8007 1 IN THE IOWA DISTRICT COURT FOR POLK COUNTY ----------------------------------------------- 2 JOE COMES; RILEY PAINT, ) 3 INC., an Iowa Corporation;) SKEFFINGTON'S FORMAL ) 4 WEAR OF IOWA, INC., an ) NO. CL82311 Iowa Corporation; and ) 5 PATRICIA ANNE LARSEN; ) ) TRANSCRIPT OF 6 Plaintiffs, ) PROCEEDINGS ) VOLUME XXX 7 vs. ) ) 8 MICROSOFT CORPORATION, ) a Washington Corporation, ) 9 ) Defendant. ) 10 ----------------------------------------------- 11 The above-entitled matter came on for 12 trial before the Honorable Scott D. Rosenberg 13 and a jury commencing at 8:29 a.m., January 12, 14 2007, in Room 302 of the Polk County 15 Courthouse, Des Moines, Iowa. 16 17 18 19 20 HUNEY-VAUGHN COURT REPORTERS, LTD. 21 Suite 307, 604 Locust Street 22 Des Moines, Iowa 50309 23 (515)288-4910 24 25 8008 1 A P P E A R A N C E S 2 Plaintiffs by: ROXANNE BARTON CONLIN 3 Attorney at Law Roxanne Conlin & Associates, PC 4 Suite 600 319 Seventh Street 5 Des Moines, IA 50309 (515) 283-1111 6 RICHARD M. HAGSTROM 7 MICHAEL E. JACOBS Attorneys at Law 8 Zelle, Hofmann, Voelbel, Mason & Gette, LLP 9 500 Washington Avenue South Suite 4000 10 Minneapolis, MN 55415 (612) 339-2020 11 STEVEN A. LAMB 12 Attorney at Law Zelle, Hofmann, Voelbel, 13 Mason & Gette, LLP 550 South Hope Street 14 Suite 1600 Los Angeles, CA 90071 15 (213) 895-4150 16 KENT WILLIAMS Attorney at Law 17 Williams Law Firm 1632 Homestead Trail 18 Long Lake, MN 55356 (612) 940-4452 19 Also present: DANIEL WEST (at 3 p.m.) 20 21 22 23 24 25 8009 1 Defendant by: DAVID B. TULCHIN 2 STEVEN L. HOLLEY SHARON L. NELLES 3 JEFFREY C. CHAPMAN Attorneys at Law 4 Sullivan & Cromwell, LLP 125 Broad Street 5 New York, NY 10004-2498 (212) 558-3749 6 ROBERT A. ROSENFELD 7 KIT A. PIERSON Attorneys at Law 8 Heller Ehrman, LLP 333 Bush Street 9 San Francisco, CA 94104 (415) 772-6000 10 JOHN A. JURATA, JR. 11 DAVID SMUTNEY Attorneys at Law 12 Heller Ehrman, LLP 1717 Rhode Island Ave. NW 13 Washington, D.C. 20036 (202-912-2000) 14 BRENT B. GREEN 15 Attorney at Law Duncan, Green, Brown & 16 Langeness, PC Suite 380 17 400 Locust Street Des Moines, IA 50309 18 (515) 288-6440 19 RICHARD J. WALLIS STEVEN J. AESCHBACHER 20 Attorneys at Law Microsoft Corporation 21 One Microsoft Way Redmond, WA 98052 22 (425) 882-8080 23 24 25 8010 1 (The following record was made out of 2 the presence of the jury at 8:29 a.m.) 3 MS. CONLIN: I was here at 8 o'clock. 4 I had indicated to the defense that we wanted 5 to make a motion at 8 o'clock using the same 6 process by which they call us to Court, and 7 they did not attend. 8 Though I requested that the Court hear 9 me outside the presence of the Defendants, the 10 Court decided that would not be a good thing. 11 So, Your Honor, I do not want to be 12 responsible for keeping the jury waiting, but I 13 do wish to make a motion to strike which I 14 propose that we might try to do in a shortened 15 lunch hour. It will not be terribly long, in 16 my opinion, but I might be wrong. 17 Sharon and I have reached an agreement 18 about the other item, Your Honor, so that does 19 not need to be discussed, the other matter 20 being a complicated matter of who reads what at 21 what point in time in the read jury transcript. 22 THE COURT: Why don't I just tell the 23 jury when we take the lunch that we'll take an 24 extra 15 minutes. Is that okay? 25 MS. CONLIN: Maybe a half an hour just 8011 1 because Mr. Holley talks too long. 2 MR. HOLLEY: Well, I don't know if I 3 accept that. 4 MS. CONLIN: Well, I was here at 5 8 o'clock. That extra half an hour in the 6 morning just makes a big difference in my mood. 7 MR. LAMB: So noted. 8 MR. TULCHIN: We'll stipulate. 9 THE COURT: Was Sharon here at eight? 10 MS. CONLIN: No, Your Honor, but she 11 was not due at eight. 12 MS. NELLES: I was here at 8:10, Your 13 Honor. 14 MR. GREEN: Mr. Green was here at 15 eight. 16 MS. CONLIN: Mr. Green was not here at 17 eight. 18 MR. GREEN: Yes, I was. 19 MS. CONLIN: A little bit after. 20 (The following record was made in the. 21 presence of the jury at 8:34 a.m.) 22 THE COURT: Everyone else may be 23 seated. 24 Good morning, ladies and gentlemen. 25 Mr. Alepin, you may take the stand and 8012 1 you are still under oath. 2 RONALD ALEPIN, 3 recalled as a witness, having been previously 4 duly sworn, testified as follows: 5 REDIRECT EXAMINATION (CONT'D) 6 BY MR. LAMB: 7 Q. Good morning, Mr. Alepin. 8 A. Good morning. 9 Q. When we broke yesterday we were 10 discussing the AARD code. And yesterday 11 morning Mr. Holley asked you if there was a 12 malfunction in the AARD code. 13 Do you recall that question? 14 A. I recall a question concerning 15 malfunctioning and the AARD code. 16 Q. And your response was no, there was no 17 malfunction; right? 18 A. That's correct. 19 Q. And you testified that there wasn't a 20 real error. It was a false error; right? 21 A. That's correct. 22 Q. Okay. By false error, do you mean 23 that it was not true? 24 A. Yes. 25 Q. Now, have you seen evidence in the 8013 1 record that leads you to believe that Microsoft 2 knew that the AARD code was not a true error? 3 A. Yes. 4 Q. What did you see? 5 A. Well, there is a discussion of -- in 6 the record concerning what the purpose was for 7 the code. 8 It was to detect a non-Microsoft 9 operating system, and that in and of itself is 10 -- was not an error. 11 And the purpose for installing the 12 code was not to detect errors, but to detect a 13 different operating system. 14 MR. LAMB: Darin, can you put Slide 15 702 back up again? That's the error message. 16 Q. Now, Mr. Holley asked you if you had 17 seen inflammatory error messages in the 18 industry in general. Do you recall that line 19 of questioning? 20 A. I do. 21 Q. And you said that you had seen 22 impenetrable and half-baked error messages, but 23 you didn't say you'd seen inflammatory. 24 Mr. Holley didn't ask you to explain 25 that. Can you explain what you mean to the 8014 1 jury? 2 A. Well, what I intended was there are 3 error messages that don't scare people and 4 there are error messages that can scare users. 5 There are error messages that can 6 inform users and there are error messages that 7 just appear to convey no information that you 8 can understand or use in order to address the 9 issue for which the error message is being 10 presented. 11 So there's a way of conveying 12 information about error conditions, to the 13 extent they are error conditions, in ways that 14 don't cause the user to lose consciousness or 15 to worry about life-threatening or 16 data-threatening conditions when such 17 conditions don't exist. 18 Q. What type of error message is this? 19 A. Well, this is an error message that 20 conveys no real information other than telling 21 the user that some error condition has occurred 22 and giving him no basis or ability to respond 23 or react to the error condition on his own or 24 to assess or evaluate the import of the error 25 on his operation, on his continuing use of the 8015 1 computer. 2 Q. And what's the impact of that when you 3 receive a message like that? 4 A. Well, the impact is that you don't 5 know what you did and it's not readily apparent 6 how you're going to fix the problem, so the -- 7 you have a lingering concern or doubt about the 8 stability of the system, something happened, 9 and you don't know what it was, and you don't 10 know whether you're going to see something 11 happen in the future. 12 But it's an unresolved issue, and 13 you're unaware of it, so it just undermines 14 your confidence in the continuing use of the 15 system. 16 Q. Okay. Does that raise issues of 17 incompatibility? 18 A. It undermines your confidence and your 19 use of the system, which is a concern. 20 This is a new product, Microsoft 21 Windows beta, 3.11, and there's certainly 22 compatibility issues that can explain what's 23 happening here. 24 And, again, the information is not 25 helpful here other -- but you're trying to 8016 1 install Windows 3.1 on your system. There's a 2 possibility of -- strong possibility there's a 3 compatibility issue. 4 Q. Now, this doesn't happen on MS-DOS; 5 right? 6 A. This error message does not appear 7 when a user would be installing the Christmas 8 beta on MS-DOS. 9 Q. It only happens on DR-DOS; right? 10 A. It only happens on DR-DOS, I believe. 11 Q. Okay. And who is it created by? 12 A. It was created by Microsoft, Microsoft 13 employees. Aaron Reynolds, in particular, at 14 the direction of Microsoft. 15 Q. And AARD, is that an acronym for Aaron 16 Reynolds? 17 A. That's my understanding, that those 18 were his initials. 19 Q. Now, Mr. Holley asked if you had seen 20 a declaration of a David Weiss from Microsoft 21 which he claimed listed certain error messages 22 in the Christmas beta. 23 Do you remember that question? 24 A. I do. 25 Q. And despite earlier telling you that 8017 1 it would be unfair to you to ask you a question 2 about a document without showing you, he never 3 showed you the declaration of Mr. Weiss, did 4 he? 5 A. No, I don't recall seeing it. 6 Q. Now, the implication of his 7 questioning was that there was lots and lots of 8 errors in the Christmas beta. Do you remember 9 that? 10 A. Lots of error messages. 11 Q. Lots and lots of error messages, okay. 12 Is there a difference between an error 13 message that's normally generated because 14 there's an error which can be fixed and an 15 error message which is false, which as you 16 said, you don't know what you did, you don't 17 know how to fix it, and there's a stability 18 issue? 19 A. Well, there are differences between 20 errors that occur because of a condition that 21 arises that is unexpected by the programmer. 22 I mean, programmers -- for example, if 23 you're reading or writing from a floppy 24 diskette and you open the floppy diskette or 25 you get an error message that informs you that 8018 1 you've taken the diskette out -- and in some 2 instances the software developer has written it 3 from the perspective of I can't write to the 4 floppy diskette. 5 In other instances he may say, well, 6 it seems like you took the diskette out. 7 But there's a difference between those 8 kinds of error conditions that are -- or error 9 messages that are precipitated or caused by 10 circumstances that happen as the software is 11 interacting with the user and its environment 12 and other pieces of software and this 13 particular kind of error message here. 14 Q. Are you familiar with a deposition of 15 a Bruce Fryer, an individual that was taken in 16 a prior proceeding relating to Microsoft? 17 A. I believe so. 18 Q. And did you review that? 19 A. At points in time, yes. 20 MR. LAMB: Can you call up number 2, 21 the transcript from Fryer, particularly page 22 111? 23 Q. Starting on line 15, the question is: 24 Did that fact have any impact in 1993, that 25 event that you've told me about, the error 8019 1 message in the Windows 3.1 beta, have any 2 impact on the decision in 1993, or the 3 consideration in 1993, with respect to the 4 desktop machine you were contemplating, whether 5 or not to utilize DR-DOS? 6 Answer: It did. 7 And Mr. Fryer was an individual who 8 went to work for Zenith Data Systems. Do you 9 recall that? 10 A. Yes, I did. 11 Q. Can you explain to the jury what 12 Zenith Data Systems was back in the 1993 time 13 frame? 14 A. They were a personal manufacturer. 15 They were an OEM. 16 Q. Okay. Now, in that question and 17 answer, did you understand when he's referring 18 to the error message, he's referring to the 19 AARD error message? 20 A. That's my understanding. 21 Q. Okay. Then it goes on to say at line 22 22: 23 Question: How did it affect it? 24 Answer: When putting together a 25 business proposal, you like to envision 8020 1 different scenarios and try to understand the 2 impacts. One of the scenarios that we 3 envisioned, based on the experience with the 4 beta bug, was the fact that Microsoft might 5 intentionally put code in Windows that would 6 cause problems with DR-DOS. 7 Therefore, for those contingencies we 8 allowed additional technical resources to fix 9 those problems, and also we evaluated that 10 there may be a potential that if a Windows 11 release came up, that this particular product 12 line might be delayed to market by a factor of 13 maybe, let's say, 60 days, while we worked to 14 get work-arounds from the bugs that Microsoft 15 introduced into the product. Again this is 16 just a scenario. 17 Now, when he refers to the fact that 18 Microsoft might intentionally put code in 19 Windows that would cause problems with DR-DOS, 20 in your professional opinion what impact does 21 that have on DR-DOS? 22 A. Well, if you can overcome the concerns 23 as an OEM that this might happen and you are 24 willing to take a license to bundle the DR-DOS 25 operating system with your hardware and 8021 1 preinstall it, then you are certainly preparing 2 for additional costs associated with providing 3 the DR-DOS system to your customers, as 4 Mr. Fryer is observing; that he has to build in 5 additional contingencies, additional costs, 6 anticipating that this is not going to happen 7 just once, but would happen a couple of times 8 during the period where ZDS, Zenith Data 9 Systems is bringing computers to market that 10 have DR-DOS installed instead of MS-DOS. 11 Q. So would the fact that Microsoft might 12 intentionally put code in Windows that would 13 cause problems with DR-DOS make it more 14 attractive or less attractive for an OEM to go 15 with DR-DOS instead of MS-DOS? 16 A. It would make it less attractive. 17 Q. He goes on to refer to this 60 days, 18 this time period that it might take. 19 Are you familiar with the term time to 20 market? 21 A. Very much so, yes. 22 Q. Can you explain what that means to the 23 jury? 24 A. Time to market is the amount of time 25 from a point -- from a particular date until 8022 1 you're able to get a particular product 2 software or hardware into the market and 3 available for consumers. 4 And market here, I mean your retail 5 outlets if you're selling your product through 6 a retail store, are available for users. 7 If they're personal computer 8 manufacturers, it's how long it takes you to 9 get your product available for businesses to 10 order off the Internet. 11 I mean, there's this -- time to market 12 is this idea of how long it takes from when you 13 have something in your hand to your ability to 14 put it in a product and get it out the door and 15 into the hands of your consumers. 16 Q. So the longer the time to market, the 17 worse it is? 18 A. That's generally -- generally true and 19 it's a -- almost always true. 20 Q. And how significant is 60 days? 21 A. 60 days is particularly -- is very 22 significant in the PC business when you look at 23 the introduction of new products. 24 You look at -- we have Christmas 25 buying seasons, we have back-to-school seasons. 8023 1 There are some Windows here that are 2 very, very significant for PC manufacturers in 3 particular, and that same kind of importance 4 comes up when it's attached to new products, 5 new product release. 60 days is -- can be an 6 eternity. 7 Q. And do you understand Mr. Fryer 8 conveying concern about potential future 9 incompatibilities? 10 A. He's definitely speaking of the 11 potential condition based on his experience 12 with the Christmas beta. 13 MR. LAMB: If you could call up number 14 6. 15 Q. This was used before. It's the 16 extract of the Corey transcript that was read 17 for you. 18 And do you remember who Mr. Corey was? 19 A. Excuse me. He was, I believe, the 20 vice president of marketing, if I'm not 21 mistaken, for Novell. 22 Q. He was marketing at Novell; right? 23 A. Marketing at Novell. 24 Q. And at some point in time, DRI was 25 acquired by Novell; right? 8024 1 A. Yes. 2 Q. Okay. But Novell did product 3 development from what location, sir? 4 A. Well, its principal development 5 facilities were in Provo, Utah. 6 Q. Provo, Utah. 7 And where did DRI do product 8 development? 9 A. Digital Research's R and D, research 10 and development laboratories were in the United 11 Kingdom in England. 12 Q. Now, when Mr. Holley asked you -- 13 before he asked you about the Corey transcript, 14 he asked you a question about API 15 compatibility. Do you recall that? 16 A. I know he asked me that question. I'm 17 not sure the sequence. 18 Q. Now, do you see anything in that 19 transcript, in the wording of that transcript 20 that mentions undisclosed APIs or API 21 incompatibility or anything of that nature? 22 A. No, I don't. 23 Q. And again, Corey is in charge of 24 marketing; right? 25 A. Yes, that's my understanding. 8025 1 Q. Now, according to this person from 2 marketing at Novell, what he's saying is he's 3 not aware of any instance where they didn't get 4 the beta; right? 5 A. That's what his testimony is, yes. 6 Q. Does he say when he got the betas? 7 A. No, he does not. 8 Q. Okay. Does it matter when you get the 9 betas? 10 A. It does. 11 Q. Tell the jury why. 12 A. Well, the earlier you get the betas, 13 the sooner you can begin work to identify and 14 correct any incompatibilities, as well as the 15 earlier you can get started on trying to take 16 advantage of features and functions in the 17 other beta software to make your product 18 better. 19 So it's not just getting it -- getting 20 it to work without any problems. It's also 21 giving you a chance to make your product better 22 and to take advantage of the new features and 23 functions that are available or will be 24 forthcoming in the new version of the software. 25 So the earlier you get that, the more 8026 1 able you are to do both of those things. 2 The later you get that in the cycle, 3 that is to say the closer to the actual launch 4 date of the product, the less you can do in 5 terms of rigorous testing, in terms of complete 6 testing, and the less you can do to improve 7 your product. 8 I need to point out that at this time 9 users -- most users weren't connected to any 10 form of what we take for granted now, any form 11 of Internet. 12 So getting fixes to your users is 13 going to be a difficult problem, and you are 14 going to have to get those fixes out in ways 15 that they can get them that don't rely 16 necessarily on dialing up a telephone number 17 using your computer and downloading the binary 18 files that contain these 1- or 2-bit -- again, 19 these 1 or 2-bit changes that were ultimately 20 the bugs that needed to get fixed. 21 Q. I'd like to show you now Exhibit 9923. 22 MR. LAMB: If you could highlight the 23 date and go down through the second paragraph, 24 if you could. 25 Thanks, Darin. 8027 1 Q. Okay. This is a letter from Microsoft 2 to Mr. Leonard Liu, the president of Acer, 3 Incorporated. Do you see that? 4 A. I do. 5 Q. The time frame is 1989. 6 Can you explain to the jury what Acer 7 is? 8 A. Excuse me. Acer is a PC maker, an OEM 9 that has some -- had at the time some business, 10 some substantial business in the United States, 11 but also was a global personal computer 12 manufacturer. Global in the sense that they 13 sold their product to PCs in Asia and in 14 Europe. 15 MR. LAMB: And can you go quickly to 16 the second page so we can just show the to/from 17 line. Be the yours sincerely, Jeremy Butler. 18 Q. Jeremy Butler, senior vice president 19 at Microsoft. Do you see that? 20 A. I do. 21 MR. LAMB: And if you could go back to 22 the first column, Darin. 23 Q. Mr. Butler says to Mr. Liu, attached 24 to this note is your personal copy of our 25 analysis of the ROM versions of DRI's product 8028 1 versus Microsoft's. 2 I think you'll see that we have a 3 large advantage over DR-DOS in the size of the 4 operating system kernel. This is surely 5 critical in machines designed to ship with 256K 6 memory. There are several other important 7 strengths mentioned in the document. 8 Do you see that, sir? 9 A. I do. 10 Q. And based on your background in the 11 industry, is it your understanding that 12 Mr. Butler is trying to sell Mr. Liu MS-DOS 13 rather than DR-DOS? 14 A. That's correct. A particular kind of 15 MS-DOS, yes. 16 Q. Okay. 17 MR. LAMB: Can you turn the page? 18 Just highlight the first paragraph there. 19 Q. Mr. Butler says to Mr. Liu in that 20 last sentence, it only takes a couple of 21 reports about noncompatibility to give the kiss 22 of death to a PC. We've seen that on the 23 hardware side, as well as in the operating 24 system area. 25 Do you see that? 8029 1 A. I do. 2 Q. Is that phrase, the kiss of death, in 3 relation to compatibility, is that a common 4 industry term? 5 A. It's a common industry term; commonly 6 understood industry term. 7 Q. Can you explain it to the jury, 8 please? 9 A. Well, I believe I had a slide in my 10 presentation, as well, to talk about this -- 11 this is the notion that -- that one -- the user 12 perceives a particular software product to be 13 incompatible with another product that he may 14 actually be using or may potentially in the 15 future be using. 16 And a couple of these reports, even 17 though they may not affect what the user is 18 doing or even what the user plans to do, these 19 reports of incompatibility become part of the 20 reputation of the product, and the -- once a 21 product is identified as being incompatible, 22 even though it's not going to affect large 23 sloths of users, it's the kiss of death. 24 That product is labeled or branded in 25 the minds of potential customers as being 8030 1 incompatible, and that's the equivalent of the 2 kiss of death from the -- I'm not sure whether 3 it's from the Godfather or not, but that's the 4 idea. 5 Q. I think I got the visual. 6 Now, Mr. Holley, when he talked to you 7 and asked you questions about AARD and Bambi 8 and nested task, he took each of those subjects 9 separately. 10 Do you recall that, sir? 11 A. I do. 12 Q. And when he asked you the question, he 13 said he wanted to change to a different topic, 14 but did you consider AARD, Bambi, and nested 15 task separately, sir? 16 A. Well, in terms of penetrating the 17 particular details, of course, each one of 18 those had to be examined, but they were part of 19 the incompatibility tactic that targeted the 20 DR-DOS and its ability to be incompatible with 21 Microsoft's Windows product. 22 Q. So you considered them cumulatively? 23 A. I considered them cumulatively, as I 24 believe they must be considered. 25 Q. Why do they have to be considered 8031 1 cumulatively? 2 A. Well, it's not clear, for example, 3 that you would be able to get the message out 4 of incompatibility relying exclusively, for 5 example, on developer tools. 6 Verify DOS played in the developer 7 tools products initially, although it was 8 certainly planned to be in all of Microsoft's 9 products, and Microsoft's applications 10 executives committed to installing it in all of 11 Microsoft's applications products. 12 It's not clear that the message is 13 going to get out quickly and touch all of the 14 users, so the more chances you have of creating 15 circumstances in which the incompatibility 16 message through the no error error message of 17 AARD or through the warranty message in verify 18 DOS or through the Bambi code, the more chances 19 you have to do that, the more likely the user 20 is going to get the message. 21 Q. Okay. So is what you're saying, sir, 22 that even if the incompatibilities are false or 23 real, whether they're true or false, a few of 24 them reported, such as AARD, Bambi, and nested 25 task can have a kiss of death on a product? 8032 1 A. Absolutely, yes. 2 Q. And in your professional opinion, is 3 that what happened here? 4 A. Yes. 5 MR. LAMB: Could you put up Exhibit B, 6 I think it's 14 on your call-out, Darin, on 7 your system that you enlightened me on 8 yesterday afternoon. 9 Q. Okay. There were a series of 10 questions from Mr. Holley about documents and 11 documents that you'd reviewed. Do you remember 12 that, sir? 13 A. Yes, I do. 14 Q. And, hopefully, I'll just cover this 15 briefly, but Mr. Holley essentially accused you 16 of only reviewing 501 documents in order to 17 present your testimony to this jury. Do you 18 recall that? 19 A. Well, I think there was some sort of 20 suggestion to that effect, yes. 21 Q. Okay. All right. 22 And you disagreed with that; right? 23 A. Very strongly. 24 Q. Do you think it's fair to claim that 25 you only reviewed 501 documents? 8033 1 A. Oh, no. 2 MR. LAMB: Let's just -- if we could 3 just go through this and kind of scroll through 4 it page by page. I'll tell you when to stop, 5 Darin. 6 Keep going. Keep going. Keep going. 7 Keep going. 8 All right. Now stop there for a 9 second. 10 Q. When you looked at the expert report 11 of Doctor David Martin, the first document, did 12 that include documents attached to it? 13 A. A large number of documents. 