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Novell v. Microsoft Trial Transcripts - Day 8, Oct. 27, 2011 ~pj
Sunday, June 17 2012 @ 09:58 PM EDT

Here's day 8 in the Wordperfect antitrust trial in Novell v. Microsoft, the transcripts of the day, as text. That brings us to October 27, 2011, and that day was, as Novell lead attorney Jeff Johnson put it the day before, scheduled to be "movie day", meaning no live witnesses.

Instead, Novell played excerpts of the video depositions of Jeff Raikes, Scott Raedeke, two of Paul Maritz -- one from 2009 and the other 1994 -- [PDFs], all Microsoft people, and then there was a brief reenactment of a few questions posed at a 1994 deposition of Bruce Silverberg that was not videotaped. They tried to play a deposition video of Doug Henrich, another Microsoft employee, but the technology was giving Novell fits. Rather than try again another day, it was filed as an exhibit [PDF].

That is fairly common at trials, by the way, acting out a deposition, where a couple of lawyers reenact it. In the olden days, all such depositions were read. Now they videotape them, but not always. Of course, the video excerpts are not in the transcript of the day, so that's why I gave you the links to the PDFs, so you can read them.

But they also scheduled time for oral argument on the issue of some things Microsoft said in its opening statement. This was handled after the jury left for the day, for the week, actually, as the next trial day was scheduled for November 7. Novell had asked for a curative statement from the judge, and he provided half of one, maybe slightly less than half, actually, given the way he worded it, and now Novell asks for the other half to be cared for. But once again, Novell can't seem to catch a break with this judge, who in contrast seems not to come down equally hard on Microsoft, who in this case, pretty much gets away with what it did.

Jump To Comments

Once again, the judge seems to have forgotten testimony and asks a question (why couldn't Novell just use the APIs that they already had in the short term at least) that had been answered by that testimony (they did that at first, but Microsoft blocked them, Novell reminds him), and he again asserts his own view of the case, that he's not sure Novell has one. While he gives Novell an opportunity to respond, when one of the Novell attorneys suggests he reread the Fourth Circuit Court of Appeals decision, which held that Novell did have a case, the judge says, "Well, I am going to make my own decisions in this case, and whatever the Fourth Circuit said, they didn't have the evidence that is now before me."

It is impossible not to suspect that the judge has never altered his original view in his ruling, even though it was overturned by the 4th Circuit. He claims he's just thinking aloud. But if he's stuck in a groove of his own, it could be serious for Novell, since Microsoft has just asked the judge, after the jury was deadlocked at the end of this trial, to rule on Novell's case himself, without a second jury trial.

Here's a question he asks that I happen to know the answer to:

THE COURT: Well, it could be a legal issue, and the general question I have is there any place else where shared technological information provided any basis for an antitrust action against Microsoft? It seemed to me it was external business practices dealing with the OEMs and what they did in terms of threatening people, and I know of no case, and I could be wrong, and one of the questions I have is, is this is a case about you want Microsoft to provide its enhanced technology so that you can use it.
And my answer would be, yes, there is. The EU Commission found against Microsoft on anticompetitive grounds for refusing technical information to Samba. Here's the section about interoperability, in part:
48. By way of remedy for the abusive refusal referred to in Article 2(a) of the contested decision, Article 5 of that decision provides as follows:
(a) Microsoft shall, within 120 days of the date of notification of [the contested decision], make the interoperability information available to any undertaking having an interest in developing and distributing work group server operating system products and shall, on reasonable and non-discriminatory terms, allow the use of the interoperability information by such undertakings for the purpose of developing and distributing work group server operating system products;

(b) Microsoft shall ensure that the interoperability information made available is kept updated on an ongoing basis and in a timely manner;

(c) Microsoft shall, within 120 days of the date of notification of [the contested decision], set up an evaluation mechanism that will give interested undertakings a workable possibility of informing themselves about the scope and terms of use of the interoperability information; as regards this evaluation mechanism, Microsoft may impose reasonable and non-discriminatory conditions to ensure that access to the interoperability information is granted for evaluation purposes only;

Microsoft was hence forced to provide it and did. It even changed its license terms for interoperability information, if you recall.

They are reading the Findings of Fact from the US v. Microsoft to the jury, after all. Does the judge ask questions that he actually knows the answers to, to have it in the record? Or have I misunderstood the question? I don't know. I mean, here's what the Findings of Fact in the US case say about interoperability:

III. MICROSOFT'S POWER IN THE RELEVANT MARKET

....

33. Microsoft enjoys so much power in the market for Intel-compatible PC operating systems that if it wished to exercise this power solely in terms of price, it could charge a price for Windows substantially above that which could be charged in a competitive market. Moreover, it could do so for a significant period of time without losing an unacceptable amount of business to competitors. In other words, Microsoft enjoys monopoly power in the relevant market. 34. Viewed together, three main facts indicate that Microsoft enjoys monopoly power. First, Microsoft's share of the market for Intel-compatible PC operating systems is extremely large and stable. Second, Microsoft's dominant market share is protected by a high barrier to entry. Third, and largely as a result of that barrier, Microsoft's customers lack a commercially viable alternative to Windows. ...

Cloning the 32-Bit Windows APIs

52. Theoretically, the developer of a non-Microsoft, Intel-compatible PC operating system could circumvent the applications barrier to entry by cloning the APIs exposed by the 32- bit versions of Windows (Windows 9x and Windows NT). Applications written for Windows would then also run on the rival system, and consumers could use the rival system confident in that knowledge. Translating this theory into practice is virtually impossible, however. First of all, cloning the thousands of APIs already exposed by Windows would be an enormously expensive undertaking. More daunting is the fact that Microsoft continually adds APIs to Windows through updates and new versions. By the time a rival finished cloning the APIs currently in existence, Windows would have exposed a multitude of new ones. Since the rival would never catch up, it would never be able to assure consumers that its operating system would run all of the applications written for Windows. IBM discovered this to its dismay in the mid- 1990s when it failed, despite a massive investment, to clone a sufficiently large part of the 32-bit Windows APIs. In short, attempting to clone the 32-bit Windows APIs is such an expensive, uncertain undertaking that it fails to present a practical option for a would-be competitor to Windows....

B. Withholding Crucial Technical Information

90. Microsoft knew that Netscape needed certain critical technical information and assistance in order to complete its Windows 95 version of Navigator in time for the retail release of Windows 95. Indeed, Netscape executives had made a point of requesting this information, especially the so-called Remote Network Access ("RNA") API, at the June 21 meeting. As was discussed above, the Microsoft representatives at the meeting had responded that the haste with which Netscape received the desired technical information would depend on whether Netscape entered the so-called "special relationship" with Microsoft. Specifically, Microsoft representative J. Allard had told Barksdale that the way in which the two companies concluded the meeting would determine whether Netscape received the RNA API immediately or in three months.

