You can find a text transcript of the Gates deposition as played to the jury in clips at the US v. Microsoft antitrust trial
here, in Harvard's Berkman Center's Cyberlaw collection of transcripts from the trial. They also have video clips in RealMedia format. The Department of Justice also has a complete transcript.
When Groklaw first posted the video, it was the only complete copy on the Internet that was then freely available that we could find. You could buy the complete trial video set on eBay, however. Now it is freely available not only here but in many places on the Internet, including on YouTube and on Google Video. All six videos are here. He is being questioned by Stephen D. Houck, Esq.
Due to the length of Mr. Gates' testimony, the video replayed at the Comes v. Microsoft litigation has been divided into multiple files. If you have trouble, try right clicking and open in a new window to download and be patient:
The testimony of Mr. Gates was originally taken in United States v. Microsoft Corp. It was introduced as testimony in Comes v. Microsoft Corp. on December 15, 2006 through December 21, 2006.
In 2012, David Boies was Q:How hard is it to get CEOs to follow your advice? Some must be incredibly headstrong.
Boies: CEOs have gotten where they are by paying attention to people whose views they have a high regard for. No CEO accomplishes what they do without relying on other people. And what sometimes happens is a failure of lawyering in the sense that lawyers, like all human beings, tend to have a certain regard for celebrities. In our world, CEOs are celebrities. So you tend sometimes not to treat them the same way you would a manager.
Q:
Plus they're paying you.
Boies: Plus they're paying you. They're your customer, and you want them to be pleased with the result. So I think it's sometimes a failure on the part of the lawyer really to be as clear and as tough as you need to be. I've had a couple of witnesses who were very difficult to get them to do what they needed to do, in particular not to answer questions that they didn't know the answers to. And ultimately the lawyer simply has to say, "If you want to give away your case, give away your case, but don't give away your case with me as your lawyer. If you want a different lawyer, that's fine, but if you want me as your lawyer, you're going to have to follow my advice."
Q: Let's consider the Bill Gates deposition. [In August 1998 Boies, as the U.S. Department of Justice's Special Trial Counsel, deposed Microsoft's then-CEO Bill Gates on videotape in the United States government's antitrust case against Microsoft (MSFT). Believing that it showed Gates being uncooperative and evasive, the government introduced the deposition at trial.] If I remember, that was more than one day.
Boies: Yes, it was three days of deposition: two days together, and then one day about a week later.
Q: So suppose you had represented Bill Gates, what would you have told him?
Boies: Well, one of the things that I would have told him during the break was that he had to go back in and restore his credibility. And I probably would have taken him on some direct examination to do that. In fact, I think one of the biggest mistakes I made as a lawyer was not stopping the deposition at the end of that second day, giving them an entire week to work with him and bring him back and sort of clean him up and make him the kind of witness he could have been. I mean, he is smart, passionate, articulate. He's somebody who could have been a killer witness for them. And for me to have given them the opportunity to do that over that week was just a rookie mistake that I shouldn't make at that age.
Q:
Did they take advantage of it?
Boies: They didn't really. And so, it's better to be lucky than smart. But it was an opportunity that they had.