14 Q. A large number of documents, okay. 15 How about the expert report of Doctor 16 John Bennett? 17 A. Very large, as I remember it. Very 18 large and very many -- 19 Q. Tell the jury who Doctor John Bennett 20 is. 21 A. Doctor John Bennett is a -- an expert 22 witness that Microsoft has offered in other 23 proceedings on the matters of -- I believe on 24 the matters of the DR-DOS incompatibilities. 25 Q. Okay. 8034 1 MR. LAMB: If you could scroll down 2 again, Darin. 3 Keep going. Keep going. Keep going. 4 Keep going. 5 6 Q. All right. Now, at the end there, it 7 says, I also reviewed the materials from the 8 remedies proceedings in New York versus 9 Microsoft. 10 That's another case; right? 11 A. Yes. 12 Q. And when you say the materials, what 13 do you mean? 14 A. Excuse me. The materials include the 15 submissions by Microsoft and the government -- 16 the states, nonsettling states and settling 17 states, the intervenors, people who sought to 18 present information on one side or another 19 favorable to the government or favorable to 20 Microsoft that included deposition testimony, 21 direct testimony during the proceedings, 22 reports filed by experts. 23 It's quite a large record by itself. 24 Q. Did it include exhibits also? 25 A. It did. 8035 1 Q. And then in the next block, in the 2 final paragraph you reference the MDL. That's 3 multidistrict litigation? 4 A. That's correct. 5 Q. Another case; right? 6 A. Another case. 7 Q. The California litigation, another 8 case? 9 A. Yes. 10 Q. Caldera versus Microsoft, another 11 case? 12 A. Yes. 13 Q. And then there's several other cases; 14 right? 15 A. Yes. 16 Q. And that includes the pleadings, the 17 reports, the deposition transcripts, trial 18 transcripts if they were included, and exhibits 19 that were submitted by the parties and third 20 parties in those cases; right? 21 A. That's correct. 22 Q. Now, you reviewed all this stuff, but 23 you didn't necessarily rely on all of it for 24 your testimony here in the past week or so; 25 right? 8036 1 A. No. 2 Q. Correct? 3 A. That's correct. 4 Q. Now I want to talk about undocumented 5 APIs for a while. 6 Do you remember there was some 7 discussion yesterday about undocumented APIs 8 and documented APIs? 9 A. Yes. 10 Q. Let's take a look at, first, the 11 Kliger extract. 12 MR. LAMB: I think it's your Code 4, 13 Darin. 14 Q. And this is something that was read to 15 you, okay. 16 And before it was read to you, 17 Mr. Holley asked you in the transcript at 7545, 18 line 24, for the record, quote, did you read 19 the testimony of Mr. Kliger, K-l-i-g-e-r, who 20 testified that he was a developer for IBM and 21 then later for Lotus and then for WordPerfect 22 in forming your views about whether Microsoft 23 had undocumented APIs? 24 A. Yes. 25 Q. Do you recall that? 8037 1 A. Yes. 2 Q. And I'm looking at this, and I'm 3 trying to see a reference to undocumented APIs. 4 Do you see anything about undocumented APIs? 5 A. No. 6 Q. Do you see anything about APIs? 7 A. No, I don't see it. 8 Q. All right. I want to -- 9 MR. LAMB: Can you give them Exhibit 10 2246, please? 11 Q. Now, the line of questioning that 12 Mr. Holley was referring to in terms of Kliger 13 related to undocumented APIs in relation to 14 various disclosures and nondisclosures by 15 Microsoft; right? 16 A. Yes. 17 Q. Was he talking about anything 18 specifically, as you understood it, when he was 19 asking you the questions; any particular set of 20 APIs? 21 A. No, not that I recall. 22 MR. LAMB: If you could pull up 23 Exhibit 2246, please. 24 If you could highlight the to and from 25 and the first paragraph. No. The second 8038 1 to/from. Sorry. There you go. 2 Q. This is an E-mail to John Landry, 3 Ilene Lang, and Tom Lemberg from Noah 4 Mendelsohn. Do you know who Noah Mendelsohn 5 is? 6 A. Noah Mendelsohn, I believe, was a 7 developer inside Lotus. 8 Q. And do you know who John Landry, Ilene 9 Lang, and Tom Lemberg were? 10 A. They were executives inside that 11 company. 12 Q. And according to Mr. Mendelsohn, he 13 says, this note summarizes my concerns 14 regarding Microsoft's support for ISVs 15 implementing the new OLE controls, parens, OCX, 16 parens, technology. 17 Do you see that? 18 A. I do. 19 Q. Now, Kliger was, according to 20 Mr. Holley, at Lotus; right? 21 A. Yes. 22 Q. And Mendelsohn is at Lotus; right? 23 A. Yes. 24 Q. Now, can you explain to the jury what 25 the OLE controls were? 8039 1 A. Well, the simplest way to think of 2 them is if we are familiar with DLLs, they're 3 like DLLs. They're like dynamic link 4 libraries, but they're used in a somewhat 5 different context. 6 They enable one application to use 7 another application programmatically. So if 8 you want to think about a -- if you have a Word 9 document and you want to put a spreadsheet into 10 that document, you could just copy what it 11 looks like, or you could actually copy the 12 spreadsheet as a -- we call them objects -- and 13 whenever you clicked on the area inside your 14 Word document where the spreadsheet was, it 15 would actually get you to work with the 16 spreadsheet program. 17 So you'd be inside your word 18 processing program and you'd actually be using 19 the spreadsheet program to deal with that 20 portion of the -- of the document. 21 And that kind of capability is 22 provided by a layer of software that is called, 23 in the Microsoft context, OLE, OLE, object, 24 linking, and embedding. 25 MR. LAMB: Okay. Can you highlight 8040 1 the next paragraph, Darin? 2 Q. Mr. Mendelsohn goes on to say, OLE 3 controls, which are implemented as enhancements 4 to OLE 2.0, are emerging as the key component 5 architecture for the Windows operating system 6 platform. 7 Microsoft has also disclosed that OLE 8 controls will be used as the basis for the 9 desktop user interface in Cairo, the successor 10 to Windows NT. 11 A. I see that. 12 Q. What are OLE controls -- I mean, how 13 does that relate to the desktop user interface? 14 Maybe there's a way that you can draw it out. 15 MR. LAMB: Is that okay with the 16 Court? 17 THE COURT: Sure. 18 A. So the idea behind the object, 19 linking, and embedding, or OLE, was to be able 20 to create applications software and other 21 software components, sometimes called objects. 22 So object, linking, and embedding. 23 And you would be able to within your 24 application make use of these objects and 25 combine them in certain ways in order to create 8041 1 a composite application or an application that 2 was able to reuse these various elements, 3 including, for example, a simple grid. 4 You could -- you could create a 5 control, which the software -- a piece of 6 software, and that control could be used by 7 other pieces of software for the purpose, let's 8 say, of -- the specialized purpose of drawing a 9 grid on the screen, a table, and allowing the 10 user to enter information in a tabular form. 11 Q. Mr. Alepin, I'm not sure the whole 12 jury can see that. 13 MR. LAMB: Can we pull it forward a 14 little bit, Your Honor? 15 THE COURT: Sure. 16 A. So it's the idea of each one of these 17 separate pieces of software being identified as 18 objects and being made available to other 19 applications that these applications can refer 20 to and orchestrate together to perform 21 functions that allow the application to deliver 22 whatever functionality it wants to. 23 So it's -- the initial example that I 24 used for one document, a spreadsheet inside a 25 Word document, imagine that being carried to a 8042 1 lower level where you're dealing with elements, 2 for example, of the user -- of the user 3 interface of your application. The grid 4 example being able to reuse some software in 5 your application that draws a grid and 6 interacts with the user as the user is filling 7 data in in the grid for you. 8 Q. You can take your seat now, sir. 9 Thanks. 10 MR. LAMB: If you could call up the 11 next half a paragraph, Darin. The highlighted 12 portion. It starts, Microsoft is publicly 13 committed. 14 Thank you. 15 Q. Mr. Mendelsohn of Lotus goes on to 16 say, Microsoft has publicly committed on 17 numerous occasions to ensuring a fair 18 separation between the application and system 19 groups at Microsoft. 20 Do you see that, sir? 21 A. I do. 22 MR. LAMB: Thank you. 23 Q. Now, this fair separation between the 24 application and system groups at Microsoft, is 25 this the church and state example that you were 8043 1 giving earlier in your testimony? 2 A. This relates to the issue of church 3 and state very much, yes. 4 Q. And how important is that separation 5 to church and state in this technological 6 concept to ISVs? 7 A. Well, it's important on two levels, 8 one of which is that you need to -- the 9 applications developers, the independent 10 software vendors needed to know the extent to 11 which the playing field, if you will, the 12 operating systems platform was a -- was level 13 so that their chances to develop application 14 software that would work with Microsoft's 15 operating system were good enough when compared 16 to the -- those available to Microsoft's own 17 applications developers. 18 So the expectation on the part of the 19 independent software development community was 20 that the playing field would be level, and they 21 would have opportunities to develop software 22 that matched those that Microsoft's 23 applications developers had, certainly in terms 24 of the information available and necessary to 25 build their applications. 8044 1 Q. Okay. Mr. Mendelsohn goes on to say, 2 specifically they have promised to provide 3 equivalent operating system API support and 4 documentation to application developers working 5 inside and outside Microsoft. 6 Do you see that, sir? 7 A. I do. 8 Q. And is it your understanding that 9 Mendelsohn is saying that Microsoft has 10 promised that they are going to have separation 11 between church and state? 12 A. On several occasions, they had done 13 so. 14 Q. And is that, in fact, true that 15 Microsoft had promised to have that separation 16 between church and state? 17 A. Several times. 18 Q. Mr. Mendelsohn goes on to say, I am 19 concerned that these commitments are not being 20 met in the case of OCX and that Lotus and other 21 ISVs are being put at an unfair competitive 22 disadvantage. 23 Do you see that, sir? 24 A. I do. 25 Q. And that feeling of being put at an 8045 1 unfair competitive advantage, is that 2 consistent with you and your understanding in 3 relation to how ISVs were reacting if they were 4 not getting APIs disclosed to them? 5 A. That's my exact understanding, yes. 6 Q. Okay. 7 MR. LAMB: Can we go to the bottom 8 call-out, Darin? 9 Q. Okay. And then finally Mr. Mendelsohn 10 says, recently a number of concerns have arisen 11 regarding Microsoft's willingness and ability 12 to extend such support to the new OLE controls 13 technology. 14 For the reasons listed below, I 15 believe that Microsoft application developers 16 have been given earlier and more detailed 17 access to OCX specifications than we have had 18 here at Lotus. These are serious concerns, and 19 I hope that we can address them with Microsoft 20 promptly. 21 Do you see that, sir? 22 A. I do. 23 Q. So Mr. Holley's reference to 24 Mr. Kliger was suggesting that Lotus didn't 25 have any problems with undisclosed APIs; right? 8046 1 A. As far as it went, yes. 2 Q. Right. As far as it went, okay. 3 But the rest of the story in relation 4 to Mr. Mendelsohn, who was there at Lotus, is 5 he's saying he's having significant problems 6 with undisclosed APIs; right? 7 A. That's correct. That's correct. 8 Q. And he's complaining that he's not 9 getting that information and that there's not a 10 separation of church and state? 11 A. That's correct. 12 Q. Now, Mr. Holley said to you yesterday 13 morning at 7792, line 16 through 18, he said: 14 Sir, you agree, do you not, sir, that a company 15 is entitled to tell the truth about defects in 16 its competitive products? 17 A. In its competitor's products, I think. 18 Q. Competitor's products, you're right. 19 A. Yes. 20 Q. And also at 7793, lines 23 through 25, 21 he referred to truthful information and 22 distributing truthful information. 23 A. Yes. 24 Q. Do you think it's important in your 25 industry to deal in truthful information and to 8047 1 distribute truthful information? 2 A. I think so, yes. 3 Q. Okay. Now, sir, if you have a 4 documented API, you have it because it's 5 documented; right? 6 A. If -- yes. I guess that's -- 7 Q. Even I can grasp that, okay. 8 If it's undocumented, how do you know 9 you don't have it? 10 A. Well, you don't know what you don't 11 know. So there's a problem there that we 12 identify quite often. 13 It's not just -- sometimes you know 14 that you don't know something, but other times 15 you don't know that you don't know. 16 Q. Okay. So ISVs can be having this 17 problem with undocumented APIs and they don't 18 know what the undocumented APIs are; right? 19 A. And that, in fact, was a common 20 problem over this period, yes. 21 Q. I'm going to go back briefly to 22 Exhibit 2456. This was used before. 23 If you'll give them an additional 24 copy. 25 What I want to do with 2456 -- this is 8048 1 the DRG summit talk by James Plamondon 2 regarding power evangelism and relationship 3 evangelism. 4 Do you recall that? We went over that 5 a few days back. 6 A. I do. 7 Q. And, again, DRG, what's that, sir? 8 A. Developer relations group. 9 That's the group inside Microsoft 10 responsible for managing the relationship 11 between Microsoft and the developer community. 12 Q. Okay. And this is the particular 13 document where Mr. Plamondon talked about the 14 tactics of evangelism, and he talked about ISVs 15 being pawns in the struggle between platform 16 vendors. 17 Do you recall that, sir? 18 A. Yes. 19 MR. LAMB: Now, if you could just 20 highlight the last paragraph of the first page, 21 sir. Thank you. 22 Q. And who's Mr. Plamondon talking to? 23 A. He's talking to, as I understand it, 24 the other members of the developer relations 25 group within Microsoft. 8049 1 Q. Okay. So he's conveying the party 2 line? 3 A. He's extolling the party line. 4 Q. And Mr. Plamondon goes on to say, they 5 are very valuable pawns in the struggle, 6 however. We cannot succeed without them. 7 If you've ever tried to play chess 8 with only the pieces in the back row, you've 9 experienced losing, okay, because you've got to 10 have those pawns. They're essential? 11 So you can't win without them, and you 12 have to take good care of them. You can't let 13 them feel like they're pawns in the struggle. 14 Now, just so we're clear, 15 Mr. Mendelsohn at Lotus would be one of those 16 pawns; right? 17 A. That's correct. 18 Q. Okay. He goes on to say, I mean, all 19 through this presentation previously, I talked 20 to you about how you're using the pawns and 21 you're going to screw them if they don't do 22 what they want, and dah-dah-dah. You can't let 23 them feel like that. If they feel like that, 24 you've lost from the beginning. 25 It's like you're going out with a 8050 1 girl; forgive me, it goes the other way also. 2 You're going out with a girl, what you really 3 want to do is have a deep, close and intimate 4 relationship, at least for one night. 5 And, you know, you just can't let her 6 feel like that, because if you do, it ain't 7 going to happen, right. So you have to talk 8 long term and white picket fence and all these 9 other wonderful things, or else you're never 10 going to get what you're really looking for. 11 So you can't let them feel like pawns, 12 no matter how much they really are. 13 Sir, in your opinion, if Microsoft 14 follows the party line as put forth by 15 Mr. Plamondon, is that a dissemination, a 16 distribution of truthful information? 17 A. No, not -- 18 MR. LAMB: Can you give them Exhibit 19 1032 and 1031. I think we've already seen 20 1031, but give them 1032 also. 21 Q. Now, the Plamondon talk was done in 22 '96. I want to go back in time a little bit to 23 '91, okay, and I want to reference, tie back to 24 Lotus. 25 A. Okay. 8051 1 MR. LAMB: If you can put 1032 up, 2 Darin, and if you could highlight the bottom 3 below. 4 Thanks for your help. Just the whole 5 thing down there, that message. The whole 6 thing all the way down. There we go. 7 Q. All right. This is an E-mail from 8 Mike Maples of October 18, 1991. 9 Do you see that, sir? 10 A. I do. 11 Q. And, again, can you tell the jury who 12 Mike Maples is? 13 A. He's senior executive in charge of 14 applications for Microsoft. 15 Q. Applications? 16 A. Yeah. 17 Q. And then it's to Brad Silverberg and 18 some other folks. Who is Brad Silverberg? 19 A. Head of the desktop operating systems 20 group inside Microsoft. 21 Q. Okay. From -- 22 A. In the platforms group. 23 Q. Okay. From church to state? 24 A. Yes. 25 Q. Okay. From church to state. 8052 1 And the subject is Excel brainstorm 2 group. Do you see that, sir? 3 A. I do. 4 Q. And according to Mr. Maples, he says, 5 I would like to ask you to invest a half day 6 with me following COMDEX. 7 Can you tell the jury what COMDEX is? 8 A. Back in the 1980s and through the 9 early 1990s, the most popular North American 10 trade show for our business was -- for our 11 business, for personal computer business, 12 certainly was the -- was this show in Las Vegas 13 called COMDEX. 14 And there companies would lease charge 15 blocks of space on the exhibition floors and 16 have lots of bright lights and displays and 17 trying to introduce their new products and 18 technologies and meet with their customers and 19 -- it was a trade show, very popular, very 20 important trade shows in those days. 21 Q. A lot of times product rollouts were 22 announced at these; right? 23 A. Certainly, yeah. 24 Q. Okay. Mr. Maples goes on to say, what 25 I would like to brainstorm is how to push Excel 8053 1 over the top and Lotus out of business. 2 Excel is Microsoft's product; right? 3 A. Microsoft's spreadsheet application. 4 Q. And Lotus is a competing Microsoft 5 spreadsheet? 6 A. Lotus is the -- yes, the competing 7 spreadsheet application from Lotus. 8 Q. At this time it was the leading 9 competing spreadsheet application, '91? 10 A. In '91, it was the most widely used 11 spreadsheet application. 12 Q. Mr. Maples goes on to say, I know a 13 half day is valuable. We also have a very good 14 marketing plan. What I was hoping to do is tap 15 the creativity of a group of people who are not 16 involved and see if we can scare out some new 17 ideas, concepts, et cetera. 18 I was thinking about half a day Friday 19 or Saturday of next week. Can I count you in? 20 MR. LAMB: If you could put up 1031, 21 please. 22 Q. And later that same day from Brad 23 Silverberg back to Mike Maples and others. So 24 from state back to church. Again same subject, 25 Re: Excel brainstorm group. 8054 1 Mr. Silverberg says to Mr. Maples, I'd 2 be glad to help tilt Lotus into the death 3 spiral. I could do it Friday afternoon, but 4 not Saturday. I could do it pretty much any 5 time the following week. 6 Do you see that, sir? 7 A. I do. 8 Q. And during Mr. Holley's 9 cross-examination, he suggested to you that 10 that might just be a joke. Do you remember 11 that? 12 A. Yes. 13 Q. Do you think that's a joke? 14 A. No. 15 MR. LAMB: If you could go to exhibit 16 -- I don't know if we've shown them 2151. 17 Sorry. 18 Yes, we have. I'm sorry. 19 Can you put 2151 up? 20 All right. If you could go to the 21 from line and the to line and just the first 22 couple paragraphs below that, Darin. 23 There you go. Thanks. 24 Q. Okay. And this is a document that was 25 seen before, and this is a different time frame 8055 1 and it's relating to a different product? 2 A. Yes. 3 Q. Okay. But this is from Bill Gates? 4 A. Yes. 5 Q. Okay. And it's to a number of senior 6 executives, and this relates to the 7 Ishellbrowser. 8 Do you remember when we talked about 9 the Ishellbrowser a few days ago? 10 A. I do. 11 Q. And Mr. Gates says, it's time for a 12 decision on Ishellbrowser. This is a tough 13 decision. Okay. 14 MR. LAMB: And then if you can go down 15 to the call-out where it says I have decided. 16 It's one, two, three, four paragraphs down. 17 Thanks, Darin. 18 Q. I have decided that we should not 19 publish these extensions. Okay. 20 So did you understand that Mr. Gates 21 was telling the people in his company not to 22 publish the API extensions regarding 23 Ishellbrowser? 24 A. That's correct. 25 MR. LAMB: If we could go to 8056 1 Defendant's Exhibit 1029. 2 Q. Now, remember when we talked about 3 namespace extension decisions? 4 A. Yes. 5 Q. Mr. Holley asked you some questions 6 about that? 7 A. Yes. 8 Q. And he read you some documents and he 9 showed you some documents, and one of the 10 documents that he showed you was from Scott 11 Henson, an E-mail from Scott Henson. 12 A. Yes. 13 MR. LAMB: Go all the way down. 14 There you go. Thanks, Darin. 15 Q. What he did was he read you the next 16 page. 17 This is basically what Microsoft is 18 going to explain to the ISVs about these 19 disclosures that weren't made previously. 20 Do you recall that? 21 A. That's correct. 22 Q. Okay. And do you see where it says 23 there, let's try not to use the word, quote, 24 undocumented, unquote, or private APIs? Do you 25 see that? 8057 1 A. I do. 2 Q. And then in the back, what he talked 3 about a lot was the Q and A about the party 4 line of what they're going to explain about why 5 they didn't give it previously. 6 Do you remember that? 7 A. I do. 8 MR. LAMB: If you could go to the next 9 Exhibit 3066, Darin. 10 It's a big one. Okay. And if you 11 would go down to the bottom where it -- there 12 you go. 13 Q. And this is a document -- it's a very 14 thick document, and Mr. Holley showed you 15 portions of it in the back, and we'll talk 16 about those in a second, but in the very first 17 page and when he was talking about whether or 18 not there were -- I think he referred to them 19 as bulletin board entries. This is prior to 20 blogs, there were bulletin boards. 21 It says right there, it looks like 22 there are a large number of undocumented 23 interfaces in the shell? 24 Do you see that? 25 A. Yes. 8058 1 Q. And this is from -- if you'd go up to 2 the top -- Curt Hagenlocher from EarthLink.net. 3 Do you have any idea who that is? 4 A. I think he's -- no, I'm sorry. He's 5 at -- he's using Earthlink.net. I don't know 6 that he's an employee. 7 Q. Right. This is just somebody -- 8 A. Somebody who thinks -- 9 Q. Somebody who's complaining; right? 10 A. Someone who's spreading, yes. 11 MR. LAMB: Okay. Then if you go back 12 to what -- it's on page -- starts on 93, Darin. 13 Q. What Mr. Holley referred you to, and 14 he referred you to a few pages from Joe 15 Belfiore and Andrew Schulman. 16 And again, who is Joe Belfiore? 17 A. He was the senior person in the 18 Windows group. 19 Q. And Andrew Schulman is the gentleman 20 you testified about yesterday, the book; right? 21 A. That's correct. 22 MR. LAMB: Where is the book? Thanks. 23 A. The same one. 24 Q. The one that you didn't read line for 25 line; right, sir? 8059 1 A. That's right. 2 Q. Unauthorized Windows 95? 3 A. And other books. 4 Q. And other books, okay. 5 As I look at this response from Joe 6 Belfiore, and it says -- if you go to the PS, 7 the letter of explanation below, has been going 8 out with the doc. This gives the background as 9 to why these have been B-list in the past. 10 MR. LAMB: And then if you go over to 11 the next page. Go ahead and highlight 12 limitations. 13 Q. Limitations with current 14 implementation, and then it goes on. 15 Where are the API extensions? 16 A. I'm sorry, I didn't get your -- where 17 are the API -- 18 Q. Well, is this just Mr. Belfiore 19 saying, you know, I'm sorry we didn't give you 20 the API extensions, or is he actually giving 21 them to Mr. Schulman? 22 A. Well, he's describing the limitations 23 of the -- of that particular support. 24 Q. Okay. But does he give Mr. Schulman 25 the API extensions? 8060 1 A. It doesn't look like it from here. 2 Q. Doesn't look like it, does it? 3 A. No. 4 MR. LAMB: Let's go to page 95. And 5 highlight that. 6 Q. And this is from Mr. Schulman to 7 Mr. Belfiore; right? 8 A. Uh-huh. 9 Q. And you see where it says, Brad 10 insisted to me that these have been documented, 11 but I and others haven't been able to find any 12 doc? 13 Now, Brad Silverberg is the same 14 gentleman we've been talking about for several 15 days; right? 16 A. That's correct. 17 Q. So Mr. Schulman is complaining that he 18 doesn't have them? 19 A. That's correct. Can't find them. 20 Q. Can't find them. 21 MR. LAMB: Can you give them 2383? 22 If you could put 2383 up, and it 23 starts at the bottom -- if you could just 24 highlight the bottom is the way they added this 25 in. 8061 1 Q. This is from Scott Henson to Cameron 2 Myhrvold, then Doug, it looks like Hench, 3 Hendrich? 