91. Although Netscape declined the special relationship with Microsoft, its executives continued, over the weeks following the June 21 meeting, to plead for the RNA API. Despite Netscape's persistence, Microsoft did not release the API to Netscape until late October, i.e., as Allard had warned, more than three months later. The delay in turn forced Netscape to postpone the release of its Windows 95 browser until substantially after the release of Windows 95 (and Internet Explorer) in August 1995. As a result, Netscape was excluded from most of the holiday selling season.

92. Microsoft similarly withheld a scripting tool that Netscape needed to make its browser compatible with certain dial-up ISPs. Microsoft had licensed the tool freely to ISPs that wanted it, and in fact had cooperated with Netscape in drafting a license agreement that, by mid- July 1996, needed only to be signed by an authorized Microsoft executive to go into effect. There the process halted, however. In mid-August, a Microsoft representative informed Netscape that senior executives at Microsoft had decided to link the grant of the license to the resolution of all open issues between the companies. Netscape never received a license to the scripting tool, and as a result, was unable to do business with certain ISPs for a time.

He is listening when they read that, isn't he? And Sections III.D and E of the Final Judgment specifically forbad Microsoft from withholding APIs necessary for interoperability:
III. Prohibited Conduct

...

D. Starting at the earlier of the release of Service Pack 1 for Windows XP or 12 months after the submission of this Final Judgment to the Court, Microsoft shall disclose to ISVs, IHVs, IAPs, ICPs, and OEMs, for the sole purpose of interoperating with a Windows Operating System Product, via the Microsoft Developer Network ("MSDN") or similar mechanisms, the APIs and related Documentation that are used by Microsoft Middleware to interoperate with a Windows Operating System Product. For purposes of this Section III.D, the term APIs means the interfaces, including any associated callback interfaces, that Microsoft Middleware running on a Windows Operating System Product uses to call upon that Windows Operating System Product in order to obtain any services from that Windows Operating System Product. In the case of a new major version of Microsoft Middleware, the disclosures required by this Section III.D shall occur no later than the last major beta test release of that Microsoft Middleware. In the case of a new version of a Windows Operating System Product, the obligations imposed by this Section III.D shall occur in a Timely Manner.

E. Starting nine months after the submission of this proposed Final Judgment to the Court, Microsoft shall make available for use by third parties, for the sole purpose of interoperating or communicating with a Windows Operating System Product, on reasonable and non-discriminatory terms (consistent with Section III.I), any Communications Protocol that is, on or after the date this Final Judgment is submitted to the Court, (i) implemented in a Windows Operating System Product installed on a client computer, and (ii) used to interoperate, or communicate, natively (i.e., without the addition of software code to the client operating system product) with a Microsoft server operating system product.

In fact the court kept extending its oversight -- that link is to 2008, believe it or not -- because Microsoft kept providing unusable documentation.

How can Judge Motz not know or recall any of this? If the judge really doesn't recall all this, and if I've understood his question properly, I wonder if he should send the case to another judge, if there is a new trial? The commuting back and forth from the East Coast to Utah may be too much for him.

The PDFs for the day are:

The rest of the trial transcripts, as PDFs, are here, in case you want to read ahead. And there is a reference to an email between Jeff Raikes and Warren Buffett, and you can read it as an exhibit [PDF] Novell introduced.

On the arguments regarding what Microsoft said in its opening statement, Novell is upset that David Tulchin told the jury that the alleged behavior Novell is now complaining about happened in 1994, and he said if it was so awful, why didn't Novell complain about it at the time? Instead, they waited ten years to file a complaint. Here is what he told the jury:

At the time, Novell never complained about Mr. Gates' decision to withdraw the name space extension API's. That's October of 1994. Novell didn't even file this lawsuit until November of 2004, more than ten years later. So, when you hear there was deception and hypocrisy and spin, when the lawyer says it was all a facade, this conduct that allegedly is so bad -- and it's easy to toss around those words. That's what the courtroom is for, for the evidence. This conduct that was supposedly so bad, Novell said nothing about at the time and waited more than ten years before it even brought this case, filed the lawsuit....

And as I told you when I started this opening statement way back when, though the decision was made in '94 and Novell made no complaint in 1994, the lawsuit was filed 10 years later. If this decision had been such a killer for Novell, had made life so impossible, if there was no way for Novell to compete in the market, I ask you, because as a juror you don't have to leave your common sense home, would Novell have remained silent at the time?

That mischaracterizes what happened, in that Novell was approached by the Department of Justice and asked what Microsoft was doing, and Novell complained to the DOJ in 1995, which is part of what that antitrust case was about. And Novell says it did complain to Microsoft as well, and it will be offering evidence. And Microsoft didn't just say they never complained to Microsoft. It said they never complained at all. But the problem is this judge has ruled that no one is allowed to tell this jury that there ever was such a government case against Microsoft, so even when he feels compelled to let Novell read aloud the Findings of Fact from that case, Novell isn't allowed to say what case the Findings are coming from.

So Novell's argument now is that it should be allowed to tell the jury that it did complain. It complained to Microsoft and it complained to the DOJ. And it was only later, when other antitrust cases, like the Comes v. Microsoft exhibits, I would imagine, and other state antitrust cases against Microsoft showed what really happened that Novell realized that they'd been gamed. In 1994, they didn't have all the information they now have. It argues that Microsoft itself opened it up by saying what it did.

But, of course, the judge says no. It's a conditional no, however. He says he got the impression from the opening statement that Microsoft said Novell didn't complain *to Microsoft*, not to anybody, and he's pretty sure the jury took it that way too, but if there is an issue later, he might reconsider the matter, as to how to handle it:

THE COURT: Okay. At this stage I'm not going to let them in. If I really thought that the jury -- I think the jury thinks what I think, which is what I thought was that the opening statements talked about complaints to Microsoft. I don't think the door was opened. Certainly the second one confirmed the first. I came away with the impression I think for me to let in what I wouldn't otherwise let in, I just don't think it's necessary. I think the jury -- and certainly if Microsoft says something about not complaining from now on, they better be careful.

It's possible at some point if there really is a dispute in the evidence as to whether or not there were complaints to Microsoft, the fact that there were complaints to somebody else may come in as corroborating evidence. If it becomes a factual issue the fact there was a complaint made, we might be able to do a stipulation. It might come in when it's clear to me what the state of the evidence is, whether there's a conflict between whether or not anybody told Mr. Gates. I can see that coming in not because the door was opened at the opening statement. But if there is a dispute as to whether the complaint made to Microsoft or a complaint made to somebody else, that's in a different context and I will reconsider the issue then. Frankly, I don't think the opening statement opened the door.

I came away with the impression, and I frankly think the jury did too, that there were complaints to Microsoft. So I'm going to deny the motion, but I do think there is a -- even talking about complaints to the DOJ, I do think there is a 403 issue. But that's not the primary reason. I don't think the door was opened.

I will revisit the issue if there is real conflict that occurs to me that there were complaints made to somebody else simultaneously that would confirm testimony that there was a complaint made to Mr. Gates. In that context, I will reconsider it, but not now.

If ever there was a case where the jury was *not* thinking what the judge was thinking, this is surely it. I'm highlighting all this, because I know it resurfaces later.

