit, because they were basically done.

This testimony directly contradicts Microsoft's story. This incident wasn't the factor that caused any noticeable issue, he says. That code was already done. The group that *wasn't* done was the shared code group, and we've already heard the testimony from the two prior witnesses that losing the API documentation and support was the problem there. And Gibb talks about entering panic mode, trying to get done in time for the launch of Windows 95, dropping features and adding manpower, but still the launch was missed. Gibb also has some testimony that ought to settle the judge's mind regarding WordPerfect's cross-platform offerings and what middleware is. After Gibb is done, Novell reads in full the response to the Microsoft document request number three partly read by Microsoft on day 6, and they finish playing the Brad Silverberg deposition [PDF] from 2009, which they had started to play but didn't finish on day 3.

The PDFs for this day are:



Gibb is asked what middleware is and whether WordPerfect is middleware:
A: Well, middleware -- you know, I don't know exactly the origin of it. I know in my own head the way I grew up there was -- you know, we have what's called hardware, the computer you bought. And then there was software, which was the same kind of thing run on top of it. And you had an operating system, and then you had other layers. And so middleware was just something in-between the final, you know, thing that you were working in, the application you were working in.

So middleware means, it's a tool that you can leverage to -- it's a layer that you use in your, you know -- it's hard to describe. But the architect, it's a layer that you use to build the applications that you finally live in when you're on the computer. So it's just a layer.

Q: Was WordPerfect middleware?

A: Yeah. For a lot of applications it was middleware because we had technology built in so that you could control and manage all of your documents. As a matter of fact, it was something that was even -- it was a little language that published thousands of access points into WordPerfect. So, for example, you could take something from a database and actually insert that into your document. You could use document management services. You could do all of these things you could build on top of WordPerfect, and actually people live there. So you could customize it, like I said, build custom applications. All of that was built on top of WordPerfect and the API, you know, language of choice, actually....

Q: Have you heard people talk about living in WordPerfect?

A: Oh, yeah. From the very early days, even on DOS, what we would -- you know, we had toll-free customer support so people would call all the time and we would hear these questions. And a lot of people, actually, you know, first thing they did when they turned on their computer, they just boot it into Word Perfect, and they kind of thought that was the computer. In essence, I do my word processing, and, you know, that's the bulk of what I do. So they viewed that kind of as their world.

The reason, he says, that people would live there was that "DOS was scary", so it enabled avoiding the command line, and another plus for WordPerfect was its print functionality. Those were sort of what made WordPerfect a good choice, that and the features that lawyers used:
A: Yeah. So there were, you know, lots of interesting features. We had legal features that were big. But the most common thing that we were known for is what we call print services and the open dialog. Both of those were things that we did to help customers out, especially early on, where, like I said, some people lived in word processing. So when they booted up and it came up, they needed to be able to easily find, and they actually renamed their files from within the open dialog. They did all kinds of things because it didn't go out to the operating system to do it because DOS was scary. So there were all kinds of things they would do inside of WordPerfect.

And then printing, print drivers, as every new printer came out what they would do is we would try to specialize and make it so that your documents would print with extreme high quality on each individual printer. It seems like it would naturally work, but it just doesn't. You have to actually write all this specialized code to make that printer perform its best so that it would have best resolution, that it would, you know, break the lines well, it laid out well, it showed graphics the best it could. So all of those were the print drivers.

Q: Was the open dialog or sometimes referred to as the file open dialog technology, was that something that WordPerfect thought it had a competitive advantage with?

A: Yes. I mean, because people just lived in it. I mean, they used it so much that we thought of it as a key thing for us.

While he was in the engine group, their cross-platform team, he says they worked on WordPerfect for UNIX, OS2, the Mac, etc., not just Windows:
Q: After the Mac group, where did you go to work next? A: So after the Mac group, they asked me to help out on the Windows team. So I went over to -- it was a team called the engine group. And what the engine group was it was a cross-platform team. So it was word processing expertise kind of centralized in one place so that we had, you know, actually VAX/VMS group and UNIX group. So these were different operating systems that we worked with. So there was UNIX, there was VMS. There was OS2, and we even had NEX machines, which was Steve Jobs' new adventure. So we wrote this word processing engine, we called it, which was this, you know, core word processing technology that you could run on all those different operating systems. So we didn't have to write it over each time, you had the word processing expertise in one place, and they took that chunk and put it on the tools operating systems, if that makes sense....

Q: You talked a little bit about the term cross-platform. Why was WordPerfect developed to be cross-platformed?

A: Well, we -- you know, we wanted to serve all the different operating systems. There were customers on all those platforms. We started cross-platform since we started on DOS. And then there was Windows, and both of those products were doing well. There was interest on OS2 and interest on UNIX. So as customers requested it, we wanted to -- you know, whenever they -- because there were reasons why everybody went to these different operating systems, and we just wanted them to be successful wherever they were on WordPerfect. So we wrote the engines so they could go cross any of those platforms.

So, if the judge the day before this testimony was confused about what WordPerfect ran on and what they wanted it to run on, this should clear it up for him. Within a few months of joining the cross-platform group, he was named its director, managing 30 or so staff. And he was there when Novell bought WordPerfect. And then he was in charge of the entire WordPerfect suite, including the work on Project Storm, WordPerfect for Windows 95. After the Novell takeover, his job had changed. He was promoted to oversight of the WordPerfect suite:
Q: After the merger, did your position change?

A: It was close around that time that it changed that they asked me to be over the suite as opposed to just over the engine team.

Q: And at some point in, I guess it would be 1994, were you made the director of the PerfectOffice product?

A: Yes.

Q: And what is PerfectOffice?

A: The PerfectOffice is just a collection of applications. It was WordPerfect -- or it was word processing, spreadsheet, Presentations, a little product we call Envoy, And we had a GroupWise client piece in there that was for e-mail. The core things, the biggest two were word processing and spreadsheet.

This means that he was there when the alleged anticompetitive behavior by Microsoft happened. He was in charge of the Windows 95 WordPerfect project, called Project Storm, and he was higher up than the prior two witnesses for Novell, Adam Harral [his second day] and Greg Richardson.

The interrogatory response that Novell reads goes like this:

MR. JOHNSON: Yes, precisely, Your Honor.

This is a document request during discovery in this case. This is document request number three contained in Microsoft's second set of requests for production and our objections and responses thereto.

Document request number three, all specifications, documentation, source code and object code for any software program developed by Novell that relied on or invoked any of the following APIs exposed by any version of the PC operating system referred to as Chicago or Windows 95. And it goes on to list the particular APIs, IShellBrowser, IShellFolder, IShellView, IPersistFolder and ICommDlgBrowser. I'm sure I'm mispronouncing that.

Novell's response is as follows. Response: Novell objects to this request as unduly burdensome. The burden and expense of searching for, retrieving, and producing documents responsive to this request would outweigh any potential benefits stemming from such production. Novell also objects to this request to the extent it seeks electronically stored information not reasonably accessible because of undue burden or cost.

Novell further objects to this request on the grounds that it is vague, ambiguous, and overbroad. Novell objects to this request on the grounds that it is vague, ambiguous, overbroad, and unduly burdensome in its use of the terms relied on and invoked.

In addition, Novell objects to this request because it seeks source code. As indicated in its objections and responses to this Microsoft's first set of requests for production, Novell will not produce documents containing source code absent a protective order between the parties governing the production of such information.

Subject to and without waiving its objections, Novell responds that Novell and Microsoft previously agreed on a protocol to electronically search, using agreed upon terms, one day of the backup tapes for documents responsive to Microsoft's first set of requests for production. The agreed upon search terms included the terms IShellBrowser, IShellFolder, IShellView, IPersistFolder and ICommDlgBrowser. Novell has produced over 18 million pages of documents from that one day of backup tapes, which may include the information Microsoft now seeks if such information existed. This request is inconsistent with the parties' prior agreement, and is duplicative of prior discovery requests.

Moreover, Microsoft waived any right it has to seek source code now. Microsoft failed to seek source code in its first set of requests for production and failed to ask for source code in connection with the agreed upon protocol concerning the backup tapes. In addition, Microsoft's decision to make IShellBrowser, IShellView, IPersistFolder, and ICommDlgBrowser private and IShellFolder a read only public interface, effectively prevented Novell from using the namespace extension mechanism and/or implementing the mechanism in a customized fashion. Therefore, as a practical matter, no software that Novell developed could rely upon or invoke those APIs.

Thank you, Your Honor.

Microsoft then asks for a bench discussion, and the judge more or less tells them to pound sand. You can see why Novell wanted to read it in full, can't you? The way Microsoft put it to the jury, it sounded like Novell had somehow refused a valid request for code in discovery, whereas in fact the parties had stipulated that neither would produce code. And of course Novell doesn't mind a bit that the answer includes the cord of its complaint against Microsoft.

And here is Mr. Gibb's day on the stand in full, as text:

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

NOVELL, INC.,

Plaintiff,

vs.

MICROSOFT CORPORATION,

Defendant.

_____________

Case No.

2:04-CV-01045 JFM

_____________

BEFORE THE HONORABLE J. FREDERICK MOTZ

DATE: October 26, 2011

REPORTER'S TRANSCRIPT OF PROCEEDINGS

JURY TRIAL

VOLUME VII

Reporter: KELLY BROWN HICKEN, CSR, RPR, RMR
ED YOUNG, CSR, RPR
PATTI WALKER, CSR, RPR

769

A P P E A R A N C E S

FOR THE PLAINTIFF: DICKSTEIN SHAPIRO
BY: PAUL R. TASKIER, ESQ.
JEFFREY M. JOHNSON, ESQ.
MIRIAM R. VISHIO
[address]

WILLIAMS & CONNOLLY
BY: JOHN E. SCHMIDTLEIN, ESQ.
[address]

SNOW, CHRISTENSEN & MARTINEAU
BY: MAX D. WHEELER, ESQ.
[address]

NOVELL
BY: JIM LUNDBERG, ESQ.

FOR THE DEFENDANT:
SULLIVAN & CROMWELL
BY: DAVID B. TULCHIN, ESQ.
STEVEN L. HOLLEY
SHARON L. NELLES
[address]

MICROSOFT CORPORATION
BY: STEVE AESCHBACHER, ESQ.
[address]

RAY, QUINNEY & NEBEKER
BY: JAMES S. JARDINE, ESQ.
[address]

770

OCTOBER 18, 2011 SALT LAKE CITY, UTAH

I N D E X

WITNESS - GARY LAWRENCE GIBB
EXAMINATION BY:
DIRECT BY SCHMIDTLEIN - Page 731
CROSS BY NELLES - Page 820
REDIRECT BY SCHMIDTLEIN - Page 893
RECROSS BY NELLES - Page 909

771

SALT LAKE CITY, UTAH, THURSDAY, OCTOBER 26, 2011

* * * * *

THE COURT: Good morning, Your Honor. The jury as usual is prompt, so we will begin.

(Whereupon, the jury returned to the court proceedings.)

THE COURT: Good morning. Please be seated.

Mr. Schmidtlein?

MR. SCHMIDTLEIN: Good morning, Your Honor. Plaintiffs call Gary Gibb to the stand.

THE COURT: Good morning, Mr. Gibb. Please come forward.

Incidentally, everybody, we're a little bit behind schedule, but pretty much we are on schedule. So things are going along well.

THE CLERK: Raise your right hand, please.

GARY LAWRENCE GIBB,
called as a witness at the request of Plaintiff,

having been first duly sworn, was examined

and testified as follows:

THE WITNESS: Yes.

THE CLERK: Please be seated.

Please state your full name and spell it for the record.

THE WITNESS: Full name is Gary Lawrence Gibb,

772

spelled G-A-R-Y, L-A-W-R-E-N-C-E, G-I-B-B.

DIRECT EXAMINATION

BY MR. SCHMIDTLEIN:

Q: Good morning, Mr. Gibb.

A: Good morning.

Q: Mr. Gibb, can you tell the people of the jury where do you live currently?

A: I live in Linden, Utah.

Q: And where are you from originally?

A: I'm -- well, I've moved around a lot as I grew up. I was born in Salt Lake City and spent most of my life in Utah.

Q: Are you currently employed?

A: I am.

Q: By whom?

A: I work at a place called Domo Technologies, kind of a new company. We do business intelligence, web solutions.

Q: And can you describe your job there?

A: I'm over product management, so I determine what we build and, you know, how we solve customer's problems in the business intelligence space.

Q: And how long have you worked there?

A: So I just went there this last April.

Q: Can you give the jury a summary of your post high school education?

773

A: Yeah. So post high school, I graduated from Skyline High School here in Salt Lake City, went to the University of Utah for one year and then took a break. Went on a two-year mission. And then I went to BYU, so I'm split between University of Utah and BYU. And I went to BYU for three years and got my bachelor's degree in computer science. And then after that I went another couple years and got my master's degree in computer science at BYU, and then went on and got an MBA at the University of Utah after that. Lots of school.

Q: Since you're under oath I'm not going to ask you where you sat at the football game this year.

THE COURT: On the 50-yard line.

Q: BY MR. SCHMIDTLEIN: After you left college, where did you begin work?

A: So when I graduated I started at a place called WICAT, World Institute of Computer-Aid Teaching. It was just a place in Utah, in Orem, actually, where we built -- I was on the operating system team, so we helped write the tools that they built these applications on top of so that they could put together these entire training programs to teach kids. It was the whole school around operating systems and these programs.

Q: And how long did you work there?

A: So, let's see. About three years.

774

Q: And what did you do next?

A: So I left WICAT to go to a company called WordPerfect.

Q: And approximately what year did you start working at WordPerfect?

A: So about, let's see. Probably about '86.

Q: And when you began working at WordPerfect can you describe what your job responsibilities were?

A: Yes. So when I first started WordPerfect, I worked -- I actually came on and interviewed, and they wanted to hire me and said, where would you like to work? And they had the DOS group, and they had MacIntosh group. And MacIntosh sounded kind of fun and different and exciting, so I started at the MacIntosh group. And I was put over what's called the display. So that's what I wrote, the display stuff at WordPerfect on MacIntosh.

Q: Can you describe a little bit more what you mean by the display?

A: So really everything that you see on the screen, on your computer screen that was the display. So there was a back end that was called kind of the formatter and Spell Checker and those kind of tools. Everything you saw on the screen where we rendered the documents so could you see it on your screen, that's what I did. I wrote what's called the display. So the graphics, the layout, the fonts, all of those

775

kind of things, that's what I did.

Q: After the Mac group, where did you go to work next?

A: So after the Mac group, they asked me to help out on the Windows team. So I went over to -- it was a team called the engine group. And what the engine group was it was a cross-platform team. So it was word processing expertise kind of centralized in one place so that we had, you know, actually VAX/VMS group and UNIX group. So these were different operating systems that we worked with. So there was UNIX, there was VMS. There was OS2, and we even had NEX machines, which was Steve Jobs' new adventure.

So we wrote this word processing engine, we called it, which was this, you know, core word processing technology that you could run on all those different operating systems. So we didn't have to write it over each time, you had the word processing expertise in one place, and they took that chunk and put it on the tools operating systems, if that makes sense.

Q: Going back for a minute, when you were in the Mac group, did you actually do software coding?

A: Yeah, a lot of coding. I was -- display was a big chunk of the entire program, actually. So I did a whole lot of coding.

Q: And when you went to the engine team, were you doing coding initially in the engine team?

776

A: I was, yeah. Started, when I first went over actually I was writing what was called the border's code, so, you know, it was specific. It was a big team about 30 people. And so I wrote borders around pages, around columns, around graphics and things like that. So when you see cool page borders, that's me.

Q: Now, you mentioned a number of the different operating systems that WordPerfect was developing for. Is it fair to say that WordPerfect was developing versions of its word processing software for all of the major operating systems at this time?

A: Oh, yeah. That was the whole point of the engine group was so that we could, again, leverage that so you didn't have to rewrite it each time. So it also made it consistent between the platforms so they could do WordPerfect and exchange documents, all those kinds of things.

Q: In terms of staffing allocation, when you went to work in the Windows, work on the Windows platform, can you give an estimate of sort of the relative size of how many people were working in the different platform groups?

A: You mean when I was on the engine team working on it and the different teams?

Q: Yes.

A: So, yeah. I mean, the biggest -- actually, the engine team was probably about 30 people. The Windows group

777

was probably about 30 people. That was WordPerfect specific. Shared code team was fairly big, you know, 20 to 30 people. And then, you know, your OS2 team was probably the same, probably a little smaller, probably 20 people on the OS2 team. The VAX/VMS group and the UNIX groups, they were probably the same. They were probably even a little smaller, maybe 15 to 20 people specific tools platforms. That would be the relative size.

Q: The jury has heard a little bit over the last week or two about 16-bit versus the 32-bit operating systems. Can you describe sort of a 16-bit and 32-bit, what that refers to?

A: Yeah. I mean, 16-bit just means that -- it's hard to explain. But 16-bit is less bits, right? So what you did is when you wanted to address something or you wanted to actually work with something, you had 16 bits of information to work with. 32-bit was twice as much, for those math experts out there. So, anyway, 32-bit was just bigger. And you could address more information. You could make things faster.

So 16-bit was kind of an older technology, something that was a little more limiting. 32-bit was the newer thing so that you could address more space, and you could do -- anyway, 32-bit was the newer, bigger world we were trying to get into.

Q: Now, when you went to work on the engine team, was

778

the engine team working on 16-bit or 32-bit operating systems?

A: Both. So we worked on 16- and 32-bit. Everything was 32-bit except for Windows. The Windows 3.1 platform was just 16-bit, but we built cross-platforms. So as a developer we would sit down, every one of the developers on the engine team had two computers. So they would have one computer that would be, for example, a NEX computer or OS2 computer, and next to it they would have a Windows machine, so they would have both.

So they would build their code. They would test it on the two platforms before they would check it into a common depository and then work across all the platforms. It was tested every night.

Q: Is it fair to say it began -- before you began work, the engine team began work on the 32-bit product for Windows that you had already been working on 32-bit operating systems?

