Microsoft’s move prevents states from presenting key evidence

In a surprise move, Microsoft announced it will call only eight more

witnesses in the antitrust trial, half the sixteen that were scheduled to

testify in favor of the settlement Microsoft has worked out with the US Justice

Department.

As a result, the nine States suing Microsoft will be deprived from the

opportunity to introduce Microsoft e-mails and other pieces of evidence to

support their requests to have tougher penalties imposed against Microsoft. One

such piece of evidence is a letter from Dell Computer to Microsoft executives

complaining about the new contracts drawn up after the federal deal had been

reached. ''Dell cannot imagine that the intent of the federal settlement decree

was an even greater degree of control by Microsoft,'' the letter read.

Howard Gutman, a lawyer for the states, said the states have similar

complaints from officials at Gateway, Sony and other computer makers. The

letters were to be used to confront Microsoft executive Richard Fade who was

among the witnesses dropped by Microsoft. Fade, who handles Microsoft's

relationships with computer manufacturers, has previously agreed that many

computer makers were unhappy with the new contracts.

Analysts said the change in Microsoft's legal strategy may signal the company

feels confident it will win the case and that Judge Colleen Kolar-Kotelly will

approve the antitrust settlement. On the other hand, should the company have

concluded that the states have already introduced enough evidence to warrant

tougher sanctions, Microsoft simply wants to prevent more damaging evidence from

being introduced and used to justify such tougher actions.

Microsoft has already argued that the current trial was unwarranted and has

gone beyond the scope it was supposed to. If the company is planning to get

Kollar-Kotelly's ruling thrown out on appeal, the less damaging evidence the

better.

Upon learning of Microsoft's plans to drop eight key witnesses, the states

desperately tried to get Kollar-Kotelly to allow them a chance to add the

evidence into the public record. Microsoft lawyer John Warden objected strongly.

''We are in our case, they have rested their case." But Gutman said the

states had already referred to some of the documents during their opening

statement in March and should be entitles to introduce them. Kollar-Kotelly did

rule on the States' request.

Also at the trial, Microsoft Vice President Robert Short told the court that

it was untrue that the company tries to gain advantage by making Windows

operating system incompatible with rivals' software. ''I emphatically disagree

with the suggestion that Microsoft deliberately introduces incompatibilities to

prevent our competitors' software from working with our products,'' Short said.

Short's testimony was designed to give Microsoft a chance to refute claims by

executives from Novell, Sun Microsystems and Red Hat who testified earlier that

Microsoft does this repeatedly and that she should force Microsoft to disclose

more of the inner workings of Windows. Short said different versions of Windows

work better with rivals' software over time because they adhere to a growing

number of industry standards and he cited examples in which the company is

cooperating with some of its most bitter rivals to make software programs

''interoperate'' with each other. ''Given these efforts, the notion that

Microsoft 'retaliates' against software developers who do not do what Microsoft

wants is completely unfounded,'' Short said.