Here are the three transcripts of the day, then, 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 27, 2011

Jury Trial

919

A P P E A R A N C E S

For Plaintiff: PAUL R. TASKIER
JEFFREY M. JOHNSON
MIRIAM R. VISHIO
[address]

JOHN E. SCHMIDTLEIN
[address]

MAX D. WHEELER
[address]

For Defendant:
DAVID TULCHIN
STEVEN HOLLEY
SHARON NELLES
[address]

STEVE AESCHBACHER
[address]

JAMES S. JARDINE, ESQ.
[address]

Court Reporters:
Ed Young
Kelly Hicken
Patti Walker
[address, phone]

920

I N D E X

Witness, Examination By, Page
Video Deposition of Paul Maritz
Video Deposition of Jeff Raikes
Video Deposition of Scott Raedeke
Video Deposition of Paul Maritz

Exhibit Received
(No exhibits received.)

921

October 27, 2011 8:00 a.m.

P R O C E E D I N G S

THE COURT: Good morning, everybody.

Please be seated.

I should have asked Mr. Gibb yesterday, and perhaps it may not be a good question, but maybe one Novell will answer, a witness can answer the question. It seems to me that there was a fourth option that Novell could have pursued, which was to use the exposed API that was exposed to the beta group while it was a shared group and the code was being written. I don't get that. If it was all that important, why didn't they use the exposed API which they already had while this critical path problem developed? That is a question I have.

Let's get the jury.

MR. JOHNSON: Listen carefully to the deposition of Mr. Paul Maritz today, Your Honor.

THE COURT: I will.

(WHEREUPON, the jury enters the proceedings.)

THE COURT: Thank you.

Good morning. It is a little spooky in here today.

What happens next, Mr. Johnson?

MR. JOHNSON: Thank you, Your Honor. Good

922

morning.

Good morning, ladies and gentlemen of the jury.

In honor of Halloween it is movie day. We're going to show you some portions of video depositions that were taken in this case. We're also going to do a little reenactment. One deposition we actually don't have videotaped. It is very short, just two questions, if you can believe it, which we are actually going to reenact by bringing someone up to play the witness and I'll ask the questions. That will be a little later.

We're going to start with the deposition of Mr. Paul Maritz. This deposition was taken January 9th of 2009. It is portions of the deposition and this runs one hour and 20 minutes. Thank you.

THE COURT: Thank you.

Again, I just want to explain, videotaped depositions are not the best thing for you all, but I can tell you they are a lot better than they used to be when all the depositions had to be read. At least you get to see the witness this way, and counsel have done an awful lot of work in editing the depositions down. They have really done a good job.

(WHEREUPON, the video deposition of Paul Maritz was played.)

THE COURT: Should we take a break now?

923

MR. JOHNSON: Sure, a little break.

THE COURT: Counsel stay here for just one second.

You can all go back and we will take a short break for 10 or 15 minutes. Thank you.

(WHEREUPON, the jury leaves the proceedings.)

THE COURT: I still don't know the significance, but I will say that I did listen carefully to the testimony of Mr. Maritz and it still did not answer my question, because what clearly was being talked about was in the long term the API may or will be not broken but it said nothing about the short term. My question is, as I understand the evidence, there is noing to indicate that during the brief period, brief in terms of time, not in terms of marketing, that it took shared code, or whatever it is called, to write its own application to do what it wanted to do, and in that brief period of time that the API in question could be -- I don't understand why Novell did not consider that as a fourth option to temporarily use the exposed API, and if this is such a critical point, and I don't know how this plays out, and it may be a jury question, but I don't understand how Novell as a good business didn't consider -- I don't have an MBA, but I have listened to the evidence and clearly a fourth option was to use -- there were lots of options. They could have used Microsoft's common dialogue, but for a brief short term they could have used the exposed

924

API while shared code caught up. That is a fact that I see which may or may not be releveant.

MR. JOHNSON: Your Honor, may I? Please. Please.

THE COURT: Please do.

MR. JOHNSON: This is important.

THE COURT: It is important.

MR. JOHNSON: And I recognize that it is important to you.

THE COURT: I don't know how important --

MR. JOHNSON: Mr. Harral and Mr. Richardson testified at length here that that was the first idea they had, to try to continue to use these APIs.

THE COURT: Well, that --

MR. JOHNSON: And do you remember that between the period of October through December that that was the plan. That was option one.

THE COURT: I don't remember that.

MR. JOHNSON: Well, it is in the testimony.

THE COURT: All right.

MR. JOHNSON: Further, that when they contacted Microsoft to get help to do option one, that information on the shell was literally cut off.

THE COURT: But they didn't --

MR. JOHNSON: I understand that it is not simply about the APIs themselves. It is the infrastrucutre behind

925

the APIs.

THE COURT: Well, this seriously will go to the legal issue of the duty of a competitor to cooperate.

MR. TULCHIN: Your Honor, in fact --

MR. JOHNSON: It is a factual issue, Your Honor.

THE COURT: Well, it could be a legal issue, and the general question I have is there any place else where shared technological information provided any basis for an antitrust action against Microsoft? It seemed to me it was external business practices dealing with the OEMs and what they did in terms of threatening people, and I know of no case, and I could be wrong, and one of the questions I have is, is this is a case about you want Microsoft to provide its enhanced technology so that you can use it. And, granted, you say it is to maintain the status quo, because simply to use the word processing application on top did not re-create it somehow, which I still don't fully understand, but I guess I understand, to access all of the information and data that was available within the shell, but you essentially want Microsoft to enhance your product. I understand that enhancement from your perspective is simply to maintain the status quo, but this is a far different case than I envisioned when I made --

MR. JOHNSON: Your Honor, that is not what we asked for. What we asked for was them not to evangelize

926

and tell us to use these, give us documentation, and then to turn around with the bait and switch --

THE COURT: I understand. That is a different issue. That is a deception issue which I will take up, but there is no evidence that they came out to Utah to take back the documentation.

MR. TULCHIN: Correct, Your Honor.

The decision that you rendered, Your Honor, in that prior case several years ago addresses one of the points that he just made. I should also say, Your Honor, that I agree in part with something Mr. Johnson said. He put up on a slide for Mr. Harral a couple of days ago the three options that Novell was facing in 1994 and that it had available to it. The first option was to continue to use the APIs that were documented in July of 1994. So you're correct, Your Honor, that Mr. Harral said that was a choice that they had.

Yesterday Mr. Gibb said that in fact they were using those APIs.

THE COURT: Well, fortunately the testimony has been transcribed and I can read it. I was just confused and maybe I don't recall Mr. Harral's testimony correctly, or he didn't hone in on this issue, but clearly Mr. Gibb was more of the software business kind of guy, and I thought that he said he can't use Microsoft common dialogue or whatever it

927

was called because it does not -- I can't remember, but it seemed to me that of the three options, I didn't think an option was to continue to use the documented APIs for the short term -- that I don't remember, but I will take a look at that.

MR. JOHNSON: That is precisely the option they pursued, Your Honor, and Microsoft shut them down.