A: Oh, yeah.

Q: Throughout?

A: I think probably more than half the code, and it was all 32-bit because, like I said, it was cross-platform. And everything under the Windows was 32-bit. So it was certainly 32-bit.

Q: You mentioned earlier that you got an MBA at some point. Did you get -- when exactly did you get your MBA?

779

A: So I started my MBA program the same time I started WordPerfect. It was, you know, the busiest three months of my life. It was a scary time because I was trying to finish up my thesis, my master's degree thesis in computer science, and started my MBA and also moved over to WordPerfect. So a little vivid memory of mine. When I kind of started there it was a scary time.

Q: And what were some of the things that you were studying while you were getting your MBA, at least as it relates to your job responsibilities at WordPerfect?

A: So, you know, well, in general the MBA is to learn how to manage and direct in large companies. So we would do case studies and things like that. And I talked about it frequently that one of the things I learned in the MBA program was project management and Critical Path of how, you know, you would make sure that you would optimally perform in teams. And one of the things which you would measure, one of the things that, you know, you would put up tasks, and say everybody was trying to do a certain task, and you would say, which one of these tasks is going to take the longest? And you try to optimize around that so that you could, you know, minimize the overall scope of the project. And so that was one of the things I studied in MBA that is relevant to this case.

Q: Do you remember what exactly your title or position

780

was when you first began working with the engine team?

A: Well, when I first began, it was, you know, developer. I don't know what else. But it was a very short time when I was asked to be the director. So I was director over it, over the engine team within a few months of actually being over there, and partly because I actually had some ideas about how to manage a project and help deliver more quickly.

Q: And how many people were you put in charge of when you were made director of the engine team?

A: I think it was about 30 people. About 30 people.

Q: And how long did you have that position?

A: So it was again a couple years, two or three years, I think.

Q: You talked a little bit about the term cross-platform. Why was WordPerfect developed to be cross-platformed?

A: Well, we -- you know, we wanted to serve all the different operating systems. There were customers on all those platforms. We started cross-platform since we started on DOS. And then there was Windows, and both of those products were doing well. There was interest on OS2 and interest on UNIX. So as customers requested it, we wanted to -- you know, whenever they -- because there were reasons why everybody went to these different operating systems, and we just wanted them to be successful wherever they were on

781

WordPerfect. So we wrote the engines so they could go cross any of those platforms.

Q: Back in sort of the mid '90s period when you were in these positions, what functionality was driving sales of computers?

A: Well, you know, I'm not the expert on that, but I think, you know, word processing and spreadsheets were 80, 90 percent of everything that people did. You know, now I think it's still a big part of what everybody does. You know, word processing and spreadsheet, you add an e-mail in browsing you probably have a huge chunk of what most people do on the computer.

Q: Are you familiar with the term middleware?

A: Yes.

Q: What does that mean to you?

A: Well, middleware -- you know, I don't know exactly the origin of it. I know in my own head the way I grew up there was -- you know, we have what's called hardware, the computer you bought. And then there was software, which was the same kind of thing run on top of it. And you had an operating system, and then you had other layers. And so middleware was just something in-between the final, you know, thing that you were working in, the application you were working in.

So middleware means, it's a tool that you can

782

leverage to -- it's a layer that you use in your, you know -- it's hard to describe. But the architect, it's a layer that you use to build the applications that you finally live in when you're on the computer. So it's just a layer.

Q: Was WordPerfect middleware?

A: Yeah. For a lot of applications it was middleware because we had technology built in so that you could control and manage all of your documents. As a matter of fact, it was something that was even -- it was a little language that published thousands of access points into WordPerfect. So, for example, you could take something from a database and actually insert that into your document. You could use document management services. You could do all of these things you could build on top of WordPerfect, and actually people live there. So you could customize it, like I said, build custom applications. All of that was built on top of WordPerfect and the API, you know, language of choice, actually.

Q: Are you familiar with the term custom solutions?

A: Sure.

Q: Can you describe that?

A: Well, custom solutions is kind of what I was talking about. Is that if you think about it, you know, doing word processing or doing a spreadsheet calculation, all of those could be part of a solution if you build on top of these

783

things.

So, you know, so custom development just means that I need a specialized version of, you know, WordPerfect or customized version of a spreadsheet, which is a piece of the spreadsheet or I need a piece of the word processer to build a solution that's specific for what I am doing. So it's, you know, a customized version of a product that's built on top of these chunks or these components underneath.

Q: Are you familiar with a program called PerfectFit partners program?

A: Yes.

Q: What is that?

A: So PerfectFit partners, to help partners build these custom solutions, we would publish, it actually took a lot of work to build documentation. For example, when we wanted to publish it to Visual Basic, we had to put it in a certain format and get it out there so that people could then build these custom applications on top of Word Perfect and Quattro Pro.

So we just called it a partners program where we supported the partners so that they could build their custom applications. We gave them, you know, documentation about how it worked, what APIs could do, examples of what you wanted to do, that kind of thing.

Q: Have you heard people talk about living in

784

WordPerfect?

A: Oh, yeah. From the very early days, even on DOS, what we would -- you know, we had toll-free customer support so people would call all the time and we would hear these questions. And a lot of people, actually, you know, first thing they did when they turned on their computer, they just boot it into Word Perfect, and they kind of thought that was the computer. In essence, I do my word processing, and, you know, that's the bulk of what I do. So they viewed that kind of as their world.

Q: While you were director of the engine team, did Novell merge with WordPerfect?

A: Yes.

Q: From your perspective, did you see any impact that the merger had on the pace of software development for the WordPerfect engine team?

A: Very little, if any.

Q: Were there any people in your group that were laid off after the merger?

A: No. Like I said, it was perceived as a positive. Most of my group, because there was this, you know, we were proud of Novell. This was another Utah company. It was a big company, And we thought it's cool to have big backing.

Q: And you continued to work for Novell after the merger with WordPerfect?

785

A: Yes.

Q: After the merger, did your position change?

A: It was close around that time that it changed that they asked me to be over the suite as opposed to just over the engine team.

Q: And at some point in, I guess it would be 1994, were you made the director of the PerfectOffice product?

A: Yes.

Q: And what is PerfectOffice?

A: The PerfectOffice is just a collection of applications. It was WordPerfect -- or it was word processing, spreadsheet, Presentations, a little product we call Envoy, And we had a GroupWise client piece in there that was for e-mail. The core things, the biggest two were word processing and spreadsheet.

Q: Was there technology that was referred to as PerfectFit, technology that was included within the PerfectOffice suite?

A: Yes. So PerfectFit was the -- you know, we changed names now. But PerfectFit was the same thing I referred to called the shared code group. So PerfectFit, shared code, the same thing. That was just the team that we worked with that was specific to the operating system. So like the engine team was specific to doing word processing across all those platforms, the PerfectFit or shared code team were the experts

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on the Windows operating system. So they -- that's what they would specialize in.

Q: Do you recall what operating systems Novell was developing the PerfectOffice suite for?

A: So the suite, the entire suite?

Q: Uh-huh (affirmative).

A: I think we only did it for, you know, Microsoft platform, we did for -- well, I guess we had -- we had a DOS offering. But suite, the entire thing we were doing was really based on Windows 3.1 and Windows 95.

Q: Did Novell have a long-term plan to make the PerfectOffice suite available on multiple operating systems?

A: Oh, yeah. Same way we did the engine group there, we wanted to make everything cross-platform and go across the different operating systems.

Q: Had Novell already begun developing for Windows 95 before you started working on the PerfectOffice 95 team?

A: Yeah. I knew there were teams that had started working on it, specifically shared code, because again, those were the guys who were the experts on the platform. So they, you know, they were always getting the latest and greatest stuff from Microsoft and would experiment with it and look at it so that they could be ready for the next suite.

Q: What was different about Windows 95 from past Windows operating system?

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A: Well, from a technology standpoint, Windows 95 was a huge step forward, because before that, we had, like I said, Windows 3.1, I don't know how many of you remember, but it used to come to the DOS prompt and you type, start up Windows? It was really old technology. I mean, all the other platforms we were writing in the engine were newer technologies. And Win95 was, at least the whole operating system was now, you know, 32-bit. It was multitasking. It was -- so Windows 3.1 we viewed kind of as a pretty face on a very poor technology architecture. And Windows 95 was coming up to be, you know, pretty much a part of what everybody else was. So Windows 95 was considered a big step forward.

Q: How did you compare that with some of the other operating systems that you had been working on previously?

A: Windows 95?

Q: Uh-huh (affirmative).

A: Comparable. In a lot of ways, it had -- you know, the technology -- it was not revolutionary in its technology. It was just -- but it was big platform. I mean, it was a very popular platform. A lot of people started on DOS, and they slowly migrated to Windows 3.1. So it was an evolutionary process for people to do. And so it was moving a lot of masses into this new world of 32-bit, multitasking, such that, you know, like I said, that kind of operation system I actually worked on prior back at WICAT. So it had been around

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for a long time, but it was finally coming around to Windows.

Q: How long did you have the position as director of the PerfectOffice suite?

A: How long? For two to three years, I guess basically.

Q: Did you have that position all the way through the time up until when Novell sold WordPerfect to Corel?

A: Yes.

Q: And did you go over and work at Corel?

A: I did.

Q: What position did you hold at Corel immediately after the sale?

A: Well, immediately after I was still working for PerfectOffice, but Corel kind of came in and put their own guy in charge, Paul Skillen. And I was asked to kind of do product management over Quattro Pro, the spreadsheet.

Q: How long did you work at Corel?

A: Another couple years.

Q: And after Corel, where did you go?

A: So from Corel I went to a company called TenFold, which was a company here in Salt Lake, where we built mission critical applications for large Fortune 500 companies.

Q: And did you go then from TenFold to Domo?

A: No. From TenFold I went to a company called Ancestry. I don't know if you know about that, Ancestry.com,

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a company that's centered down in Provo. They do family history, software, family history. Probably seen Ancestry.com. So I was there for about 12 years.

Q: Going back to the time that you were working as the director of the PerfectOffice, do you recall a development project that was code named Project Storm?

A: Yes. That was my project. That was the suite for Windows 95.

Q: Was that also sort of referred to as PerfectOffice 95?

A: Yes.

Q: And I believe you described previously the various components of the PerfectOffice suite. When did you personally begin working on the PerfectOffice 95 project?

A: You know, early -- I guess maybe late '93, early '94, kind of time frame.

Q: What was your role on the project?

A: So I was over the suite. So specifically it was to pull together all of the pieces, you know, WordPerfect, Presentations, Quattro Pro, pull all of those together and make sure that it's a consistent looking field, make sure that they operated together well. The, you know, bottom line that it helped customers do all of the projects they wanted to without having new learning curves and things like that so that they could, you know, leverage their knowledge from one

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application suite to the others.

Q: You testified previously that you had actually been doing software coding in some of your prior positions at WordPerfect. Were you actually doing software coding on the PerfectOffice '95 suite?

A: No. No. There was about 300 people on this project, so there was a lot to just keep track of and keep it going and move it forward aggressively.

Q: How many people reported to you in your position as director of PerfectOffice?

A: So there were only about 30 people who reported to me directly because the way it was set up there was a director over each of the areas of the suite. And so they used to talk about a dotted line to me, but it wasn't a direct reporting line. So most of the time I had 30 people that worked directly for me, and then all of these directors, like director of WordPerfect, director of Presentations, director of Quattro Pro, they all -- all of us reported to Bruce Brerton.

Q: And I think you just mentioned that there were several hundred people working on the PerfectOffice suite?

A: Yeah. I always -- I think it was about 300 people.

Q: Okay. And do you recall again just roughly how many software developers were working on that project?

A: It was -- most of them were software developers. I

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don't know exactly. But it's got to be, you know, over 200, 250, somewhere in that range.

Q: And were -- was Adam Harral and Greg Richardson some of the software developers who were working on the PerfectOffice suite?

A: Yes.

Q: You mentioned that one of your responsibilities had to deal with sort of managing a project. Can you describe for the jury what your responsibilities were with respect to the schedule of the PerfectOffice 95 Project Storm time?

A: Yeah. So what we did is we had a coordination -- we would plan together, and I worked with all the teams to help, you know, prioritize and develop the feature set for our customers. And on the scheduling time, we had weekly meetings where we talked about status. And like I talked about for my MBA program, one of the things we did is we had a huge Gantt chart where we kept track of every one of the individual tasks and where people were headed so we could assess and say, you know, what was again Critical Path? What's the piece, that is, do we need to focus on to make sure we all can deliver at the same time?

Because as you can imagine, we have a whole lot of people working on a project together, you need to coordinate those efforts and make sure that you help people that are falling behind or whatever it takes so that you all deliver at

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the same time.

Q: You made mention of this term of Critical Path. I think you mentioned it earlier when you were describing some of the things you were studying at business school. Can you describe in a little more detail what Critical Path meant in the context of your work?

A: Yeah. So, like I said, you know, we would plan the next release of PerfectOffice, and everybody would sit down and say, you know, these are the key things that we want to accomplish. And then they would sit down and estimate, how long will it take to do each of these steps along the way? So when they put together this estimate of how long it would take them to do these tasks, you know, you put those together and you try to balance those projects between all of the people you have allocated on the project, and then you would track their progress. So every week they would report and say, you know, I told you it was going to take two weeks to bring up this, you know, dialog. And then I was going to do the back end of that, and that was going to take another two weeks. And the next step was going to take another two weeks.

So you would track to see if they are getting those checked off. So they would report every week and say, I'm this far complete on this part of the project. So we would track that and say, oh, you're ahead of schedule, or, if you were behind schedule, that's when I might change and a

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different person or group might become Critical Path if they were falling behind.

Q: And if something is denoted as Critical Path, does that mean it was the piece that's currently going to take the longest to complete?

A: Yes. Sorry. I didn't explain that well. Critical Path means that this specific path through the Gantt chart, I mean, these are the things, these are the tasks that this group of people need to do that looks like it's going to take the longest amount of time. That's what we call the Critical Path.

Q: Who is responsible for setting the PerfectOffice 95 development schedule, if anyone?

A: Well, so we worked on it together. So, you know, I would probably be the central piece to that. But certainly every one of the applications groups, you know, they would put together their plan and we would coordinate that. So, you know, I'd be the central owner of that, and then each of the directors of each of the specific application would drive their group.

Q: And how did the development schedule affect the release date?

A: Well, it's the same thing, I guess. The development schedule you had to develop the product and complete it so you could release it, if that's what we're

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talking about.

Q: How frequently did the Project Storm team meet to discuss development issues?

A: So at least every week. So, like I said, we had a team meeting every week where everybody would come in and talk about it. We already had the report of -- you know, everybody reported every week, so we already had gathered that. And then we would sit down together and discuss, what's the latest Critical Path, or, what are the things we need to focus on right now as a team to make sure that we deliver together? So at least every week and possibly more, if there were additional concerns that we needed to address. So at least once.

Q: In terms of positions, who attended these meetings?

A: So all of the directors of each of those areas would attend. So the director of WordPerfect would attend, director of Presentations, director of Quattro Pro, director of PerfectFit or shared code. So all of the leads would attend. And then as needed, additional people would attend if their area were critical. Or we wanted to discuss that specific aspect in more detail, then we would invite additional people. We'd have -- I'm sorry. There's also -- I'm ignoring the others. But there was like, you know, the marketing group, the director of marketing, the quality group were represented. So lots of different teams were

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represented.

Q: When you first took over the Project Storm project, do you remember when Windows 95 was scheduled to be released?

A: Well, it varied a lot, you know, because early on they were trying to ship it I think back in -- I think Chicago was early, scheduled trying to ship in '93. And then later as they got into '94, later in '94, they were projecting they would ship in the first half of '95 until later when they started projecting the second half of '95.

Q: Did Novell want to ship PerfectOffice 95 as soon as practicable after the release of Windows 95?

A: Oh, yeah. That was a huge priority for us. And so I was over that project. So, you know, our number one priority was to release a great suite that was awesome on Windows 95. Yeah. It was, because like I said, we thought it was a significant step up in technology, so this would be a much better platform. We thought people would adopt it pretty quickly.

Q: What sorts of contact did an ISV like Novell have with an operating system like Microsoft to develop products for new operating systems?

A: So, you know, you had a relationship where early on they would give you what they call beta versions of the operating system. They'd give you development platforms so that we could start -- you know, way in advance of the

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release, we could start building these applications and make sure they ran when the operating system was released so that you didn't have an operating system that went out and nothing to do on it.

Q: Did Novell's goal of releasing a suite of products close in time with the Windows 95 release, did that ever change?

A: No.

Q: Was Novell able to release the PerfectOffice suite within 60 to 90 days after the release of Windows in August of '95?

A: No. I mean, we didn't.

Q: And why not?

A: Well, you know, there's lots of reasons. But I mean, as far as my take on why we didn't make it is because of Critical Path stretch, right? So there's Critical Path pieces that's more ready. Specifically PerfectFit or shared code team was our Critical Path. You know, about midway through the project they became Critical Path and stayed Critical Path clear up until we were up to release them.

Q: Were Mr. Harral and Mr. Richardson two of the developers who were in the shared code team?

A: Yeah. They were two of the best and the brightest, and they were on that team.

Q: I'm going to go back a little bit in time. Can you

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describe some of the areas that historically differentiated the WordPerfect product from other word processing applications?

A: Yeah. So there were, you know, lots of interesting features. We had legal features that were big. But the most common thing that we were known for is what we call print services and the open dialog. Both of those were things that we did to help customers out, especially early on, where, like I said, some people lived in word processing. So when they booted up and it came up, they needed to be able to easily find, and they actually renamed their files from within the open dialog. They did all kinds of things because it didn't go out to the operating system to do it because DOS was scary. So there were all kinds of things they would do inside of WordPerfect.

And then printing, print drivers, as every new printer came out what they would do is we would try to specialize and make it so that your documents would print with extreme high quality on each individual printer. It seems like it would naturally work, but it just doesn't. You have to actually write all this specialized code to make that printer perform its best so that it would have best resolution, that it would, you know, break the lines well, it laid out well, it showed graphics the best it could. So all of those were the print drivers.

