Microsoft posted transcripts of depositions from CEO Steve Ballmer and Senior Vice President Jim Allchin on the company's legal news Web site, first removing material considered confidential. A deposition is sworn oral testimony generally available only to the parties directly involved in a lawsuit.
Two other depositions, from former Netscape Communications Chairman Jim Barksdale and Liberate Technologies Chairman Mitchell Kertzman, as well as one expected from Sun Microsystems CEO Scott McNealy, also are being offered to the media. Other depositions, including Microsoft Chairman Bill Gates', are not expected to be made public.
Releasing depositions is not typical, but major media organizations, including The Associated Press and The Washington Post, in early January pressed U.S. District Judge Colleen Kollar-Kotelly to provide tapes and transcripts.
Kollar-Kotelly later signaled that she would be willing to open some depositions to the media. In late February, she narrowed the number to five.
Microsoft and nine states and the District of Columbia have been holding the depositions in preparation for a remedy hearing that begins next Monday. Each side has about 100 hours to present their witnesses, with some analysts estimating testimony could go on for as many as eight weeks.
The Justice Department and nine other states recently settled with Microsoft. They go before Kollar-Kotelly on Wednesday for a hearing that could decide the settlement's fate. Under guidelines set up by the Nixon-era Tunney Act, Kollar-Kotelly must ensure the settlement is in the public interest before approving the deal.
The litigating states are seeking substantially stiffer penalties than those laid out in the settlement. The proposed deal would place restrictions on Microsoft's business practices but have only marginal impact on the company's software, and essentially no effect on Windows XP.
In their December remedy proposal, the litigating states, by contrast, asked that restrictions be placed on how Microsoft develops and releases software.
On Monday, the nine states and the District of Columbia filed a revised remedy proposal, based in part on evidence collected during the discovery phase of the trial, including depositions.
Tom Miller, Iowa assistant attorney general and one of the states' leaders, described the revisions as "only minor modifications," with one exception.
"As a result of discovery, we have concluded that, in addition to Microsoft's fully-integrated version of the operating system, the company should be required to offer a modular version that will allow equipment manufacturers and others to make their own decisions on adding middleware products that consumers want such as browsers or media players," he said in a statement. "Microsoft therefore would not be required to provide numerous versions of the operating system."
In court papers filed Friday, Microsoft indicated that the states' proposed remedy would force the company to pull Windows from the market.
"The modified measures should deflate Microsoft's overblown rhetoric and apocalyptic predictions about the proposed remedies," Connecticut Attorney General Richard Blumenthal said in a statement. "The modifications focus the proposals more sharply on the very serious violations of law and harm to consumers found conclusively by two federal courts."
Ballmer, Allchin: Their own words
During a Feb 8. deposition, Steven Kuney, the litigating states' lawyer from Williams & Connolly in Washington, D.C., pressed Ballmer on the positive aspects of the Microsoft remedy proposal, which is identical to the settlement cut with the Justice Department and nine other states.
During the deposition, Ballmer said he would not "know how to comply" with the litigating states' remedy proposal. "I actually think we would need to withdraw the Windows product from the marketplace. That...would be the only way I understand to comply with the proposal as put forward by the non-settling states," he said.
At one point in the Allchin deposition, taken Feb. 13 of this year, Steve Houck, an attorney representing the plaintiff states, asked the executive, "What practices do you understand Microsoft was found guilty of?"
After a round of objections from a Microsoft attorney, Allchin said, "I believe that we were found that we tried to maintain a monopoly in the PC operating system space."
Houck responded, "And is it your understanding that Microsoft did that by engaging in certain practices that the courts have held to be unlawful?"
"Yes," Allchin answered.
In June 2000, a seven-judge appellate panel unanimously upheld eight separate antitrust violations against Microsoft.
Ballmer testified that he did not talk to anyone from the Justice Department in connection with the settlement.
One of the conditions of the Tunney Act is that no backroom political deal-making can influence an antitrust settlement.