THE COURT: Well, that is a question of the duty to cooperate, why Microsoft has to tell -- also, what was perfectly clear from Mr. Gibb was that what he was worried about were the claims that you're not asserting. He was upset that Jay Leno was selling Word. That may impact it indirectly, because by selling Word it widens the mote, and that is something which I have a totally open mind on, and I still have a tough problem with your theory where the facts don't comply with the theory.

MR. JOHNSON: Your Honor, if I may, the same facts -- you may recall that we had a claim for monopolization of the application --

THE COURT: I sure do. I understand --

MR. JOHNSON: The same facts prove both and that is why we pled both. So when you're talking about the facts that would have proved monopolization of the application --

THE COURT: Maybe it does and maybe it does not, because there is no question that at least through 1996 -- I

928

think maybe your theory is that they embarked in this time period upon something because they were concerned about Novell in the long term. Clearly in the short term what was done did not maintain the monopoly, because Mr. Harral could not have been more clear and everybody has been clear that you wanted to marry the two products, the operating system and WordPerfect, which is --

MR. JOHNSON: But --

THE COURT: And both through 1996 and the foreseeable future. I don't necessarily agree with you that the same facts prove the same thing. I have told you about 1,000 times that the better plan may have been, and I don't know what the market share was and I don't know -- I frankly am not sure whether Office ever used these APIs, and that is something which I am not --

MR. JOHNSON: Did not.

THE COURT: There may have been a problem, and that is something which I will find out in the course of the case, but that is a different question. But it seems to me that there has always been a much clearer claim that they attempted -- that they, Microsoft, attempted to monopolize the application business and you cannot assert that claim.

MR. JOHNSON: Your Honor --

THE COURT: Mr. Shmidtlein.

MR. SCHMIDTLEIN: In the short run, Your Honor, I

929

mean, it is established they are a monopoly. We didn't have any choice but to work with them.

THE COURT: Wait a minute, Mr. Schmidtlein, your client, Mr. Harral, your witness testified that this was a technological breakthrough and --

MR. SCHMIDTLEIN: Right.

THE COURT: -- that it was a better product.

MR. SCHMIDTLEIN: Right.

THE COURT: He clearly does not have a duty not to produce a better product?

MR. TULCHIN: Mr. Gibb and Mr. Harral both said --

MR. SCHMIDTLEIN: Excuse me.

THE COURT: Let Mr. Schmidtlein --

MR. SCHMIDTLEIN: Excuse me, Mr. Tulchin.

In the short run the notion that our client wanted to work with or develop an application for this product, and the fact that we say they took steps to harm them, to widen the mote, does not mean that we don't have a claim that we wanted to work --

THE COURT: Wait a minute. When all of the evidence is in, and we'll hear it, but I'm telling you I am not at all sure that I agree with you on your theory about widening the mote is inconsistent with what I have heard about what WordPerfect and Novell wanted to do with this product. I am just telling you that I did not accept

930

Mr. Johnson's point that proof of one proves the other. I have often said you have got to view your claim through the prism of the operating system market, and that makes it very, very conceptually complex. I think you have a problem.

I will take a recess.

MR. JOHNSON: Your Honor, I would suggest that you read the Fourth Circuit again, because the Fourth Circuit thought that we had a claim.

THE COURT: Well, I am going to make my own decisions in this case, and whatever the Fourth Circuit said, they didn't have the evidence that is now before me.

MR. TULCHIN: Thank you, Your Honor.

(Recess)

931

THE COURT: We'll get the jury.

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

THE COURT: Mr. Johnson?

MR. JOHNSON: Thank you, Your Honor.

Now for something a little different, we're going to have a very short reading. This was from the deposition of Mr. Silverberg. As you remember, Mr. Silverberg, we saw his deposition, the remainder portions of his deposition yesterday. This deposition we're about to read from, which we don't have video of, was taken in 1994. And Mr. David Witebsky, who's on the stand, is going to play Mr. Silverberg. And I'm going to ask the two questions involved.

THE COURT: You need a beard and a sweater.

THE WITNESS: And less hair, sir.

(Whereupon, the following testimony was read into the record:)

Q. What is your understanding of AppWare?

A. AppWare is an upgrading system. AppWare contains all of the functions of an operating system and is a wonderful attempt by Novell to again reduce Windows or anything underneath it to a commodity so it could then get applications completely dependent on AppWare, have no dependence on Microsoft or other pieces underneath it, so they can then supply their own pieces underneath it and thus eliminate -- as

932

Mr. Noorda has stated, his goal is a Windows-free world.

Q. What about OpenDoc, do you regard that as an operating system?

A. I regard OpenDoc as an essential operating system component. At the recent Apple worldwide developer conference Apple got up on stage in front of thousands of developers and indicated that OpenDoc was its essential operating system strategy for competing with Microsoft and ridding the world of Windows.

Q. How do you understand that OpenDoc would achieve that, based upon what you had heard from Apple or learned?

A. By my understanding -- I have not seen the specification for OpenDoc. As you may be aware Apple refused for over a year to send us the specification for OpenDoc. And so the details about OpenDoc are relatively sketchy. But based on my understanding of what was presented at the Apple worldwide developers conference, Apple saw and was presenting, positioning OpenDoc as their key operating systems strategy to get developers to write to their interfaces, and thus not be dependent upon any interfaces from other suppliers, and thus rid the world of Windows.

MR. JOHNSON: Thank you.

THE COURT: Thank you, Mr. Johnson.

What's next?

MR. JOHNSON: Next, Your Honor, we are going to

933

play the portions of the deposition of Mr. Jeff Raikes. You may remember Mr. Raikes was the one that sent the e-mail to Mr. Buffett, and that would be the subject of examination. This deposition was taken January 27th, 2009. It runs one hour and eight minutes.

THE COURT: Thank you.

(Whereupon, portions from the video deposition of Mr. Jeff Raikes were played.)

(Whereupon, the video deposition was stopped.)

MR. JOHNSON: Sorry, Your Honor.

(Time lapse.)

MR. JOHNSON: Perhaps a short break, and we can try to get this fixed, or we could certainly go to another one, if you prefer to do that.

(Whereupon, the video deposition resumed.)

(Whereupon, the video deposition was stopped.)

THE COURT: Do you want to take a recess?

MR. JOHNSON: Let's take a recess. Thank you.

THE COURT: I'll stay here with counsel for a second. You all take a recess.

(Whereupon, the jury left the court proceedings.)

THE COURT: Mr. Tulchin, you haven't been fooling around with their equipment?

MR. JARDINE: Speechless.

MR. TULCHIN: We'll have something to say in due

934

course, Your Honor.

(Recess.)

THE COURT: Okay. All worked out?

MR. JOHNSON: We think so, Your Honor.

THE COURT: Okay. Let's get the jury.

MR. JOHNSON: And our apologies.

THE COURT: No problem.

MR. JOHNSON: It was one of those nasty bugs.

THE COURT: Exactly. You need 60A or whatever it is.