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Q: Was the open dialog or sometimes referred to as the file open dialog technology, was that something that WordPerfect thought it had a competitive advantage with?

A: Yes. I mean, because people just lived in it. I mean, they used it so much that we thought of it as a key thing for us.

Q: Was the file open dialog technology planned to be part of the PerfectOffice suite?

A: Yes, absolutely. It has to be, of course. And it was a key thing for us.

Q: And which group was responsible for developing that?

A: So that was PerfectFit because, again, that's where you're dealing with the operating system. So when you're dealing with the operating system, that was shared code or PerfectFit. And so the file open dialog was from the shared code group, PerfectFit group.

Q: Are you familiar with something called QuickFinder?

A: Yes.

Q: What is QuickFinder?

A: So QuickFinder was really a technology that when you're in the open dialog and you're not sure of what the file was or not sure where it -- you know, how to find it, QuickFinder basically was a technology that went out and indexed all of those documents so you could quickly go find

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them. And so you're saying, oh, I know I had this word processing document that has something to do with Novell. And so you search Novell, and you find and bring those back to you quickly, QuickFinder, and bring it back so you can then actually access those files and find and use them.

Q: WordPerfect believed the QuickFinder technology provided a competitive edge over competing products?

A: Yes. I mean, we spent a lot of effort on it and thought it was a very cool technology, because it was not only for the open dialog, it was something that we thought would be applicable in broader areas. Lots of future potential there from indexing things that you did on the Internet to, you know, your local hard drive to your network. We thought it was a very cool technology.

Q: And was QuickFinder technology planned to be part of the PerfectOffice Windows 95 product?

A: Oh, yeah. It was core. It's integral into the file open dialog which is, like you said, one of the things we were working on.

Q: And were all of these features we are talking about, the print drivers, the file open dialog, QuickFinder technology, were these all features that WordPerfect historically had provided in earlier versions of its products?

A: So we'd always had, yeah, print drivers and file open and had specialized in those areas to make them stronger.

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So, yeah. They were part of our products from the DOS days forward.

Q: And were these technologies made available for WordPerfect versions that ran on operating systems other than Windows?

A: So we did a version of all of those -- we did a version of those things for other operating system. But specifically, you know, we spent most of our efforts -- the shared code team that was for Windows was much bigger than, you know, when I was talking about, for example, the OS2 team or the VAX/VMS team, those guys had 20 people altogether to do both the, you know, version of the word processor and things like specializing open dialog and print drivers and things like that. So we did a lot more with the Windows platform than we did with any of the other platforms.

Q: Mr. Gibb, I show you what I'm going to mark -- that has already been marked as PX374. Just take a moment to take a look at that.

Do you recognize this document?

A: Yes.

Q: Okay. And what is it?

A: So it's just kind of a real quick high level of the features for Storm. Again, Storm was the code name for PerfectOffice for Windows 95.

Q: And if you scroll down that document a little bit,

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there's a -- the part where it says QuickFinder?

A: Uh-huh (affirmative).

Q: That's the product you were just talking about?

A: Yes.

Q: And it says:

QuickFinder will work with Netscape so users can later search for words or phrases and go directly to the URL where the words or phrases are found.

Can you describe what that means?

A: Yeah. I was hinting to that earlier in my comment that basically you could search not only through your documents, but you can search also web content and so find, you know, when you are working on that, you know, Novell document you could actually also say, oh, what was I searching on the Internet about Novell, and they can index those things for you, also.

So that was basically saying that QuickFinder could then -- a URL is just, you know, this universal resource locator kind of thing. It's where you type in at the browser at the top, that's a URL. So it was basically that you could find that address and then go directly to it on the web and find that.

Q: If you go a little further down the document, there's a feature referred to as file/new file open/save as

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dialogs?

A: Uh-huh (affirmative).

Q: I believe that reads:

File open will have all the functionality of the common Windows open dialog plus additional functionality including the ability to browse NameSpaces.

Do you see that?

A: Yes.

Q: And is this the file open dialog technology that you were previously talking about?

A: Yes.

Q: If you go down two more, there's an entry for enhanced PerfectScript and Visual Basic support. And the description there says:

We will provide better support for customers who want to create custom solutions with PerfectOffice.

Can you describe what that means?

A: So that is similar to what I was talking about before. This was -- PerfectScript was this scripting language where we publish the APIs to WordPerfect and Quattro Pro and Presentations, all of those applications. This is a way that you can control those, all of those pieces. And Visual Basic was a fairly popular, high-level language programming basic.

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Anyway, it was, Visual Basic was a program where you could write code. And inside of your Visual Basic applications we published APIs so you could say, in your Visual Basic program you could say, you know, WordPerfect.something, and you could access these different elements in WordPerfect document or capability inside of WordPerfect.

So what this means is that we were publishing this PerfectScript so that you could write it just if you had the suite or if you were actually were kind of a little more serious developer you could use Visual Basic and build your own applications on top of the PerfectOffice suite.

Q: Thank you. You can take that down.

Now, you testified earlier about this concept called Critical Path. Do you recall when the PerfectOffice suite 95 finally shipped?

A: In '96.

Q: And did it ship after the time that Novell sold the WordPerfect business to Corel?

A: Yes.

Q: What proved to be the Critical Path element during the development of PerfectOffice 95?

A: So what turned out to be the Critical Path, you know, in this rollup version of the whole thing was that PerfectFit or shared code team, so, like I said, you would track individual progress. And then what we would do is we

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would roll those together into, you know, like -- eventually it rolled all the way up to WordPerfect, Presentations, Quattro Pro, right? So you would have a ton of tasks for each individual that was in that, and they were rolled up into that group. So the group was PerfectFit, shared code technology. And the specifics out of that, file open dialog was one of the most critical pieces inside that group.

Q: Do you recall at about what time it became apparent to you that the file open dialog or the shared code piece of this had become Critical Path?

A: So it was sometime in, you know, you know, towards the end of the first quarter of '95, I think. I'm piecing it together because we had months of these meetings where we talked about, to the PerfectFit team, and said, you guys are critical. What can we do to help? I'll try to help you any way we can.

And it was months that they were on Critical Path until we finally built up, until we had this kind of emergency meeting in about July. And so it was -- it had been for several months before that. So anyway, it's close to the start of second quarter, Q2 or the end of Q1, the end of the first quarter.

Q: And at this point in time when you became aware that the shared code group was Critical Path, did they know or did you know exactly how long it was going to take to solve

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the problems that they were having?

A: No. No.

Q: Were there any other components that would have held up the release of PerfectOffice 95 in terms of it making its release schedule for the 60- to 90-day period after the release of Windows 95?

A: So I don't think so. There's no way to really know because shared code was Critical Path. But when you have a project like this, this large in scope, having this particular project in Critical Path for so long, you say, you know, obviously that's the problem. That's what's going to extend it out. And there was no evidence that any of the others were going to be Critical Path. They never became Critical Path for months and months. So....

Q: Do you recall Quattro Pro, the development of Quattro Pro causing a delay in the shipment of PerfectOffice 95 suite?

A: No. I mean, early on, like I said, when we were first speccing out Storm, we thought Quattro Pro might be Critical Path. So early on before we had project plans and before we tracked the progress, we were nervous about Quattro Pro because they had a lot of things to do. We were nervous that they might have a hard time getting the schedule. But they were very conservative in their estimates and kind of over delivered. So it turned out to be a pleasant surprise.

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Q: Where were the Quattro Pro developers located?

A: They were down in California.

Q: And did you meet with or communicate with Quattro Pro developers in terms of their giving you estimates of when they thought they'd be able to deliver the Quattro Pro product for PerfectOffice?

A: Why. We worked with them. Like I said, the weekly meetings involved everybody including Quattro Pro. So they were, you know, they would call in to all of these meetings where we talked about it. But they were also in the same, you know, project management system where we would keep track of how they were doing and track if they were in Critical Path versus anybody else. Yeah, we were all on the same project.

Q: Did they initially express concern to you about whether they could meet sort of a September/October time period release for the PerfectOffice 95 suite?

A: Yes. Yeah. They were very concerned. Like I said, they were a pretty conservative group, but they were really solid developers. And so again, so they were, you know -- but truthfully, most teams are kind of a little nervous when you start a new big project, right? Developing on time is a big thing. It's hard to project that perfectly, and it was -- everybody was nervous. But Quattro Pro was certainly nervous, yeah.

Q: Was this the first sort of project that they were

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going to deliver on after the merger? In other words, the acquisition of Quattro Pro to Novell?

A: Let's see. So Win95 -- oh, you mean when Quattro Pro went over to Novell?

Q: Yes.

A: Yeah; because obviously they had to deliver for PerfectOffice for Windows 3.1, so....

Q: Now, during the opening statements in this case, Microsoft's counsel made a reference to a document that stated that numerous Quattro Pro developers had submitted resignations before the PerfectOffice 95 product shipped and suggested that this was a cause for the delay in PerfectOffice 95 shipping, some 10 months after Windows was released. Do you recall this incident of Quattro Pro developers resigning?

A: Yes.

Q: And do you recall when that incident took place?

A: So it was like the end of the year, right end of '95. December-ish, in there.

Q: And can you tell -- can you tell me sort of what impact, if any, that had on the PerfectOffice suite delivery?

A: Well, you know, it wasn't good. I mean, it's not like it was good news. But they had fixed -- you know, they were basically code completed and had basically everything in there. And so again, it surprisingly wasn't Critical Path for

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releasing the product, even though the bulk of the team quit, because they were basically done. Again, the focus was to be Windows 95 compliance, so that's what they got from shared code. So that they kind of got for free. And the Quattro Pro, they had made it 32-bit, and then the core changes that had to be there and the few features they wanted to add, and they got those done. So even though we lost the bulk of the team, it surprisingly didn't turn out to be Critical Path.

Q: If the shared code team had delivered their product on time, would Quattro Pro have caused PerfectOffice to have shipped outside this 60- to 90-day period after the release of Windows 95?

A: I don't think so. You know, there's no way to perfectly know. But every indication was that we would have shipped, and so we would have.

Q: Do you recall the work that the -- strike that.

Was the Quattro Pro team dealing with bug fixes in December of 1995?

A: Well, so I was involved with -- when we took it over, I was involved with taking it over. So all we did is bug fixes. There were no additional features added, no additional things added, just cleaning and polishing for release.

Q: Do you recall exactly what led to the delay in developing the file open dialog?

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A: So again, at my level, you know, I was managing this cross-platform thing, which was WordPerfect and Presentations, Quattro Pro, all of these big projects, and shared code was a piece of that. And underneath shared code was file open dialog. And underneath that, you know, there were references that I went to meetings where they talked about, you know, NameSpace browsers and things like that. So I think that was one of the key things in this case.

But really, my level was, you know, file open, which is key for our customers, and then shared code being Critical Path for the overall project. So my level is super invested in knowing shared code Critical Path, also very interested in the file open dialog delivery for our customers, and then, you know, very little direct information about their dealing with the operating system and what specific things they needed to build a file open dialog.

Q: Who would know the details about the file open dialog problems the shared code team was experiencing?

A: Well, people on the shared code team. But specifically Adam, Greg, I think you've talked to or heard from. Those were the actually, two of the guys who knew it inside out.

Q: When you determined the file open dialog was Critical Path, can you describe what steps you took to try to push the development of that component to completion?

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A: Well, so we were super motivated to make it happen. So we talked about ways to reward them, to incent them to stay. You know, as a matter of fact, Bruce Brerton again was over the team. I was just over the suite. But, you know, we talked to Bruce about saying, add any resources you can to help them out because, you know, when you're Critical Path you do everything you can to help the slow guy, right, the slow team, whatever it is.

So we tried to add resources. We tried to add incentives. We tried to give key architects from other areas and say, hey, can they help solve some problems for you? Everything you could do. But there's only so much you can do to add to a complex problem like building code. So anyway, I tried to do everything I could to add and help them out, you know.

Q: Were there any resource constraints put on you in terms of trying to help the shared code?

A: No. No. Like I say, we had, again, 300 people or so working on this. And, you know, when you have something that's Critical Path, you're willing to move everybody -- you know, worse case you move all 300 onto it. What I'm saying you can move as many as you could to really help. It just doesn't help to put all 300 on, right, because it would slow down. It wouldn't speed it up.

Q: How would you describe the caliber of the software

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developers in these shared code group?

A: They were -- you know, I mean, I couldn't give an assessment of everybody, but many of them were the sharpest and brightest people we had. They were very forefront. They had to be very bright to understand new and changing things that happened in the operating system. And so, you know, very bright developers. Sharp people.

Q: Did -- in these meetings that you described as sort of regular weekly meetings where Critical Path was discussed, did Mr. Harral or Mr. Richardson ever attend those meetings?

A: Yeah. I mean, I don't think they wanted to. But they -- as they became Critical Path, you know, we wanted to talk about it and say, hey, what's going on here? What can we do to help? And so as they became Critical Path for many months, I think they were uncomfortable, but they still came. We had a little adversarial relationship there because I was driving to get released, and they were kind of Critical Path. So it's not a happy position to be in.

Q: Mr. Gibb, I'm going to hand you what we've marked as Plaintiff's Exhibit 322.

Do you recognize this document, Mr. Gibb?

A: Yes.

Q: And what is this document PX322?

A: Well, it was in regards to the PerfectFit schedule for the release of PerfectOffice Windows 95. And we called it

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panic mode because it was getting so late. And again, this Critical Path element from PerfectFit team, we were saying, we're panicking. What can we do to help you guys out?

And so that's the essence of this meeting saying, do we need to take some drastic efforts, you know, drastic means or whatever we can do? And this was the document that kind of we -- where we discussed all of those ways to address this issue.

Q: I see that the date of the document in the lower left-hand corner is July 28th, 1995.

A: (Witness indicates by nodding head up and down.)

Q: Were you aware of sort of the critical circumstances that underlie this document prior to July of 1995?

A: Yeah. I mean, obviously we didn't wait 'til last minute to have this. This is something, like I had mentioned towards the end of Q1 and first of Q2, they had started to become Critical Path. So in the regular reports we received every week, we said, PerfectFit. PerfectFit. PerfectFit. Perfect Fit. So this was like, okay, we've done everything. We've thrown resources at it. We tried to bribe you guys. We tried to do everything we can to help you out. We're now reaching panic mode because everybody else is going to be finished. You guys are not going to be finished. We called this panic mode.

813

Q: There are a number of different technologies that are referenced in the document. If you look at what's Page 4 here, there's a reference to NameSpace browser, aka file open dialog. Do you see that?

A: Yes, I see it.

Q: And this is the file open dialog that you testified to earlier today?

A: Yes.

Q: And is this the shared code product that you've identified as Critical Path?

A: Yes.

Q: It says:

Deliver NSB component implemented with the common open dialog by required code complete date. The application programming interface will be locked down at that time, too.

And then it says:

Deliver a fully functional NSB -- I assume that's NameSpace browser -- including a functional NameSpace provider, NSP, for the file system during beta.

Can you describe what that's describing?

A: Well, so the NameSpace browser again is this technology that they were using inside of the open dialog. And we were getting close to going to beta with the entire

814

suite. And what we were basically saying is that we weren't going to have a fully functional version available for the beta, the early beta release or the -- you know, they weren't going to be code complete. So we're saying, okay, we'll try to add this in a little bit later. You try to make it a hard rule where you don't -- the idea behind code complete is you stop changing everything and you're completely done and now you're fixings bugs until you're released.

So all the elements had kind of got to that point. And we were having a special meeting to say, okay, we'll give you guys a little bit of special extension because you're still Critical Path, and you're still not done. So....

Q: Were you able to make the code complete date by August 22nd?

A: No. No.

Q: During the development process, did Novell consider cutting functionality to help speed up the development of PerfectOffice 95?

A: Always. Like I say, when we're talking about Critical Path, I guess I didn't mention that. But certainly one of the things you do is you talk about cutting the scope. So what we're going to deliver, but, you know, we talked about it. File open had been a code competency and something that people looked to for a long time to be -- you know, this is -- WordPerfect is synonymous with doing that well. And so

815

customers who come from our previous products would expect us to do very well in that same area.

And so it was painful to consider, you know, dropping back -- we actually -- I mean, we talked about it in here, it says, you know, the --

THE REPORTER: I'm sorry?

THE WITNESS: Okay. I can't do that? What?

THE COURT: They couldn't understand you.

THE WITNESS: Oh, sorry. I thought I couldn't do that for some reason.

All I was trying to refer to is that -- sorry. I lost my train of thought there.

Q: BY MR. SCHMIDTLEIN: Did Novell actually reduce functionality --

A: Oh, sorry, yeah.

Q: -- in the PerfectOffice suite to help speed up development process?

A: So we certainly cut back some. So part of that panic mode, we had like 90 features that we were going to add inside the file open dialog. And so one of the steps we took, as painful as it was, we cut back some. But we didn't want to cut back to an extreme because, again, it was core differentiator was one of the areas we would like to lead out in. And so we did have painful meetings where we, you know, evaluated cutting options and kind of did everything we

816

thought we could.

Q: Now, do you recall in October of 1995 that Novell announced the sale of the applications business, the WordPerfect business?

A: Yeah.

Q: And how did Novell's announcement of the sale affect your team's timing for delivering the product?

A: So, you know, I don't think the announcement -- you know, there was no significant impact on anything we did. It was sort of like, wow, okay. They're selling it. But people just worked and worked on it, and then you wondered who your new boss was going to be.

Q: And did the sale to Corel in 1996 affect the time it took to develop the product?

A: You know, I think that it had a little affect on it, because, like I said, Corel wanted to re-brand it a little bit and call it Corel. So there was some small impact, but not huge impacts.

Q: Let's skip ahead. Do you remember the launch of Windows 95 product?

A: Yes.

Q: And that happened in --

A: August.

Q: -- August of 1995?

A: (Witness indicates by nodding head up and down.)