4 A. Henderson. 5 Q. Henderson. I'm sorry. 6 Now, Scott Henson, that's the same 7 gentleman that you were shown the Defense 8 Exhibit 1029 about. Do you remember that? 9 A. Yes. 10 MR. LAMB: Could you go to the next 11 page, please? And if you could highlight the 12 first paragraphs. 13 Q. And it was suggested to you that 14 Mr. Henson didn't have a problem with these 15 undisclosed APIs before. 16 Do you remember that? 17 A. That's correct. 18 Q. Okay. And he's writing to Mr. 19 Myhrvold -- again, who is Mr. Myhrvold? 20 A. There are two Myhrvolds in Microsoft 21 at this time. 22 Nathan we had E-mails earlier, and 23 Cameron. Cameron was in the developer tools 24 group. He was a -- an executive inside the 25 Microsoft developer tools group, I believe, at 8062 1 this time. 2 Q. Okay. And Mr. Henson is saying this 3 mail is intended to summarize what I am seeing 4 internally on this subject and to voice an, all 5 caps, strong concern for our ISVs. 6 Do you see that, sir? 7 A. Yes. 8 Q. So Mr. Henson within Microsoft is 9 concerned about ISVs outside of Microsoft; 10 right? 11 A. They would be independent software 12 vendors, yes. 13 Q. He goes on to say, the problem is that 14 approximately a year ago, we told ISVs that a 15 set of interfaces, known as namespace 16 extensions, were no longer going to be a part 17 of the standard Win 32 API set -- they were 18 moved to an unsupported status or B list. 19 The rationale at the time was that the 20 interfaces were difficult to support, 21 especially on NT. The specific reason is that 22 when an ISV implements a namespace extension, 23 they live in the process space of the operating 24 system. Thus, if an ISV writes their namespace 25 extension poorly, they can bring down the 8063 1 entire shell. This is still the case today. 2 Another reason was that the REN team, 3 Office 96 PIM, was going to hold the key for 4 all future shell innovation, thus the split of 5 the Cairo shell team. 6 Given this, we went and told the ISVs 7 that there was a lot that they could do in the 8 system with respect to extensibility, all caps, 9 but they, all caps, could not integrate into 10 the explorer, like the control panel and 11 briefcase, as we had previously mentioned was 12 possible. 13 What's he saying? What's the problem? 14 A. Well, this is picking up from, I 15 think, the E-mail earlier that I talked about 16 with Mr. Holley. 17 The Chicago platform contains these 18 APIs that are intended to allow independent 19 software vendors to do some new stuff with the 20 Windows user interface and the shell, the 21 graphical user interface on top of the 22 computer. 23 Mr. Gates makes a decision about 24 whether those APIs are going to be released or 25 not. His decision is they're not going to be 8064 1 released. 2 The -- and there was an explanation 3 that was provided as to why they were not going 4 to be released. And bringing this forward 5 here, this is describing sort of -- the first 6 part of this E-mail talks about that 7 chronology, that history. 8 And here you have a description -- 9 another reason was that the Microsoft Office 10 application, the personal information manager, 11 REN, was going to be the -- was going to hold 12 the key -- as Mr. Gates points out in his 13 E-mail -- that there was going to be a link for 14 future innovations and enhancements that will 15 be available on the desktop, but the Microsoft 16 Office applications group is going to be the 17 one that's going to be leading that and doing 18 that. 19 And the final part is that the 20 independent software vendors were told that 21 they could not use those APIs to develop their 22 extensions the way some of Microsoft's software 23 did. 24 Q. So Microsoft is doing it internally, 25 but externally the ISVs are told they can't do 8065 1 anything? 2 A. That's the -- that's what the message 3 is, yes. That's what they're told. 4 Q. And is that a church and state issue? 5 A. Well, it's certainly a church and 6 state issue. 7 MR. LAMB: Could you go to the next 8 block or the next two paragraphs under however? 9 Q. Mr. Henson goes on to say, however, 10 this is not the limit of what is going on 11 internally. 12 As I mentioned, there is a lot of 13 internal development going on where various 14 groups are implementing these interfaces to 15 varying degrees. Again, I don't mind if these 16 various groups are doing this development work, 17 as long as it is in the way that MSN is doing 18 it, coming up in their own view, separate from 19 the system. 20 We can then move the interfaces back 21 to the standard Win 32 set and with a little 22 ISV reeducation on our part, all is well. 23 Today, my perception changed 24 drastically. I have just installed Athena, the 25 lightweight PIM from the PSD group, onto my 8066 1 system, and to my dismay, they are not only 2 using the namespace extensions, but they are 3 also displaying themselves in the scope, left, 4 pane and view, right, pane. 5 This is the exact thing we told ISVs 6 they could and should not do. 7 So Mr. Henson is essentially saying 8 that we told ISVs they couldn't do it, but our 9 internal applications group is doing it? 10 A. That's correct. 11 Q. He goes on to say, in short, we have a 12 product that will be sold in the very near 13 future that will implement interfaces that we 14 told ISVs they should not use because we would 15 not be able to support them moving forward. 16 In the meantime, we were developing a 17 product that did exactly that. I can't even 18 express how, all caps, bad this is. We loose 19 everything when we do this. Credibility, 20 trust, leverage, the works. 21 What's strange about all of this is 22 that it looks like this product works fine on 23 NT as well. 24 Sir, is this an instance in your 25 opinion of distributing truthful information? 8067 1 A. You're referring to the Q and A 2 disclosure? 3 Q. This whole thing. 4 A. It turns out that that's not what 5 happened. 6 Microsoft's public disclosures to 7 independent software vendors were not, in fact, 8 what it did internally and what it had its own 9 developer, applications developers do. 10 WordPerfect, for example, relied on 11 the statements that namespaces -- namespace 12 extensions were not going to be available and 13 threw their development away, considerable cost 14 to them. 15 There's testimony from I think it's 16 Mr. Harral from WordPerfect describing the fact 17 that they had done all of this stuff, using 18 these interfaces, and when they got the message 19 that that's not where we're going, Microsoft 20 says that's not where we're going, they 21 followed Microsoft's statements, even though 22 certainly WordPerfect believed that its 23 implementations were very innovative and very 24 attractive; in fact, that they provided 25 WordPerfect product potentially with some very 8068 1 good advantages in the market. 2 They threw that away. Meanwhile, 3 Microsoft's own team, applications team was 4 working on that using those interfaces and 5 developing software that used those interfaces, 6 contrary to the statements to ISVs. And, in 7 fact, they worked. They worked both with the 8 Windows NT software and the Windows 32 Chicago 9 Windows 95 software, contrary to the 10 suggestions in the Q and A that, in fact, it 11 wouldn't work, wouldn't be able to work with 12 Windows NT and Windows 95, so -- 13 Q. One of the lines of questioning -- we 14 talked about it briefly already -- that 15 Mr. Holley had to you was this concept that 16 very few people complained, very few people 17 posted on the bulletin boards. 18 Assuming that that's true, does that 19 matter in this instance or is this another 20 instance of we don't know what we don't know? 21 A. Well, certainly it's my experience 22 through the record that it has been developers 23 not knowing all of the details of why an 24 interface is pulled back, why interfaces are 25 not disclosed, whether interfaces that are 8069 1 present are being used by Microsoft's 2 applications. 3 So that is -- that's really the case. 4 It is the circumstance; that it is 5 they don't know what they don't know. 6 Certainly some developers have discovered 7 pieces of stuff that they don't know, but they 8 don't have the benefit of being able to see 9 both sides here. 10 Q. And all of this impacts time to 11 market? 12 A. Time to market, quality, capability. 13 The core attributes of the software are 14 affected. 15 Q. So, Mr. Alepin, in your professional 16 opinion, after Microsoft had promised to ISVs 17 that it would maintain this separation of 18 church and state and then failed to keep this 19 separation of church and state and failed to 20 disclose APIs, is that the kiss of death? 21 A. It's -- it leads to incompatibilities, 22 and incompatibilities are the kiss of death. 23 MR. LAMB: Would this be a good time 24 for a break, Your Honor? 25 THE COURT: Take a ten-minute recess. 8070 1 Remember the admonition previously 2 given. Leave your notebooks here. 3 Ten minutes. 4 (A recess was taken from 9:50 a.m. 5 to 10:08 a.m.) 6 THE COURT: Please be seated. 7 Mr. Alepin, you're still under oath. 8 Mr. Lamb, you may continue. 9 MR. LAMB: Thank you, Your Honor. 10 Can you put 9923 up? Can you 11 highlight the kiss of death comment? Just the 12 first paragraph. 13 Q. And again, sir, this is the exhibit 14 that was the letter from Jeremy Butler, a 15 senior vice president of Microsoft, to Leonard 16 Liu of Acer, and I want to relate this and go 17 back to the questions that you had yesterday 18 where Mr. Holley suggested that a couple of 19 reports of noncompatibility are not significant 20 and read to you what Mr. Butler says. 21 It only takes a couple of reports 22 about noncompatibility to give the kiss of 23 death to a PC. We've seen that on the hardware 24 side as well as in the operating system area. 25 Do you see that, sir? 8071 1 A. I do. 2 Q. And do you agree with that statement 3 from Mr. Butler? 4 A. Oh, yes. 5 Q. Also, sir, when you were testifying 6 earlier today, I asked you a series of 7 questions about the documents and the reports, 8 and I want it to be clear. 9 You didn't review every exhibit and 10 every report; right? 11 A. No. 12 Q. But you reviewed that which you felt 13 was sufficient for you to render your opinions; 14 right? 15 A. That's correct. 16 Q. And a number of the reports had 17 exhibits attached, but some of the reports have 18 exhibits referenced in the reports; right? 19 A. That's correct. 20 Q. Okay. And you were capable and could 21 look at them either whether they were 22 referenced or whether they were attached; 23 right? 24 A. Technologically, as I think you've 25 said, I have the capability to do that. 8072 1 Q. And as you sit here today, you don't 2 necessarily recall every document you have 3 reviewed; right? 4 A. Not possible to do that. 5 Q. Okay. Thank you, sir. 6 Now, I want to look at a time frame 7 around 2002, 2003 regarding undisclosed APIs. 8 Was there a point in time where 9 Microsoft disclosed a large group of previously 10 undisclosed APIs? 11 A. There have been a couple of those. In 12 2002 there was another one of those episodes. 13 Q. Do you recall how many were disclosed 14 in 2002? 15 A. Hundreds, I believe. 16 Q. Hundreds, okay. 17 MR. LAMB: Can you show them Exhibit 18 1440? 19 Can we put 1440 on the board, please? 20 I want to go back in time. If you could start 21 on the second page first, Darin, because these 22 read chronologically going forward. 23 The bottom message, if you could 24 highlight that and blow that up or blow that up 25 for us. 8073 1 Thanks. 2 Q. This is from Cameron Myhrvold, and we 3 had just seen a message from Cameron Myhrvold 4 to Brian V., Doug H-e, Jon Lu, R Segal. Do you 5 know who any of those people are? 6 A. Brian V. I believe is Brian Valentine. 7 R. Segal is Rick Segal. Jon Lu, Jon Ludwig. 8 And, of course, Cameron Myhrvold. 9 Q. And according to Mr. Myhrvold, he 10 says, Paul Ma -- that's Paul Maritz; right? 11 A. That's Paul Maritz. 12 Q. Maritz, I'm sorry. 13 -- thinks we have to document the 14 bullet and bandit stuff and Daniel P. has 15 committed. 16 I do not know time frames, but clearly 17 there is a big exposure with guys like -- it 18 says Andrew Sculman. You understand that to be 19 Andrew Schulman; right? 20 A. Yes. 21 Q. Again, the book, right? Among many 22 others? 23 A. Among others, yes. 24 Q. Okay. There is big exposure with guys 25 like Andrew Schulman running around. If we do 8074 1 not do this expeditiously, we lose the value of 2 doing it at all. Brian, Rick, when do we think 3 this will be completed? Cam. 4 Now, do you understand that he's 5 talking about whether or not they're going to 6 disclose previously undisclosed APIs? 7 A. That's correct. 8 MR. LAMB: If you can go to the 9 message above that. 10 Q. And this is the response from Brian 11 Valentine. 12 And according to Mr. Valentine, he 13 says, I want us to be very, very clear here on 14 what is going on, else we are going to dig 15 ourselves a hole and be screwed for the future. 16 What I understand as to what you are 17 doing as far as the white paper is docing 18 undocumented APIs that apps may be using. 19 Well, since mail and -- that's 20 Schedule+, right, SC+? 21 A. That's Schedule+, right. 22 Q. Since mail and Schedule+ are in the 23 OS, they are not apps. So I don't see any 24 reason to doc anything. 25 Now, let's stop there. 8075 1 At some point in time Microsoft was 2 taking the position that if an application was 3 in the operating system, then, they didn't have 4 to disclose APIs; right? 5 A. They have taken that position several 6 times, yes. 7 Q. Okay. He goes on to say, Word, Excel, 8 PPT -- PowerPoint; right? 9 A. Right. 10 Q. -- project, et al., just use simple 11 MAPI, MAPI, to add the send on their menu. 12 They don't use anything else. 13 I can see a nice, well-organized white 14 paper that talks about using simple MAPI and 15 how to mail enable apps, et cetera, et cetera, 16 but I don't see it docing any store, address 17 book, et cetera, APIs. 18 Granted, there are literally thousands 19 of APIs that deal with the MMF file, that deal 20 with address book, et cetera, et cetera, but, 21 all caps, we should not, end caps, publish 22 these. 23 Nobody is using them except for mail 24 and Schedule+. We don't publish all the 25 internal Windows APIs or data file formats, 8076 1 just the ones that apps have used. So we need 2 to make sure that we are in line on exactly 3 what Rick's paper is going to be. 4 He says in there, we publish internal 5 Windows APIs or data file formats if apps have 6 used them. 7 Do you see that? 8 A. I do. 9 Q. And is that because that application 10 is then out there for the public, and in order 11 for another ISV to deal with that, it has to 12 know what those APIs are? 13 A. I think I understand your meaning, but 14 -- and that is that it's because Microsoft 15 application is using Windows operating system 16 APIs. 17 Q. Right. 18 A. And then Microsoft has to disclose 19 them to other independent software vendors? 20 That's the idea, that's correct. 21 Q. Or they won't be able to operate with 22 that Windows application; right? 23 A. They won't -- they won't be able to do 24 the things the Windows application does. 25 Q. They won't be able to run it? 8077 1 A. No, they won't be able to be a word 2 processor, for example, or a mail program or in 3 the ways that Microsoft's application is being 4 a word processor or a mail program when used 5 with the operating system from Microsoft. 6 Q. Okay. 7 MR. LAMB: If you could go to the 8 front page, and if you could highlight the 9 message or blow up the message that's from 10 Cameron Myhrvold. The middle one right there, 11 yes. 12 Q. And Mr. Myhrvold says, to answer your, 13 quote, global question, unquote, we 14 unfortunately cannot hide behind the, quote, 15 it's not an app, it's part of the system, end 16 quote, defense for bullet and bandit. 17 Schulman -- again, Andrew Schulman; 18 right? 19 A. Right. 20 Q. -- took apart all of the Windows shell 21 apps in his book. We, all caps, will be 22 specifically tried for these interfaces. 23 Ideally, we should document everything 24 the bullet and bandit themselves use. 25 Now, this may sound horrible, but, 8078 1 one, we'll document, but we, all caps, will not 2 encourage, and, in fact, we'll aggressively 3 discourage any use of these interfaces by ISVs 4 and won't be talking about them. 5 And, two, remember we are not going to 6 stick this doc into a book or even an SDK box. 7 It will be written up as a white paper and, 8 quote, inserted, end quote, into the MSDN 9 CD-ROM containing hundreds of meg of other tech 10 notes. 11 It will be very, quote, low profile, 12 unquote, but it will provide enough, quote, air 13 cover, unquote, for us to say they are 14 documented. 15 It seems to me that Mr. Myhrvold is 16 suggesting that -- well, we have to document 17 it, but let's bury it in a bunch of other 18 documents so no one can find it. 19 MR. HOLLEY: Objection, Your Honor. 20 Leading. 21 THE COURT: Sustained. 22 Q. Can you explain to the jury what you 23 believe Mr. Myhrvold is suggesting that they do 24 from a technological perspective? 25 A. Well, I described the MSDN -- 8079 1 Microsoft developer network, which included a 2 website, but in addition, it also includes a 3 monthly subscription, if you want and pay money 4 for, that will give you tens, or in some cases 5 probably hundreds, of CDs that contain 6 information and programs from Microsoft. 7 What Mr. Myhrvold is suggesting is 8 that the documentation for these, for the large 9 number of APIs that are available in the 10 Windows operating system and used by Microsoft 11 applications, but are not disclosed to the 12 independent software vendor community, will be 13 written up in a document and buried in among 14 the hundreds of megabytes of other information 15 in the CDs that are sent out to the developer 16 community and the Microsoft user community, 17 allowing people to say that the specifications 18 or these interfaces are, in fact, documented. 19 Q. But they'd be hard to find; right? 20 A. I think that's the idea here, yes, 21 that they'd be hard to find. 22 Q. All right. 23 MR. LAMB: And then can you highlight 24 the top part of the message? 25 Q. This appears to be from Brian 8080 1 Valentine in response, and his response is, 2 all's I can say is holy API, Batman, I'm not 3 kidding. We are talking about literally 500 to 4 800 APIs here, no joke. 5 All of layers, all of MAPI, zero, 6 et cetera, and there's virtually no 7 documentation on these right now. It means it 8 will be literally many, many man months to get 9 this done, and all with no resources allocated 10 to do this. 11 Paul Ma. That's Paul Maritz? 12 A. Right. 13 Q. Is this what we really want to do? It 14 will not be a white paper, but a very large 15 white book. 16 Now, in relation to church and state, 17 Microsoft did not always take the position that 18 they were going to have a separation of church 19 and state; correct? 20 A. Well, I think the original church and 21 state comments go back to 1983. So if you're 22 talking about a period before 1983, I don't 23 think it would have been a concern or 24 significant. 25 But I think beginning in and around 8081 1 1983, that was Microsoft's executives' 2 communication to the industry. 3 Q. Okay. And you're aware that at least 4 recently Microsoft has taken a position on 5 whether or not it should disclose APIs; right? 6 A. I need a little more specific -- 7 Q. I'm referring to the 12 tenets that 8 promote competition, number six, regarding 9 APIS. 10 A. Yes. 11 MR. HOLLEY: Your Honor, leading. If 12 he wants to ask him questions, he can, but he 13 can't tell him the answers. 14 THE COURT: Sustained. 15 Q. Are you familiar with what Microsoft 16 publishes on its website entitled Windows 17 principles, 12 tenets to promote competition? 18 A. I am. 19 MR. HOLLEY: Your Honor, may we 20 approach before anybody looks at this 21 document? 22 (The following record was made out of 23 the presence of the jury at 10:22 a.m.) 24 THE COURT: Mr. Holley. 25 MR. HOLLEY: Your Honor, this 8082 1 document, which is on Microsoft's Web site, and 2 I accept that, but he talks about compliance 3 with the U.S. final judgment. 4 And it's my understanding that the 5 Court's ruling of the other day says Mr. Alepin 6 is not going to be testifying about compliance 7 or noncompliance with the U.S. final judgment. 8 And I don't know how he can insert about this 9 paragraph without getting precisely into that 10 subject. 11 If they open the door to this, we are 12 going to come in here and testify about 13 compliance with the final judgment, but it was 14 our understanding that the Court didn't want 15 that to happen. 16 MR. LAMB: Well, that's not what he's 17 going to testify to. And if it would make you 18 happier, is there a section that we can block 19 out that I could have him block out so it 20 doesn't refer to that? 21 MR. HOLLEY: But the whole point of 22 these 113 APIs that he's now eliciting 23 testimony about, Mr. Lamb, is they were 24 disclosed pursuant to the final judgment. 25 They were internal to Windows, and 8083 1 Microsoft agreed with the government to 2 disclose them. And, you know, you can make 3 whatever suggestion you want about whether they 4 should have been disclosed earlier, but this is 5 taking us squarely into the U.S. final judgment 6 and what we've done pursuant to the judgment. 7 MS. CONLIN: May I -- 8 MR. LAMB: This has nothing to do, 9 actually, with that. What I'm trying to do is 10 establish that at least as of this date, July 11 2006, this is Microsoft's policy. 12 MR. HOLLEY: Okay. But -- 13 THE COURT: What are you going to show 14 the jury? 15 MR. LAMB: I was going to show them 16 this, but I'm willing to have certain words 17 excised if that's the problem with the final -- 18 THE COURT: Well, the Court had 19 previously ruled that -- I think in regard to 20 Microsoft, that they can show what they've done 21 since the ruling. They can't show that it was 22 done in compliance with any particular order. 23 MR. LAMB: I'm not saying that. 24 MS. CONLIN: If we just started here. 25 If we blocked all of this out -- 8084 1 THE COURT: But that portion that I 2 just read says they didn't comply. Why are you 3 going against my order? 4 MS. CONLIN: Your Honor, these were 5 not issued -- these 12 tenets were not issued 6 in compliance with the government case, but it 7 does refer to the government case and -- at 8 least that's what Mr. Smith said. 9 THE COURT: I don't want it referred 10 to the government case. 11 MS. CONLIN: But there's a part of it, 12 Your Honor, that if we blocked out the top 13 part -- if we started with the words "going 14 forward," then there's no referencing that to 15 the government case. 16 The 12 tenets, according to what I 17 read of Mr. Smith, who is now the general 18 counsel, these were sort of Microsoft's 19 voluntary effort to go even further than the 20 government case. 21 MR. LAMB: Can I make a suggestion, 22 sir? 23 THE COURT: Go ahead. 24 MR. LAMB: This was not an intention 25 to be a problem. 8085 1 Maybe what we can do is because 2 there's concern about posting it, maybe I can 3 read where it says "going forward" to him and 4 ask him if he thinks that's consistent with 5 Microsoft's policy. That's, really, the only 6 thing I'm trying to do. 7 THE COURT: Comment. 8 MR. TULCHIN: May I be heard, Your 9 Honor? 10 THE COURT: Yes. 11 MR. TULCHIN: I know Mr. Lamb had 12 delivered a rather stern lecture to me a couple 13 days ago about two lawyers being heard on the 14 same matter, but in light of the fact that 15 Ms. Conlin was just heard. 16 This has two problems, if I may. One 17 is it does go quite close to the line. I think 18 over the line concerning the Court's prior 19 order about the final judgment. And Ms. Conlin 20 said -- I think it was yesterday, but it might 21 have been Wednesday -- that whenever a party 22 was going to do something that came anywhere 23 close to the line, that party had an obligation 24 to come to the Court first and get it 25 precleared. That's what led to Mr. Holley's 8086 1 disclosure of his line of cross-examination, 2 the sort of almost "offer of proof" subject 3 that we had the other day. 4 And, secondly, Your Honor, even aside 5 from the final judgment, what Mr. Lamb is 6 trying to do, in effect, is comparable to a 7 subsequent remedial measure type piece of 8 evidence. The steps had crumbled and someone 9 fell. And subsequent to the accident, the 10 steps are repaired. 11 And the plaintiff seeks to put in 12 evidence that the steps were repaired to show 13 that somehow in the prior period there must 14 have been some negligence. 