MR. JOHNSON: Yes.

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

THE COURT: Okay. Let's continue. I think the bug has been fixed.

MR. JOHNSON: Thank you, Your Honor. We're going to try again.

(Whereupon, the video deposition resumed.)

THE COURT: Can we go another 15 minutes? Do you have anything else to do? It's just been so truncated today. It's up to you.

MR. JOHNSON: Right. Your Honor, we have more tapes to play.

THE COURT: Why don't we begin. I think the jury will probably like to stay a little bit longer, I know how

935

conscientious they are, and hear a little bit more.

MR. JOHNSON: Okay. Yeah.

THE COURT: And then we'll stop around 20 or quarter of, something like that. Tell me when you reach a spot.

MR. JOHNSON: Right. About 20 of we'll try to reach a breaking spot.

THE COURT: Yeah. 20 of. And then try to have an hour and a half after lunch.

MR. JOHNSON: Okay.

THE COURT: More or less.

MR. JOHNSON: So we're now going to see the deposition of Mr. Scott Raedeke of Microsoft. This was taken February 3rd, 2009. It is 57 minutes long. Portions of his testimony, not it all.

(Whereupon, portions of the video deposition of Scott Raedeke were played.)

(Whereupon, the video deposition stopped.)

MR. JOHNSON: Maybe we'll take our lunch break sooner.

THE COURT: We may. But --

(Whereupon, the video deposition resumed.)

THE COURT: Why don't we break for lunch. If you think the lunch is here?

We'll break for lunch. And I'll stay with counsel

936

here for just a second. See you in about 20 minutes.

(Whereupon, the jury left the court proceedings.)

THE COURT: I'm making -- please be seated. I'm making these comments, not that I've reached any final review, but things I'm going to have to understand. And the way my mind works, I understand it better if I express it as I go along. And sometimes I change my own mind, but I'm happy to have argument at the appropriate time, which may -- I may find enlightening.

I certainly understand Novell's position as recently stated by Mr. Schmidtlein, that you can't blame Novell that it had to be dealing with a monopolist. But somehow, and I still have a hard time perhaps articulating this. Particularly based upon Mr. Harral's testimony I did not get the impression that he was looking at Windows 95 simply because Microsoft had a monopoly on it. He wanted his, the best I can say, he didn't use these words, but he wanted a marriage with Microsoft. It's also reflected in that, and I forget the date of the e-mail or the memo, that people at WordPerfect were excited about Windows 95 because it was a better product. They wanted to work with it.

And I understand that during the relevant period according to Novell Microsoft did things that prevented Word -- excuse me -- prevented WordPerfect from being a competitive and perhaps more importantly PerfectOffice from

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being a competitive suite with Office. And as I say, in terms of if -- in fact, what was happening back then, I still haven't heard all the evidence, that Microsoft was allowing Office to have access to APIs it was not allowing to WordPerfect that, if that is the fact, then perhaps over time theoretically, speculatively Microsoft was widening the moat by making Office, by advantaging Office over WordPerfect.

But I still think, and this is where it becomes conceptually confusing, I did not accept the fact that the claims are the same with, attempting to monopolize in the Office suite market is the same as the attempt to maintain the monopoly in the operating system market. I understand they're related, but I don't -- my view of the evidence so far that isn't -- I'm understanding more why that's not the case, particularly Mr. Harral's testimony, because what is lacking so far, maybe who knows, you're going to present this evidence, that there was some other operating system that was rich enough, expansive enough within a longer period of time that it would have gone to rather than Windows 95 to provide the enhancements that it saw Windows 95 presented.

But there is no evidence of that so far. In fact, what I have before me is Mr. Harral saying, we loved Windows 95 because it was a technological breakthrough. It is because it was a better operating system.

And if that is the case, I have a very hard time

938

seeing that somehow, although on a theoretical level maybe an academic sees it that way or maybe one can construe looking at the government's case, that somehow this is what, by destroying Word in the marketplace, it was somehow was enhancing its position in the operating system market.

In terms of the facts, that is not what I have heard. In terms of the facts what I have heard is by withdrawing support for the APIs or whatever, WordPerfect couldn't marry Windows 95, and it wanted to marry Windows 95 to make Windows 95 the very best it could be, to make their WordPerfect the very best that it could be, but there simply is -- and maybe it's coming. That's why it's so -- but there is no evidence that there was any alternative operating system that was going to provide the enhancements and benefits that Word -- excuse me -- that Windows 95 did.

And absent that proof, I think that may be where we break down, and that is where Novell's apparent ideological position is to claim that they were attempting to monopolize the Office suite market translates into them trying -- you know, that that makes it the same claim as trying to monopolize, maintain a monopoly in the operating system market. I don't see that. What I see right now is that Microsoft -- and maybe other people could have done it, but they hadn't done it, that Microsoft had made a better product that came out in August of '95 or whatever, and WordPerfect

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wanted to marry that product. And it wasn't -- and the fact that it wasn't allowed to do so may have -- it may be an antitrust violation if one user from -- attempted to monopolize the Office suite market. But it does not automatically mean to me that that means that from an antitrust point of view, Microsoft absent evidence that there was some alternative within a reasonable foreseeable future. I didn't see that from Mr. Harral. I haven't heard at all from Novell so far. Maybe it's coming.

But that somehow within the reasonable time frame, whether it's '96 or reasonably foreseeable after '96 that there was anything that Novell could have done other than to marry itself to Windows 95, particularly because what happened was was that Microsoft through the deliverance of R&D and the superiority allegedly of others, programmers come up with a better product. And if that's the case, I think that Novell may have a problem.

And I'm not asking for responses. I'm just sharing this with you because this is about -- you know, this is a process that I have to understand it sometime, and to the extent that you know where I am, the better.

MR. SCHMIDTLEIN: Your Honor, it is very helpful to get your thoughts on these things, you know, and not wait until the very end, and we don't know what you're thinking.

THE COURT: Sure.

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MR. SCHMIDTLEIN: And it's very, very helpful. And we know you're going to keep an open mind throughout the whole thing.

THE COURT: I've got an open mind. I haven't heard it all. That's not -- this is a complex issue for me.

MR. SCHMIDTLEIN: Yes.

THE COURT: And I've come back to it a thousand different ways, and what you said you said it very clearly. You can't blame Novell that it had to deal with a monopolist. But they had to be using monopoly power to do something. And if, in fact, they enhanced the product and that's what you wanted to marry, that's an issue. I'll hear from you down the line.

MR. SCHMIDTLEIN: We hear you loud and clear, Your Honor. And it's very helpful. Thank you.

(Recess.)

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THE COURT: Let's get the jury.

(Jury present)

THE COURT: All right. We'll resume the deposition.

(Videotaped deposition played)

MR. JOHNSON: That concludes Mr. Raedeke.

THE COURT: What's next?

MR. JOHNSON: We actually have one that will fit in nicely, very close to 39 minutes long, Mr. Doug Henrich, a Microsoft employee, dated January 8th, 2009.

THE COURT: You all can stay five minutes late, can't you?