817

Q: What do you remember about the launch?

A: Well, the reason I remember it is I went up to it, so my path, you know, my background, I'd been working on, for example, MacIntosh, and I'd been involved on key releases on MacIntosh and gone to operating system releases. And this one kind of stood out in my memory because I went up to Redmond for the big launch. And there was a big main tent where Microsoft was supposed to be releasing and talking about the Windows 95 launch. And I went up there, and there's Jay Leno, and all he's demonstrating is Office. And I was going, Geez, this isn't a Windows 95 launch. This is like an Office launch.

And I just remember because also, you know, we were pretty big players, and we were down about a mile from the core tent. I was sitting down, you know, very much a second class citizen, and Jay Leno was showing Office Windows 95, and saying, wow, this doesn't really seem very fair. So pretty vivid memories for me.

Q: Did -- when you were in the Mac group at WordPerfect, did -- were you familiar with how Apple handled product launches?

A: Oh, yeah. So like I said, they worked with us. And even though they had a little product called Mac Write, they looked at WordPerfect as the key contributor. And we were, you know, very much treated like first-class partners.

818

And they helped us in all kinds of ways to help make releases and coordinate with us.

And that's what I'm saying. It was a stark contrast from that to what we had with Windows.

MR. SCHMIDTLEIN: No further questions, Your Honor.

MS. NELLES: Well, Your Honor, I'm very slightly embarrassed to ask. Could we take a quick break?

THE COURT: There's no reason to be embarrassed. We'll take a short break. And I'm ready whenever anybody else is.

(Recess.)

819

STATE OF UTAH

ss.

COUNTY OF SALT LAKE

I, KELLY BROWN HICKEN, do hereby certify that I am a certified court reporter for the State of Utah;

That as such reporter, I attended the hearing of the foregoing matter on October 26, 2011, and thereat reported in Stenotype all of the testimony and proceedings had, and caused said notes to be transcribed into typewriting; and the foregoing pages number from 769 through 819 constitute a full, true and correct report of the same.

That I am not of kin to any of the parties and have no interest in the outcome of the matter;

And hereby set my hand and seal, this ____ day of _________ 2011.

______________________________________
KELLY BROWN HICKEN, CSR, RPR, RMR

820

(WHEREUPON, the jury enters the proceedings.)

THE COURT: We're sorry about the paint smell. We don't know where it is coming from. If it bothers you all, we'll have to work through it. If any of you want to, and I don't know when the next break is going to be, but ideally we will try to go for a couple of hours, and if you all want a break sometime before that just let me know. We'll probably go for two hours. If we need to change court reporters we will do that. It may depend on where we are with a witness so we'll just role with the punches.

CROSS-EXAMINATION

BY MS. NELLES

Q: Good morning, Mr. Gibb.

A: Good morning.

Q: My name is Sharon Nelles. I am one of the attorneys for Microsoft. We have not met before. I would like to go back to the beginning of your testimony this morning and talk a little bit about the time that you joined WordPerfect Corporation.

A: Uh-huh.

Q: When you joined WordPerfect Corporation, and I think you said in 1986, the company's focus was on the WordPerfect word processor application, right?

A: Yes.

Q: And it was absolutely the goal of WordPerfect

820

Corporation to make WordPerfect a word processor, the best word processor on the market, right?

A: Sure.

Q: And you wanted to be the leading word processor, right?

A: Uh-huh.

THE COURT: You have to say yes or no.

THE WITNESS: Sorry. Yes.

BY MS. NELLES

Q: And WordPerfect Corporation achieved some real success in that endeavor, didn't they?

A: Yes. We were the leaders, yes.

Q: You were the number one word processor for the MS MOS platform --

THE COURT: If you all want to come in. They are doing work on the vents.

MS. NELLES: Is that better?

THE WITNESS: I can hear you.

MS. NELLES: I think the court reporter was having some problems.

BY MS. NELLES

Q: WordPerfect was the number one word processor for the MS DOS platform; isn't that right?

A: Yes.

Q: But would you agree with me that as the 1980s were turning into the early 1990s there were some seismic shifts

821

in the world, at least in the world of personal computing?

A: Sure. There were changes, yes.

Q: One of those shifts was a consumer movement away from character based operating systems to graphical operating system like the Macintosh and Microsoft Windows; isn't that right?

A: Yes.

Q: And another shirt was a consumer movement away from standalone applications like Microsoft Word to suites of business productivity applications like Microsoft Office, right?

A: Yes. There was movement that way, yes.

MS. NELLES: Can we put up slide 13-A from the opening.

BY MS. NELLES

Q: Can you see that all right?

A: Yes, I can.

Q: I have a hard copy if you need one. Would you agree with me that WordPerfect was behind Microsoft with respect to the graphical user interface shift?

A: No. I mean, I don't know. That is an interesting question. We had -- do you mean as far as market share or as far as technology?

Q: I mean, Microsoft had a bit of a head start on WordPerfect in terms of -- you can see from the product

822

releases; isn't that right?

A: Yes. I mean, I guess -- sure.

Q: Okay.

MS. NELLES: Let's look at slide 27 also from the opening.

BY MS. NELLES

Q: Would you also agree with me that WordPerfect was a little bit behind Microsoft in the shift to suites?

A: Well, Microsoft started the shift to suites by packaging them together. It was not really a suite, it was packaging it together. Initially they were the first ones to do that.

Q: Let's just stay with suites for a bit more.

As you said, Microsoft created the concept of the suite and released the first version of Microsoft Office in 1990; isn't that right?

A: Yes.

Q: I will give you a hard copy.

MS. NELLES: Can we put up DX-200?

BY MS. NELLES

Q: Do you recognize this document, sir?

A: Yes.

Q: This is, again, a early positioning concept for Eliot?

A: Yes.

Q: And Eliot was the code name for what?

823

A: The WP WIN 6.1.

MS. NELLES: Can we go to appendix A to this document, please. If we could bring up that first section in paragraph B.

THE COURT: I'm sure you all remember, but I forgot, this is the Wordperfect application for Windows 95; is that right?

MS. NELLES: No. No, Your Honor.

THE COURT: Well, that is right. What is it?

MR. SCHMIDTLEIN: It is code name.

MS. NELLES: Yes. Eliot -- sir, do you want to -- Eliot is the code name for Windows 6.1.

THE COURT: 6.1

THE WITNESS: It was on the Windows 3.1 release.

MS. NELLES: It was a 16 bit product.

THE WITNESS: That is right.

THE COURT: You clarified it for myself.

BY MS. NELLES

Q: As we look at this statement, and this appendix A, it says Microsoft created the Windows suite category in 1990 and clearly owns it approximately 75 percent of the market share. That comports with your recollection, does it not, sir?

A: Yes.

Q: The next sentence says Lotus entered the category in

824

1992 and has a 15 percent share.

A: Yes.

Q: That is your recollection, right?

A: Right.

Q: Borland and WordPerfect Corp effectively entered the market with B.O.W. 2.0 -- that is the Borland option?

A: Yes.

Q: In January of 1993?

A: Yes.

Q: And had about eight percent of the share?

A: Right.

Q: Right. So Microsoft created the category in 1990, and Lotus launched its suite product called SmartSuite in 1992, right?

A: Well, you know, when you read this -- I mean, the reason we talked about this was initially it was just a bundle, right, so when you put two things together in the same package they called it a suite, but it was really just putting two independent packages together. And, you know, people at that time commonly would buy WordPerfect and then like Lotus One Two Three. Those two would be the common things that would be bought separately. You are just buying them together initially, until we get better about suites and about integrating them.

Q: Okay. And, in fact, that is exactly what Borland

825

Office was, correct?

A: Yes.

Q: The third entrant?

A: Correct.

Q: It was a partnering with Borland International?

A: Yes. Just packing it together.

Q: And just packaged together?

A: Yep.

Q: Borland was a less famous brand name than WordPerfect, wasn't it?

A: Yes.

Q: In fact, you have referred to Borland Office as a stopgap product, correct?

A: Well, like I said, the vision of suites is that you actually made them easier to work together inside applications so you are familiar with it, but initially, like I said, most people would buy it because it was a package deal.

Q: Sir, you have given testimony in this case before, haven't you?

A: Yes.

Q: You sat for a deposition?

A: Oh, yes.

Q: Do you recall at that deposition testifying that Borland Office was a stopgap product?

826

A: I don't remember, but I am sure -- that sounds familiar.

Q: Does that sound right to you?

A: Yes.

Q: I am going to give you a copy of your deposition so that you will have that.

A: Okay.

Q: And by stopgap, as you use the phrase, it means it is a placeholder product, correct?

A: Yes. It was just a packaged thing where we eventually wanted to integrate them so that they more easily worked together.

Q: And because it was a stopgap product Borland Office was never a big focus of WordPerfect Corporation, right?

A: Do you mean selling that product or --

Q: The product itself, it was not a big focus of the company and it was not in your words a big deal, was it?

A: Well, it was a stopgap towards the goal of building suites, right. We wanted to build suites.

MR. SCHMIDTLEIN: Is there a time period you're referring to?

MS. NELLES: I am sorry. It would be about the time period when PerfectOffice was coming out. This is WordPerfect Corporation.

BY MS. NELLES

827

Q: All right. I would like to show you what has been marked as Defendant's Exhibit 267.

Is this a document that you are familiar with, sir?

A: A little bit, I think.

Q: This is a Novell WordPerfect document?

A: It looks like that. It looks like it is a marketing document that they put together.

Q: And on the first page it says here 1994 business plan, suite marketing team?

A: Yes.

Q: I would like to go to page 2.

MS. NELLES: Pull up the first bullet.

BY MS. NELLES

Q: Do you see this?

A: Yes.

Q: WordPerfect Corp market position. We really don't have an established position in the market suite.

Let's go to the bottom. It shows the date of August 17, 1993?

A: Yeah. I'm sorry.

Q: We really don't have an established position in the suite market. That is correct, isn't it, sir, in 1993 that you didn't have an established position in the suite market?

A: Yeah. We were a small player because we just had the Borland Office. Yeah.

828

Q: The next bullet. Okay. Our only established position is what we have done by partnering with Borland through the Borland Office. This has not been received very well.

You agree with that, right?

A: Yeah. People were concerned about the two companies coming together. Sure.

Q: Let's just look at that fourth bullet point. As an incomplete suite the Borland Office has not been met with great enthusiasm. It has been labeled by some as the, quote, sort of suite, quote, because it did not take into account some of the factors which persuaded people to buy suites, integration and consistency.

A: Yes.

Q: That is correct, right?

A: Yes.

Q: And because WordPerfect Corporation did not offer suites earlier than in the 1990s, one of the challenges Novell had to overcome in 1994 was the perception that WordPerfect couldn't play in the suite market; isn't that correct?

A: Sure.

Q: Sir, in June of 1994 when Novell acquired WordPerfect, Novell also purchased Quattro Pro, which was the spreadsheet it got from Borland International, right?

A: Yes.

829

Q: And still now in 1994 Microsoft Excel was the most successful spreadsheet application on the market, right?

A: Yeah. I think it was number one.

Q: And Lotus One Two Three was the number two spreadsheet application?

A: I think it was that, yes.

Q: And Quattro Pro was number three or maybe number three?

A: It was number three. I think there was only three reviewed in all of the --

Q: Okay.

A: There were three big players.

Q: Prior to the acquisition by Novell, WordPerfect had at least ideas, didn't it, of combining WordPerfect, the word processor, with the Lotus One Two Three spreadsheet, right?

A: Yes.

Q: If you could have chosen a spreadsheet partner for the WordPerfect word processor, your first choice would have been Lotus One Two Three, right?

A: It would have been, yes.

Q: Because you really never want to have a third place product, right?

A: Well, Lotus was very, very popular like WordPerfect was very popular. I mean, it is better to be number two than number three. Sure.

Q: In fact, you never want to have a third place product,

830

right?

A: If you can pick number two, it is better.

Q: Okay. In fact, you testified in your deposition that you never wanted to have a third place product, right?

A: We wanted to have only first place products.

Q: And to succeed in the market you need to have products that are popular with consumers?

A: Sure.

Q: In fact, Lotus One Two Three, like WordPerfect at the time, had a big loyal base of customers?

A: Yes.

Q: Particularly on the DOS system, right?

A: Yes.

Q: And Quattro Pro did not have that, right?

A: It did not have that big of a market share.

MS. NELLES: Lets see DX-326.

I am trying to resolve things without you, Your Honor.

THE COURT: That is always good.

BY MS. NELLES

Q: What I would like to do is direct your attention to -- this is a hard one because it is not really labeled. It is NOV-256615. Before we even go there, do you recognize this document, sir?

A: I have seen it before. I didn't write this. This was

831

submitted by Mark Calkins, Bruce Brereton and Glen Mella.

Q: Who is Mark Calkins, Bruce Brereton and Glen Mella?

A: I reported to Bruce Brereton. He was over all development. Glen Mella was over marketing. Mark Calkins was the general manager of the business unit for Novell.

Q: I apologize. Did you say that you had seen this document?

A: Yes, I think I have seen this.

Q: I would like to take you to the last four numbers, Bates numbers 6615.

A: I am assuming they are in order. I have 6598 followed by 6660.

THE COURT: I don't know if it is an abridged document. Did you take out some stuff?

MS. NELLES: It is a large document, Your Honor. It does not have --

THE COURT: Well, that would make sense. What you have are the relevant parts?

MS. NELLES: That is right.

THE COURT: When it was reduced there was a lot of numbers in between --

MS. NELLES: That is right. It is just the Bates number, Your Honor.

THE COURT: That is fine. I was explaining to the witness why there was a gap.

832

THE WITNESS: I was just trying to find it. Sorry.

MS. NELLES: I apologize. I had a --

BY MS. NELLES

Q: Let's do this on the screen and we'll find the page for you.

A: I am there now.

Q: That was a lot to do for this point.

Do you see where it says market position?

A: Yes.

Q: It says here Quattro Pro will not lead the spreadsheet market in either unit share or revenue share in the foreseeable future, right?

A: That is what it says.

Q: Okay. This is on July 19, 1994?

A: Okay.

Q: That is what it said on the first page?

A: Right.

THE COURT: It indeed did.

MS. NELLES: Okay.

BY MS. NELLES

Q: And it says it will not lead the spreadsheet market in the foreseeable future, right?

A: That is what it says.

Q: It would take a massive paradigm shift in the software

833

marketplace if it is to happen long term, correct?

A: That is what it says.

Q: Do you agree with this assessment, sir, as of July of 19, 1994? This document was distributed by Mr. Calkin, Mr. Frereton and and Mr. Mella.

A: I would agree that Quattro Pro alone -- I don't know if it could have moved from third place on its own.

Q: It says today, and this is in August of 1994, there is no room for a third place player; isn't that right?

A: I think, again, it is talking about standing alone, I think, right?

Q: Right. That you are confident that we can successfully grow from a nearly second unit share position in a secure second place within the next fiscal year with similar footing for revenue share by the close of Novell's fiscal year '96, right?

A: That is what they said, yes.

Q: And then to do that you would need to beat Microsoft Corporation, correct?

A: To become second?

Q: It says who do we need to beat?

A: Right.

Q: Microsoft Corporation.

A: Yeah. That is one of the options, or Lotus, right.

Q: Right.

834

A: I think that -- if I remember right I think that the strategy was to say that we can move from three to number two, and I think to attack Lotus was the strategy.

Q: Let's go to the next page. It says Lotus Development Corporation?

A: Right.

Q: So the goal was to beat Lotus Development Corporation and to move into the number two position, correct?

A: Well, from the business standpoint it was to move to that. Our goal from development was to be number one. I mean, we were not shooting for number two.

Q: No. Is that not what this said?

A: Business-wise they were shooting for number two market share, but certainly in development we were shooting to be the best.

Q: Okay. You were shooting for number two in the marketplace?

A: The marketing group --

THE COURT: Everybody always shoots for number one.

MS. NELLES: Your Honor, as somebody who represents defendants, I'm aware.

BY MS. NELLES

Q: Did you ever achieve that?

A: You know, I am not a market expert guy. I don't think

835

it -- I don't know. I don't think so. I don't know.

Q: I would like to show you what has been marked and introduced as Defendant's Exhibit 259.

MS. NELLES: Can you bring that up?

BY MS. NELLES

Q: Do you recognize this document, sir?

A: Yes.

Q: It is headed WordPerfect for Windows, code name Eliot, and it is a marketing requirements document?

A: Yes.

Q: It is dated December 21, 1993?

A: Yes.

Q: If we could go to the first page, page 1.

There is a sign off review sheet.

A: Yes.

Q: Does the sign off review sheet mean that the people listed here reviewed and approved this document, some of it or all of it?

A: Yes.

Q: And at the top, at the very top we have corporate?

A: Yes.

Q: And it is the president and C.E.O.?

A: Yes.

Q: Ad Rietveld?

A: Yes.

836

Q: Who was Ad Rietveld, president and C.E.O. of WordPerfect Corporation?

A: Yes.

Q: And also Dave Moon?

A: He was our C.T.O.

Q: He was the C.T.O.

Then there was a group of marketing, and you see Mark Calkins who we just saw a document from?

A: Yes.

Q: And then next we have development?

A: Yes.

Q: And vice president for word processing, Bruce Brereton. That is who you reported to, correct?

A: That is right.

Q: And then down a few steps we see director engine development, Gary Gibb. That is you, right?

A: Yes.

Q: And right below you, shared code, is Tom Creighton?

A: Yes.

Q: Were you at Tom Creighton's at horizontal levels?

A: We were. We both reported to Bruce.

Q: At this point you were the director of engine development?

A: Yes. This is a cross platform part that we talked about. That is what this engine was.

837

Q: All those different operating systems?

A: Yes.

Q: And the shared code, Mr. Creighton was in charge of the shared code team, not you?

A: Correct.

Q: Do you remember seeing this document at the time? Do you remember participating in the preparation of this document?

A: I mean, yeah, kind of. Vividly no, but, yes I remember.