15 The disclosure in 2006 of these APIs 16 is meant, I think, to create the inference to 17 the jury that there was some obligation to have 18 disclosed APIs in 1991 or '2 or other periods. 19 So I think for both those reasons, 20 this ought not to come in. 21 THE COURT: All 12 tenets? 22 MR. HOLLEY: No, Your Honor. The one 23 relating to APIs. 24 MR. LAMB: I only want -- just to 25 be -- 8087 1 THE COURT: Go ahead. 2 MR. LAMB: -- just to be clear, I 3 mean, I won't even put the "going forward" if 4 that's an issue. 5 MR. TULCHIN: The whole thing is an 6 issue. 7 MR. LAMB: Well, all I want to 8 establish is Microsoft will ensure that all the 9 interfaces within Windows called by any other 10 Microsoft product such as a Microsoft Office 11 system or Windows Live will be disclosed per 12 use by the developer community general. 13 That means that anything that 14 Microsoft's products can do in terms of how 15 they plug into Windows competing products will 16 be able to do as well. That's it. And is that 17 your understanding of the current Microsoft 18 policy? And I will simply read it. That's all 19 I'm trying to establish, and I apologize if 20 there's any -- 21 THE COURT: No. I just want to hear 22 from Mr. Holley. 23 MR. HOLLEY: If that gets read, Your 24 Honor, I just want it to be very clear that 25 when it comes to be our turn, that we can put 8088 1 on a witness to testify what Microsoft has done 2 to comply with this tenet as stated on the Web 3 site because as Mr. Tulchin says, the inference 4 will be created that somehow somebody tripped 5 on the sidewalk and the crack was fixed. 6 And we're -- having opened the door to 7 that, then we need to come back in our case and 8 testify about what we've done both before and 9 after. And we will be conscious, Your Honor, 10 of not doing what you told us not to do, which 11 is talk about compliance. 12 THE COURT: Yeah. 13 MR. HOLLEY: But we will need to do 14 that if this is read. 15 THE COURT: I think what I said was I 16 wasn't concerned in my ruling -- I'll go back 17 and look at it -- was that you can say what 18 acts you've done. 19 MR. HOLLEY: We can't claim it's in 20 compliance. 21 THE COURT: You can't claim it is in 22 compliance. I think that was my ruling unless, 23 Ms. Conlin, do you have a different 24 recollection? 25 MS. CONLIN: I do not, Your Honor. I 8089 1 have exactly the same recollection. 2 THE COURT: That is fine. 3 MR. HOLLEY: So you just read -- 4 THE COURT: Just that part, that's 5 fine. 6 MR. HOLLEY: All right. 7 MR. TULCHIN: I still have an 8 objection to this, Your Honor, for the grounds 9 stated. This is equivalent to the subsequent 10 remedial measure type evidence. This, by the 11 way, comes outside the class period. 12 Mr. Alepin has already testified about 13 events outside the class period. Class period 14 ended June 30, 2006. He's testified about 15 Vista in October and November 2006. He's 16 testified about events that he says will take 17 place in January 2007, all of which has opened 18 the door to our evidence about the events 19 subsequent to the class period. 20 But what Mr. Lamb is trying to do not 21 only I think is improper for the reasons 22 stated, the two prior reasons, but again, we're 23 even outside this 12-year class period. The 12 24 years, you'd think, would be enough. 25 THE COURT: When did the tenets come 8090 1 out? It says July 19th. 2 MR. LAMB: Well, I think they were 3 posted before this. This is July 2006. 4 MR. HOLLEY: No. I had a hand in 5 writing these. They came out in July of '06. 6 THE COURT: That's past the period. 7 MR. TULCHIN: They've ignored that in 8 the past, which I find befuddling. 9 THE COURT: It wasn't objected to 10 until now. 11 MR. LAMB: Okay. 12 MS. CONLIN: And offered on intent and 13 on the issue of -- 14 THE COURT: That's something after the 15 class period. 16 MS. CONLIN: Your Honor, but if this 17 were a different kind of case where we were 18 talking about the situation that Mr. Tulchin 19 describes, we would still be able to offer 20 subsequent conduct on the issue of punitive 21 damages in such a case. 22 Now, this is a little closer in time 23 than we are generally dealing with, but I think 24 that subsequent conduct cannot be offered to 25 prove negligence. And, of course, that only 8091 1 applies -- I'll get my rule out -- because I 2 think that only applies in tort cases, but I 3 could be mistaken about that. 4 But setting that aside, Your Honor, 5 even in a tort case, subsequent conduct can be 6 offered for any reason except to prove 7 liability. 8 MR. HOLLEY: Your Honor, certainly it 9 can't be the plaintiffs' position that in 10 seeking exemplary damages under the Iowa 11 Competition Law they're entitled to talk about 12 things that happened, you know, after the class 13 period because the willfulness had to occur in 14 the 12 years covered by the lawsuit. How could 15 that be? 16 MS. CONLIN: Well, I believe that it 17 not only can be but that it is. 18 MR. GREEN: I think you're talking 19 about comparative trial statute. 20 MS. CONLIN: No, no. We're talking 21 about -- 22 MR. GREEN: Well, the prima facie case 23 of punitive damages in Iowa, if you're going to 24 get into that, then we will have a lot of 25 problems with what you're doing. I don't think 8092 1 it has anything to do with this. 2 MS. CONLIN: Maybe we should all look 3 at the rules and see if it applies here, but I 4 think it does not. But that would be -- I 5 think that would answer all these questions. 6 MR. LAMB: Maybe -- can I ask this? I 7 mean, if that's the concern, I would be happy 8 to talk about the time period. "And when I 9 refer you to the time period of, say, late 10 2005, early first quarter 2006, is it your 11 understanding whether or not Microsoft had a 12 stated policy regarding disclosing APIs?" And 13 I will ask him -- 14 MR. HOLLEY: Not that policy, 15 Mr. Lamb, because that policy did not come into 16 existence until after the end of the class 17 period. That is a new policy. It's a new 18 policy. 19 Ms. Conlin made this point with 20 Mr. Johnson at his deposition in August. Maybe 21 I have the date wrong, but her point was -- 22 MS. CONLIN: It went on forever. 23 MR. HOLLEY: Okay. Fine. But your 24 point was that it was a new policy. 25 You just can't resist sometimes. 8093 1 MS. CONLIN: Nor can you. 2 MR. LAMB: I mean, I think he's 3 already stated -- he's testified -- Alepin has 4 testified that the public policy of Microsoft 5 was that they were going to maintain church and 6 state and they were going to disclose APIs. 7 THE COURT: When is it your 8 understanding or the witness's understanding 9 that it changed? 10 MR. LAMB: There hasn't been a change. 11 That's -- so I don't think this is a subsequent 12 remedial -- I don't think their policy ever 13 changed. I think their actions changed, but I 14 don't think their policy ever changed. So 15 that's what I'm having difficulty with. He 16 just testified that this started in 1985 in 17 church and state. 18 MR. TULCHIN: I think we have to wait 19 for recross because he's wrong about it. The 20 witness was wrong about it. His testimony is 21 entirely false. But leaving that aside, what 22 Mr. Lamb is doing right now is trying to, with 23 all respect, confuse the issue. 24 The issue of a policy published in 25 2006 can't -- and I haven't heard any argument 8094 1 that it is admissible in this case because it's 2 after the class period and for the other 3 reasons I stated. 4 I also do think it's not violative of 5 the Court's order about compliance with the 6 final judgment. Close enough to the line where 7 by Ms. Conlin's rule we should have had a 8 conference on the subject. 9 But going to Mr. Lamb's comment for a 10 moment. The separation of church and state did 11 not pertain directly to whether APIs were 12 disclosed. And maybe there's some confusion 13 here, but for the Court's benefit, if I may, 14 the idea of separation of church and state -- 15 and we will see on recross evidence that 16 Microsoft disclaimed that that was the 17 company's policy publicly, the idea of the 18 separation of church and state is that 19 applications developers at Microsoft would 20 learn no more about the APIs of the operating 21 system than outside developers, ISVs. 22 It's entirely different to the 23 question of whether or not APIs had to be 24 disclosed. Mr. Alepin testified on direct 25 examination from Mr. Lamb several days ago that 8095 1 there are internal and external APIs, that 2 internal APIs should not, not only need not be 3 disclosed to the outside world, but should not 4 be for good technical and business reasons. 5 And what Mr. Lamb is now doing is 6 arguing to the jury, and it's entirely false, 7 that if you don't disclose APIs, all the APIs 8 to everyone, everyone in the outside world, 9 that somehow that violates the policy of church 10 and state. There wasn't such a policy, but if 11 there had been such a policy, that would only 12 mean that the internal APIs were kept internal, 13 not just for the outside world but for 14 Microsoft applications developers as well. 15 So this is just a massive confusion 16 here. Everyone has acknowledged, including 17 this witness, that internal APIs should be kept 18 internal. This policy, which comes after the 19 government case and was issued in July of 2006, 20 and these plaintiffs asked for a class period 21 that extended through June 30, 2006. They 22 asked for it. That's what the Court gave them. 23 And, knowingly, they're now getting into a 24 period after that, which I must say, after a 25 12-year clear period and their evidence going 8096 1 back to 1987 and '88 and other years, well, 2 prior to the class period, they now want to go 3 forward in time past the end of the class 4 period, which I guess requires us to do the 5 same thing and to talk about the Vista 6 operating system that has been shipped to OEMs 7 and will be available publicly within the next 8 week or two. There just doesn't seem to be any 9 limits to where this case begins or ends. 10 MS. CONLIN: Let me first address the 11 undocumented APIs, Your Honor, because there is 12 a misstatement going on in this room but it's 13 not ours. 14 What we contend, what the industry 15 accepts is that any API used by an application 16 of Microsoft's should be documented, and 17 whether it's in the operating system or outside 18 the operating system, if a Microsoft 19 application is calling into the operating 20 system and using an API function inside there 21 to enhance its performance, then that is an API 22 that should be documented and made available to 23 the ISV community, wherever it is. 24 That's our position. I believe that's 25 the position that Microsoft acknowledges in its 8097 1 own documents. That's what we were just 2 looking at. A document from Myhrvold saying 3 we've got to document these because they're all 4 over the place. We're using them. 5 So setting that aside, there may be a 6 way for us to approach this that will not -- 7 that will not even require the use of the 8 document. But we're going to need a little 9 time to think about it, and as well as to take 10 a look at whether or not the subsequent 11 remedial measures apply, as I believe it does, 12 only to cases under 668. 13 MR. LAMB: I don't need to use the 14 document. I'm just trying to try a case here. 15 And as far as the implication of 16 trying to violate the Court's order, the 17 procedure is I hand you a document, which was 18 handed. You object. We have a conference. 19 That is the purpose of it. 20 The purpose of what the Court said 21 earlier was not to go into a line of 22 questioning or area which I have done before, 23 okay? And I thought I gave you plenty of 24 notice. Obviously, you objected. We're back 25 here. That's what we're trying to deal with. 8098 1 There hasn't been a violation of the 2 Court's order. 3 MR. HOLLEY: I don't think anyone said 4 that you had violated the order, but the 5 procedure, as I understood it explained by 6 Ms. Conlin, was that before a question is 7 hanging in the air as it is now and a document 8 is described to the jury as it now has been, 9 it's better to raise the subject with the Court 10 so that we can get it resolved in advance. And 11 that's what I tried to do with the testimony 12 about Ms. Bingaman and the Vaporware and the 13 FUD. 14 And I guess I just ask that the same 15 rules apply to both sides, and I'm certainly 16 not making any bad-faith assertions against 17 anyone. I just want the same rules to apply. 18 MR. LAMB: I think that's what I did. 19 I handed it to you. It's highlighted. You 20 know, I gave you 10 or 15 seconds. You 21 objected. We're back here. I mean -- 22 THE COURT: We can do it one of two 23 ways. I can go ahead and rule, and if you want 24 more time to look at it to see if you want to 25 do an offer of proof, that's fine. If you want 8099 1 to go to a different subject area and we come 2 back to it, whatever you want to do. 3 MR. LAMB: I'll just go to a different 4 subject area. 5 (The following record was made in 6 the presence of the jury at 10:41 a.m.) 7 THE COURT: Continue with your 8 questioning. 9 MR. LAMB: Thank you, Your Honor. 10 BY MR. LAMB: 11 Q. When you're talking about undisclosed 12 APIs, Mr. Alepin, there was some questioning 13 from Mr. Holley about internal and external 14 APIs. 15 What is the concern about what should 16 be disclosed in relation to APIs? 17 A. Well, the concern in the independent 18 software development community is that the 19 interfaces that are disclosed by the Microsoft 20 Windows operating system be the same as the 21 ones that the Microsoft applications developers 22 are using when they work with the Microsoft 23 Windows operating system. 24 Q. So it doesn't matter so much whether 25 you call it internal or external, it's whether 8100 1 it touches an application? 2 A. That's correct. 3 Q. Now, in that instance, can even a 4 small number of undisclosed APIs under that 5 definition make a difference? 6 A. They can and have, yes. 7 Q. And what's the bottom line for the 8 ISVs when that happens? What's the impact? 9 A. Well, the impact is higher development 10 costs, reduced functionality, longer 11 development times, lengthier time to market, 12 less reliable applications in terms of quality 13 of their software, and that's, you know, an 14 especially important attribute of their 15 software that suffers in comparison to the 16 Microsoft product. 17 MR. LAMB: Darin, could we get Slide 18 Number 796, please? 19 Q. You were asked some questions by 20 Mr. Holley about Slide 796, and I'm referring 21 specifically to SPAD. Can you explain to the 22 jury specifically what SPAD is again? 23 A. A SPAD is a feature or a function that 24 was introduced into the Windows operating 25 system product around 2002, I believe, that 8101 1 allows users to set program access and 2 defaults. 3 Q. And does that allow you to remove the 4 visible means of user access? 5 A. It -- that's its purpose. I 6 understand it to be, yes. 7 Q. Okay. And does SPAD work to remove 8 the visible means of user access for Windows 9 Media Player? 10 A. Not entirely, no. 11 Q. Not entirely. 12 Does SPAD work to remove the visible 13 means of access for Real media player? 14 A. Yes. 15 Q. Okay. 16 A. RealNetworks media player. I 17 understood that question, sorry. 18 Q. So the first is a Microsoft product, 19 the second is a non-Microsoft product? 20 A. That's correct. 21 Q. Does the add/remove function 22 completely remove the Windows Media Player? 23 A. No, sir, it does not. 24 Q. Does add/remove function complete the 25 Real media player? 8102 1 A. I believe it does. 2 Q. Okay. What's the impact of that on 3 ISVs? 4 A. Well, the impact on independent 5 software vendors -- this has multiple impacts, 6 but focusing on independent software vendors 7 for a moment, it tells them that there will be 8 only one media player that will be installed on 9 every Windows computer, and that will be the 10 Windows Media Player. 11 Q. And what's the impact to the user? 12 A. It means that the -- these independent 13 software vendors and independent content 14 providers will have a -- will focus on the 15 Windows Media Player platform more likely than 16 they will focus on the Real player platform; 17 and accordingly, they will be forced to deal 18 with the Windows Media Player even though they 19 may choose a different media player. 20 Q. So that impacts the user's choice? 21 A. It does, yes. 22 Q. I want to switch gears to BeOS, and 23 there was some testimony that was elicited 24 about that particular operating system in 25 relation to the dual boot being dangerous. 8103 1 And you were just asked that question, 2 but can you explain to the jury what that 3 means, that the dual boot could be dangerous? 4 A. Well, let's see, maybe I could use the 5 paper? 6 Q. Sure. 7 MR. LAMB: With the Court's 8 permission. 9 THE COURT: Sure. 10 Move the easel so the jurors can see, 11 please. 12 A. So on your computer, you've got the 13 disk drive, and what an OEM, a personal 14 computer manufacturer does is they preinstall 15 an operating system on the disk drive so that 16 when you turn the computer on, you'll go 17 through that initial boot-up sequence that we 18 talked about and then the operating system will 19 load. 20 What OEMs do in a nondual-boot 21 situation typically is that they will something 22 we call partition the hard drive. 23 They will partition the hard drive to 24 allow only one single operating system. One 25 single operating system will own and control 8104 1 the entire content of the hard drive. 2 And when the user boots up the 3 operating system, he will not have a question 4 which says which operating system would you 5 like to start. There's only one operating 6 system. 7 In a dual-boot environment, what 8 happens is the hard disk drive here is 9 partitioned so that one operating system, or 10 more, owns a portion of the hard drive and 11 another operating system owns a different 12 portion of the hard drive. 13 And the dual booting software, or part 14 of the job of preparing a computer to 15 accommodate dual booting is the idea of 16 partitioning the hard drive into one spot for 17 one operating system and another spot for 18 another operating system. 19 If you do this at home -- if you do 20 this at home starting from a computer that had 21 only a single operating system on it, what's 22 going to have to happen is you're going to have 23 to take back this part of the disk drive from 24 Windows and move all of the contents that might 25 have been in here up into the portion of the 8105 1 hard drive that you're reserving for Windows 2 and create this new partition area for your new 3 operating system. 4 When most users don't have backup 5 copies of their hard drive -- most users don't 6 make backup copies -- bad things can happen in 7 the process of moving this information here 8 into this area up here which we're going to 9 reconfigure for Windows only. 10 If you make a mistake during the 11 process of installing the second operating 12 system or repartitioning the hard drive, 13 getting ready to create the dual-boot 14 environment, then you're playing with your own 15 data, with your real data. So anything bad 16 that happens there, you have the risk at least 17 of losing your data and having a dead system, a 18 system that won't boot. 19 Q. And that's the question that you were 20 responding to when you said it was potentially 21 dangerous; right? 22 A. Yes, absolutely. 23 Q. Now, when you say partition, do you 24 mean physically separate, or are you just 25 talking about the software? 8106 1 A. No, it's physically separating these 2 -- although modern -- some modern operating 3 systems don't necessarily store your 4 information consecutively when they look at a 5 disk drive, they actually partition it into 6 physically consecutive locations on the disk. 7 So this is -- what I'm talking about 8 in partitioning is that this is from the 9 beginning to halfway through physically of the 10 disk. So it's an actual physical partition. 11 Q. Now, Mr. Alepin, what Be was 12 proposing, though, was the dual boot at the OEM 13 level; right? 14 A. That's correct. 15 Q. And that's different; right? 16 A. Yes. In the dual boot of the OEM 17 stage here, what happens is the OEM would 18 install Windows into a partition initially that 19 had been already set aside on the disk drive. 20 So the OEM gets the disk drive, 21 installs Windows on a partition, a portion of 22 the hard drive, and reserves the second portion 23 for the BeOS operating system and installs the 24 BeOS system on that second partition before 25 there's any user data, before there's any need 8107 1 to move data around or to run any kind of risk 2 of loss of user data. 3 So this process here would be OEM 4 getting the disk drive, partitioning it into 5 two partitions, installing Windows into one 6 partition, installing BeOS into the second 7 partition, and then installing the software 8 that when the system is started says which one 9 would you like to use today. 10 Q. Now, that process, the process that Be 11 was actually proposing, is that process 12 dangerous? 13 A. No, not at all. 14 Q. Can you take your seat again, please? 15 Now, I want to turn to a line of 16 questioning that Mr. Holley asked you regarding 17 certain comparisons that he was asking you to 18 do regarding software. 19 MR. LAMB: Could you put up Slide 785, 20 please? 21 Q. Now, do you recall Mr. Holley, he came 22 in here and he had a version of a Quicken and 23 he showed it to you? Do you remember that 24 version of Quicken? 25 A. I do. 8108 1 Q. And he tried to tell you that it was 2 a, quote-unquote, basic version; right? 3 A. I think there was a mention of the 4 basic version. 5 Q. But it wasn't the basic version; 6 right? 7 A. No, it was not. 8 Q. It was a premier version; right? 9 A. Yes, sir. 10 Q. And then Mr. Holley basically asked 11 you to do a comparison between Quicken and the 12 Windows XP Home Edition. Do you remember that? 13 A. Yes, sir. 14 Q. Okay. Now, Mr. Alepin, Quicken is a 15 software product; right? 16 A. That's correct. 17 Q. Okay. It's an application; right? 18 A. Yes. 19 Q. And Windows XP Home is an operating 20 system; right? 21 A. Operating system product, yes. 22 Q. Is Quicken a product that is a 23 reasonable substitute for Windows XP? 24 A. No. 25 Q. Is there any technological reason to 8109 1 make a comparison between those two products? 2 A. One's -- one contains an operating 3 system, the other is an application system. 4 There's no reason to compare them 5 technologically. 6 Q. Is that a product that competes with 7 the other product? Does Quicken compete with 8 Windows operating system? 9 A. No. 10 Q. Are they reasonably interchangeable? 11 A. No. 12 Q. Are they reasonable substitutes? 13 A. No. 14 Q. Okay. And then Mr. Holley asked you 15 to do a comparison between Windows XP and 16 Norton Internet Security. Do you recall that? 17 A. I do. 18 Q. And Norton Internet Security, that's 19 an application; right? 20 A. Well, I think I described it in the 21 context of a utility. 22 Q. A utility? 23 A. Yes, but it's a -- 24 Q. Is that more accurate, a utility? 25 A. It's a category of software that -- 8110 1 Q. Okay. And is it an operating system? 2 A. No, it is not. 3 Q. Okay. Is it a reasonable substitute 4 for Windows XP? 5 A. No, it is not. 6 Q. Is it a product that competes with 7 Windows XP? 8 A. No, it does not. 9 Q. Is it interchangeable with Windows XP? 10 A. No, not at all. 11 Q. Is it a reasonable substitute for 12 Windows XP? 13 A. No, it is not. 14 Q. In your mind, is there any reason 15 technologically to do a comparison between 16 Norton's antivirus and Windows XP? 17 A. We were talking about Norton Internet 18 Security just to be clear -- 19 Q. I'm sorry, Norton Internet Security. 20 I apologize. 21 A. No, there is not. 22 Q. Now, Mr. Alepin, at the conclusion of 23 your testimony, you put up a number of tactics 24 that Microsoft engaged in in your professional 25 opinion up on the white board. 8111 1 Do you remember that? 2 A. I do. 3 Q. And Mr. Holley got a little bit upset. 4 He thought you were erasing the white board, 5 but you didn't erase the white board; right? 6 A. No, I didn't. 7 Q. So it's still there if Mr. Holley 8 wanted to look at it during cross; right? 9 A. I believe it is, yes. 10 Q. And all those tactics you believe 11 still happened; right? 12 A. I do, yes. 13 Q. And in your professional opinion, 14 you're certain to a reasonable professional 15 certainty of all the opinions you've expressed 16 over now it's almost seven days; right, sir? 17 A. Yes, I am certain, and it is almost 18 seven days. 19 Q. My bad. 20 And during the course of your 21 testimony, I have impelled you numerous times 22 to go up on the white board and on the paper 23 and do drawing after drawing after drawing; 24 right? 