Shall we take a break?

MR. JOHNSON: I think that would be a good idea, Your Honor. My apologies.

THE COURT: No reason to apologize. I'm ready as soon as the machine is.

(Jury excused)

(Recess)

THE COURT: How long for this person?

MR. JOHNSON: Twenty minutes.

THE COURT: If I were, Mr. Johnson, please don't be mad at anybody, don't be upset at anybody on your team about this.

MR. JOHNSON: It's technology.

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THE COURT: Technology is technology, unless it's Novell or Microsoft technology.

MR. JOHNSON: We were talking about the days when you just used paper.

(Jury present)

THE COURT: We're going on to somebody else who is only 20 minutes long. I told Mr. Johnson if I were, I wouldn't be upset. We all agree it's technology. Nobody is going to be angry. It is somewhat ironic we are having technology failures in this trial.

MR. JOHNSON: The good part about it is that we have deposition excerpts of all different lengths. We went down to one that was 20 minutes. Actually, we're going to see Mr. Paul Maritz again as a younger man. This time his deposition was taken on 5-24, 1994. It's about 20 minutes.

(Videotaped deposition of Paul Maritz was played)

THE COURT: Next week we have off, you all have, so we'll see you all at eight o'clock on Monday -- what day?

MR. TULCHIN: The 7th of November, Your Honor.

THE COURT: See you in November. I'll stay here with counsel. There is one issue we've got to talk about. Have a good Halloween, everybody. You all look great. Don't talk about the case with anybody, please.

(Jury excused)

THE COURT: Okay. You all be seated.

943

We, of course, have at least one issue, which was -- I read your papers in connection with whether or not Microsoft opened the door to production to the jury -- presentation to the jury to documents that were given to the DOJ at some point.

Mr. Johnson.

MR. JOHNSON: Thank you, Your Honor. I thought it might be important for Your Honor to actually see in context what was stated at the opening of Microsoft.

We have highlighted the portions of the opening in which Microsoft stated to the jury, without limitation, at the time Novell never complained about Mr. Gates' decision to withdraw the namespace extension APIs. That's October of 1994. Novell didn't even file this lawsuit until November of 2004, more than ten years later. So when you hear that there was a deception and hypocrisy and spin, when the lawyer says it was all a facade, this conduct that allegedly is so bad -- and it's easy to toss around those words. That's what the courtroom is for, for the evidence. This conduct that was supposedly so bad, Novell said nothing about it at the time and waited more than ten years before it even brought this case and filed the lawsuit.

And then on the next page, he returned to the same theme. As I told you when I started this opening statement way back when, though the decision was made in '94 and

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Novell made no complaint in 1994, the lawsuit was filed ten years later. If this decision had been such a killer for Novell and made life so impossible, if there was no way for Novell to compete in the market, I ask you, because as a juror you don't have to leave your common sense home, would Novell had remained silent at the time?

So that was the theme that was repeated several times in the opening of Microsoft.

Now Your Honor did try to address the harm caused by the ten year reference, which obviously we thought was very out of line. Your Honor told the jury that the ten years, they shouldn't worry about it, we were within our rights. But you did say that it was fair comment to ask why was there no complaint. And even in your own comment to the jury you didn't say, Your Honor, that there was no complaint to Microsoft. You said that it was fair to look at whether there had been complaints with respect to Mr. Gates' conduct. So we have, then, both the Court and the opening.

THE COURT: I don't know what the evidence is about. I know what Microsoft's evidence is about whether complaints to Microsoft were made. I don't want to oversimply this. Maybe having had the high school students here, isn't there something unseemly to tattle to the teacher but not say something to the person who stuck their finger in your eye?

945

MR. JOHNSON: The evidence will actually reflect when we get there, Your Honor, that the student did complain to -- well, to Mr. Gates about their conduct with respect to undocumented APIs and keeping the interfaces to themselves during this period. But the evidence is going to reflect that Mr. Gates refused to talk about that.

And you are going to have to understand that Mr. Gates has a great deal of power over ISVs, not only with respect to Windows but with respect to many aspects of their business. So that if you press a point with Mr. Gates on one front, he attacks you on another.

And so the evidence will reflect that in order to get some cooperation from Mr. Gates in other areas of their business, part of the quid pro quo, if you will, is stop talking about that antitrust stuff, Mr. Frankenberg, for instance.

So when you have that kind of situation where Mr. Gates won't talk about it and the government comes to you and says, what kind of things is Microsoft doing that is interfering with your business, and we have these multiple e-mails which say first order -- first thing they did, which we find very destructive, is that they pulled these APIs that they had sold us on, and they have left us in a real bind here -- this is in 1995 -- in trying to develop our product. And they go on in great detail about we're having

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to rewrite our file open dialog from scratch, et cetera, et cetera, in these e-mails.

It isn't so much whether that's true or not. I think the evidence that we have already seen confirms that it is true. Mr. Harral and Mr. Richardson talked about that in great deal.

But the fact of the matter is we didn't remain silent, Your Honor. We were -- it's not like -- see, the implication given to the jury, I think that's what's important here and that's why the door was opened. The implication given to the jury was they never complained about it at the time, and then they cooked up this lawsuit ten years later, some clever lawyer sitting in the back room.

And, in fact, as Your Honor may recall yesterday during Mr. Gibb's --

THE COURT: They should have kept their documents, which is a whole other issue. It frankly upsets me the more I hear about it. I still don't think the spoliation instruction should be given. Why keep all the documents that help you and destroy the ones that are contemporaneous, relevant or not, is not so relevant?

MR. JOHNSON: Well, Your Honor, in that regard, I don't we think destroyed any documents.

THE COURT: You didn't keep them.

947

MR. JOHNSON: I'm not willing to concede that, Your Honor. The fact of the matter is we heard testimony that, in fact, there would have been records kept by Microsoft with respect to Premier Support.

THE COURT: That was the most trivial as opposed to contemporaneous code and all kinds of things. That's something wouldn't they have written down context with the group? It was not, in my mind, compelling. I heard the testimony. I wasn't impressed by it.

MR. JOHNSON: The other thing that happened during Mr. Gibb's testimony, Your Honor, is that they referred to internal Microsoft communication in which someone at Microsoft stated -- I think it was Brad Struss, which I guess we're going to hear from, which is very interesting because he says so far Stac, Lotus, WordPerfect, Oracle, SCC appeared to be okay with this. So there was, again, a reference like we're okay with it, it wasn't really a problem directly from their documents.

There was cross-examination on this point, of course, that ignores mounds of evidence that it really was a problem. We're going to get to some of that later. But the point is, again, we have the implication that this was not a problem with us, we never complained about it. So the door was opened and the jury has this inference that this wasn't a big deal for us. It's been stressed and it's going to

948

continue to be stressed during the course of the trial.

Now if they didn't want to open that door, they didn't have to say that to this jury. The lawyers at Microsoft are very smart. They don't make mistakes with what they say in opening statements.

THE COURT: You worry about the lack of brains on the other side.