Q: Go to page 4 of the document. There is a section industry trends and observations. Do you see that?

A: Yes.

Q: It says Windows 3.1 has been immensely successful selling over 40 million copies. That is correct, right, that Windows 3.1 was immensely successful?

A: Yes.

Q: That was the first GUI -- not the first GUI, but it was a shift to the GUI platform?

A: Well, it was the shift to GUI from DOS really.

Q: From DOS, right.

A: I mean, from Mac to --

Q: And then it says the next version of Windows, code name Chicago, and likely to be called Windows 4.0 is due to ship in the third quarter of 1994, and will combine the functions

838

of DOS, Windows and Windows for Workgroups, making Chicago a true operating system.

In December of 1993 WordPerfect knew that Chicago was in the works, right?

A: Yes.

Q: And then looking at the next sentence, it is anticipated that this upgrade will be extremely popular, adding 32 bit processing, a new file system, built in networking, e-mail, scheduling and a new interface built on OLE 2.0.

A: Yes.

Q: By December of 1993 WordPerfect Corporation fully anticipated that Chicago, which became Windows 95, would be tremendously popular, correct?

A: Yes. We thought it would be popular. Sure.

Q: Let's look at the last sentence. It is critical that WordPerfect Corp have the version of WordPerfect, WP WIN, and that is WordPerfect for Windows; is that right?

A: Uh-huh.

Q: That is coded for the 32 bit Chicago release within no more than a few weeks of Chicago's ship date. In December of 1993 WordPerfect understood that it was critical to have a product ready to release within no more than a few weeks of Chicago's ship date because of the anticipated popularity of the operating system, right?

839

A: Yes. We certainly wanted to be there all along.

Q: In fact, you thought Chicago would be huge, didn't you?

A: Well, it was a big step up. Windows 3.1 was not very strong, and from a technology standpoint we thought it was going to be significant, sure.

Q: And you thought as a product it was going to be huge?

A: Yeah. I mean, we thought it was going to be big. Sure.

Q: Let me direct your attention to your deposition. Do you have that in front of you?

A: Yes.

Q: Okay. Page 42, line 1. If you go to the last question and answer on page 41, carrying over to 42 --

A: Right.

Q: Do you recall the question -- do you recall that as of this time, this document you are looking at was written, which is December of 1993, WordPerfect anticipated the popularity of the Chicago product?

A: Yes.

Q: And --

A: I said I thought it would be huge.

Q: You thought it would be huge?

A: Right.

Q: And by August of 1994, which was after the acquisition by Novell, you understood that Chicago just might take over

840

the world, right, and that WordPerfect, the product, needed to be there, meaning you needed to release along with Windows 95, right?

A: Yes. We wanted to, certainly.

Q: You understood that in '93 and you understood that in '94?

A: Yes.

Q: You would agree with me, wouldn't you, that Chicago did in fact take over the world at least in terms of operating system software?

A: It became the biggest pretty quickly.

Q: After Windows 95 shipped, at that point it was crystal clear that Windows 95 was the future, correct?

A: I'm sorry?

Q: Was the future, that people were going to Windows 95?

A: I mean, I don't know at what point it became clear that that was the future. It certainly was very popular.

Q: Let's bring up your deposition. Look at page 132. It is really the question and answer that begins at line 15 and continues through line 25.

A: Okay.

Q: And what you said in 2009, in March of 2009, is that you thought everybody believed that Chicago WIN 95 was the future, right?

A: Sorry. Are you reading the answer? You know, probably

841

a year before. No.

Where are you seeing that? Line 15?

Q: Line 21 --

A: Line 21.

Q: -- through line 22.

A: The part that says I would have so little experience with that, I mean, I think everybody believed that Chicago WIN 95 was the future.

Q: Right. That is what you testified to in 2009, right?

A: That everybody believed that, yeah.

Q: And that was because, going on with your answer, it was faster?

A: Yeah.

Q: It was a better operating system, right?

A: It was better than Windows 3.1, yes.

Q: So you thought at the time that everybody believed that the shift was on to Windows 95, right?

A: Yes.

Q: Okay. I hate to bounce around the time line, but I am going to go back to 1993 for a little bit.

In or about October of 1993 WordPerfect Corporation released WordPerfect version 6.0 for Windows, right?

A: Yes.

Q: That is the Windows 3.0 and 3.1 series?

A: Right.

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Q: And WordPerfect 6.0 was designed for Windows 3.1, right?

A: Yes.

Q: Specifically on that program?

A: Yes.

Q: You would agree, and you have already seen the document, that Windows 3.1 was immensely successful by December of 1993?

A: Yeah, it was successful.

Q: But when WordPerfect 6.0 shipped it had a lot of bugs in it, didn't it?

A: It had some bugs, sure. It was actually fairly simple that a point zero release had bugs. Ours, Microsoft, point zero had bugs. We had bugs, yeah.

Q: Lots of bugs, right?

A: I would say it was fairly in line with point zero releases but, yeah, it had bugs.

Q: More than you would have liked, correct?

A: I don't want any bugs so, yes.

Q: When an application like WordPerfect has lots of bugs, consumers are often unhappy with the product; isn't that right?

A: If the bug interferes with your work it bothers you, sure.

Q: Because a bug in an application like WordPerfect can

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make it unstable; isn't that right?

A: Yes. If it crashes or something it would bother you but, you know, when we say there were a lot of bugs, a lot of bugs is relative, right. I mean, there are strange circumstances. I mean, I read through thousands of bugs, right, so you have different levels on these bugs. When this said if you do this weird table of authorities and you have a graphic in there and it does something weird, you know, it would be a very, very minor case, and that is considered -- all of those things considered, if a bug is core and interferes with what you want do do, then it is a problem.

Q: WordPerfect 6.0 was slow compared to competitors, isn't that right, like Microsoft Word?

A: It was slow in low memory situations as it swapped out.

Q: Let's go back to Defendant's Exhibit 259 that we looked that at a few minutes ago. Let's go to page 2.

This is the executive summary, the first bullet. Pull that up.

Improved speed and reliability. Would you agree with the statement, sir, that WordPerfect WIN 6.0 is universally praised as having great functionality, quote, but was considered by the press and many users in its initial release as too slow for their current hardware as compared to the competition and contained too many bugs to be

844

considered sufficiently stable?

A: Yes. I mean, like I said, that is what I was referring to, low memory situations, for example, and with the current hardware. Right. On four megabyte machines --

Q: The second bullet here under modularity, that is what you are also referring to, correct, WordPerfect 6.0 cannot be run by many users because it requires --

A: Right. There were limitations on four megabyte machines because Windows took up a big chunk and then --

Q: We can agree, can't we, that customers don't like slow, unstable products? We can agree that consumers and customers don't like slow and unstable products?

A: I think that is true.

Q: So you understood that you needed to make the product faster and leaner and meaner and cooler, right?

A: Yeah. That was why we were working on 6.08.

Q: And that meant that the practical consequence was that in 1994 WordPerfect had to work really hard and work really long hours to get out another version of WordPerfect for Windows 3.1 that ran faster and with fewer bugs; isn't that right?

A: Yes. Yeah.

Q: And as a result in August of 1994 Novell had very few resources working on WordPerfect for Windows 95; isn't that correct?

845

A: Well, remember we talked about the team and there were a lot of teams, and the WordPerfect for windows group was focused on that release. There were some people that were focussed on researching new things in the operating system and things like that, while we were focused on making WordPerfect faster and run leaner on small machines.

Q: Okay. Let's look at Defendant's Exhibit 4, please.

This is an interoffice memorandum, correct?

A: Yes.

Q: And it says attached is the integration plan submitted by Ad. Do you see that?

A: Ad.

Q: Ad, sorry. That is Ad Rietveld?

A: Uh-huh.

Q: If we can go to page 5 of this document.

Do you see the section business applications?

A: Yes.

Q: Do you see the second bullet says Chicago? There are very few resources on Chicago at this time. Do you see that?

A: Yes. That was the same thing I was referring to. Like I said, the shared code group would be investigating that while WordPerfect and the other apps were focused on, you know, getting the release for 6.08.

Q: You talked a little bit this morning and we heard a lot

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in this case about file open dialogue.

A: Yes.

MS. NELLES: Can we bring back up Plaintiff's Exhibit 322?

BY MS. NELLES

Q: Do you have that still in front of you, sir, the panic mode modification?

A: Yes.

Q: If we could go back to page 4 of the document and the proposal that Mr. Schmidtlein showed you?

A: Yes.

Q: And that says deliver N.S.B. component implemented with a common open dialogue by required code complete date.

Do you see that?

A: Yes.

Q: This just means use the Windows 95 common file open dialogue?

A: Yes. That was the placeholder we were all developing.

Q: That was the proposal, correct, that is put forward here?

A: In other words, all through the documents while we were waiting on the new open dialogue we actually used the common open dialogue to open a file. You couldn't test the other things, but you could test open.

Q: Novell's developers could have had the applications in

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PerfectOffice for the Windows 95 common file open dialogue, right?

A: It would have been painful, but we could have done that, yes.

Q: Actually it would have been quite easy physically?

A: It is easy to call. We thought it would be a huge step backwards for our customers.

Q: All right. But you understood that it could be done and, in fact, it was quite easy to do?

A: Right. You can call --

Q: You could have called into them, right?

A: You could call them.

Q: But rather than use the Windows 95 common file open dialogue that Microsoft provided for free to developers in the Windows 95 operating system, the shared code team and Novell decided that they wanted to spend a lot of time to write their own custom file open dialogue, right?

A: Yes. We wanted to write -- we thought we wanted to exceed what was the default stuff.

Q: Right. Novell decided that it was important to write its own custom file open dialogue --

A: Yes.

Q: -- for Windows 95 rather than relying on the Windows 95 common file open dialogue, because Novell thought it could do something cooler, correct?

848

A: Yes.

Q: And Novell also thought that writing its own custom file open dialogue would provide a competitive differentiation --

A: Yes.

Q: -- to the application?

A: Yes. It was historically that way. From the beginning we thought that and we continued to think that way.

Q: Now, you did just tell me, sir, right, that you were not the market expert, correct?

A: No.

Q: So you were not the person to know whether it would be important to users that PerfectOffice and PerfectFit had a custom file open dialogue?

A: Well, market fit with the customers -- I was an expert in -- I went to use-ability labs, I talked to customers, and we gathered requests from those and aggregated those, so I did consider myself an expert on what customers wanted. I was not a marketing guy.

Q: You would be a marketing expert for that, right?

A: To pick out the market and the position -- I was certainly there to represent the customer and how to deliver the best value to the customer, yes.

Q: You said that Paul Skillen was the vice president of product development at Corel?

849

A: Yes.

Q: And Jim Johnson was in charge of the shared code team at Corel; isn't that correct?

A: Yes.

Q: As he had been at Novell, correct?

A: Yes. Well, Tom Creighton was over it at Novell and Jim worked for him and then Jim took that over.

Q: And Mr. Skillen told Mr. Johnson to use the Windows 95 common file open dialogue, didn't he?

A: You know, I have heard that and I believe that is true.

Q: Have you heard that Mr. Johnson was let go for not doing that?

A: Only through the rumor mill because that wasn't announced, but I don't know. I don't really know, but -- could be. Jim was a strong willed guy.

THE COURT: I hope he is still with us. I assume he is.

THE WITNESS: He is. He is a great guy. He is a tall guy, skinny, beard, and a wonderful guy, but he certainly believed that we should do --

THE COURT: Strong willed would fit him --

BY MS. NELLES

Q: I think you and I could agree, couldn't we, sir, that there was at least a debate about this issue and the importance of it, right?

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A: There were always debates. We debated everything.

Q: Some Quattro Pro developers did leave when Novell acquired Quattro Pro in June of 1994, correct? We talked about the later period earlier in your direct testimony, but some Quattro Pro developers left; isn't that right?

A: You know, I don't know the details of that, but I suspect -- I don't know. Maybe. There is probably evidence some place that shows if some left.

Q: I can point you to your deposition testimony, if you would like, but do you recall some Quattro Pro developers left when Novell acquired --

A: I don't. But, I mean, certainly -- I mean, certainly the bulk of the team was there. There might have been some that left.

Q: After Novell purchased Quattro Pro in June of 1994, the Quattro Pro developers who stayed at Novell worked in their own little group in California, right?

A: Yes.

Q: That was separate from the rest of WordPerfect and the Novell employees in Utah, right?

A: Yes, geographically separate.

Q: It would have been easier to integrate Quattro Pro into the PerfectOffice suite for Windows 95 if all of the developers had been in the same place; isn't that right?

A: I think there are certainly synergies and, yeah, there

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are advantages of being local. Obviously people do it all the time, have remote teams, but, yes, I think it is easier if you are next to them.

Q: Quattro Pro 6.0 was the version of Quattro Pro that had been developed for Windows 3.1; is that right?

A: I think that is right.

Q: And Quattro Pro 7.0 was the version for Windows 95? Does that sound right?

A: That sounds right.

Q: That sounds right to me too.

Let's use Defendant's 219. This document is called notes from Storm coordination meeting?

A: Yes.

Q: It is dated February 2, 1995?

A: Yes.

Q: This is a Novell document, right?

A: Yes, notes from my meeting. The Storm coordination meeting is what I did.

Q: This is your meeting?

A: Yes.

Q: Let's go to page 2. These are your product notes, sir?

A: I mean, I don't think I made the notes. I think somebody took notes and typed these up afterwards.

Q: These are notes from your meeting?

A: Yeah. They are notes from my meeting, yes.

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Q: Let's call up the seventh point of the product notes.

It says the Quattro Pro folks are still working on international versions of Q.P. and that is Quattro Pro, right?

A: Yes.

Q: 6.0?

A: Yes.

Q: That is the WIN 3.1 version, right?

A: Right.

Q: End of March, and then we'll begin our next version of Quattro Pro?

A: Yes.

Q: And is it true that as of February of 1995, which is six months before the release of Windows 95, that the Quattro Pro team was still working on international versions of 6.0?

A: Well, internalization of the product was something that applied to the new release as well as the old release, because we tried to release international shortly after the U.S. domestic, and so we thought it applied to both. The bulk of the team was working on the internalization of the product in preparation for that.

Q: And this does say Quattro Pro 6.0, correct?

A: Correct.

Q: And the reason this is important is because Novell had

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customers in countries all over the world, right?

A: Yes.

Q: And it wasn't enough just to have a version of Quattro Pro in English for users in the United States or other English speaking countries?

A: Like I said, we thought the international work would apply to he 16 bit sales as well as the 32 bit sales. We thought it was important to do that.

Q: It was important that Quattro Pro be localized? Is that the right word?

A: Yes.

Q: That means turned into languages other than English?

A: Yes.

Q: And some language are more challenging than others; isn't that right?

A: Yes.

Q: The Asian languages like Japanese and Korean are more difficult than German and French?

A: Sure.

Q: But Novell believed in 1994 and in 1995 that it was imperative to make the components of the PerfectOffice suite, including Quattro Pro, available in all major languages, right?

A: Yes.

Q: And the Quattro Pro team faced challenges creating

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localized versions of the 6.0 version of their product for Windows 3.1; isn't that correct?

A: I mean, I don't know the details of that, but I'm sure -- I mean, it was something that took time, sure.

MS. NELLES: Let's put up Defendant's Exhibit 272.

BY MS. NELLES

Q: This time, sir, I have got gotten help and I have marked the page for you.

A: Thank you.

Q: Do you recognize this document, sir?

MS. NELLES: Hold on one moment, please.

Sorry about that.

THE COURT: Is everything okay?

MR. SCHMIDTLEIN: Yes. Sorry, Your Honor.

THE COURT: No problem.

BY MS. NELLES

Q: Do you recognize this document?

A: I mean, I recognize all the names on it. I don't remember actually seeing it, but --

Q: Do you recall a quarterly international conference for Novell's business applications?

A: I think they had that fairly regular. I was not invited to that.

Q: This one is on June 13 through 16, 1995?

A: Yes.

855

Q: You don't recall attending that?

A: I don't recall that.

Q: Okay. Can I direct you to page 15 of the document.

A: That is where the blue tab is. I am there.

Q: Right. You see it says Thursday, June 15, 1995, and then if you go to the very next page, product development Storm was --

A: Yes.

Q: Does this help you recall whether you attended this meeting?

THE COURT: I think the answer is no, but he probably did. It must have been scintillating conversation.

THE WITNESS: I am sure this was a great meeting. I wrote it in my diary later.

BY MS. NELLES

Q: The answer is no?

A: I don't remember. Sorry.

Q: I am going to nonetheless make you turn the page to page 8. It appears, does it not, and you agree, that you and Mr. Brereton did present the product development on Storm on that day, correct?

THE COURT: According to the document that is what it appears.

THE WITNESS: Sure.

BY MS. NELLES

856

Q: I am going to go ahead and ask the question anyway. If we go to page 18, now, again, this is June 15 at the June 13 through 16 conference of 1995?

A: Uh-huh.

Q: Do you see the localization and international --

A: Sure.

Q: Do you know who those people are?

A: Yes.

Q: Who were they?

A: They were over international, great guys, and did our international sales.

Q: Do you recall a Mr. Buschmann and Mr. Christensen presenting on localization issues in June of 1995?

A: I don't specifically remember, no.

Q: Okay. Let's go back to DX-219.

A: I have a big stack now.

Q: I know. Me too. We are having the same struggle.

THE COURT: It may save time to just look at the monitor.

THE WITNESS: I am happy to use the monitor.

THE COURT: He is happy to use the monitor if you are.

MS. NELLES: I am, but, Your Honor, in my quest to find my document I turned my page. Give me one second.

THE COURT: It is a lot easier to sit here than it

857

is to stand there.

MS. NELLES: Especially in heels.

THE WITNESS: I found it. It is two pages. It is skinny.

BY MS. NELLES

Q: Okay. Let's go to page 2.

A: Okay.

Q: I will go back to that same sentence we looked at before. Quattro Pro was not even going to begin on a version for Windows 95 until the end of March of 1995 at the earliest; isn't that correct?