25 A. Yes. 8112 1 Q. I apologize for that. And Mr. Holley 2 made a point of saying save all those drawings, 3 I want to use them; right? 4 A. Yes. 5 Q. He didn't use a single one with you, 6 did he? 7 A. I don't think so, no. 8 MR. LAMB: Thank you, sir. 9 THE COURT: Take our lunch recess at 10 this time. 11 Remember the admonition previously 12 given. 13 Leave your notebooks here. 14 Instead of coming back at 12, please 15 come back at 12:15. There's a matter of law 16 the Court needs to take up. It will take about 17 15 minutes. 18 12:15. 19 (A recess was taken from 10:59 a.m. 20 to 11:57 a.m.) 21 (The following record was made out of 22 the presence of the jury.) 23 MR. TULCHIN: Your Honor. 24 THE COURT: Yes. 25 MR. TULCHIN: I just wanted to 8113 1 disclose to the Court that about 20 minutes ago 2 or so, I was outside the courtroom with 3 Ms. Nelles, and one of the jurors, 4 [identification redacted] came up the stairs, and on her 5 way past us, stopped and talked to me and 6 Sharon about the weather. 7 She said it's very, very cold out and 8 made some comment about how it had gotten cold, 9 and then said and my son lives in [redacted] and 10 he tells me that it was -- you know, recently 11 it was over 70 or something like that, and she 12 smiled and she walked on. 13 I was a little surprised that she had 14 stopped to talk to me, and I don't think, 15 honestly, I said anything, except I may have 16 said yes, it got really cold. I was just a 17 little surprised. 18 I don't object to it. I told Ms. 19 Conlin about it immediately, but I just wanted 20 the Court to know that at least one juror felt 21 that she could or should do that. 22 It's not a problem for me. I don't 23 think it is for Ms. Conlin, but in the interest 24 of having everyone know this, that's what 25 happened. 8114 1 THE COURT: Thank you for telling me. 2 MS. CONLIN: I had the same experience 3 this morning with [identification redacted], which surprises 4 no one. 5 We were coming into the courtroom at 6 the same time, and the total exchange was good 7 morning, Mrs. Conlin, to which I responded good 8 morning, [identification redacted]. 9 And I believe he also made a comment 10 about the weather, with which I had agreed. If 11 he said it was sunny and bright and 70 degrees, 12 I wouldn't have agreed, of course, but I 13 believe he said it was cold. 14 THE COURT: All right. I'll remind 15 them not to converse with you. 16 MS. CONLIN: I don't think they 17 understand the word pleasantries, Your Honor. 18 MR. TULCHIN: I don't want [identification redacted] 19 to feel that she did anything wrong. I don't 20 think she did. 21 THE COURT: Don't bring it up? 22 MR. TULCHIN: I'd rather you didn't. 23 I just wanted the Court to know. If it gets 24 beyond this, then, you know, I think she 25 should. 8115 1 THE COURT: I'm going to read the 2 admonition again. 3 MS. CONLIN: Your Honor, I don't think 4 we can handle this in 15 minutes, and I am 5 concerned about keeping the jury waiting, so I 6 want to bring up a couple of things, and then I 7 would like to do the motion to strike when 8 Mr. Alepin is done, if that's permissible, 9 depending on when it is. 10 We've got -- we've got depositions 11 ready to go, as well, and so we can go till 12 three without any trouble. 13 THE COURT: All right. 14 MR. HOLLEY: Your Honor. 15 MS. CONLIN: Without any problem. 16 MR. HOLLEY: I didn't mean to 17 interrupt Ms. Conlin. 18 Just as a matter -- and just obviously 19 I will change my plans if I have to, but I was 20 hoping since I am not arguing any of the 21 motions that I thought were on the calendar, I 22 was going to run to the airport. 23 I can change that or if we could do it 24 first thing Monday morning at eight or 25 something. 8116 1 MR. TULCHIN: Tuesday. 2 MR. HOLLEY: Tuesday morning, Your 3 Honor, at eight. Whatever Ms. Conlin wants. 4 My own personal preference would be to 5 leave at three or whenever Mr. Alepin's 6 finished. But, as I say, I'm at the Court's 7 disposal. 8 MS. CONLIN: I don't want to 9 inconvenience Mr. Holley, but I would hate to 10 put it off, so perhaps the answer is to stop a 11 little bit early today. Perhaps that's the 12 better answer. 13 THE COURT: What time is your flight, 14 Mr. Holley? 15 MR. HOLLEY: Your Honor, it's at 4:39. 16 I'm already checked in and I don't have any 17 bags; and as Your Honor knows, it doesn't take 18 any time to get to the airport, barring some 19 disaster. 20 THE COURT: We'll break early. 21 MR. HOLLEY: Can we play it by ear, 22 Your Honor, and just see how we are going? 23 MS. CONLIN: And be real conscious of 24 your situation. 25 THE COURT: We'll see how it goes, 8117 1 Mr. Holley. 2 MS. CONLIN: Here's the deal on what I 3 did want to take up, Your Honor. 4 You will recall that I offered 5 exhibits, a long list of exhibits, and the 6 Court has not ruled on those, and I would ask 7 the Court to do so. And then -- I have to 8 stand up. 9 I've now distracted myself. 10 One of the things that I hope is not 11 necessary, and I'm sure that the Defendants 12 will agree it's not necessary, is for the Court 13 to not read the numbers into the record. 14 What I would propose is we mark the 15 list itself as Court Exhibit A, or something of 16 that sort, so that we'll all know what's in and 17 the like, but it will avoid having the Court 18 rule, and maybe the Court can give a very brief 19 explanation to the jury of what we're doing and 20 why. 21 Ordinarily, you know, Your Honor, you 22 say the numbers, or somebody says the numbers, 23 but we -- Mr. Holley would have to cancel going 24 home if we started reading those numbers, Your 25 Honor. 8118 1 THE COURT: I agree with that. 2 Mr. Hagstrom did indicate this 3 morning, though, that Tuesday was all right. 4 MR. HAGSTROM: Microsoft had asked if 5 they could double-check the list till Tuesday 6 morning, Your Honor. 7 MS. CONLIN: That's fine, Your Honor, 8 but I want to -- here's the reason for asking 9 you to make a ruling subject to their checking 10 the accuracy of the list. 11 It's because we have a three-day delay 12 between the time the exhibits are admitted and 13 the time we can post them, and we wanted to 14 work on that. 15 And I'm assuming that if there are any 16 errors Microsoft discovers, they would let us 17 know promptly, or if there's something they 18 want to withhold in this list. They've been 19 over them quite recently, so I'm assuming they 20 made notes as they went. 21 But I would like to have them admitted 22 today subject to checking the accuracy. 23 MR. TULCHIN: Your Honor, I think we 24 agreed this morning -- it was off the record -- 25 with Mr. Hagstrom that we would do this 8119 1 Tuesday, and the reason for that is that there 2 are more than 3,000. 3 I don't think there are going to be 4 any problems, but I'd like to have until 5 Tuesday to just double-check that there are no 6 objections to each and every one of those and 7 then have the three days start running from 8 then about confidentiality. 9 Let me say two things about that. 10 One, I'm a little hesitant to ask 11 people to work over a three-day weekend on this 12 project. We've worked, you know, every weekend 13 on one project or another, but this seems like 14 something that ought not to prevent people from 15 getting away for a three-day weekend. 16 And, secondly, honestly, I don't think 17 there will be many of the 3,000 documents as to 18 which we'll have any concerns about 19 confidentiality. I don't think there will be 20 many. 21 There may be a few, but to do this job 22 properly really does require a person or 23 persons to sit there with the documents and to 24 read each and every one, and it's just a 25 tremendous volume. 8120 1 What I could do, if this helps, 2 Ms. Conlin, is to say, we'll do it, let's say, 3 two days from Tuesday, rather than three. 4 So for this one time, we'll shorten 5 that by a day. But at least, then, the people 6 who are planning to go home or have a nice 7 three-day weekend don't have to cancel. 8 MS. CONLIN: Well, Your Honor, there 9 shouldn't be any delay because -- in terms of 10 the privacy concern because they have just read 11 them all for the purpose of making their 12 objection. 13 I'm having some difficulty 14 understanding what the problem is. I wouldn't 15 mind a delay until Tuesday as long as we can 16 post on Tuesday, assuming that there are no 17 problems. We wouldn't post anything with which 18 there was a problem. 19 But this doesn't strike me as a 20 difficult, and certainly I don't -- while I 21 intend to work all over the three-day weekend, 22 I don't expect anyone else to do that. 23 So I'm not concerned -- I want to be 24 respectful of other people's needs, but it is 25 important to us that the documents be posted. 8121 1 That's why I offered them weeks and weeks ago. 2 And it is important to the computer software 3 community that they be posted and to the public 4 that they be posted. 5 And so my offer of a solution is that 6 they have until Tuesday, but when they're 7 admitted, we can post them. 8 THE COURT: Anything else? 9 MR. TULCHIN: I hate to drag this out, 10 Your Honor. I don't want to be petty about 11 this. 12 Yesterday we asked, because it would 13 have been much more convenient for us to argue 14 a motion Thursday afternoon. Mr. Hagstrom's 15 response -- I don't know if I'm quoting it 16 exactly -- was something like it can't be, I'm 17 not prepared, and on that basis, that was 18 deferred until this afternoon. 19 And we're really not asking much here. 20 I just -- I know Ms. Conlin thinks we should be 21 able to do this by Tuesday, but the review of 22 the exhibits for purposes of making objections 23 and the review for purposes of this 24 confidentiality issue are a little bit 25 different. We just want a little more time. 8122 1 MS. CONLIN: Well, Your Honor, 2 Mr. Tulchin makes a good point. If we can do 3 the two days, I think that's reasonable, David. 4 I think that's reasonable. 5 THE COURT: Very well. 6 MR. TULCHIN: Thank you, Your Honor. 7 THE COURT: Thank you for your 8 courtesy. 9 MR. HOLLEY: Your Honor, Mr. Lamb 10 informs me that he's done asking questions and 11 all he's going to do is introduce exhibits, and 12 I was wondering if it might just save us some 13 commotion if I moved over there now. Is that 14 all right, Your Honor? 15 THE COURT: That way you won't trip on 16 anything. 17 MS. CONLIN: Is this because you want 18 to be close to Mr. Lamb? 19 MR. HOLLEY: We are getting along 20 great. 21 MR. LAMB: He misses me. 22 THE COURT: He tried to trip you once. 23 MR. HOLLEY: He tried to clip me. 24 THE COURT: Illegal block in the back. 25 MR. LAMB: Depends on your 8123 1 perspective, Your Honor. 2 (The following record was made in 3 the presence of the jury at 12:15 p.m.) 4 THE COURT: Everyone else may be 5 seated. 6 Mr. Alepin. 7 Mr. Lamb, do you have any other 8 questions, sir? 9 MR. LAMB: I have no further 10 questions, Your Honor, at this time, but I 11 would offer the following exhibits into 12 evidence. 13 THE COURT: Go ahead. 14 MR. LAMB: 9923, 2246, 1032, 2383, 15 1440. 16 THE COURT: Any objection? 17 MR. HOLLEY: No objection, Your Honor. 18 THE COURT: Very well. 9923, 2246 -- 19 I was going too fast. She gave me a dirty 20 look -- 1032, 2383, 1440 are hereby admitted. 21 You may recross. 22 RECROSS-EXAMINATION 23 BY MR. HOLLEY: 24 Q. Good afternoon, Mr. Alepin. 25 Do you recall, sir, on your redirect 8124 1 examination being asked about the case 2 Commercial Data Servers against International 3 Business Machines Corporation? 4 A. I do. 5 Q. And some questions were asked to you 6 about a threshold attack that IBM made on your 7 testimony, and it was pointed out that the 8 Judge declined to throw the testimony out 9 completely. 10 Do you recall that, sir? 11 A. I believe that was the thrust of the 12 discussion, yes. 13 Q. And I'd like to look one more time at 14 Slide 771 that we looked at on your 15 cross-examination, and in particular the block 16 on the right-hand side. 17 And what Judge McMahon said here is, 18 expert testimony rooted in hypothetical 19 assumptions cannot substitute for actual market 20 data. Likewise, the speculative affidavits of 21 Mr. Alepin and Mr. Reed do not overcome for the 22 lack of hard evidence. 23 And it is the case, is it not, sir, 24 that even though Judge McMahon rejected IBM's 25 effort to throw your affidavit out in its 8125 1 entirety, he concluded upon consideration of 2 your affidavit that it was speculative and 3 lacked hard evidence? 4 A. I believe I have indicated that I did 5 not follow the proceedings after that, and so, 6 I mean, I'm not sure how to respond to the 7 question. 8 I can read the text on there, but the 9 purpose, as I understood my affidavit at the 10 time, would be that my statements would have 11 been -- it's my understanding here, it's a 12 legal process, but would have been supported by 13 evidence that's -- in this particular case the 14 CDS company would have presented to demonstrate 15 that the statements in my affidavit had 16 occurred in this particular -- in their 17 particular case, but, again, I don't want to 18 reach out beyond my knowledge of what the Judge 19 wrote in the process of the -- of how you 20 support or use affidavits in that particular 21 context. 22 Q. In any event, you have no reason to 23 doubt that Judge McMahon wrote what's up there 24 on the screen, which is that your affidavit was 25 speculative and did not overcome for lack of 8126 1 hard evidence? 2 A. No, I have no reason to -- subject to 3 what I just said, I have no reason to believe 4 that he didn't write that. 5 Q. Now, on redirect examination, I 6 believe you testified that graphical user 7 interfaces are not part of operating systems 8 because they do not provide services to other 9 applications. 10 Did I understand that correctly, sir? 11 A. That was not the intent. 12 They, like other software, can provide 13 interfaces. Microsoft's Office applications 14 provide interfaces. It was not my intention to 15 say that the Windows graphical user interface 16 does not provide APIs. 17 The browser provides APIs. Other 18 software provides APIs. Word processing 19 software provides APIs, or can. 20 Q. And as we saw on cross, the user 21 interface APIs exposed by Windows to do things 22 like create drop-down menus -- excuse me -- and 23 other UI elements are relied on by thousands 24 and thousands of applications; correct? 25 A. That's probably correct, yes. 8127 1 Q. Now, could we see Slide 715, which you 2 were shown on redirect, please? 3 Now, I think it's probably not too 4 blunt to say that you were suggesting that I 5 fabricated the user interface on the upper 6 left-hand corner. 7 Was that the intent of your testimony? 8 A. No. It was to -- no, it was not. If 9 I can explain. 10 Q. I just want an answer to my question. 11 Were you suggesting that I fabricated 12 that? 13 A. No. 14 Q. Now, did you have occasion to go on 15 the web before you said what you said on 16 redirect to figure out where that slide came 17 from? 18 A. No, I didn't. 19 Q. So you don't know that there's a 20 website called Lynucs, L-y-n-u-s-c, dot org 21 where that screen shot appears? 22 A. It may well appear there. 23 Q. And you are familiar, sir, are you 24 not, with the user interface for Linux called 25 Gnome, G-n-o-m-e? 8128 1 A. I am. 2 Q. And you also know, do you not, sir, 3 that one of the features of Gnome is that you 4 can change the cosmetics of the desktop to make 5 it look like Mac OS X; correct? 6 A. I do. I know that. 7 Q. Okay. You didn't say that on 8 redirect, did you, sir? 9 A. I was not asked that question. 10 Q. No, you weren't. 11 Now, you said on redirect that 12 Mr. Schulman, in the excerpts that I showed 13 you, was actually saying things inconsistent 14 with other parts of his book. 15 Do you remember saying that? 16 A. Well, there were excerpts from the 17 same book, and so they have a particular 18 context in his book. 19 However, the particular excerpts, I 20 think, did not place the -- did not provide the 21 context or the thrust of the book is what I 22 think I said. 23 Q. Okay. Let's focus on the testimony 24 that you gave on redirect about whether or not 25 Windows 95 sits on top of MS-DOS just like 8129 1 earlier versions of Windows. 2 Do you recall giving that sort of 3 testimony, sir? 4 A. That sort of testimony, yes. 5 Q. Yes. And it was your testimony that 6 even though it's called Windows 95, it's 7 actually just Windows 3 sitting on top of 8 MS-DOS held together by what Mr. Barrett called 9 bubblegum and baling wire. 10 Do you remember giving that testimony, 11 sir? 12 A. Well, the -- there were improvements 13 to Windows 3.1, the graphical user interface 14 between the Windows 3.1 product and the Windows 15 95 product. 16 So, I mean, I would -- subject to 17 improvements in the Windows 3.1 component of 18 the Windows 95 product, that's fine. 19 Q. Well, did you have occasion to look at 20 what Mr. Schulman wrote in any part of this 21 book about what Windows 95 was architecturally 22 and whether it was fair to describe it in the 23 terms that Mr. Barrett did as two pieces of 24 software held together with bubblegum and 25 baling wire? 8130 1 A. I don't find Mr. Barrett's 2 descriptions to be inconsistent with my 3 understanding. 4 Q. Well, let us -- 5 A. Maybe -- I'm sorry. I'm not sure I'm 6 responding to your question quite properly, 7 but -- 8 Q. No, I'm not sure you are either, so 9 let me be -- 10 A. I apologize. 11 Q. No, and maybe it's because I'm being 12 unclear. 13 What I wanted to know is whether you 14 looked at Mr. Schulman's book to see whether 15 Mr. Barrett's description of Windows 95, which 16 you testified about on redirect as two pieces 17 of software, Windows 3.X improved and MS-DOS 18 held together with bubblegum and baling wire? 19 That's my question. 20 A. At points in time, I have considered 21 what Mr. Schulman has said there and in other 22 places on the issue of the degree of 23 integration between Windows and DOS in 24 particular in this time frame, and 25 Mr. Barrett's description is a fair 8131 1 description. 2 Q. I'm going to put up on the screen, but 3 I want to give you the book so you can look at 4 whatever you want. 5 MR. HOLLEY: May I approach the 6 witness, Your Honor? 7 THE COURT: Sure. 8 Q. So the excerpt I'm interested in 9 appears in the preface, and we're going to put 10 it up on the screen. It's Slide 1011. 11 MR. HOLLEY: Excuse me. May I 12 approach, Your Honor? 13 Q. So it's in the preface. 14 A. Yes. 15 MR. HOLLEY: And can we see Slide 16 1011, please? 17 Apparently we don't have it. 18 A. What was the page number while you're 19 getting that up? 20 Q. The page number is Roman XV, but it's 21 in little tiny type. 22 If it would speed things along, I'm 23 happy to hand you -- 24 MR. HOLLEY: Your Honor, may I 25 approach? 8132 1 A. Oh, I see it. Roman XV, I found it. 2 It's on the black portion. 3 Q. Yeah, it's strange pagination. 4 A. Yes. 5 Q. What I'm interested in, sir, is the 6 third complete paragraph, which begins this 7 book will show you that Windows 95 continues. 8 A. Yes. Well, wait. There's another 9 paragraph on that page. I've got it now, thank 10 you. 11 Q. And, sir, reading whatever you want to 12 read in the book, did you take into account 13 Mr. Schulman's opinion that even though there 14 continues to be some use of real mode DOS in 15 Windows 95, that it is not some thing on a 16 thing, but employs a reasonable, legitimate 17 operating system architecture? 18 A. I did. 19 Q. And you just disagree with 20 Mr. Schulman in this respect; is that correct? 21 A. Well, one can architect a piece of 22 software using principles for -- that are used 23 by the designers of operating systems, which is 24 what Mr. Schulman is saying here, but employs 25 reasonable, legitimate operating system 8133 1 architecture -- indeed, the Windows 3.1 product 2 and the Windows 95 product employ a kernel, and 3 they have various other elements that would 4 follow an architecture that someone would use 5 when architecting an operating system. That's 6 not a disagreeable proposition. 7 Q. Well, let's look at what Mr. Schulman 8 says. And this is -- I apologize, this is 9 slightly above the highlighting this time. 10 It says, this book will show you that 11 Windows 95 continues to rely on DOS; that is, 12 Win 32 kernel -- and there is a kernel up in 13 Windows, right? -- continues to rely on the 14 Win 16 kernel and that, surprise -- exclamation 15 mark -- this is okay. 16 My goal is not to prove that Windows 17 95 continues to use DOS and, therefore, isn't a 18 genuine operating system. 19 And what he's saying there, sir, is he 20 not, is that Windows 95 is a genuine operating 21 system? All of the pieces together are a 22 genuine operating system, and that it is not 23 some thing on a thing, but rather employs a 24 reasonable legitimate operating system 25 architecture? That's what it says, doesn't it? 8134 1 A. Well, I don't think that that's quite 2 what I said. 3 Q. I appreciate that, sir. That's my 4 point. 5 You, in giving the testimony that you 6 gave on redirect, said something that is flatly 7 inconsistent with what Mr. Schulman is saying 8 here, didn't you? 9 A. I don't think so. I think Mr. 10 Schulman says that Windows continues to rely on 11 the DOS operating system, which is something 12 that I put forward and Mr. Barrett similarly 13 put forward and others have put forward, 14 including here the text from Mr. Schulman. 15 It continues to rely on DOS. It 16 continues to rely on another operating system 17 in order to deliver the functions and 18 compatibilities capabilities that users want. 19 I don't think there's too much a disagreement 20 between us there. 21 Q. That is not what this says, is it? 22 He's talking about a product called 23 Windows 95. 24 A. Uh-huh. 25 Q. And he is speaking directly responsive 8135 1 to the notion that Windows 95 is nothing more 2 than MS-DOS sitting underneath Windows 3.X, 3 improved as you say. 4 That's what he's talking about, and 5 what he says is, my goal is not to prove that 6 Windows 95 continues to use DOS and therefore 7 isn't a genuine operating system. 8 His view is the opposite. It doesn't 9 matter that there's some small real mode DOS 10 kernel for backward compatibility reasons 11 inside Windows 95. That doesn't make it 12 anything other than a genuine operating system, 13 not some thing on a thing, but instead, a 14 legitimate operating system that employs a 15 reasonable legitimate operating system 16 architecture. That's what he says, right? 17 A. As I continue to read through this and 18 I'm -- I apologize that -- I've been trying to 19 do that as we've been talking. 20 His approach is really as he describes 21 it subsequently, it's pragmatic. It's -- well, 22 let's put to one side for a moment what genuine 23 -- that they, the Windows and DOS, don't 24 conform to certain principles, that might tell 25 us that there's something wrong, but like it or 8136 1 not, together they define what's the product in 2 the market and what operating systems actually 3 look like in the world today. 4 He's not attempting to describe, it 5 seems to me, the -- or to focus on the 6 particular point that I have been focusing on, 7 and he seems to be entirely consistent. 8 It says, by understanding that Windows 9 95 is not a complete rewrite is still partially 10 based on DOS, has 16-bit code in its kernel. 11 You'll be able to understand better how Windows 12 95 works. 13 I mean, it's still partially based on 14 DOS. It requires DOS to run. He's not 15 disagreeing with me, I don't think. 16 Q. You don't see any contradiction 17 between what you said on redirect and what 18 Mr. Schulman says? 19 A. No, I don't. 20 Q. Now, when you were shown the 21 deposition testimony of Mr. Barrett and you 22 commented on it, were you seeking to convey to 23 the jury the impression that Mr. Barrett knew 24 anything about Windows 95? 25 A. Mr. Barrett had -- it's my 8137 1 understanding from his position and from his 2 testimony, as well as other parts of the 3 record, that he had knowledge of Windows, the 4 Windows development plans, and -- so yes. 5 Q. So it will come as a shock to you to 6 learn that Mr. Barrett was never on the Windows 7 95 development team. Did you look at any 8 deposition testimony from Mr. Barrett where he 9 said that? 10 A. That he was not on the Windows 95 11 development team, the Chicago team? 12 Q. That's correct. 13 A. Yes. 14 Q. So he doesn't know anything about 15 Windows 95. He was never on the development 16 team, was he? 17 He left Microsoft to become an 18 executive of RealNetworks before Windows 95 19 shipped. You didn't tell the jury that, did 20 you, on redirect? 