MR. JOHNSON: Exactly, Your Honor.

So having said that, that was a conscious decision to tell this jury that we never complained, not only not to Microsoft, they didn't phrase it that way, they said repeatedly we never complained, period. And further, that we then waited ten years to file this case.

You can't say that and not open the door to the fact of the matter that we did complain. And we complained not only in a timely manner but with specific reference to the conduct that we're angry about in this case.

So I think --

THE COURT: I understand.

Mr. Paris, what's your position on this?

MR. JOHNSON: Thank you, Your Honor.

MR. PARIS: Thank you, Your Honor.

I don't think Novell gets to introduce inadmissible hearsay evidence that was created in anticipation of litigation against Microsoft, from the

949

government against Microsoft because of some supposed implication in Microsoft's opening statement that we think their claim lacks merit for a lot of different reasons. I think it's very important here, when what they are saying is you opened the door somehow, to read what was actually stated by Mr. Tulchin in his opening statement. And there are two points which they say opened the door, one of which Mr. Johnson didn't just read to you. So I think it's important that we do it.

Here we've given -- I think both sides have, Your Honor, we have given it to you as part of the Holley declaration, pages 140 to 141.

THE COURT: Is he back in New York or is he sick?

MR. PARIS: So starting at 140, line 2, you need to hear it all.

THE COURT: Having those two big books in front of him.

MR. SCHMIDTLEIN: He's talking to Mr. Richardson.

MR. PARIS: The books are compelling reading.

THE COURT: I'm sure they are.

MR. PARIS: So let me take you first through the first area that they say opened the door to this hearsay litigation evidence. It starts at line 2, page 140. We don't think there will be any evidence that Mr. Gates withdrew support for the namespace extensions to hurt

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Novell. In fact, Brad Struss, S-T-R-U-S-S, will come testify, he worked for Microsoft then, still does today. Mr. Struss had a relationship with WordPerfect and Novell. He spoke frequently to someone at Novell named Norm Creighton. Mr. Struss was told before Mr. Gates made the decision that Novell was not working on the namespace extension APIs. And Mr. Struss wrote an e-mail after Mr. Gates made the decision ten days or two weeks later in October of '94 saying that WordPerfect appears to be okay with the decision to withdraw support for the namespace extensions. WordPerfect appears to be okay. No one at WordPerfect said to Microsoft at the time, boy, if you withdraw support for the namespace extensions, this is a huge problem for us, for WordPerfect or Novell. Microsoft thought the contrary. And Mr. Struss will come tell you, and you'll see his e-mail.

Incidentally, that e-mail is now in evidence as DX-3. It came in, I think, through Mr. Richardson.

THE COURT: I think I allowed examination through the witness of that e-mail because he didn't know anything else about the e-mail, if my memory is right about the document.

MR. JOHNSON: It is, Your Honor.

MR. PARIS: Fair enough, Your Honor.

THE COURT: He denied knowing about the document,

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but the document is going to come in.

MR. PARIS: Thank you, Your Honor.

This actually goes right to the point that you said before about whatever it was, tattling to the teacher instead of telling the person. I would ask Your Honor -- I don't know, but I would ask you to think long and hard of all the cases you've heard, if there's ever been a case where you have two businesses, you know, working together in a contractual relationship. We provided them with the MX beta pursuant to the beta license agreement. The parties are working together with WordPerfect to develop, you know, these products for Windows 95. And at some point party A does something that party B believes is contrary either to the letter of their agreement or the spirit of their agreement, or something, and at the time that happens says nothing about it, says nothing about it to the other side, A, you can't do this or doing this will really hurt me, or whatever. That's a pretty extraordinary circumstance.

So, anyway, continuing with Mr. Tulchin's statement, we don't think there will be any --

THE COURT: Jobs position is you don't tell the bully.

MR. PARIS: Okay, but other people told the bully. There is evidence to that fact that came in today through Mr. Maritz.

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THE COURT: The alleged bully.

MR. PARIS: Anyway, the point simply is, Your Honor, a number of the people were using namespace extensions without an issue. That's in the documents as well.

We don't think there will be any evidence, no document from Novell, contemporaneous document written in 1994 and 1995 that will indicate that anyone complained to Microsoft about the decision. That's the statement as it begins. This is the part that I think Mr. Johnson did read to you, 141, beginning at line 3, as I told you when I started this opening statement way back when -- like a walk down memory lane -- though the decision was made in '94 and Novell made no complaint in 1994, the lawsuit was filed ten years later. If this decision had been such a killer for Novell, had made life so impossible, if there was no way for Novell to compete in the market, I ask you, because as a juror you don't have to leave your common sense at home, would Novell have remained silent at the time?

Passing the issue about the ten years on the complaint for which Your Honor as already issued a jury instruction, these statements are all very clear that what we were talking about were statements made by Novell to Microsoft -- the absence of any statements made by Novell to Microsoft at the time in October '94 when this decision was

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made.

And I think the only other --

THE COURT: I think the position also is what they want to put in is inadmissible anyway?

MR. PARIS: Absolutely. I can move -- I already had, Your Honor, because I think I can read from pages 90 to 91 of the transcript where the issue first came up, essentially talking about the same -- of the same spirit.

Furthermore, you know, even if there was somehow some contention that it opened the door, the Federal Rules of Evidence don't go out the window when you open the door. The fact of the matter is these documents are inadmissible hearsay statements made to the federal government in the interest of Novell's anticipating litigation against one of its principal competitors.

THE COURT: Of course, it wouldn't be introduced for the purpose of the truth of the fact they were made, that they spoke.

MR. PARIS: I think it's virtually -- will be virtually impossible for this jury to distinguish between those two items, Your Honor. These things are so unduly prejudicial under Rule 403 that the jury is supposed to take away from them, these documents, again, that were compiled specifically to obtain prosecution of Microsoft. So there is no pretense here that they were trying to be fair or that

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they were doing it -- Novell was doing it in the ordinary course of business, or any of that. These were designed to build a case.

And under a couple of cases that I think we've cited to you several times now when this issue first came up a couple weeks ago back in Baltimore, and then again in a brief that we filed the other night, one is the Gwathney case at 465 F.3d 1133, page 1140, Tenth Circuit case, 2006, the other is the Timberlake Construction case, 71 F.3d, page 335, the discussion at page 341, again Tenth Circuit. That's 1995. Both of those cases speak to the problems that are associated with introducing these sorts of documents in a trial that are hearsay and that clearly were designed simply to -- basically in anticipation of litigation.

But just kind of coming back home, when you read the actual statements that were made for the jury, none of them opened the door to any of these points that Mr. Johnson has made. You can't get this other evidence in, you know, Ryan Richard's documents in because of some implication that the jury may infer from what is, in fact, the actual statement in evidence, which is they didn't complain to Microsoft.

Thank you.

THE COURT: Mr. Johnson.

MR. JOHNSON: Yes. Your Honor, I will first

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address that they come in because they are not being offered for the truth of the statements made but, rather, to confront directly the statement that we did not complain. So clearly the evidence is really to one side.