A: I think there were a couple people working on the Windows 95 integration, but the bulk of the team was still internationalizing, right.

Q: Okay. There is nothing in this document, sir, and please feel free to take your time to look at it, but there is nothing in this document anywhere that indicates that there was any delay anticipated because of any issues with shared code or PerfectFit; isn't that right?

A: This document?

Q: Right.

A: February '95. I think -- I mean, I would have to read it all again, if you want me to, but I suspect in this -- February 2nd, early February -- I mean we certainly listed shared code as a risk because, again, an operating system

858

release, so an operating system release, and PerfectFit was one that dealt with the operating system so we certainly recoginzed that as a risk, but it was not a critical path when we first started out. We hoped it wouldn't be a critical path.

Q: I'm sorry. Did you say you saw something in here that relates --

A: No. No. I said I could look.

Q: Let's turn to the first page of the document. If we could go down to the code names of the persons in charge.

MS. NELLES: I am glad I have a reason to pull this up so I can show Your Honor that there is a lightening code name.

THE WITNESS: Code names are critical.

BY MS. NELLES

Q: Wind is the code name for PerfectFit; is that right?

A: Yes.

Q: And Tom Creighton was at this meeting, correct?

A: Yes. Sure. He would always be there.

Q: Let's go to DX-270.

MS. NELLES: Don't put that up yet.

THE WITNESS: Is this a new one or --

BY MS. NELLES

Q: I will bring it up to you. I have to negotiate with counsel.

859

THE COURT: I think you all understand that unless something has been agreed to come into evidence we prefer not to put it up for you all to see it. That is the reason. Sometimes they are, and sometimes they are not.

MS. NELLES: We'll go ahead and put up DX-270.

THE COURT: Good.

BY MS. NELLES

Q: Do you recognize this document, sir?

A: Yes.

Q: This is one of your documents?

A: Todd and I built it, yes.

Q: I'm sorry?

A: Todd Titensor and I built this document, yes.

Q: And there is a date on here of December 9, 2008. You can ignore that. That date is not a correct date. That is the way it was produced, but --

A: The second page shows the date.

Q: That is right. If we go to the second page it says revision history.

A: Yes.

Q: And it says February 6, 1995?

A: Second revision, first revison, and we just kept track of these right in the document. December 15th initially and some relation is made to February 6th.

Q: Does this mean that the document was created on

860

February 6, 1995?

A: No, it means it was finally reviewed --

Q: Updated on --

A: Yeah, it was updated on February 6th and first reviewed on December 15th. Written sometime before that.

Is that what you're asking?

Q: Yes. I'm trying to understand what the document --

A: When we would have the meeting to review it, that is when we would put the date. So December 15 would be -- it says initial documents were reviewed by most of the Storm team. That is when you review it the document -- however long it took to build it before that.

Q: It says that the revision, which was modified to reflect changes in time schedules, and this was needed due to delays in the Quattro Pro development effort, correct?

A: Yes.

Q: Can we go to, and it is not marked, but the fourth page in and it has the number, the identification number on the bottom and ends with 28, four pages in the chart.

A: I think I am there.

Q: All right. Do you see it says major risks in project?

A: Yes.

Q: And that is identified as a way to identify the risks and one is the highest; is that right?

A: Yes. We just had, you know, on every project we did we

861

identified the risks in critical path and things like that, and you wanted to identify your risk so that you could mitigate the risk. Sure.

Q: And number three meant a low risk, correct?

A: Had a low risk? What do you mean? No. I mean one is higher followed by two and three. Which one are you talking about?

Q: I am looking at the identified risks and it says one equals --

A: I'm sorry. Right. One is high. Three is low.

Q: Okay. And what is the number one risk identified as the major risk identified in the project?

A: Quattro Pro delivering late.

Q: And if you go down to number five it says PerfectFit delivers late?

A: Yes, but if you look at them they are all an overall risk of one. This is not sorted order, this is sorted by overall risk, meaning all of these were considered the riskiest parts that we needed to focus on.

Q: And Perfectfit delivering late is given a risk factor of two, neither high nor low?

A: Right.

Q: Right. It is true, isn't it, sir, that as of February 6, 1995, that you believed that the risk that PerfectOffice would be adversely affected by a competitive product such as

862

Microsoft Office and Lotus Smart Suite was higher than the risk that the product of the shared code team would be late; isn't that right?

A: You're extrapolating that from here someplace?

Q: I am.

A: Where are you reading that from? Because later -- I'm sorry. Should I look up here?

Q: Is this accurate?

A: PerfectFit is number five and Quattro Pro -- I mean, those are both number one risk priorities.

Q: Right.

A: And you're saying -- but you were extrapolating as compared to competitive --

Q: Right. Number four, competition raises the bar.

A: I guess those were all considered number one risks overall, right?

Q: Right.

A: They were all -- it was considered part of the risk, yes. A high risk, yes.

Q: A high risk. And GroupWise delivers late, that was also a high risk?

A: Well, that would be considered high. GroupWise was number two, right? So that was a lower risk than -- the far right column is the one that I would focus on.

Q: Okay.

863

A: So the overall risk is kind of a big category, this is what we care about most, and so GroupWise delivering late was number two, so lower.

Q: WordPerfect delivers late, that is a number one risk?

A: Oh, yeah. Yes.

Q: Let's go to DX-226.

Do you recognize this document, sir?

A: My name is on the front of it. Yeah, I think it is my document.

Q: This is another project development plan?

A: Yes, for Storm back in -- I don't know the date here. Started December of '94 it looks like. Yeah, reviewed anyway.

Q: And Storm is PerfectOffice --

A: Yes.

Q: -- for Windows 95?

A: Yes.

Q: Let's turn to the next page.

A: Revision history.

Q: Revision history. May 26, 1995. So you would agree with me, wouldn't you, that this document was created May 26, 1995 or later?

A: It was what again? Sorry.

Q: This document was updated --

A: It was updated in May. We had a review on May 26th of

864

the upgrades or changes, yes.

Q: Let's go in three pages. Same chart. Do you see that?

A: Yes.

Q: So by the end of May of 1995 Quattro Pro delivering late is still the very first identified risk, correct?

A: Well, I suspect that those are all the same. Really when we said revision history we would go back and add -- like I see U.S.C. support and online help, the key elements, those were things added, and we didn't always go back and update original functions. We didn't change original functions. I don't think you could read into it that that was still a top priority. I think it was really added to this document that we kept, that we were going to do U.S.C. support and we were going to do online help. We didn't necessarily go back and update the initial projections.

Q: It was still a high risk, correct?

THE COURT: I think he has answered the question.

MR. SCHMIDTLEIN: Objection, Your Honor.

BY MS. NELLES

Q: It wasn't changed. Is that --

THE COURT: It obviously wasn't changed.

THE WITNESS: Right. But we didn't necessarily update those kinds of things.

BY MS. NELLES

Q: But you would agree with my, wouldn't you, sir, that

865

PerfectOffice for Windows 95 could not ship without Quattro Pro?

A: Actually we had a contingency plan to coupon Quattro Pro, but we didn't want to.

THE COURT: A sort of sort of --

THE WITNESS: A what?

THE COURT: A sort of sort of suite?

THE WITNESS: Yeah. We didn't want to do that, sir.

BY MS. NELLES

Q: You referred to that as a contingency plan?

A: Yeah. I was being a little facetious. I probably shouldn't. It was if all else fails --

THE COURT: You're fine.

BY MS. NELLES

Q: I asked because it made me think of a particular document which is Defendant's Exhibit 211.

A: Do I have that one?

Q: I have not given that to you.

A: Okay. Sir, before December of 1994 Novell was already aware that it could not ship a version of PerfectOffice contemporaneously with the release of Windows 95 in August of 95; isn't that right?

THE COURT: Well, in fairness it didn't know when Windows 95 was going to deliver.

866

THE WITNESS: Nobody knew --

THE COURT: Nobody knew the date. He didn't know, I don't think.

THE WITNESS: The world didn't know. Windows 95 slipped by three years.

THE COURT: Just rephrase the question. That's all.

BY MS. NELLES

Q: Well, let's pull up Defendant's Exhibit 211.

Sir, are you familiar with this document?

A: Yes.

Q: And it is a project proposal for Storm?

A: Yes.

Q: Storm is PerfectOffice?

A: Yes.

Q: I'm going to ask you to turn to what is I believe page 5. It is appendix A: I am going to ask you if you can help me identify the date of this document. If you look under the introduction the first sentence says Storm is the code name for our PerfectOffice release to follow the PerfectOffice 3.0 product that is shipping in December of 1994.

A: Yes.

Q: Would you agree that this document was created before December of 1994?

867

A: I am sure it started before then and probably close to that time.

Q: Because it says prior --

A: Because it had not shipped yet and PerfectOffice 3.0 I think shipped in December of '94, so before that certainly -- yeah.

Q: Let's go back to the first page of this document.

It says here that time frames is the critical decision to be made for finalizing the Storm strategy.

You agree with that, right?

A: Yes. This was a proposal that we put out there as an option to consider.

Q: And there is a table here and it outlines three such proposals; isn't that right?

A: Yes.

Q: Are these proposals what you would refer to or were referring to as the contingencies?

A: Well, no. That was a little different. We had contingency plans on every element and everything that was considered a risk, and that is where we had the contingency plans. This was an option to say we are always making trade offs between, you know, the functions and features that we were putting in for customers and timing of operating systems releases. This is a trade off to say here are the things we would be trading off.

868

Q: And these proposals, were you involved in preparing these proposals?

A: Yes. I actually think Bruce put this one out, but I was certainly involved. Sure.

Q: Who did this go to?

A: I am sure it went to Mark Calkins. I suspect he shared it with others, but I don't know.

Q: Did this go to senior management?

A: You know, I never went to senior management. Mark is -- the extent of my visibility was Mark Calkins.

Q: And you suspect it went to --

A: I suspect it went to him.

Q: All right. And proposal one is primarily a WIN 95 stragety for a September 30, 1995 release?

A: Yes.

Q: And under advantages, the advantages section it says this is about four months after MS Office is scheduled to ship and five months after WIN 95 is scheduled to ship.

Do you see that?

A: Yes.

Q: So there was an anticipated ship date for both MS Office and WIN 95 at this time, right?

A: Yeah. We thought that it was going to be the first half for WIN 95 and Office was supposed to ship about then too.

869

Q: And then the last sentence in that box says this is aggressive yet possible with great effort, and we would not risk being perceived as, quote, late to a key platform again?

A: Yes.

Q: Do you see that?

A: Yes.

Q: Was that important?

A: Yes.

Q: Okay. And then if you go over to the left-hand column, do you see that there is a list of problems with this proposed solution?

A: Yes.

Q: And if you go down to number two on the page --

A: Yes.

Q: Quattro Pro believes this is barely acheivable with all their resources and with no additional functionality.

Do you see that?

A: Yes.

Q: Do you recall this being the case?

A: Yes. They wanted to do more functionality than just make it 32 bit and add the shared code stuff.

Q: And if you go to the last sentence in that box --

A: Yes.

Q: They, meaning Quattro Pro, feel that an additional

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three months would help them compete effectively?

A: Yes. I think the crux of this document was actually because of Quattro Pro's request.

Q: The crux of this document was because of the Quattro Pro request?

A: Yes. We would love to have more time to add features.

Q: They also believe a four month beta is needed for a significant release such as a WIN 95 product?

A: Yes.

Q: Okay. Can we go further down on the problem box to number three. It says P.R. presentation?

A: That is the presentation in Quattro Pro.

Q: And shared does is in a very similar situation to Quattro Pro from a development standpoint. Do you see that?

A: Yes.

Q: They are nervous about that date and --

A: Yes.

Q: -- would have to make significant corner cutting moves to make that date?

A: Yes. They always like -- everybody wanted to make great products, and so -- there is fixed overhead in making a release. Fixed overhead was something that you wanted to spend as much time as you could adding new capabilities and features for people. So, yeah, they all wanted to do that.

Q: The date that we're talking about here is the September

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30, 1995 date?

A: Yes.

Q: And if we go down to number four in the box under the problems column, WordPerfect is only on target for this date if the other pieces they rely on are there on time. The WordPerfect team, such as shared code -- the WordPerfect team is best prepared because of advanced work and significant resources, but they still feel the schedule is aggressive but achievable?

A: Yes.

Q: So for a September 30, 1995 release Quattro Pro believed it was barely achievable?

A: Yes.

Q: This is in 1994?

A: Yes.

Q: And the P.R. shared code was in a similar situation?

A: They are nervous about it but, like I said, most developers would be nervous about almost any date. Yeah.

Q: WordPerfect was in the best place at that time?

A: WordPerfect was in the -- they felt most confident because they started developing features. They were still nervous about shared code, but they felt most confident with the features that they had added.

Q: Turning to the next page, number 6 under the problems column, Office will be cometing with the significant

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upgrades to MS Office and Lotus Smart Suite?

A: Yes.

Q: Both of these products have had 15 months or greater development cycles as opposed to our proposed nine month cycle --

A: Yes.

Q: -- because they already had a suite on the market.

A: It was just really time frame, right, so whenever you release it was just time frames. Because they released before PerfectOffice they had additional time on that.

Q: Microsoft and Lotus were starting ahead because they had a previous product and they already had a suite on the market?

A: We had -- this is for Storm. We already had PerfectOffice also at this time.

Q: But proposal two --

A: Yes.

Q: -- is a solution driven strategy for January 1996?

A: Yes.

Q: Does this mean that you were considering a proposal in 1994 for a release date in January of 1996?

A: Yes.

Q: And under advantages, number one, this is for a later release date?

A: Yes.

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Q: And a more significant development time frame before the release overhead is incurred?

A: Exactly. That is what I was trying to explain before, is that there is a fixed amount of overhead on all of these, and so one idea was to spend more time adding new features as opposed to just making WIN 95 with less features.

Q: Right. But by January of 1996, if we can go to problems, you were aware, weren't you, that this was about seven months after MS Office is scheduled to ship and eight months after WIN 95 is scheduled to ship?

A: Yes.

Q: By that time --

A: Of course, again, it was an unknown, but we thought maybe they were going to ship then, you know, in the April-May time frame.

Q: And it was in fact in the summertime, right?

A: Yes. They didn't hit those dates, but we were not sure so we were nervous.

Q: You understood that if you had a seven month or eight month lag that perhaps you would have missed the market, correct?

A: An eight month lag would have been a huge problem, yeah.

Q: And the party is over at that point, correct?

A: I mean, a little tongue in cheak, but, yeah.

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Q: And then actually there was a third proposal, right?

A: Yes.

Q: That is on the next page. Proposal three is WP WIN, WordPerfect for Windows in September of 1995 and then the rest later in 1996?

A: Yes. It was just like I said -- one of the options was to ship and then add the rest a little later. It was certainly an option to consider.

Q: Okay. Among the options available to you, turning to the next page, the recommendation --

A: Yes.

Q: -- that was made in 1994?

A: Yes.

Q: That is option two and that is the January 1996 release is the best option?

A: Yeah. We were promoting that as the best option under the three because there were so many unknowns. We could have more functionality in the product and so maybe we should do that. It was, yeah, we said here are three options and we suggest number two.

Q: Right. You thought this was the best way to be competitive, correct?

A: It was -- you know, there are a lot of things that weigh into that. One of the things that weigh into that is the unknown about when the operating system would release.

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So if the operating system release was much, much later and you did a very short time frame, then it is kind of like you spent all of that overhead and the operating system didn't come out. So it was hard to balance. It was a balancing act. It was a balancing act at best to try figure out when the operating system is going to go out and how much you should spend in the development cycle so you are still within that window of opportunity. We wanted to ship very close to the operating system.

Q: And one of the reasons that you thought option two was the best option, and the reason you needed this longer time frame option was because, and I am looking down to the third sentence, Lotus and Microsoft opted to create 32 bit solutions early this year at the expense of having additional 16 bit releases. They are allocating significant development time between releases to allow significant advances. To compete with these forces we must at least allocate similar time frames, right?

A: Right.

Q: In 1994, and we talked about this a little bit earlier, WordPerfect, Novell WordPerfect was devoting significant resources to upgrading the WordPerfect 6.0 product to WordPerfect 6.1, correct?

A: Yeah.

Q: And that shipped in December of 1994, correct?

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A: Right.

Q: Right.

A: I mean, this is like the age old trade off between timing around an unknown operating system release and new functionality that you could add and say -- it is a tough trade off to make and to try to guess.

Q: If we could just turn back to proposal three for one quick second. This is the ship WordPerfect for Windows in September of 1995 and then the rest later. One of the advantages for doing it this way was it would buy additional time for Quattro Pro and GroupWise, correct?

A: Yes.

THE COURT: I think, and I may be wrong, GroupWise was an e-mail product; is that right?

THE WITNESS: Yes. It was e-mail. This is referring to additional time for Quattro to add functionality and to add features as opposed to distinguishing WIN 95 and integrate new shared code stuff.

BY MS. NELLES

Q: Releasing PerfectOffice was a big undertaking, wasn't it?

A: Yes.

Q: You had overall management responsibility for about 300 developers working on that project?

A: Yes.

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Q: As the director of PerfectOffice you were responsible for keeping WordPerfect and Quattro Pro and these other products, several other products together into a suite, right?

A: Yes.

Q: And you were responsible for delivering PerfectOffice on time, right?

A: Yes.

Q: And in order to release PerfectOffice on time you kept schedules for completing development of all the parts of the PerfectOffice suite, right?

A: Why.

Q: You testified a little bit about that earlier?

A: Yes. Every week we met on it and we kept track of it all the time.

Q: And at these weekly meetings you had these huge gant charts; is that right?

A: Yes.

Q: And to assess where people were headed and what was the critical path?

A: Yes.

Q: Where were those charts kept?

A: There was a package -- I think it was called timeline -- that we just kept updating it. It was not completely automated. People would send e-mails in of their

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status and then Marcus Lund was the guy that was in charge of it, so he would enter them or do whatever it took to get the gant chart up to date.