21 A. I believe that Mr. Barrett's 22 responsibilities included the development of -- 23 or close involvement in the development of DOS 24 7. 25 DOS 7 was Microsoft DOS 7 which was 8138 1 intended to be a product to be released by 2 Microsoft that would have been available to 3 OEMs and other users who didn't want the 4 combination of Windows and DOS. 5 That product didn't come out, but it 6 was -- but the DOS element that was part of the 7 product was used by Microsoft in the 8 development of Windows 95. That's certainly my 9 understanding. 10 Q. Well, let's see if that understanding 11 changes after I show you the following 12 testimony from Philip Barrett dated May 31, 13 2002. 14 (Whereupon, the following video was 15 played to the jury.) 16 Question: And is it correct that you 17 were on the Windows 95 team for a total of 18 about five out of the 40 months of that 19 project? 20 Answer: I actually don't believe I 21 was on the Windows 95 team. I worked in 22 Silverberg's organization. And if technically 23 that made me part of the Windows 95 team, then 24 I guess I would answer your question yes. 25 Question: And, in any event, however 8139 1 you want to characterize that, your employment 2 as part of that group lasted about a total of 3 about five months before you gave this notice 4 that we discussed earlier? 5 Answer: Yeah, that's about right. 6 Question: And that's, to put that in 7 perspective a little bit, that's out of a total 8 over three years that this product is in 9 development, Windows 95? 10 Answer: I have no knowledge of the 11 length of time that Windows 95 was in 12 development. 13 Question: And is it also true that 14 you left the Windows 95 group, however you want 15 to characterize it, about a year before that 16 product actually got finished and released to 17 the market? 18 Answer: Approximately. 19 Question: Now, in October 1994, you 20 went to work for RealNetworks; is that right? 21 Answer: Yes, that's correct. 22 Question: And I think your testimony 23 was that you're now -- you're an officer of 24 that company? 25 Answer: Yes, I am. 8140 1 Question: And Microsoft is now a 2 direct competitor of your company's? 3 Answer: Give me a minute. Let me 4 understand. There are parts of RealNetworks' 5 business that are competitive with parts of 6 Microsoft's business. 7 Question: Well, in fact, sir, 8 wouldn't you -- don't you consider as an 9 officer of the company, don't you consider 10 Microsoft one of your company's major direct 11 competitors? 12 Answer: I would say there's a 13 competitive, strong competitive nature between 14 the two companies, yes. 15 (Whereupon, the playing of the video 16 concluded.) 17 Q. Mr. Alepin, on redirect examination 18 when you were asking the jury to accept 19 Mr. Barrett's characterization of Windows 95 as 20 something two other products held together with 21 baling wire and bubblegum, you didn't tell them 22 that when he gave the testimony he was working 23 for one of Microsoft's competitors, did you? 24 A. Mr. Barrett has provided testimony, I 25 believe, on a couple of occasions, and in 8141 1 particular on occasions where the company that 2 he's working for, RealNetworks, was a very 3 close partner with Microsoft. 4 And I believe Mr. -- some of 5 Mr. Barrett's information was provided while he 6 was still a member of Microsoft, so Mr. Barrett 7 has both written contemporaneously in the 8 record E-mails and other material during this 9 period from 1991, I believe, going forward, and 10 provided testimony where Mr. Barrett was, in 11 fact, a partner of Microsoft where Microsoft 12 was bundling their software on -- with their 13 operating system. 14 So Mr. Barrett's not been inconsistent 15 over that period of time in his testimony. 16 Q. Well, let's focus on the baling wire 17 and bubblegum testimony, which is the testimony 18 that you were asking the jury to accept. 19 That testimony was given on the 31st 20 of July of 1997. 21 So if he left Microsoft a year before 22 the August 1995 ship date of Windows 95 as he 23 testified, he wasn't at Microsoft when he gave 24 the testimony; correct? 25 A. If I've got your -- you correctly, 8142 1 you're talking about '97? 2 Q. I'm talking about July 31, '97, and he 3 testifies that he left roughly a year before, 4 August of '95. 5 A. So you're right, yes, it would have 6 been while he was -- after he had left 7 Microsoft, yes. 8 Q. And by July 31 of 1997 Microsoft and 9 RealNetworks were at swords' points with one 10 another over media software, were they not? 11 Didn't you say that on direct, sir, 12 that the inclusion by Microsoft of media 13 playback software in Windows had caused a 14 serious rift between the two companies? 15 A. The -- you're very close to the dates 16 where the rift emerged, but you're also very 17 close to the dates during which time Microsoft 18 had, in fact -- was licensing the software. 19 So I'd have to -- I'd have to lay this 20 out on a map, or I'd have to be able to see the 21 dates precisely before I could give you the 22 answer here. 23 It's just that the dates are very 24 close, I'm sorry, and before I said anything 25 further, I'd need to see or refresh my 8143 1 recollection on them. 2 Q. All right. 3 Let's move to the subject of Java, and 4 I'd like to put up again what you drew on 5 redirect and sort of my slightly prettier, in 6 my view, version of it, Slide 1004. 7 A. No disagreement on esthetics. 8 Q. Now, when you were testifying on 9 redirect about portability, I just want to be 10 very clear. 11 A Java Virtual Machine, the machine 12 itself, this virtual machine written to run on 13 an operating system is in no sense portable, is 14 it? 15 It is designed to run on the operating 16 system and it calls upon services from that 17 operating system that it then abstracts through 18 its own set of APIs? 19 A. Putting to the one side the reference 20 implementation, that is correct; that the 21 virtual machine is intended to, as you say, 22 provide a layer of abstraction to which 23 applications write, and then the virtual 24 machine translates the interfaces into machine 25 -- operating system and hardware dependent 8144 1 interfaces. 2 Q. Okay. So nothing Microsoft did in 3 creating the Microsoft virtual machine that 4 only ran on Windows was even vaguely unusual, 5 was it, because all virtual machines are 6 specific to the operating system that they're 7 written for? 8 A. Excluding the reference 9 implementation, that's correct. Microsoft's 10 virtual machine implementation was tied to the 11 Windows platform, and that is the role of the 12 -- of virtual machines generally, to buffer and 13 to -- to buffer the particular services of the 14 operating system for the applications. 15 Q. Right. So when Sun writes a virtual 16 machine for Solaris running on SPARC, they 17 don't for a moment think that you could take 18 that virtual machine and move it to Mac or 19 Windows; right? 20 A. They don't expect that that's what 21 would happen, that's correct. 22 Q. And, in fact, that would be a big 23 porting job to move a virtual machine written 24 for UNIX to Windows or the Mac OS? 25 A. Well, here we go to -- I mean, there's 8145 1 a difference between just the porting of it, 2 because the reference implementation is 3 intended to achieve that purpose, but there's 4 an optimization process that in order to take 5 advantage of the particularities of the 6 platform and to make your virtual machine 7 perform well, the answer is yes. 8 Q. So when you're talking about 9 portability in the context of Java, what you're 10 talking about is not those gray U's that I and 11 you in your own drawing have called virtual 12 machines. 13 You're talking about the ability to 14 take one of those yellow boxes, one of those 15 Java applets, and move it from one Java Virtual 16 Machine to the other; correct? 17 A. That's correct. 18 Q. Okay. Now, in the case of -- and 19 let's pretend that the middle diagram doesn't 20 say Windows. It could be any operating system. 21 If somebody is making native calls to 22 the operating system using these green tunnels 23 that we've talked about and you've talked about 24 on redirect, whether they're doing that using 25 JNI or RNI or J/Direct, that impairs the 8146 1 portability -- that decision by the Java 2 developer impairs the portability of that 3 applet, does it not? 4 A. To different degrees, but yes. 5 Q. And you suggested, I believe, but tell 6 me if I'm wrong, on redirect that Microsoft did 7 something to require people writing applets to 8 run on the Windows virtual machine to use the 9 green tunnels? 10 A. I believe my testimony was that 11 Microsoft encouraged strongly the use of these 12 tunnels and did not provide other mechanisms 13 which were part of the JVM structure that would 14 allow the applications to maintain higher 15 levels of portability. 16 Q. Now, some people like Java because it 17 had -- as a programming language, they like it 18 because it has features that make it easier to 19 use and harder to make mistakes in than some 20 programming languages like C++. Do you agree 21 with that? 22 A. Yes. It is a development language 23 that several people have found -- many people 24 find to be superior in those records. 25 Q. And so -- I'm going to give you a 8147 1 hypothetical, and then I'm going to ask you a 2 question about it. 3 I am a Windows developer. I don't 4 care about Macintosh, I don't care about Linux, 5 I don't care about UNIX. I have made a 6 business decision to target Windows. 7 But I've got a bunch of new developers 8 coming out of college, and they got taught how 9 to write in Java, and they like it, so they 10 want to write a Windows application in Java, 11 and they don't care at all about portability 12 because they don't ever want to port their 13 application. 14 Those people love those green tunnels, 15 don't they, because they permit them to write 16 in Java and call Windows services? 17 A. Well, there are -- it is a 18 hypothetical, and I think so there are some 19 problems with that, the first of which is that 20 they probably like to run -- if they've learned 21 how to program in Java, then they like to 22 program in Java and use the services of Java 23 rather than learning the particularities of the 24 Windows APIs which are -- will be for them an 25 extra level of information they'll have to 8148 1 learn about. 2 So there's some issues with whether 3 they will enjoy doing that or not because they 4 have to learn more stuff rather than just 5 relying on Java and the Java classes. 6 Q. Well, if they don't want to be reduced 7 to the least common denominator of 8 functionality available on all potential target 9 operating systems, but they want to take 10 maximum advantage of the functionality provided 11 by Windows, and they don't care about 12 portability and they do want to write in 13 Java -- those are all my assumptions. 14 Don't care about portability, want to 15 take maximum advantage of Windows, and want to 16 write in Java, don't those people love those 17 green tunnels because they allow them to do all 18 of those things? 19 A. See, my experience is that you really 20 don't want to do things that go beyond the 21 bounds of the tools that you're using or the 22 platform's intent. 23 So, for example, if you were -- if you 24 were writing in a programming language where it 25 wasn't intended to permit you to manipulate 8149 1 string information, text strings, that working 2 around that and operating on these strings has 3 little bits of numbers led to code that was 4 very difficult to read and maintain, and, in 5 fact, it would become problematic for you. 6 So it was best to stick within the 7 scope of the tools that you were using, and 8 that way people who followed you would be able 9 to pick it up and understand it. 10 And, you know, going forward, you'd be 11 able to take your -- when I grew up, your COBOL 12 programs and move them off of an IBM mainframe 13 computer and put them on a Windows computer, 14 but you'd be able to take the programming 15 language statements from that COBOL program and 16 move them over to Windows. 17 Q. The most popular Java development 18 tools in history are from Microsoft. They're 19 called Visual J++. 20 And are you saying that your opinion 21 trumps the buying decisions of all the 22 developers who bought Visual J++ so that they 23 could use the green tunnels? 24 A. I think the characteristics and 25 features of Microsoft's Visual J++, which I 8150 1 used and evaluated, provided a product that was 2 better than the -- than some of the competitor 3 products, not because it offered the tunnels, 4 but because it provided a better development 5 environment. 6 J++, Visual J++ is what we called a 7 integrated -- provides an integrated 8 development environment, which means that it's 9 kind of a world in which you can organize your 10 software development project. You get to put 11 files here that are part of that and you get to 12 see it all and manage it. 13 And Visual J++ from Microsoft included 14 an integrated development environment that was 15 good. It worked well for developers and it -- 16 I don't think it necessarily follows that the 17 buying decisions of the people involved relied 18 on the tunneling capabilities. 19 There are so many other things that 20 they could have looked at, and I know that they 21 looked at, to inform their decisions. 22 Q. Do you know, even in rough terms, what 23 percentage of developers who chose Microsoft's 24 Visual J++ over other Java developers took 25 advantage of the green tunnels? 8151 1 A. In the mid or in the late 1990s I had 2 some sense of that, but I would not -- it would 3 not be something I'd feel comfortable talking 4 about. 5 Q. Okay. 6 A. As my memory is too dim. 7 Q. All right. Let's move over to DRI 8 from Java now. 9 You are not testifying, are you, that 10 DRI had no access to the beta test versions of 11 Windows 3.1 in the hands of its corporate 12 parent Novell? 13 A. I'm sorry, but that's a little hard to 14 digest. 15 Q. If that's obtuse, let me ask it in a 16 slightly simpler way. 17 You are aware, are you not, that DRI 18 engineers in Hungerford in the United Kingdom 19 spoke to Novell engineers in Provo, Utah, for 20 hours and hours and hours on the telephone 21 directing them in the testing of Windows 3.1 22 betas on top of DR-DOS? 23 A. I have heard -- I'm sorry -- read 24 something in that regard, something having to 25 do with a very awkward arrangement. 8152 1 Q. But you're aware that the arrangement 2 existed and that the testing occurred, are you 3 not, sir? 4 A. Well, I mean, that testing such as it 5 is or such as it's described is something of 6 which I was aware, yes. 7 Q. Okay. Now, you spent a long time on 8 redirect talking about the AARD code and the 9 messages displayed by the AARD code. 10 Do you recall that, sir? 11 A. I do. 12 Q. And you spoke a little bit about FUD 13 and vaporware, but it remains your opinion as 14 you expressed it to me at page 7799 of 15 transcript and carrying on to 7800, that 16 whatever Microsoft did to DRI, it was heading 17 into a brick wall anyway because the world was 18 moving to protected mode graphical operating 19 systems and DR-DOS was not one of those; 20 correct? 21 A. I think it went on from there, but the 22 thrust was that DR-DOS was going to need to do 23 more, yes. 24 Q. Well, don't you recall this exchange? 25 I said to you: 8153 1 You are aware, are you not, sir, of 2 documents created by executives of Digital 3 Research observing that unless they are able to 4 develop a protected mode graphical operating 5 system capable of competing with Mac OS, 6 Windows, and Linux, they are not going to 7 survive in the marketplace? 8 Answer: I think that independent of 9 those documents, that would be my conclusion. 10 A. That's correct. 11 Q. And you're not backing one step away 12 from that conclusion, are you, sir? 13 A. No. It's not my -- 14 THE COURT: Talk into the microphone. 15 THE WITNESS: I'm sorry. 16 A. And it wasn't -- I didn't mean to 17 suggest it in response. It's just very simple. 18 Q. All right. Now, you testified -- 19 MR. HOLLEY: Can I approach the 20 witness, Your Honor? 21 I just want to take 22 Mr. Schulman's book back, if I could. 23 Now, you testified that developers 24 have this problem that they don't know what 25 they don't know. Do you remember saying that 8154 1 on redirect? 2 A. Yes. 3 Q. This whole book is about things that 4 Mr. Schulman discovered, undocumented 5 interfaces in Windows that he discovered using 6 the sorts of tools, hex viewers, and 7 disassemblers that you said you used in 8 preparing for your testimony in this case; 9 isn't that true? 10 A. That's correct. 11 Q. Okay. So there's this whole big book, 12 and all it's about are things that Mr. Schulman 13 found using ordinary development tools 14 available to everybody in the industry; isn't 15 that right? 16 A. That's correct. 17 Q. Now, you were asked some questions 18 about some E-mails that I referred to on my 19 cross-examination relating to the rigging of 20 the tests by Sun for Java, and this may prove 21 that you should be careful what you wish for, 22 but have you reviewed Sun internal documents on 23 the question of what Sun did in October of 1996 24 when Mr. Muglia of Microsoft wrote to 25 Mr. Barrett of Sun and said, hey, you are in 8155 1 breach of our licensing agreement and you 2 better do something about it? 3 Are you familiar with that exchange of 4 correspondence? 5 A. I think I mentioned in response to an 6 earlier question I'd need to be able to see the 7 documents, and I guess that's what I wished 8 for. 9 Q. All right. 10 MR. HOLLEY: Your Honor, may I 11 approach the witness? 12 THE COURT: Yes. 13 Q. Now I apologize for the quality of the 14 copy, but I think it's legible. 15 This is a letter from Mr. Muglia, vice 16 president of Microsoft, to Mr. Alan Baratz, 17 president of JavaSoft, Inc. 18 And just so it's clear to the jury, 19 JavaSoft at that time was a subsidiary of Sun 20 Microsystems that was engaged in promoting 21 Java; is that right? 22 A. That's correct. 23 I apologize, I wasn't paying full 24 attention, but I was trying to read -- 25 Q. That's my fault. I shouldn't ask you 8156 1 questions while you're trying to read. 2 Have you now had an opportunity to -- 3 A. Actually, no, I was kind of time 4 sharing. 5 Q. You were multitasking? 6 A. Yes. 7 Q. Why don't you read the letter and I'll 8 be quiet. 9 A. All right. 10 There's one -- a couple of words here 11 which I can't decipher on this second line. 12 Q. Our license agreement is to ship class 13 libraries? 14 A. Right. That run blank blank virtual 15 machines. 16 Q. On our virtual machines. 17 A. Okay. So I've read it now. Thank 18 you. 19 Q. Okay. So were you aware before you 20 read this document that there was a dispute 21 between Microsoft and Sun Microsystems in 22 October of 1996 about whether supplemental 23 classes, these new subroutines I think as you 24 described them, that Sun was seeking to add to 25 its Java platform ran on Microsoft's virtual 8157 1 machine as the contract between the two 2 companies required? 3 A. There were, I think, differences that 4 came out through various Microsoft and Sun 5 executives in the early going of the contract. 6 This contract, I believe, began 7 sometime in 1996 between Sun and Microsoft and 8 that there were some issues that got discussed 9 publicly on both sides. 10 Q. Okay. I'd like to show you this, 11 which is an E-mail -- 12 MR. HOLLEY: May I approach the 13 witness, Your Honor? 14 THE COURT: You may. 15 Q. Now, this is an E-mail from a man 16 named Eric Chu at Sun to John Kannegaard. 17 And you've heard that name, haven't 18 you, sir, in connection with Java-related 19 matters? 20 A. Yes. We mentioned him. 21 Q. The other day? 22 A. The other day, yes. 23 Q. He was the vice president reporting to 24 Mr. Baratz at Sun in this JavaSoft subsidiary; 25 correct? 8158 1 A. Uh-huh. That's my understanding. 2 Q. Now, take as much time as you need to 3 read -- I'm interested only in the first E-mail 4 in this chain, which is an E-mail sent at 8:17 5 p.m. on the 22nd of October of 1996 from 6 Mr. Chu to Mr. Kannegaard. 7 And if you want to read that whole 8 E-mail before we start, or if you want to just 9 have me direct you to particular portions, I'm 10 happy to do it however you'd like. 11 A. So it's a backwards to forwards. This 12 is the most recent E-mail in the front? 13 Q. That is the most recent and the -- I 14 think you'll see, but satisfy yourself that 15 there is an E-mail from Mr. Bowen, much more 16 detailed, which is then summarized in the 17 E-mail from Mr. Chu to Mr. Kannegaard, the vice 18 president. 19 A. Well, I've got the context now. Maybe 20 you can point me to specifics. 21 Q. Sure, sure. 22 So in this E-mail to Mr. Kannegaard, 23 Mr. Chu says in the first sentence -- 24 MR. LAMB: Your Honor, may we 25 approach? 8159 1 (The following record was made out of 2 the presence of the jury at 1:06 p.m.) 3 MR. LAMB: Your Honor, there are no 4 exhibit numbers on these documents at all. 5 MR. HOLLEY: That's correct. 6 MR. LAMB: So they haven't produced 7 these to us. They aren't part of the record. 8 MR. HOLLEY: They've been produced to 9 you. We just haven't designated them yet. 10 MR. TULCHIN: Start with our next 11 number. 12 MS. CONLIN: Your Honor, they don't 13 have to disclose to us in advance, of course, 14 what they're going to use in cross-examination. 15 But I would ordinarily think that an exhibit 16 number would be applied to any document that is 17 shown to the jury of this sort. 18 MR. HOLLEY: I haven't shown it to the 19 jury yet. 20 MS. CONLIN: Do you intend to? 21 MR. HOLLEY: I guess we will find out. 22 MR. LAMB: The next point is this. 23 The issue that this was relating to was Sun rig 24 testing. I don't see anything in this e-mail 25 about rigging testing any more. 8160 1 MR. HOLLEY: What we will establish 2 through this testimony is that Sun found itself 3 in October of 1993 in a terrible position. 4 They had negotiated a contract with Microsoft 5 which required them to make sure that anything 6 they added to the Java platform be compatible 7 with Microsoft's Virtual Machine. That's what 8 the contract said, and they signed that 9 contract, the record will show, because they 10 believed that they had at least a year's lead 11 time on Microsoft in developing the Virtual 12 Machine. 13 They realized after the contract was 14 signed -- to their horror is probably the right 15 word -- that Microsoft already had a Virtual 16 Machine and therefore Sun had to show that any 17 new additions and new classes added to Java 18 were compatible with Microsoft's Virtual 19 Machine. 20 Mr. Kannegaard's tenets gave them in 21 this memo two options of how to deal with what 22 they called a breach, that there's terms we are 23 in breach of this contract, here are two 24 approaches we can take. And the next e-mail, 25 dated 30 minutes later from Mr. Chu, comes up 8161 1 with the new idea, which was to rig the test. 2 So that's where I'm going, Your Honor, 3 and I think it's perfectly relevant. 4 Mr. Alepin said -- he basically 5 challenged me on redirect that I made this up. 6 And in having opened the door to that, I'm 7 entitled to now show Mr. Alepin that I didn't 8 make it up. It's in the document. 9 MR. LAMB: Your Honor, I don't see 10 anything in here about rig testing. This is 11 recross. 12 MR. HOLLEY: No. 13 MR. LAMB: He made a claim in 14 cross-examination that there were internal 15 e-mails that say that Sun is rigging testing. 16 MR. HOLLEY: You don't have this yet, 17 Mr. Lamb, because it's the next exhibit I'm 18 going to use. But it's 30 minutes later, and 19 what he's saying is we can't enhance the test 20 suite to invalidate any implementation we don't 21 like. 22 And then the next thing that happened 23 was that the very next test suite had 8,000 24 tests for compatibility, which was 25 more 25 compatibility tests than in the prior set of 8162 1 tests. And among the tests that Sun added was 2 ones that they knew Microsoft would fail. 3 Now, the evidence will show in this 4 case that that is a rigging of the test. When 5 you multiple the number of tests by 25 in light 6 of this evidence of intent and you add a test 7 that you know Microsoft's machine is going to 8 fail and you do it because you know you're in 9 breach of a contract you don't like, that, at 10 least, in any normal sense of the word, is 11 rigging, and that's what happened. 12 MR. LAMB: Your Honor, this directly 13 conflicts with Conclusions of Law 411 and 412. 