I noticed that Adam didn't address the other paragraph that I read to you, he never even mentioned it, where Mr. Tulchin stated, at the time, Novell never complained about Mr. Gates' decision to withdraw the namespace extension APIs. He goes on in great detail in that same paragraph I just handed to you on page 90 and 91. He just kind of skipped over that, because in that whole entire paragraph there is no mention of complaining to Microsoft. It's only about didn't complain at all.

Now I don't quite understand this prejudicial stuff that they are talking about. What's prejudicial about a factual report?

THE COURT: In the government case. I mean you are trying -- the very reason you want to get it in is you want to ride on the coattails of the DOJ.

MR. JOHNSON: Those e-mails don't mention the government case. All those e-mails do is say that there was an inquiry from the DOJ. They have asked us what kind of problems you have been having, and we were gathering information to report to them.

So in fairness, Your Honor, it wasn't even us

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running to the principal. It was the principal coming down to the classroom and saying, is that guy bullying you over there. Tell me about that. Is that bully over there hitting you over the top of the head with a brick? And so we gathered the information to provide to the principal about what was going on. So we weren't running to the principal, Your Honor. The principal came to us.

And another thing, Your Honor, is that -- I want this to be very clear here. Not only did we complain, but there is this sense that we knew back then what was really going on behind the curtain at Microsoft. Remember, they came to the developers and said, oh, we're going to de-document this stuff. We don't want you to use it. It's not compatible with future strategy.

Now what is a developer to do with that when Microsoft says it's not compatible with future strategy? They didn't know sitting there --

THE COURT: This is absolutely irrelevant, but I mean it's got nothing to do with the present argument. The documentation, didn't it come in '96? Was it different documentation? For some reason, I thought I heard re-document in '96.

MR. JOHNSON: Virtually after it was too late, after Windows 95.

THE COURT: Very cleverly documented after.

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MR. JOHNSON: In '96, it's suddenly re-documented. And the evidence shows they were using them all along. And the evidence shows --

THE COURT: That's what I'm not sure about. I haven't heard the evidence.

MR. JOHNSON: The evidence shows that Mr. Gates -- his plan was exactly that, let us wait until we have the way to do a high level of integration that WordPerfect won't be able to achieve, and that will give Office a real advantage.

THE COURT: I understand.

MR. JOHNSON: The exact plan --

THE COURT: Was it re-documented exactly the same way it was written?

MR. JOHNSON: Exactly. In fact, Mr. Nakajima, who was deposed in this case, we asked him, was there any change in these APIs. His answer, no change.

Now I've heard some noises over here about some things they are maybe going to try to say now.

THE COURT: For example, the documentation, your position is, they can put in the 28 confusing -- I think one of the complaints about the way it was was that WordPerfect, or somebody else, could confuse what came up on one of the screens by having 28?

MR. JOHNSON: It wasn't that silly. They went and re-documented the exact same thing.

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THE COURT: That's my question, when they re-documented.

MR. JOHNSON: Of course. There could have been 50, there could have been a hundred. They re-documented them --

THE COURT: And there was no change?

MR. JOHNSON: There was no change. There was still the ability to do exactly what we wanted to do, and they re-documented it.

THE COURT: Excuse me. I've gone on a very long detour.

MR. JOHNSON: I'm sorry.

THE COURT: No. No.

MR. JOHNSON: It's important for you to realize in this context about we didn't know what was going on behind the curtain, the documents that revealed what was going on behind the curtain did not surface until years later in these state cases brought against Microsoft, where Microsoft was forced to produce these documents. And suddenly years down the road, we said, oh, my goodness.

Mr. Frankenberg, who thought he had a good relationship with Mr. Gates, and had testified in prior depositions that he thought he had a good relationship with Mr. Gates, he saw these e-mails, and this is years down the road, and said, you know, if I had known this, I would have

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never testified that way. They were gaming us behind my back.

So the developers at Novell, when Microsoft comes forward and says, we're not going that direction, that's, you know, a bad way to go, we're going in a different direction for our operating systems, they complained -- they complained to Premier Support. They complained about the de-documentation. There is going to be a document where Tom Creighton, the guy who allegedly dealt with Mr. Struss, said, and it's in a Microsoft document, Tom Creighton said, there's going to be hell to pay if you de-document those namespace extensions. It's right in their document.

For these people to stand up here and say it was not a problem and that it wasn't a serious concern, but the fact of it is we didn't know what was going on behind the curtain. So when they tell the jury that we never complained and we waited ten years, the jury is entitled to know that this was a very serious matter with us, and these documents go directly to that, and they opened the door to their admissibility.

Thank you, Your Honor.

THE COURT: Okay. At this stage I'm not going to let them in. If I really thought that the jury -- I think the jury thinks what I think, which is what I thought was that the opening statements talked about complaints to

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Microsoft. I don't think the door was opened. Certainly the second one confirmed the first. I came away with the impression I think for me to let in what I wouldn't otherwise let in, I just don't think it's necessary. I think the jury -- and certainly if Microsoft says something about not complaining from now on, they better be careful.

It's possible at some point if there really is a dispute in the evidence as to whether or not there were complaints to Microsoft, the fact that there were complaints to somebody else may come in as corroborating evidence. If it becomes a factual issue the fact there was a complaint made, we might be able to do a stipulation. It might come in when it's clear to me what the state of the evidence is, whether there's a conflict between whether or not anybody told Mr. Gates. I can see that coming in not because the door was opened at the opening statement. But if there is a dispute as to whether the complaint made to Microsoft or a complaint made to somebody else, that's in a different context and I will reconsider the issue then. Frankly, I don't think the opening statement opened the door.

I came away with the impression, and I frankly think the jury did too, that there were complaints to Microsoft. So I'm going to deny the motion, but I do think there is a -- even talking about complaints to the DOJ, I do think there is a 403 issue. But that's not the primary

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reason. I don't think the door was opened.

I will revisit the issue if there is real conflict that occurs to me that there were complaints made to somebody else simultaneously that would confirm testimony that there was a complaint made to Mr. Gates. In that context, I will reconsider it, but not now.

MR. JOHNSON: Thank you, Your Honor, very much.

THE COURT: Now you also have a week. It's just timing. Do you think it's likely you are going to think up in a week something you need to address for me before the testimony on Monday? If so, we ought to plan on getting together at 7:45 on Monday morning so I can resolve it before the jury comes in. Or if you know what Monday is going to be, then we'll just start at 8:00.

MR. JOHNSON: We'll let you know, Your Honor. I don't presently anticipate anything.

THE COURT: If you think you need it, let me know and I will let Teresa know, and I will be here at 7:45.

MR. JOHNSON: Can I ask, Your Honor, where you're headed?

THE COURT: There's an MDL judges conference in Florida every year.

MR. JARDINE: You will have a lot to share.

THE COURT: All right.

MR. JOHNSON: All right, Your Honor.

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THE COURT: Talk to one another.

(Whereupon, the trial was continued to Monday, November 7, 2011 at 7:45 a.m.)

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