Q: Did you have access to those charts?

A: Did I have access to the charts? I met with Marcus, you know, probably a couple times a week to talk about the progress and where we were at.

Q: Did you have your own copy of the chart, sir?

A: No.

Q: Was the progress of the shared code team in creating the PerfectFit file open dialogue for Windows 95 reflected in the chart?

A: Yes.

Q: It was?

A: Yes.

Q: When was the last time you have seen one of those charts?

A: Back in '95.

Q: You have not seen one in preparation for your testimony?

A: I have not.

Q: You remember, and we discussed it a little bit earlier, you remember being deposed in this case in March of 2009, right?

A: Yes.

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Q: At that deposition, just like today, you were asked a lot of questions, right?

A: Yes.

Q: One of the questions that you were asked was do you have any recollection as to the reasons for the delay in shipping the WordPerfect product for Windows platform? Do you recall that?

A: Yes.

Q: I'm going to point you to your deposition, and do you have that, the transcript?

A: I have that.

Q: Go to page 89 and start at line 10. Let's take a look at that.

A: Okay.

Q: You were asked if you recalled the reasons for the delay in shipping the WordPerfect product for Windows platform and you said there were a lot of reasons, didn't you?

A: Yes.

Q: And, in fact, you even had nightmares about the delays, right?

A: That is what I am smiling about, yeah.

Q: And you were asked to recall what those reasons were.

A: Yes.

Q: And you noted integration across different groups,

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right?

A: Yes.

Q: That was one of the reason for the delay in shipping PerfectOffice for Windows 95, right?

A: Yes. PerfectFit, shared code stuff.

Q: And that there were about 300 people involved?

A: Yes.

Q: And another reason was that you had the job of going to a new operating system, right?

A: I am sorry. Where are you reading?

Q: At lines 20 to 22.

A: Sorry. Yes.

Q: And you had the job of coordinating the next features that were being incorporated in each one of the products, right?

A: Right.

Q: Plus adding integration steps?

A: Yes.

Q: So that there was going to be a similar look and feel between the applications?

A: Yes.

Q: And pulling it all together, right?

A: Yes.

Q: And there were many groups and many teams and many responsibilities, right?

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A: Yes.

Q: And that was a challenge, wasn't it?

A: Yes.

Q: It was one of the most challenging things that you have ever had to do, right, to pull all of that together and get the product shipped?

A: Sure. It was one of the most challenging --

Q: That is what you testified to in 2009 when you were asked what your recollection was concerning the delay in shipping WordPerfect?

A: Yes.

Q: The WordPerfect product for the Windows 95 platform, right?

A: Yes.

Q: PerfectOffice?

A: Yes.

Q: Sir, do you recognize this document?

A: Yes.

Q: It is Exhibit 635. What is this document?

A: It looks like it is an e-mail from me to Bruce and Steve, and I can't see the rest, talking about linguistics and technologies.

Q: Who is it directed to?

A: Steve Michael was the director of WordPerfect for Windows and Bruce Brereton, my boss, he was the vice

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president of business applications.

Q: The subject is you can lead a horse to water but it can only drink so much?

A: That was creative.

Q: And there were a lot of perspectives about how to put together the PerfectOffice product, right?

A: Yes.

Q: And you were responding in this e-mail to someone's perspective?

A: Yes.

Q: If you go down into the third paragraph, third full paragraph --

A: Alan Hansen was over linguistics, yes.

Q: You respond, if you believe my priorities are messed up, please let me know. Here are my current unresolved issues for Storm. This is in March of '95, right?

A: Yes.

Q: Can you tell the jury in March of 1995 what you believe the priorities were, the unresolved issue for Storm?

A: GroupWise deliverables, the network integration, third party integration, U.I. consistency, the shared code kind of stuff, desktop strategy, oh, tapestry stuff, sure, info central strategy to work on, the new help system, Quattro Pro, use-ability findings, and last linguistic features in Storm.

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Q: Let's go back to number four. U.I. consistency progress. This is what you said was the shared code?

A: Yes.

Q: It says additional pushes are needed in a few areas but good progress is being made, right?

A: Yes.

THE COURT: Again, I just want to make sure that I am not confused. U.I. stands for user interface?

THE WITNESS: Yes, user interface, and it is just saying that they there were and --

THE COURT: No. That is fine.

BY MS. NELLES

Q: Mr. Gibb, you were not one of the developers who wrote code for any part of PerfectOffice, right?

A: During this release cycle I was not. I wrote the border stuff before for 6.0.

Q: But not for this product?

A: Not for this release, right.

Q: The file open dialogue feature that was being, and we have talked about this, that was being developed by the shared code team, right?

A: Yes.

Q: And that was Tom Creighton, who was one of the --

A: Yes.

Q: And Mr. Corral and Mr. Richardson were among the

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members of the shared code team responsible for completing the file of the dialogue feature, right?

A: Yes.

Q: You don't know the details of what was causing the shared code team to be late in completing?

A: I don't know with a lot of depth, I don't.

Q: Your intrest was in getting the shared code team to finish their work on PerfectFit and the files and dialogue so that Novell could get PerfectOffice for Windows 95 out the door; isn't that right?

A: Yes. That was my whole drive.

Q: And the shared code team had a lot of reasons about why PerfectFit open dialogue was late; isn't that right?

A: Like I said, the specifics of that, you know, I didn't get involved in any great detail. I went to review meetings where they talked about it and that is where I was exposed to the ideas like name space files and things like that, but certainly the details I don't know in depth.

Q: Right. In 2009 at least when you testified in your deposition you noted that the shared code team had more than one grievance?

A: I think they had -- sure, they had a lot of things to address, especially early on to build it because it was a new operating system. It was a new operating system and they were the layer at the top of the operating system, so

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they had a lot to do.

Q: And you never communicated directly with anybody at Microsoft technical specifications for Windows 95?

A: I did not. That was the expertise within the shared code group and that is who talked to them.

Q: Other than what members of the shared code team may have told you, you have no personal knowledge of what Microsoft did or did not do in 1993 or 1994 or 1995 to provide documentation or support for the name basic extension APIs or for any other feature of --

A: Yeah, I was not at that level.

Q: Sir, you testified earlier today that WordPerfect was middleware. Do you recall that?

A: Yes.

Q: That was not your testimony in 2009, was it?

A: I thought I did. Maybe not.

Q: Let's take a look at your testimony on page 105 of your deposition.

A: Okay.

Q: It is going to start -- the question starts at line 20 and then carries over to the next page. The question you were asked was do you recall any discussions during your time either at WordPerfect or Novell about Novell -- about -- strike that -- about WordPerfect evolving from a standalone word processor into a middleware layer that could

886

provide services to other applications?

What was your answer, sir?

A: Do you want me to read it? We talked about that. I mean, you know, did it ever happen? In a lot of ways, you know, 6.0 and 6.1 were almost middleware. I mean, it had -- you could drop in a spreadsheet or an OLE application, tables included calculation capabilities. There was a mini graphics package in there. It was the discussion why do we need a suite when WordPerfect is everything? Certainly that was discussed as one of the, you know -- it was discussed, yeah. I hate it when they put in the you knows. Yeah.

Q: But not much beyond discussing and you say, no, it wasn't. I guess there were a lot --

A: No. The question was would it evolve. Wasn't that the question?

Q: You were asked --

A: Do you recall any discussion during your time at WordPerfect or Novell -- strike that -- WordPerfect evolving from a standalone word processer into a middleware layer. It already had support for perfect scripting so that you could drive it, and a lot of applications did, and we had partners, like over 1,000 partners that did it all the time. It always did. I guess maybe I didn't understand, but as far as evolving into something different it wasn't, but it was certainly used by partners.

887

Q: Sir, what general purpose applications ran on WordPerfect without calling the underlying APIs imposed by Windows?

A: You know, I was exposed to those when they had problems, so I was most aware of when --

THE COURT: When you say partners, are they your customers?

THE WITNESS: No. These were like somebody who would build a specialized document management package, they would build, you know -- they would do their own spexizliaed thing on top of WordPerfect.

THE COURT: I see.

THE WITNESS: Like I said, when I say over 1,000, these are companies that would partner with us and build stuff.

THE COURT: What I am not clear on, is are these ISCs or are they companies who were using WordPerfect as a world to live in?

THE WITNESS: That is a good question. I don't know the break up of it, because it was really -- I was involved with the technology to build it, so it was a big deal to put the perfect scripting in there and to tie it on an individual basis, so that our partners could build their cutsom things on top of it. Like I said, I was not involved with the sale to the different companies.

888

THE COURT: Please don't draw any inference, ladies and gentlemen, from that fact that I ask questions. I have to decide things as we go along, and these are things that I have to understand that --

BY MS. NELLES

Q: I am sure you gave an answer to the question I asked but I am not sure I got it. I am sure you said it. I am just not sure I heard it.

What general purpose application ran on WordPerfect without calling the underlying APIs exposed by Windows? Can you think of any?

A: The applications that called it?

Q: General purpose applications. What general purpose applications ran on WordPerfect without calling the underlying APIs exposed by Windows?

A: I'm sorry. Without calling the underlying stuff?

Q: Correct.

A: I don't know for sure. The document management package was my only call for an example. It was like an add-on that they ran on top -- is that what you're asking?

Q: I am asking if you can identify any general purpose applications that ran on top of WordPerfect without calling the underlying APIs that were exposed by Windows?

A: I don't know the details of any of those applications. I just know there were thousands of partners that did

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thousands of things.

Q: Did any third party ever write a spreadsheet application that ran on top of WordPerfect?

A: I don't know of any. Certainly table had some capabilities in there and we actually did some formula calculations in a limited form, but I would be surprised if they did a spreadsheet.

Q: Did any third party ever write a word processing application that ran on top of WordPerfect?

A: I think they did a lot of pieces where they would use a piece of WordPerfect to handle little chunks of word processing inside of something or, inversely, feed it from a database into a document, but I don't -- I think they would do some of that.

Q: Isn't it true, sir, that the only product that ran on top of WordPerfect were products that either amended the functionality of WordPerfect or automated the functionality of WordPerfect?

A: I don't know. There were thousands of applications. I don't know. I don't know.

Q: You're not testifying today, are you, that WordPerfect could have replaced the Windows operating system, are you?

A: No, it was not meant to replace it, but I'm saying some people lived in it, so to them it was the world. That's all.

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MS. NELLES: Just one moment.

THE COURT: Sure.

BY MS. NELLES

Q: I am almost done here, sir. Could we go back to DX-272 for just one moment. This is the quarterly international conference meeting. Do you remember this document?

A: Yes.

Q: Let's go to page 19.

A: Okay.

Q: The fourth bullet from the top -- I'm sorry. I am coming from the bottom. My mistake. The fourth bullet up from the bottom.

A: Okay.

Q: It says development is now starting to work overtime on Storm, PerfectOffice. We're doing all possible to avoid any delays in delivery of product in the December-January time frame.

Do you see that?

A: Yes.

Q: In June of 1995 what Novell is saying here, right, is that you were starting to work overtime and cannot deliver until December '95 or January '96, and that is four to five months after Windows 95 is released?

A: Yes.

Q: Okay. Mr. Gibb, what you said before our break was

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that you and Novell were faced with the age old trade off. You could get out a product more quickly and sacrifice features, or you could delay until 1996 and try to build a cooler product?

A: Yes.

Q: Such us a custom file open dialogue?

A: Yes.

Q: What Novell chose, when faced with that choice, was to wait until 1996 to try to make the cooler product; isn't that right?

A: No. They actually chose -- of the three options I gave them, they chose number one.

Q: Ultimately, sir, isn't it true that the choice was made to wait until 1996 to make the cooler product?

A: No. It was not a choice made to do that. It was not so that we could add features. What happened is we were on a critical path and things didn't get done in time to make that earlier date. We wanted to make the earlier date. That was the choice that was mandated back to us.

Q: Okay.

MS. NELLES: That is all that I have for now.

THE COURT: Any questions, Mr. Schmidtlein?

MR. SCHMIDTLEIN: Yes.

THE COURT: I think if it is okay with everybody, we will try to go until about 20 of or a quarter of.

892

Is that okay with the court reporter?

COURT REPORTER: That is fine, Judge.

THE COURT: Another 15, 20 minutes.

Okay with you? Okay with you all?

MS. NELLES: Absolutely, Your Honor.

REDIRECT EXAMINATION

BY MR. SCHMIDTLEIN

Q: Mr. Gibb, you were just asked a question about whether what you were trying to do when you decided to hold off and ship the product in 1996 was a decision to try to make a cooler product.

A: More features kind of a thing, yeah.

Q: Was the functionality that you were trying to add, the file open dialogue, was or was not that functionality that had been part of prior releases of WordPerfect?

A: Yeah. It was not considered extrA: It was considered core.

Q: Did you think that you had any choice but to delay the release to add functionality, core functionality that had been part of prior releases?

A: We didn't see an option really. I mean, obviously there is an option, but it would be hugely painful.

Q: In some ways your life would have been easier if you had just cut out all of this --

THE COURT: And he would have been without a job.

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THE WITNESS: Yes, it would have been easier.

BY MR. SCHMIDTLEIN

Q: DX-272, which I think you were just shown, and page 19, and I think you were just shown by counsel for Microsoft the fourth bullet point from the bottom.

A: Okay.

Q: The one that says development is now starting to work overtime on Storm. We're doing all possible to avoid any delays for delivery of product in the December-January timeframe.

Now, the date on this document or the date of this meeting is June 13 to June 16, 1995; is that right?

A: Yes.

Q: I think we looked at earlier today the panic mode memo that you were part of authoring; is that correct?

A: Yes. That was in July.

Q: That was in July of 1995?

A: Right.

Q: As of June of 1995 was it apparent to you that the shipment date had already slipped, right?

A: Yes.

THE COURT: The shipment date of WordPerfect?

BY MR. SCHMIDTLEIN

Q: I am sorry. The shipment date for PerfectOffice 95.

A: Well, certainly -- yeah. We had changed and it looked

894

like we were not going to make it, yes.

Q: And this document reflects that you knew that in June of 1995, right?

A: Yes.

Q: Can we go back to Defendant's Exhibit 259?

This is the WordPerfect for Windows Eliot marketing requirement document, right?

A: Yes.

Q: And just to sort of get everybody back on the same page, this was a version of WordPerfect that was going to run on the version of Windows that came out prior to Windows 95?

A: Right.

Q: And the product that WordPerfect was developing at that time was Windows 6.1 or 6.0?

A: This would be 6.0.

Q: This document didn't have to do with PerfectOffice 95?

A: No. This was a 16 bit product.

Q: I think you were asked some questions about whether these prior versions had been slow in bugging.

Do you recall that?

A: Yes.

Q: Was WordPerfect 6.0 very well reviewed?

A: No. I mean, well it was on features and functionality, but to your point it was reviewed as having some bugs and

895

slow.

Q: Were those bugs corrected in subsequent releases?

A: Yes. 6.0-A was much better. It was improved, the speed on the low memory machines and also fixed some of the core things that customers had found.

Q: Was bugginess or slowness in running an issue when you released the PerfectOffice 3.0 product?

A: It was not pointed out anywhere as being -- I don't think we ever said we were faster than others, but it was not pointed out as slower either. It is sort of a no op.

COURT REPORTER: A what?

THE WITNESS: No op, meaning not a plus or a minus.

BY MR. SCHMIDTLEIN

Q: Now, I think at the very beginning of the examination you were shown a couple of slides that were used by Microsoft's counsel during opening argument.

MR. SCHMIDTLEIN: Do you have those?

THE COURT: Do you want to put them up?

MS. NELLES: 13-A.

MR. SCHMIDTLEIN: 13-A.

BY MR. SCHMIDTLEIN

Q: I believe you were asked some questions about whether WordPerfect was somehow late getting to the Windows platform.

896

Do you recall those questions?

A: Yes.

Q: Now, this chart cuts off in 1991, right?

A: Right.

Q: The events that we're talknig about in this case and release of PerfectOffice 95, when did those events take place?

A: Well, the ones we're talking about are in '94 and '95 and '96.

Q: Out here, right?

A: Right.

MR. SCHMIDTLEIN: Can you put up number 27, please.

Thank you very much.

BY MR. SCHMIDTLEIN

Q: This relates to the release scheduled for suites. Do you recall being asked by Microsoft's counsel about that?

A: Yes.

Q: I believe you were asked some questions about whether WordPerfect or Novell was late in getting the suites.

Do you remember that?

A: Yes.

Q: Again, you see the period focused on the '90, '91, '92, '93 and '94, correct?

A: Yes.

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Q: When did Novell release PerfectOffice 3.0?

A: Right there. I think it was '94, yes.

Q: December of 1994?

A: Right.

Q: So by the time of 1995, the period leading up to the Windows 95 release, Novell had released a complete suite product, correct?

A: Yes.

Q: In fact, one of the reasons for the merger, the acquisition of Quattro Pro, was that to assist you in better putting together and marketing a suite product?

A: Absolutely. I mean, it would make it consistent and make it great and user friendly.

MR. SCHMIDTLEIN: Can we see Defendant's Exhibit 267?

BY MR. SCHMIDTLEIN

Q: I believe you were asked some questions about this document and in particular page 2. At the very top, the first line, I think you were asked questions about we don't have an established position in the suite market.

A: Right.

Q: Do you see that?

A: Yes.

Q: And if you go down to the very bottom right-hand corner of that page, what is the date there?

898

A: 1993.

Q: And, it is true, that in 1993 this was prior to the merger that acquired Quattro Pro, correct?

A: Yes.

Q: I think as we just looked at, in December 1994 you had released a version of PerfectOffice, correct?

A: Yes.

Q: Of the suite of products that you have talked about, there was word processing, there were spreadsheets, there were presentations, which was sort of a powerpoint type of product; is that right?

A: Yes.

Q: Do you know which of those products was sort of the one that drove the purchase more than others?