14 411 says deceiving Java developers 15 about the Windows specific nature of Java 16 developers impeded the improvement of Java 17 technology. This is during the precise time 18 period, and he's trying to go through and 19 disturb and overturn and attack the conclusions 20 of law. There can be no other point to that. 21 MR. HOLLEY: No, Your Honor. It is 22 not the case that all discussion of Java is 23 collaterally estopped. There are two 24 collaterally estopped conclusions of law. 25 One is that Microsoft failed to tell 8163 1 developers that the use of those green 2 tunnels -- I just guess that's easier, at least 3 virtually, for me -- was going to tie those 4 apps to Windows. And we're bound by that, and 5 that's a conclusive finding for purposes of 6 this litigation. 7 The other one is that Microsoft 8 mow-mowed Intel and told them to stop 9 developing for Java. I'm not talking about 10 either of those topics. I'm far away from it. 11 What I'm talking about is the idea 12 that Sun, who has been painted by Mr. Alepin as 13 some sort of Mother Teresa figure, was actually 14 engaged in all sorts of deceitful tactics, once 15 they figured out that they were in trouble 16 having signed a very bad contract with 17 Microsoft. 18 This witness has asked the jury to 19 believe that there is something called the Java 20 community and it's all goodness and right. 21 It's anything but. This is an out-and-out 22 nasty competition. This is the sort of thing 23 that Judge Posner once referred to me as "two 24 scorpions in a sack." 25 But the idea that the picture has been 8164 1 painted of Sun as some sort of charitable 2 institution and Microsoft is the nasty entity 3 that did something bad to Sun, which is exactly 4 what Mr. Alepin is asking the jury to believe, 5 we are entitled to impeach him on this. And 6 Mr. Lamb should not on redirect have basically 7 accused me of fabricating the story if he 8 didn't want the story to come out. 9 MR. LAMB: Your Honor, it's also in 10 direct conflict with 394, Finding of Fact 394, 11 which states -- Okay. I won't read it. 12 MS. CONLIN: All of them between 394 13 and 409. 14 MR. LAMB: That is an attempt 15 improperly to collaterally attack. 16 What Mr. Holley just said is that Sun 17 deceived Microsoft. The only purpose for that 18 testimony is to rebut the conclusions of law 19 that says that Microsoft deceived Java 20 developers. 21 THE COURT: Anything else? 22 MS. CONLIN: Yes, Your Honor. If I 23 may speak to this issue to put the Sun contract 24 in some context. 25 The Sun contracts, which Mr. Holley 8165 1 has interpreted, are subject to differing 2 interpretations. Allan Baratz, whose name was 3 mentioned on our witness list, I can assure the 4 Court that his interpretation is different. 5 And one further thing, Your Honor, 6 Microsoft settled the breach of contract case 7 that Sun brought against Microsoft for a 8 substantial amount of money. Certainly we may 9 take the position in the future with warning, 10 of course, appropriate to the Court, that by 11 going into this subject matter we are free to 12 discuss the terms of that settlement. And it 13 deals in part with exactly the issues that 14 Mr. Holley has talked about in here. 15 Now, I understand that doesn't open 16 the door, Mr. Holley, so don't jump on me for 17 that. But it does depend on what he said in 18 front of the jury, obviously, but I do want to 19 call the Court's attention to the fact that 20 what Microsoft is contending here is -- what 21 they contend is Sun I -- and the Court grants 22 an injunction against Microsoft with respect to 23 this matter in November of 1998 -- may I finish 24 Mr. Holley? 25 MR. HOLLEY: Okay. 8166 1 MS. CONLIN: Thank you. As I was 2 saying before I was interrupted, Sun granted an 3 injunction to Microsoft in November of -- I beg 4 your pardon -- Sun granted -- the Court granted 5 an injunction to Sun in November of 1998. 6 And, Your Honor, that injunction 7 proceeding is referred to in the collaterally 8 estopped findings of fact. So I just want to 9 put that in context for the record. 10 I have nothing further to say. 11 MR. HOLLEY: Well, to complete the 12 context. Here is the context. There is one 13 lawsuit called Sun I colloquially, and there's 14 one called Sun 2. 15 The settlement that this relates to, 16 the dispute in Sun I, the large amount of money 17 paid to settle was in Sun 2 and the cases are 18 very different. 19 Mr. Tulchin and I were counsel in 20 Sun 2 and so we know that the claims were very 21 different than the claims raised in Sun I. 22 There is no ruling by Judge White in 23 the Northern District of California other than 24 the ruling where he says that Microsoft is 25 correct. It's a preliminary ruling, and I want 8167 1 to be candid about that. It's not a final 2 judgment, but Judge White issued a ruling where 3 he said that Microsoft's interpretation of 4 these provisions is correct. 5 And I will be delighted if Mr. Baratz 6 wants to come and testify, but what his two 7 lieutenants told him was in summary, I believe, 8 we're in violation of the Microsoft contract. 9 And Judge White looked at this, and 10 Judge White came to the conclusion that, yes, 11 indeed that was correct subject to further 12 decision and then the case settled. 13 Now, the injunction issued by Judge 14 White had to do with requiring Microsoft to 15 support JNI Sun's version of the green tunnels 16 and requiring Microsoft to put a big 17 notification in Virtual J++ which says if you 18 use the green tunnels, you're tied to Windows. 19 And I'm not going to touch that subject because 20 those are collaterally estopped. 21 You know, whatever Judge White said, 22 this Court has told the jury that we're bound 23 by the idea that Microsoft deceived Java 24 developer by not giving sufficient disclosure 25 about the green tunnels. 8168 1 I do not intend to go there. This is 2 a different topic, and it's, frankly, one that 3 they asked for and having -- you know, having 4 challenged us to prove, you know, to come 5 forward with these e-mails, well, here they 6 are. 7 MR. TULCHIN: Your Honor, if I could 8 just add one small thought, though. I think 9 it's important. 10 Ms. Conlin says that Mr. Baratz is on 11 her witness list. And if he's coming to 12 address this subject, then how can it be off 13 limits to ask their expert about it on cross? 14 MS. CONLIN: He's not coming to 15 address this subject, Mr. Tulchin. If he 16 comes, he will address this subject because you 17 have opened the subject. That was not the 18 purpose for which he was being brought to 19 court. 20 THE COURT: Anything else? 21 MR. HOLLEY: No, Your Honor. 22 THE COURT: I'm going to rule at this 23 time. I find it to be proper impeachment. You 24 may proceed. 25 MS. CONLIN: How about marking all of 8169 1 them as exhibits? 2 THE COURT: If you are going to offer 3 it, I wish it marked. You better mark it 4 anyway. 5 MR. TULCHIN: Your Honor, small point 6 on a slightly different subject before I 7 forget. 8 Shouldn't we at some point mark each 9 of the tear sheets as some sort of exhibit for 10 identification just so there is a record of 11 what Mr. Alepin sketched? 12 THE COURT: I guess you can mark them 13 if you want to. 14 MR. TULCHIN: Thank you, Your Honor. 15 (The following record was made in the 16 presence of the jury at 1:17 p.m.) 17 THE COURT: You may proceed. 18 BY MR. HOLLEY: 19 Q. Mr. Alepin, we're back looking at this 20 E-mail from Mr. Chu to Mr. Kannegaard, and what 21 it says is that Dave Bowen -- and I'm looking 22 at the first paragraph now. 23 Dave Bowen and I have looked at the 24 contract last night and I have attached his 25 summary below. 8170 1 And as I pointed out to you, that's 2 next, if you want to look at it. 3 The next paragraph says, both Dave and 4 I concluded that based on the contract, we have 5 full rights to enhance the Java technology as 6 long as class is not clearly specified in the 7 contract work with their VM. 8 And it's your understanding that their 9 VM means Microsoft's virtual machine; correct? 10 A. That's -- Microsoft's Java Virtual 11 Machine. 12 Q. And then Mr. Chu continues, this 13 substantially limits our ability to introduce 14 new technologies since almost all new 15 technologies require a new class. 16 And just to be clear, these classes 17 you refer to sometimes as subroutines, right, 18 or blocks of code that perform particular 19 features? 20 A. Right. For simplicity sake, yes. As 21 long as we're using it as the descriptive, 22 that's correct. 23 Q. Got it. 24 Then Mr. Chu goes on to say, in 25 addition, our attempt to introduce the new 8171 1 category extension might not work simply 2 because the definition of supplemental classes 3 -- excuse me -- supplemental Java classes is 4 very, very broad. 5 In summary, I believe we're in 6 violation of the Microsoft contract and our 7 attempt to reclass things as extensions will 8 have limited success. 9 I don't believe we can afford to take 10 an aggressive approach with Microsoft unless 11 we're willing to forego over $15 million of 12 revenue over the next four-plus years with 13 possible high legal costs to consider. 14 Now, when you testified about this 15 question of what was more reliable, the Sun 16 test suite or the PC Magazine test suite, did 17 you take into account this E-mail talking about 18 how Sun believed that it was in violation of 19 the license agreement with Microsoft for Java? 20 A. Well, there's a couple of things that 21 are sort of not tied together here. 22 This is -- we're very early in the 23 contract period, as I understand it, between 24 Microsoft and Sun, and I believe the review 25 that I was looking at was a later review 8172 1 dealing with products that have been developed 2 subsequent to this. 3 I mean, there is a significant dispute 4 or there -- after this, some time after this, 5 and perhaps a year later, there was, as we saw 6 earlier, Microsoft divorced Sun and that became 7 a proceeding in a Court pursuant to the 8 contract. 9 But this here is -- this is simply 10 discussing, as I read it, and it was part of 11 the -- the subject matter was part of the 12 discussions in the public between Microsoft's 13 executives and Sun's executives. 14 This is just working -- I believe 15 they're trying to work things out or get a 16 better understanding -- work things out in 17 their own minds, get a better understanding of 18 their obligations under the agreement. 19 That's the way I understand the 20 E-mail. I understand the issues to have been 21 in -- some of these issues to have been in the 22 public. 23 Q. Okay. Now, Mr. Chu lays out for his 24 boss, Mr. Kannegaard, two possible approaches 25 to negotiating this dispute with Microsoft, and 8173 1 he calls those the assumed semicorporative -- 2 maybe he meant cooperative. I don't know what 3 a corporative approach is. 4 And the other one is assumed hostile. 5 Do you see that? 6 A. Well, he had a similar problem with 7 hostile. 8 Q. Yeah, his elementary school teacher 9 would have something to say to him, right. 10 Okay. But you see that his two 11 approaches are assumed semicooperative and 12 assumed hostile; correct? 13 A. I'm assuming that, yes. 14 Q. Right. Now, do you know whether Sun 15 adopted the semicooperative versus the hostile 16 stance set out here by Mr. Chu? 17 A. To go back -- there was an awful lot 18 that was going on in the early days of the 19 contract in the public. 20 This was a very -- this was a very 21 important time when Microsoft decided to take a 22 license for Java. 23 And so my recollection is to just -- 24 there were ups and downs in the relationship. 25 My recollection as to just what 8174 1 happened here versus another E-mail that might 2 come out a little later in time, I don't 3 remember how that -- what precisely happened 4 and how they addressed. 5 I mean, there are a number of issues 6 associated or identified, some of which were, 7 as I recall, readily handled. 8 The internationalization issue, for 9 example, was one that was readily disposed of 10 between the parties. 11 There are a bunch of things that 12 needed to get worked out. 13 Q. And one of the things that needed to 14 get worked out was that Microsoft took the 15 position that JNI, the Java native interface, 16 was not something that Microsoft had any 17 contractual obligation to implement in its Java 18 Virtual Machine; correct? There was a dispute 19 about that? 20 A. I recall reading about a dispute, yes, 21 over JNI, RNI. 22 Q. Okay. And the question was whether 23 they were supplemental Java classes as that 24 term was defined in the contract; correct? 25 A. Well, I wasn't reading and 8175 1 interpreting the contract. I was reading and 2 interpreting where the interfaces were. 3 Q. Right. 4 Now, in -- you said there might be an 5 E-mail that would come out in a minute, and I 6 want to show you now an E-mail that came out 30 7 minutes later. 8 THE COURT: Would you mark it, please? 9 MR. HOLLEY: Yes, Your Honor. 10 MR. LAMB: I thought we'd agreed that 11 these would all be marked by exhibit number. 12 THE COURT: I'd like to have them all 13 marked. 14 MR. HOLLEY: I just need to know what 15 the next number is. 16 MR. TULCHIN: Next available number, 17 Your Honor, is Defendant's Exhibit 6750. 18 Q. Just so it's clear, the E-mail from 19 Mr. Chu to Mr. Kannegaard, which is the first 20 one I talked about, is Defendant's Exhibit 21 6750 and then the -- 22 MR. LAMB: I apologize, Your Honor, 23 but the first one that was referred to was a 24 letter, the Muglia letter. 25 MR. HOLLEY: I stand corrected. I 8176 1 appreciate that, Mr. Lamb. I made a mistake. 2 So the letter from Mr. Muglia to 3 Mr. Baratz will be DX 6750. Then the first 4 E-mail, the one from Mr. Chu to Mr. Kannegaard 5 at 8:17 p.m. on October 22nd, 1996, will be 6 DX 6751, and then the E-mail that Mr. Chu sent 7 Mr. Kannegaard approximately 30 minutes later 8 that day will be DX 6752. 9 MR. LAMB: Thank you. 10 MR. HOLLEY: Thank you. 11 Q. I'd like to show you what has been 12 marked as Defendant's Exhibit 6752. 13 Now, this is an E-mail from Mr. Chu to 14 Mr. Kannegaard at 8:48 on October 22, 1996, and 15 the other one was at 8:17 that same date; 16 correct? 17 A. That appears to be correct, yes. 18 Q. And what -- what Mr. Chu is laying out 19 here is a third possible approach; correct? 20 A. I didn't read it, other than make -- 21 get them sorted out as to which one was which. 22 I'm sorry. 23 Q. Let's focus on what he's suggesting 24 here. 25 He says the definition of the Java 8177 1 test suite is extremely broad. 2 If negotiation with Microsoft is not 3 going well, we can possibly enhance, in 4 quotation marks, the Java test suite to 5 invalidate any Java implementation that doesn't 6 support certain desired new features. 7 I believe this should be one of the 8 last card -- he says card -- we play if 9 negotiation goes badly. 10 So this was a third approach. 11 There was the assumed semicooperative 12 approach, there was the assumed hostile 13 approach, and then there was the idea that 14 Mr. Chu had 30 minutes later, which was to 15 enhance the Java test suite in order to 16 invalidate any Java implementation that Sun 17 didn't like; is that correct? 18 A. Well, I don't think it's that Sun 19 didn't like. 20 It's saying that -- I mean, they're 21 describing desired new feature, which -- to 22 invalidate a Java im -- anybody's Java 23 implementation that didn't support certain 24 desired new features, yes. 25 Q. Including JNI? 8178 1 A. Including any new -- any desired new 2 feature, whatever -- or however that term is 3 understood. 4 Q. Now, just so it's clear, you testified 5 before that JDK stands for Java development 6 kit? 7 A. Yes. 8 Q. Okay. And you're aware, are you not, 9 sir, that there were different versions of the 10 JDK starting with 1.1? 11 A. I testified to that, yes. 12 Q. Yes. And you're also aware, are you 13 not, sir, that there was something called the 14 Java test suite that was sent out with 15 different iterations of the JDK; correct? 16 A. That's correct. 17 Q. Are you aware that after Mr. Chu made 18 his suggestion about enhancing the Java test 19 suites, that the next version of the test 20 suites that went out with a JDK had 8,000 21 individual tests, more than 25 times the number 22 of tests in the previous Java test suite, and 23 that one of the things those 8,000 tests were 24 looking for was JNI, which Sun knew was not in 25 the Microsoft virtual machine? 8179 1 A. Well, I was intimately aware of the 2 fact that the Java community had identified the 3 lack of test suites as one of the key issues 4 that was preventing or -- not preventing, but 5 inhibiting cross-platform portability for 6 applications. 7 And they had provided to Sun as one of 8 the important things that Sun had to get done 9 between these releases to provide a broader 10 test suite that would exercise more of the Java 11 platform so that the various implementers would 12 be able to test their implementations to ensure 13 cross-platform compatibility and portability 14 for these applications. 15 So I'm -- I know that the community 16 wanted those tests and didn't have enough of 17 them. 8,000 wasn't enough. We needed more. 18 Q. Is it your testimony, Mr. Alepin, that 19 there is no connection between the suggestion 20 that Mr. Chu made to Mr. Kannegaard about the 21 third approach to dealing with the breach of 22 contract situation of enhancing the Java test 23 suites and the fact that the very next set of 24 test suites was increased by a multiple of 25? 25 A. No. 8180 1 Q. All right. I'd now like to move to 2 this Ishellbrowser document that you were shown 3 on redirect, and it's that very long one. 4 THE WITNESS: Would it be okay to -- 5 I'm sorry, moving to a new topic, is it 6 possible to take a break? 7 THE COURT: Ten minutes for our 8 recess. 9 At this time remember our admonition 10 previously given. 11 Thank you. Thanks for reminding me. 12 (A recess was taken from 1:31 p.m. 13 to 1:44 p.m.) 14 THE COURT: Everyone else may be 15 seated. 16 Mr. Alepin, you're still under oath. 17 You may continue, Mr. Holley. 18 MR. HOLLEY: Thank you, Your Honor. 19 BY MR. HOLLEY: 20 Q. Mr. Alepin, you were shown on redirect 21 Defendant's Exhibit 3066, which is this big 22 stack of paper relating to Ishellbrowser and 23 the namespace extensions in Windows '95. 24 Do you remember that, sir? 25 A. I remember a document like that. I'm 8181 1 not sure if it's exhibit whatever, but -- 2 right. 3 MR. HOLLEY: Can we see, please, 4 Defendant's Exhibit 3066 and page 93 on the 5 upper right-hand side? 6 Q. Okay. And I'd like you to look at the 7 E-mail from Mr. Belfiore to Mr. Schulman that 8 you were shown on redirect. 9 In the third paragraph there, it says, 10 here's the doc itself; correct? 11 A. Yes. 12 Q. And what Mr. Belfiore is saying is 13 that he is enclosing with his E-mail the 14 documentation of the namespace extensions; 15 right? 16 A. I don't know. 17 Q. Okay. Well, look at what Mr. Schulman 18 then says to -- 19 MR. HOLLEY: Let's move one E-mail up 20 on this page, if we could, please. 21 Can we highlight just the one that 22 says Mark -- well, yeah, you can do that, 23 Chris. Thank you. 24 Q. So this has the same title as the next 25 E-mail, i.e., creating namespace doc. That's 8182 1 the heading on Mr. Belfiore's E-mail. 2 And here Mr. Schulman says, Mark, I've 3 just received this from Joe B. at Microsoft. I 4 haven't looked at it yet, so I don't know if 5 it's the real thing or not. 6 And what Mr. Schulman is forwarding to 7 this other gentleman is the documentation of 8 the namespace extensions, isn't it? 9 A. I don't -- I don't know. There's a 10 discussion back and forth about a document that 11 contains something. 12 It was not what Mr. Schulman had. As 13 I understood the correspondence, it wasn't what 14 Mr. Schulman wanted. 15 He wanted documentation of use, I 16 believe. 17 Q. Well, but on redirect examination -- 18 maybe I missed the point -- but I thought what 19 you were saying is that Mr. Belfiore didn't 20 really send any documentation at all. 21 Is that what you were trying to say? 22 A. No. I was trying to say that he did 23 not send the interfaces that Mr. Schulman was 24 inquiring after. 25 I think that's the succession of 8183 1 things that happened. 2 Q. Well, how do you know that? How do 3 you know whether Mr. Schulman got what he 4 wanted from Mr. Belfiore? What's the -- 5 there's no basis in this document to reach that 6 conclusion, is there? 7 A. But I've discussed this particular 8 issue with Mr. Schulman on a couple of 9 occasions. 10 Q. You've discussed this E-mail exchange 11 with Mr. Schulman? 12 A. I've discussed whether Mr. Schulman 13 received from Microsoft the full documentation 14 of the Ishellbrowser. 15 It was an issue that came up in other 16 matters, and we were going over what his view 17 was. I had asked him about this and this 18 particular set of programming interfaces. 19 It was -- it was something that was of 20 interest, as I indicated, in a different 21 proceeding. 22 Q. But if anyone took from your 23 testimony on redirect that nothing was sent by 24 Mr. Belfiore to Mr. Schulman, then, that was 25 not what you meant to convey; correct? 8184 1 A. That's correct, yes. 2 Q. Now, you also referred to Defendant's 3 Exhibit 1029 on redirect, and I'd like to put 4 that up on the board, please. 5 This is the Scott Henson exchange. 6 But I'd like to look at the upper part 7 of this, which is an E-mail from Brad Struss to 8 Mr. Chase, Mr. Freedman, Rogers Weed, and 9 various other people. 10 Brad Struss is another person in the 11 developer -- or was at the time another person 12 in the developer relations group; correct? 13 A. I believe that's the case. 14 Q. And it says here -- and this is 15 October 1994 -- per Paul Ma -- that's Paul 16 Maritz -- we're now in the process of 17 proactively notifying ISVs about the namespace 18 API change, open paren, will not document them 19 and they'll go away slash change, closed paren. 20 So far Stac, Lotus, WordPerfect, Oracle, SCC 21 appear to be okay with this. 22 Did you take into account in forming 23 your opinions this document which says that 24 Microsoft proactively notified WordPerfect and 25 Lotus about a change that was going to be made 8185 1 in the status of the namespace extension APIs 2 and that they seemed to be okay with it? 3 A. I did, yes. 4 Q. Now, you testified on redirect that 5 Microsoft Office used Ishellbrowser. Did you 6 say that? 7 A. I did not. I said that in particular, 8 the Office REN product was going to serve -- 9 and it's in the E-mail, but I said that they -- 10 the intention for UI improvement was -- the 11 intention of Microsoft for UI improvement was 12 that it was going to be carried through REN, 13 which was the Office PIM, the Office personal 14 information manager. 15 If we could look at that, that text 16 again, that's what drove the -- what I said, 17 and I simply paraphrased it, I thought. 18 Q. Okay. But I just -- then I want to 19 ask the question, you are aware, are you not, 20 that after Mr. Gates made the decision to 21 B list, in Mr. Belfiore's terms, the 22 Ishellbrowser interface, all Microsoft 23 applications external to Windows stopped using 24 it? 25 A. Well, that's the difficulty with the 8186 1 discussions that go on afterwards, and that is 2 that Microsoft appears to continue to use the 3 Ishellbrowser extensions in the -- I think it's 4 in the Athena project, among others, but that's 5 my understanding from the record. 6 Q. Okay. But other than what you read in 7 E-mails and interpret, do you have any reason 8 to question the statement that after Mr. Gates 9 issued the order to B list the Ishellbrowser, 10 Microsoft Office, and all other Microsoft 11 applications that were not part of Windows 95 12 stopped using the Ishellbrowser interface? 13 A. Microsoft -- Microsoft applications 14 that were not part of the Windows 95 operating 15 system product. 16 Q. That's correct, sir. 17 A. I see no reason for the distinction 18 between applications and the operating system 19 product. 20 There were applications in the Windows 21 95 product that continued to use them. 22 Q. If you can answer the question yes or 23 no, please do. And then if you feel that you 24 need to explain your answer, please do. But 25 let's answer the question that I asked. 8187 1 Do you have any reason to doubt the 2 statement that after Mr. Gates decided to 3 B list the Ishellbrowser interface, all 4 applications at Microsoft that were not shipped 5 in Windows 95 stopped using the interface? 6 A. I think I answered the question, yes, 7 I have no reason to believe that applications 8 other than applications in the Microsoft 9 operating system product Windows 95 stopped 10 using the -- continued to use those interfaces. 11 Q. Now, you testified about a concept of 12 church and state on redirect, and I believe you 13 said that Microsoft, starting in the 1980s, 14 made statements to the market that there was a 15 wall between the operating systems side of the 16 company and the applications side of the 17 company. 