A: Well, the information that we had was the word processing was number one, the spreadsheet was number two, and then every thing else was a distant third and fourth kind of stuff. But certainly it was the word processing and spreadsheet, and we believed the word processing was the most important.

Q: If you will go to page 5 of this document, under product description it says the WordPerfect suite comprises the best in Windows applications. It redefines traditional suites by incorporating personal time management, group calendaring and scheduling, and the WordPerfect suite is

899

anchored by the world's most powerful and customizable word processor.

A: Yes.

Q: Is that accurate? Is that how you felt about the product?

A: Absolutely. WordPerfect was the anchor. No question.

Q: Look at Defendant's Exhibit 4.

I believe you were asked some questions on this document. You were asked questions in this document about the amount of resources that were being devoted to Chicago or the PerfectOffice 95 product.

Do you remember that?

A: Yes.

Q: Turn to the first page. Just to refresh everybody, this is October of 1994, right?

A: Yes.

Q: I think you can barely see that down in the left-hand corner.

A: Yes. August.

Q: Yes. If you go to the top of this first -- I'm sorry. It is the first page and there are some key points. We are making new investments in the Chicago development.

Was that true in August of 1994?

THE COURT: I think we are going to stop around a quarter of.

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Did the new reporter just come in? That is good.

THE WITNESS: Yes.

BY MR. SCHMIDTLEIN

Q: Okay. If you go to the second page under business applications, the very first bullet there says eliminate resources on WordPerfect for V.M.S.

What does that mean?

A: That was one of the cross platform, you know, versions that we were releasing was V.M.S. So I think they were removing them and moving them to PerfectOffice for Chicago.

Q: Down under consumer products, and the second bullet point there, it says share at least 80 percent of the work code in platform and OSs. Platform team with responsibility to deliver the Mac and Windows teams code that is developed to run on either Mac or Windows 16 of 32 bit.

What does that refer to?

A: I am not positive. I think what that means is that the code between the platforms was a shared code, so the shared code group would develop, you know, all of the things that interfaced with the operating system, and between platforms is the engine, the team that I was over for a time, where you would write the core word processing that would then be shared across all the different operating systems.

Q: When you were beginning to move additional resources over to the Chicago or the Windows 95 projects, were you

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starting from scratch to develop the PerfectOffice suite 95?

A: No. I mean, like I said, the engine was developed for all those other operating systems that were already 32 bit, so all of those opearting systems were already there. So when we developed -- you know, we worked on Windows 16 bit, but we always worked on 32 bit also. Every other operating system was actually 32 bit that we used. We developed -- most of the code was 32 bit.

Q: You were shown some documents I think from sort of the late '94 early '95 period that talked about various shipment dates. Was there uncertainty certainly in 1994 as to when Windows 95 was going to ship from your perspective?

A: Sure. It was a huge risk and unknown. Like I said, I think initially it was targeted in '92 or '93. I mean, they were years off, right. It was very hard to predict.

Q: At some point did you all believe that in fact Windows was going to ship later than August of 1995?

A: We did. We had some expectation that it might ship closer to Comdex 95.

Q: That would have been in the fall of --

A: In the November time frame.

Q: During this whole time period was developing a product for Windows 95 the number one priority within the business applications division?

A: Absolutely.

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Q: Now, you have spent some time first talking with me and then talking with counsel for Microsoft about Quattro Pro and various issues with Quattro Pro, or estimates about when the Quattro Pro product was going to be delivered.

Can you explain whether or not there was any significant new added functionality that you thought was necessary to be added to Quattro Pro for the PerfectOffice suite 95 version?

A: No. I mean, the thing that was critical for Quattro Pro and for all of these, it was windows 95 first, and then for the suite to enable it consistent, so the features -- we would have feature wars for the previous ten years where they would implement something and then we would implement something, and then they would copy what we did, and we would use the version of what they did, and so it was very much about use and integration and being there on the platform and it was a much higher priority than a feature war. Yeah. We done feature wars for a long, long time. That was not the priority.

Q: We looked at some documents where -- do you remember the documents we looked at that had sort of the one, two and three rankings about, you know, which things were risks?

A: Yes.

Q: And I believe in some of those documents Quattro Pro was listed as the number one risk for being late?

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A: Yes.

Q: Sitting here today, those documents were done during the development phase, right?

A: Yes. The early planning stages, yes.

Q: Did Quattro Pro end up being a critical path on the PerfectOffice suite 95 development?

A: No. I mean, absolutely not. It was shocking actually, and they had a lot of challenges to do, but every week, week after week it was shared code. Shared code. It was not Quattro Pro.

Q: If we can take a look --

THE COURT: How much longer are you going to be? A while?

MR. SCHMIDTLEIN: I am going to try to be --

THE COURT: We can stop here and come back. There will also be recross.

MR. SCHMIDTLEIN: Why don't we take a break now.

THE COURT: We'll take a short break and come back a little after 12:00.

(Recess)

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THE COURT: Get the jury.

What's next? Another witness?

MR. JOHNSON: We'll be going to the videotape after this witness.

(Jury present)

THE COURT: Mr. Schmidtlein.

MR. SCHMIDTLEIN: Thank you, Your Honor.

BY MR. SCHMIDTLEIN:

Q: Mr. Gibb, I'm going to tell you one of the great lawyer fibs. I only have a couple questions more for you.

If you can pull up Defendant's Exhibit 635, which I believe you were asked about.

MR. SCHMIDTLEIN: Defendant's Exhibit 635. We just got this one today, so we haven't loaded it yet.

BY MR. SCHMIDTLEIN:

Q: This was an e-mail that you wrote in March of 1995; is that right?

A: Yes.

Q: And I believe you were asked some questions about the paragraph that began, I appreciate Alan Hansen's perspective, down there about two-thirds of the way down on the bottom?

A: Yes.

Q: That part right there. Thank you.

Can you sort of explain to the jury what the subject

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matter here is and sort of what the interaction here is?

A: Well, best recollection is that Alan -- well, Alan Hansen -- I knew Alan Hansen real well. Great guy. Actually worked on the engine team for awhile. But then he was over linguistics and he -- I think he wrote a big document about how we should write a whole bunch of additional linguistic features, and that should be the future. So I was replying to that and saying I think linguistics is important, but I think these other like eight things are more important. And so that was kind of the gist of this interchange.

So he sent an e-mail saying we should focus on these things, and I said I think this is important, but I think these other eight things are more important.

Q: Are the things that you all are sort of discussing here, are these core features of PerfectOffice 95 or are these sort of -- I don't want to say add-on features, but are these sort of more optional features that you all were considering?

A: These were additional things that we were talking about adding. So it was like the new help system, strategy for the future of info central, yeah -- I mean obviously --

Q: Sort of the shared code or the file open dialog, that's not listed here, right?

A: Not explicitly, no.

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Q: And the shared -- did you consider the file open dialog to be a core feature?

A: Oh, absolutely, yeah. It's much more important than any of these.

Q: Can we take a look at PX-322? This is the panic mode document we talked about before.

If we can turn to page 4, and under the namespace browser section there under justification, the paragraph that begins, this does not mean -- focusing on this -- I'm sorry. Under proposal.

I think you were asked some questions about this, deliver NSB, the namespace browser, component implemented with the common open dialog by required code complete date. The application programming interface will be locked down at that time too. Deliver a fully functional NSB, including a functional namespace provider for the file system during beta.

And I believe you were asked -- in response to a question that you were asked before as to whether this reflected that you all decided to use Microsoft's common open dialog, you described that as a place holder. Do you recall that?

A: Yes.

Q: What did you mean by a place holder?

A: Place holder is just -- it was useful for testing and

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debugging. So if a developer wanted to open a WordPerfect document that had a bunch of things in it already set up, you would hit open dialog. That's what we did. We couldn't test the other functionality in file open, but we could at least open the document.

Q: Why couldn't you test the other functionality at that point?

A: Because the new open dialog was not code complete, was the real one that we wanted to include in the suite, but it wasn't ready yet.

Q: Is that the one that Mr. Harral and Mr. Richardson's group was working on?

A: Yes.

Q: You were asked -- I think you were shown a portion of your deposition when you were asked about, you know, the various reasons or the reasons why the PerfectOffice Suite shipped late. And I believe one of the things you referenced was sort of the integration across all the products. Do you remember that in your deposition?

A: Sure.

Q: And when you refer to integration across all the products, did that include integrating technology like file open dialog and things like that?

A: Yeah, integration -- when I refer to that, I'm thinking of shared code because that's how we integrate across

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products.

Q: And do you remember being asked in your deposition what was critical path?

A: Yes.

Q: What did you tell the counsel for Microsoft during your deposition what critical path was for PerfectOffice?

A: I think it was the same thing. I think I told them it was, you know, the open dialog and the PerfectFit team on top of that. So shared code and specifically underneath it was open dialog.

MR. SCHMIDTLEIN: That's all I have, Your Honor.

THE COURT: Thank you, Mr. Schmidtlein.

Any recross?

MS. NELLES: Very quickly, Your Honor.

RECROSS-EXAMINATION

BY MS. NELLES:

Q: Can we put up DX-635 one more quick time? And the bottom paragraph on the first page.

I just want to confirm that you just told Mr. Schmidtlein that all of these items were add-on features, correct?

A: Well, these weren't the core features that we were saying, because I think what the brainstorm was is that Alan was saying, these are the next things we should be adding. And I was saying, these are the more important things to be

909

adding.

Q: Not the core features?

A: Not the core features.

Q: Let's look at DX-4, which Mr. Schmidtlein showed you on redirect. This was the August 3, 1994 plan submitted by Quattro Pro?

A: Yes.

Q: Can we go to page 1, please. And under key points, the third bullet down -- some key points, filling the holes that were left with the acquisition of the Quattro Pro business. The positions of the development and marketing people that did not make the transfer were never filled.

It is correct, sir, isn't it, that development and marketing people left and were never replaced?

A: I assume this is accurate, so I think so.

Q: And if we could turn to page 5, please. Under business applications, you see these are the key issues. The very first one, getting company resources focused on supporting Quattro Pro, including within our business unit. Biggest issue is that there is very little support currently for Quattro Pro within international sales.

That was true in August 3rd, 1994, wasn't it?

A: I assume it's true. Like I said, international sales, I don't even work with those guys, per se.

Q: And it was also true that there were very few resources

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on Chicago at this time, right?

A: At this time they were working -- yeah. I think they were focused on international.

Q: And to go back to the slide -- opening slide 27. And I apologize that PerfectOffice is not on there. So if you can all imagine PerfectOffice at the end of 1994, and if you can imagine it in red, it would be nice.

Mr. Gibb, you testified on redirect that, in fact, one of the reasons for the merger, the acquisition of Quattro Pro was to assist you in better putting together and marketing the suite product, right?

A: Yes.

Q: You would agree with me, wouldn't you, that what this demonstrative shows, particularly when you add in the PerfectOffice, is the classic tradeoff between product features and product release date, right?

A: Sure.

Q: And last question, on redirect you made the following statement, being there on the platform was a much higher priority than a feature war. It was -- yeah. We had done features wars for a long time -- a long, long time, and that wasn't a priority?

A: Right.

Q: You stand by that testimony, don't you?

A: Yes, I do.

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MS. NELLES: Thank you.

THE COURT: Thank you very much.

I think the next witness is by deposition, correct? You're going to resume the videotape -- or is it a new one?

You can step down, Mr. Gibb.

MR. JOHNSON: Before we -- actually we're going to go back to Mr. Silverberg, which you may recall we didn't complete before. But before we do that, I would like to read in the document request and our response that Your Honor allowed me to.

THE COURT: Of course, of course. This is what we talked about yesterday?

MR. JOHNSON: Yes, precisely, Your Honor.

This is a document request during discovery in this case. This is document request number three contained in Microsoft's second set of requests for production and our objections and responses thereto.

Document request number three, all specifications, documentation, source code and object code for any software program developed by Novell that relied on or invoked any of the following APIs exposed by any version of the PC operating system referred to as Chicago or Windows 95. And it goes on to list the particular APIs, IShellBrowser, IShellFolder, IShellView, IPersistFolder and

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ICommDlgBrowser. I'm sure I'm mispronouncing that.

Novell's response is as follows. Response: Novell objects to this request as unduly burdensome. The burden and expense of searching for, retrieving, and producing documents responsive to this request would outweigh any potential benefits stemming from such production. Novell also objects to this request to the extent it seeks electronically stored information not reasonably accessible because of undue burden or cost.

Novell further objects to this request on the grounds that it is vague, ambiguous, and overbroad. Novell objects to this request on the grounds that it is vague, ambiguous, overbroad, and unduly burdensome in its use of the terms relied on and invoked.

In addition, Novell objects to this request because it seeks source code. As indicated in its objections and responses to this Microsoft's first set of requests for production, Novell will not produce documents containing source code absent a protective order between the parties governing the production of such information.

Subject to and without waiving its objections, Novell responds that Novell and Microsoft previously agreed on a protocol to electronically search, using agreed upon terms, one day of the backup tapes for documents responsive to Microsoft's first set of requests for production. The

913

agreed upon search terms included the terms IShellBrowser, IShellFolder, IShellView, IPersistFolder and ICommDlgBrowser. Novell has produced over 18 million pages of documents from that one day of backup tapes, which may include the information Microsoft now seeks if such information existed. This request is inconsistent with the parties' prior agreement, and is duplicative of prior discovery requests.

Moreover, Microsoft waived any right it has to seek source code now. Microsoft failed to seek source code in its first set of requests for production and failed to ask for source code in connection with the agreed upon protocol concerning the backup tapes. In addition, Microsoft's decision to make IShellBrowser, IShellView, IPersistFolder, and ICommDlgBrowser private and IShellFolder a read only public interface, effectively prevented Novell from using the namespace extension mechanism and/or implementing the mechanism in a customized fashion. Therefore, as a practical matter, no software that Novell developed could rely upon or invoke those APIs.

Thank you, Your Honor.

MR. HOLLEY: Your Honor, may I be heard at the bench about what Mr. Johnson just did?

(Bench conference held.)

THE COURT: Nobody ever raised, nobody asked me to

914

rule on the validity of the objections. Microsoft takes the position it never agreed with what Novell says and what was just read. Really it's a lot about nothing. It was for the context in which the last statement was made, and consider that. Everything else never has been ruled upon. There is no -- the parties may disagree about what the agreements were, but nobody ever asked me, nobody ever filed any kind of motion, thank God, to make me rule upon it.

So the important thing is just consider that. It's nothing about nothing, something about nothing, or nothing about nothing. But the important thing was I thought it should be read because there was some dispute because it was cross-examination of the last couple of sentences, and I just wanted you to know the context.

MR. JOHNSON: Thank you, Your Honor, very much.

At this time we would like to return to the deposition of Mr. Silverberg, which I guess we started last week but we didn't get to finish.

THE COURT: We have two open ends. Mr. Johnson will respond to when he finds the time, and we also have to finish this videotape.

MR. JOHNSON: Thank you.

THE COURT: I'm sorry. Breaking it out this way is confusing to you all. I'm trying to convenience the people who are here live, that's why we're doing this.

915

The Court reporter does not have to re-record this?

MR. JOHNSON: Yes, Your Honor, we agree.

Mr. Goldberg has never let me down before, Your Honor.

THE COURT: High tech kind of stuff.

MR. TULCHIN: For context, could we say again when this deposition was taken?

THE COURT: The deposition was taken when?

MR. TULCHIN: 2001, I believe.

MR. JOHNSON: No. This was 2009. I will get you the exact date, if you would like.

MR. TULCHIN: 2009. I'm sorry.

MR. TULCHIN: I don't know if we can help, Your Honor. We may not have this on our system.

MR. JOHNSON: The exact date, Your Honor, was January 22, 2009.

THE COURT: Thank you.

MR. WHEELER: Mr. Goldberg, is this supposed to be plugged in?

MR. GOLDBERG: No, it's not.

(Videotaped deposition played)

MR. JOHNSON: Rather timely, if I say so myself, Your Honor.

THE COURT: Six minutes short.

916

MR. JOHNSON: We could run six minutes of another tape, but I don't think that would be very useful.

THE COURT: Why don't you?

MR. JOHNSON: To break it up that much, Your Honor -- you remember we broke at a convenient point?

THE COURT: I am a task master. I don't want to be an unreasonable task master.

Have a nice evening. See you at eight o'clock and I'll stay with counsel to discuss matters.

(Jury excused)

THE COURT: The question I had is Microsoft has now filed its response, which I have. Thank you for the hard copy. I haven't read it yet. I can go read it now and have you all stay. It seems to be a waste of your time. I can read it and we can take it up at quarter of eight tomorrow, or else we can take it up at the close of business tomorrow, which means there wouldn't be -- whatever decision I make wouldn't be implemented before the jury until Monday morning.

MR. JOHNSON: Your Honor, if I may, since we're only having movie day tomorrow, it won't matter in the least. So I think we could take it up tomorrow. I didn't receive a copy myself. I would like to read it.

THE COURT: Do you want to take it up tomorrow morning?

917

MR. JOHNSON: Tomorrow afternoon would be fine, Your Honor.

Mr. HOLLEY: That's fine, Your Honor.

THE COURT: Anything else?

MR. JOHNSON: No from plaintiff, Your Honor.

THE COURT: Back in my office they are getting together for me all the expert reports together. If it's not -- I probably won't be able to read it until I get back to Baltimore. If any of you have Dr. Noll's report in hard copy, just give Teresa a copy sometime.

MR. JOHNSON: There is an initial report and the rebuttal report.

THE COURT: The more I know, the more I understand it. In fact, I'm re-reading Mr. Gates's deposition right now. Actually don't bother. I'm not going to read it until I get back to Baltimore.

MR. SCHMIDTLEIN: We can send one back to Baltimore overnight.

THE COURT: If they can't find it in the drawers, you guys can do it. I asked them this morning to get all the expert reports. I told them where they were. I'm sure they found them. I was just trying to make good use of my time. Thank you all.

(Whereupon, the trial was continued to Thursday, October 27, 2011 at 8:00 a.m.)

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