18 Did you say that, sir? 19 A. I said that, yes, sir. 20 Q. Okay. When you said that, did you 21 take account of what is contained in 22 Defendant's Exhibit 2771? 23 MR. HOLLEY: And may I approach the 24 witness, Your Honor? 25 THE COURT: You may. 8188 1 Q. Among the things you said you relied 2 on in testifying about this church/state 3 separation was what you read in the trade 4 press; correct? 5 A. Well, in this particular case, the one 6 I'm referring to from 1983, that was Business 7 Week, which is not a trade press article or 8 trade press magazine per se. It was an 9 interview, I believe, with Mr. Maples in the 10 Business Week. 11 Other trade press interviews with 12 Microsoft executives during that period and 13 continuing forward contain similar information, 14 but to be careful, it was the Business Week 15 article that started -- 16 Q. That started it? 17 A. This one, yes. 18 Q. Okay. Now, this all came up in the 19 context of Noah Mendelsohn's memo in 1997, 20 which I'll show you if you want, but, I mean, 21 that's what you were talking about at the time, 22 and that was Plaintiffs' Exhibit 2246, which 23 is -- 24 MR. HOLLEY: May I approach the 25 witness, Your Honor? 8189 1 THE COURT: Yes. 2 Q. You were talking about church/state 3 separation in the context of a memo that 4 Mr. Mendelsohn wrote in 1995. 5 If it's possible, and I know you have 6 no table, but I'd kind of like to talk about 7 the two of them at the same time, or not 8 literally at the same time, but, you know, in 9 context. 10 A. Okay. 11 Q. What I'm trying to establish is that 12 you were saying that there was -- there were 13 statements to the market by Microsoft in the 14 1995 time frame that Mr. Mendelsohn wrote his 15 memo and that you were aware of those; is that 16 correct? 17 A. There were statements in the 18 marketplace -- in the developer community, yes, 19 to that effect. 20 Q. Okay. Now, let's look at the second 21 page of Defendant's Exhibit 2771, and there's a 22 picture of a smiling Mr. Maples, and the 23 headline says, Maples, no Chinese wall at 24 Microsoft. 25 Do you see that in this January 1992 8190 1 of Infoworld? 2 A. I see the headline, yes. 3 Q. And let's go down from the headline. 4 And, again, I don't know why the copy is as bad 5 as it is. 6 But at the bottom it says -- there is 7 a question from the interviewer. It says, 8 other companies are saying privately, quote, 9 these are systems issues, but they are coming 10 from the apps division, so there really isn't a 11 Chinese wall over there, and that's what scares 12 us in competing with Microsoft, closed quote. 13 And then what Mr. Maples says in 14 response is, there is no Chinese wall. We 15 don't want there to be a Chinese wall, and I 16 don't think we've ever claimed that there is a 17 Chinese wall. Microsoft is a single company. 18 We have a single executive in Bill. 19 And that's a reference to Mr. Gates; 20 correct? 21 A. I'm sure he would be referring to 22 Mr. Gates. 23 Q. Okay. We don't try to pretend that 24 there is a Chinese wall any more than there is 25 at Apple or -- excuse me -- at IBM or Apple or 8191 1 any other company. 2 This is a statement made to the market 3 by Microsoft in 1992 that there is no wall at 4 Microsoft; correct? 5 A. This apparently is a statement about 6 that, yes. 7 Q. Okay. And you didn't tell the jury 8 when you said that Microsoft from 1983 to the 9 present had talked about the existence of a 10 barrier inside the company about this kind of 11 statement being made by one of the most senior 12 executives at Microsoft debunking the idea that 13 there was ever a wall inside Microsoft, did 14 you? 15 A. Let's be -- I think I need to make 16 sure that we're clear here. 17 I said church and state in that the -- 18 Microsoft executives references beginning in 19 '83 were to church and state and that there 20 would be a separation with respect to whether 21 there would be favoritism or not to the 22 applications that would make it less possible 23 for applications developers to develop their 24 applications in competition with Microsoft's 25 applications on the same Microsoft platform. 8192 1 And the issue for the industry, as I 2 understand it, and continues, it's reflected in 3 Mendelsohn's -- Mr. Mendelsohn's testimony. 4 It's also reflected even in the question here. 5 And that is that it's not fair. 6 Whether it's fair or not is not the 7 same question as whether there is some sort of 8 barrier between the people who are having lunch 9 together. 10 Everyone in the industry understood 11 that Microsoft's applications barriers would 12 have lunch on the same campus as the operating 13 systems people. It's never been an issue. 14 Q. They work at the same company, don't 15 they? 16 And you're not here to make normative 17 judgments about what is fair and what is not 18 fair, are you, sir? 19 A. I'm not making normative judgments 20 about what is fair. I'm using the words I 21 thought that were in the commentary from 22 Mr. Mendelsohn and from others at the time that 23 they made them over the past 20, 25 years, 24 close to. 25 Q. Okay. And you have no reason to 8193 1 disagree with Mr. Maples' statement -- I'll 2 take those back from you, sir. 3 MR. HOLLEY: May I approach the 4 witness, Your Honor? 5 THE COURT: Yes. 6 Q. You have no reason to disagree with 7 Mr. Maples' statement in this article in 8 January 1992 in Infoworld that there is no 9 Chinese wall any more than there is at IBM or 10 Apple or any other company? You said that on 11 cross, did you not, sir? 12 A. I said it to you on cross and I -- 13 Q. And it remains your view; correct? 14 A. It remains my view. 15 Q. Now, let's turn to the question of 16 Mr. Mendelsohn at Lotus. 17 When you talked about the Mendelsohn 18 memo and -- which he sent to Mr. Lemberg, the 19 general counsel of Lotus and various other 20 people, did you explore other evidence in the 21 record about what happened after this memo got 22 written? 23 A. Well, yes, I'm sure that I looked at 24 what happened after nineteen -- is it 1996? 25 Q. Obviously, but, I mean, in terms of 8194 1 this discussion about OLE, OCX technology, did 2 you look at what happened between Lotus and 3 Microsoft in terms of getting the OCX 4 technology that Mr. Mendelsohn said he needed? 5 A. There are many iterations of the OLE 6 technology, but there was some back and forth 7 about getting them additional and improved 8 material to Lotus. 9 Q. And, in fact, that happened, didn't 10 it, in very short order? 11 After this memo that you were shown by 12 Mr. Lamb, Plaintiffs' Exhibit 2246, Microsoft 13 gave Lotus the information about OCX technology 14 that Lotus wanted? 15 A. I don't know whether it got all the 16 information, but it got more information than 17 it had had to work with in the preceding 18 period. 19 Q. Okay. Did you look at Mr. Kliger's 20 testimony, the man who was running the OCX 21 development effort inside Lotus, about what he 22 thought about Mr. Mendelsohn's memo? 23 A. Well, that's -- there's some 24 circularity in that -- not in the question, but 25 in the circumstances, because Mr. Kliger 8195 1 defers in his testimony, I believe, to 2 Mr. Mendelsohn's knowledge of the facts on the 3 ground -- I think Mr. Kliger believes that 4 Mr. Mendelsohn -- this is now all very distant 5 here, but I think Mr. Mendelsohn is identified 6 by Mr. Kliger as a more authoritative source on 7 the information and the issues. He was closer 8 to the technology at the time, closer to using 9 it. 10 Q. Well, let's look at this testimony 11 from Scott Kliger from April 26, 2002, and then 12 I'm going to ask you a question about it. 13 (Whereupon, the following video was 14 played to the jury.) 15 Question: Do you have any reason to 16 dispute Mr. Mendelsohn when he writes for Lotus 17 that the primary topic of the meeting -- first 18 paragraph -- Microsoft applications and tools 19 seem to have an unfair advantage using OCX? 20 How did Microsoft release container apps when 21 nobody was supposed to have sample code yet. 22 Do you have any reason to dispute 23 that? 24 Answer: I don't recall that being the 25 case. The work that I was doing within the 8196 1 next generation products group, we were able to 2 make the progress that we needed to make based 3 on the information that was available to us 4 from Microsoft or information that became 5 available to us during our development. 6 I would imagine that the follow-up 7 from this meeting was additional information 8 that was forthcoming from Microsoft. 9 And at no time were we not able to 10 continue the development work that we needed to 11 do. 12 Question: And did you take this -- 13 when you read this memo at the time or here 14 today, that at least Mr. Mendelsohn thought 15 that Microsoft was enjoying application 16 advantages using OCX that were not enjoyed by 17 Lotus? 18 Answer: I don't know what 19 Mr. Mendelsohn was referring to. My 20 recollection is that Microsoft wasn't using OCX 21 themselves; that no one was using it at that 22 point in time. 23 It had just -- it had just been 24 released as a preliminary specification, there 25 was one sample program that was available, and 8197 1 it had been discussed as a framework for future 2 technology improvements moving forward. 3 But to the best of my recollection, it 4 didn't exist in anybody's product. 5 Question: Well, do you believe that 6 prior to February 1995, Lotus was getting all 7 of the information it needed to compete fairly 8 with Microsoft applications as to information 9 as to OLE 2.0 and OCX? 10 Answer: Lotus started developing its 11 container strategy and its component strategy 12 with the work that I began doing in January of 13 1996, so if on -- I'm sorry, January of 1995 -- 14 so if on February 3rd of 1995, a month later, 15 we had a meeting with Microsoft and asked for 16 additional information and more support from 17 them, that would indicate to me that we had 18 some questions from the early investigation 19 that we did, we asked the questions, and my 20 recollection is we were provided with the 21 answers because we didn't sit around and 22 twiddle our thumbs from February of 1995 until 23 I left at the end of July of 1995. We were 24 writing OCX applications. We were making them 25 work. 8198 1 (Whereupon, the playing of the video 2 concluded.) 3 BY MR. HOLLEY: 4 Q. Now, in the process of trying to 5 figure out what happened after Mr. Mendelsohn's 6 memo was written in February of 1995, you 7 didn't mention to the jury on redirect, did 8 you, sir, that Mr. Kliger, who, as he 9 testified, was in charge of this project, 10 thought that Microsoft gave Lotus everything 11 that they needed, that nothing impeded Lotus's 12 development in terms of information that 13 Microsoft failed to provide? 14 A. I had considered extensively the 15 testimony that Mr. Kliger gave, and, frankly, 16 there's simply not enough to support that view. 17 The facts are, in my view, quite contrary. 18 Q. You're saying that Mr. Kliger lied in 19 his deposition and you know that based on 20 reading documents in the record? Is that your 21 testimony? 22 A. I'm sorry if that was the impression I 23 gave. I didn't -- certainly didn't intend for 24 that to be the case. I didn't intend for my 25 remarks to be suggesting that Mr. Kliger was 8199 1 not telling the truth. 2 My statements were intended to convey 3 the fact that I don't believe he knew all of 4 the facts associated with this and that my 5 investigation indicated that things were 6 different. 7 Q. So this is another instance where you, 8 based on your review of documents and reading 9 depositions, say that you know more than 10 Mr. Reiswig at IBM knew about DPMI and Windows, 11 more than Mr. Corey at DRI Novell knew about 12 access to betas, and more than Mr. Kliger at 13 Lotus knew about the development of OCX 14 applications? 15 Is that what you're saying, that you 16 know better than the people who were engaged in 17 these businesses? 18 A. I'm saying I know more. There was a 19 larger record and more information, and I've 20 had the benefit to speak to many, many more 21 people than the people who -- than the 22 individual experiences of those people. 23 And I've come to conclusions that are 24 different based on my weighing of the 25 information from these sources, as well as my 8200 1 own investigations. 2 So I'm not saying other than I have 3 had access to more information. I've had 4 opportunity to speak with more people, to 5 discuss these issues fully, and to reach the 6 conclusions that I've reached. 7 Q. Which is a long way of saying yes to 8 my question, which is you have -- are asking 9 the jury to believe that you know more than 10 Mr. Reiswig, the president of the IBM PC 11 products division; than Mr. Corey, the vice 12 president of marketing at Novell DRI; and 13 Mr. Kliger, the senior developer at Lotus on 14 OCX technology? You know more than they do 15 about their own businesses. That's what you're 16 saying, isn't it? 17 A. I know more about the particular facts 18 on which I've testified and more about these 19 matters, I believe, than the impact that Mr., 20 in this particular case, Kliger felt. 21 I spoke with Mr. Mendelsohn and others 22 from Lotus Corporation. I've read and reviewed 23 the testimonies from other companies who were 24 in similar positions to Lotus. 25 So to the extent that Mr. Kliger's 8201 1 experience is limited to those interactions 2 that he's had, I've had the benefit of being 3 able to speak with many, many more people and 4 to review the testimony of many more people on 5 these particular issues. 6 Q. Okay. One last topic. 7 You were asked on redirect about the 8 relative price of Norton Internet Security and 9 Windows XP Home, and you were asked a series of 10 questions about the functionality in those two 11 products and whether they were overlapping or 12 substitutes for one another. Do you remember 13 that? 14 A. I remember the line of questioning. 15 Q. And you would agree with me, would you 16 not, sir, that some of the functionality of 17 Norton Internet Security has been in Windows XP 18 since the release of Service Pack 2; correct? 19 A. Some of the functionality being -- you 20 had in mind -- 21 Q. The firewall, for example. 22 A. Windows XP SP2 introduced something 23 called the Windows firewall. 24 Q. And there's a firewall in Norton 25 Internet Security; correct? 8202 1 A. There is something called a firewall 2 in Norton Internet Security. 3 Q. And you would agree with me that 4 Norton Internet Security is a tiny subset of 5 the functionality provided by Windows XP Home, 6 and yet its price is almost 75 percent of the 7 price of Windows XP Home? That's right, isn't 8 it? 9 MR. LAMB: Objection as to pricing. 10 Outside the scope. 11 THE COURT: Sustained. 12 Q. You would agree with me that the 13 functionality provided by Norton Internet 14 Security, which you testified about on 15 redirect, is a tiny subset of the functionality 16 provided by Windows XP Home? 17 A. And you're -- are you talking about in 18 terms of the value or the number of lines of 19 code? 20 I mean, we had a discussion on my 21 estimates of the lines of code, and so I'm not 22 sure which unit of measure I should use in 23 responding to the question. 24 Q. In terms of functionality supplied to 25 other software products, there's no comparison 8203 1 at all; right? Because Norton Internet 2 Security is not a platform in any sense? 3 A. I think that that's probably fair. In 4 almost any sense it's not a platform. There 5 are some things that you can build on top of 6 it. But that's -- you're correct. That's -- 7 yes. 8 Q. So in terms of platform functionality, 9 you have Windows XP Home, on one hand, exposing 10 thousands and thousands of APIs for use by 11 developers and you have Norton Internet 12 Security exposing basically zero APIs? 13 A. That's okay, yes. 14 Q. And then from the standpoint of 15 computer manufacturers, you have Windows XP 16 Home being the brain of the PCs that they ship 17 and Norton Internet Security being basically a 18 possible option they could choose, but they 19 probably don't care much about; correct? 20 A. Well, in our business, the brain of 21 the computer is typically called -- we reserve 22 the title of brain to the CPU maker, so I don't 23 think I've heard Windows referred to as the 24 brains, but -- 25 Q. Okay. Well, traffic cop, let's call 8204 1 it that. 2 Windows XP Home from the standpoint of 3 computer manufacturers is the piece of 4 software -- I think you said this on direct -- 5 that manages the interaction with various 6 peripheral devices, schedules the 7 microprocessor, and provides services to 8 applications; right? 9 A. That's the function -- that's its 10 function, resource management and control. 11 That's among the list that you just gave, yes. 12 Q. So Windows XP Home does all that for 13 OEMs. 14 And in terms of Norton Internet 15 Security, all it does is provide a superset of 16 some of the security features that are already 17 in Windows; is that right? 18 A. Well, I mean, I have to be careful in 19 terms of time because as we discussed, the 20 firewall, for example, was not something that 21 was in Windows XP when it was first released, 22 and I think that when you say all that, it 23 provides as a superset, it's a very important 24 piece of software that's missing from the 25 Windows computers, and its absence is something 8205 1 that users note and feel the need to resolve by 2 purchasing the additional software. 3 So, I mean, it's not all that it does. 4 It does a very important thing for users who 5 are accessing the Internet using Microsoft's 6 operating system software. 7 Q. Okay. I can agree with that. 8 But you have said on direct that 9 Windows is a must-have in terms of OEMs. 10 They have, according -- OEMs, 11 according to you, must have Windows in order to 12 be able to market their products. 13 That is not at all true of Norton 14 Internet Security, is it? They don't need it? 15 A. They don't -- that's correct. They 16 don't need it. 17 Q. And from the standpoint of end users, 18 Windows XP Home provides a whole range of 19 functionality to end users, both directly in 20 terms of what they can do with the operating 21 system like copying pictures from their digital 22 camera to the hard drive, and also derivatively 23 in the sense of all of the functionality that 24 it provides to applications running on top of 25 it; correct? 8206 1 A. That's correct. It provides those -- 2 provides some stuff that you can do 3 immediately, as well as serving as the platform 4 for other software. 5 Q. And Internet security from Norton -- 6 Norton Internet Security -- excuse me -- from 7 Symantec provides basically just the security 8 functionality that's identified on the box that 9 we looked at yesterday; right? 10 A. We keep calling this basically and 11 stuff, but it provides important antivirus, 12 antispam, antiphishing security that improves 13 the user's ability to use the computer for 14 purposes of doing one of its most important 15 functions, which today for users is getting on 16 the Internet. 17 So it's -- I mean, it's a very -- it's 18 like -- I mean, seat belts, you know, part of 19 -- it's an important piece of stuff that you 20 need. 21 Q. Okay. But the relative functionality 22 offered to end users is precisely the same as 23 the analogy you chose; it's a seat belt to a 24 car. 25 Windows XP Home is the car and Norton 8207 1 Internet Security is the seat belt, and there's 2 a lot more functionality provided by the car 3 than there is by the the seat belt, bearing in 4 mind that the seat belt is important? 5 A. It was the seat belt to the passenger 6 I was trying to get across. 7 The seat belt to the passenger, not 8 the seat belt to the car. 9 It was to prevent you from being 10 harmed when you were driving. That's the 11 intention of my analogy. Not the seat belt to 12 the car. 13 Q. Okay. But my analogy is equally 14 correct, is it not? 15 A. Then it's your analogy, it's not mine. 16 Q. But I'm asking you, sir, whether it's 17 one that you can agree with. 18 The relative functionality provided by 19 Norton Internet Security vis-a-vis Windows XP 20 Home is of the same order of magnitude as the 21 functionality provided by a seat belt relative 22 to the functionality provided by a car? 23 A. You know, I like to think -- I mean, I 24 don't find that a particularly helpful analogy 25 in explaining what's going on. 8208 1 So, I mean, it can -- you can continue 2 to use it. Obviously, I'm not giving you 3 permission. 4 Q. I'm glad for your permission, but I'm 5 wondering if you can answer my question, which 6 is, you don't have any basis to disagree that 7 the relative functionality provided to end 8 users by Symantec's Norton Internet Security, 9 on the one hand, and Windows XP on the other is 10 of the same order of magnitude as the 11 functionality as provided by a seat belt versus 12 the functionality provided by a car? 13 A. I guess I would disagree with it 14 because we don't think of operating systems in 15 terms of a car, and we don't -- I mean, to the 16 extent that we -- to the extent that I would 17 try and embrace your analogy here, I might 18 think of an operating system as an engine, 19 maybe, or an alternator on a fan belt or 20 something like that, but I would think of the 21 operating system more like that part of the car 22 than the car itself. 23 Q. You don't understand the concept that 24 I'm trying to present to you in the question? 25 You don't understand the notion of 8209 1 relative functionality provided by Symantec's 2 Norton Internet Security, on the one hand, and 3 Windows XP Home on the other and trying to 4 gauge that relative functionality in terms of 5 something that people might be slightly more 6 familiar with? 7 Are you not understanding that, sir? 8 A. Well, I'm trying to, and I'm trying to 9 use as much as I can of the -- of what you're 10 describing. 11 I have to tell you that I think of 12 operating systems to the extent that I would 13 use that as an engine controlling or as a, you 14 know, fan belt or accessory drive mechanism in 15 an automobile and that you have different 16 things that you put on top of the engine. 17 I mean, that's a way of doing it. And 18 Symantec isn't making an engine, if you want to 19 use that. 20 Q. So your answer is you just can't 21 answer my question, which is the relative 22 functionality provided to end users by Norton 23 Internet Security, on the one hand, and Windows 24 XP Home on the other is in general order of 25 magnitude similar to the functionality provided 8210 1 to users of cars by seat belts versus the 2 entire car itself? 3 A. Gosh, I can agree that there are many 4 more interfaces that the Windows operating 5 system does, as we talked about; provide a 6 platform and the ability to use some stuff, 7 that it has many more programming interfaces, 8 many more lines of code. 9 I'm not sure that I can -- I just -- I 10 don't -- I haven't counted up how many parts in 11 a car. 12 I haven't, you know, thought about it 13 in terms of -- in terms that you're trying to 14 have me think about it. I just haven't. I 15 don't. 16 MR. HOLLEY: Fair enough. 17 I have no further questions, Your 18 Honor. 19 THE COURT: Thank you. 20 Mr. Lamb, anything else. 21 MR. LAMB: A few questions, Your 22 Honor. 23 I'll try. I apologize, Mr. Alepin. 24 FURTHER REDIRECT EXAMINATION 25 BY MR. LAMB: 8211 1 Q. You know, following that analogy, sir, 2 when you buy a car, are you more concerned 3 about the car or are you more concerned about 4 what you want out of the car? 5 A. What I want out of the car. 6 Q. In the last decade, have you ever 7 bought a car without seat belts? 8 A. No. 9 Q. Why not? 10 A. They're part of the car. 11 Q. Okay. Mr. Holley was referring to 12 some Kliger deposition testimony in relation to 13 what you were able to opine in this case, and 14 I'd like to read some deposition testimony from 15 that deposition and ask you if that impacted 16 your opinion as you expressed it to the jury 17 here in response to Mr. Holley's questions. 18 Starting at 229, 16. 19 Question: So would you have this jury 20 conclude that Mr. Mendelsohn was telling an 21 untruth when he wrote that the primary purpose 22 of this meeting was with reference to an unfair 23 Microsoft advantage? 24 Answer: I've always known 25 Mr. Mendelsohn to be a person of high 8212 1 integrity. 2 Question: So in that sense, you 3 believe that when he wrote this, it was written 4 by someone of high integrity and truthfulness; 5 is that right? 6 Question: And so Mr. -- 7 Whoop. There was an objection. 8 Okay, then another question. 9 So Mr. Mendelsohn is saying here 10 between 1992 and 1995 the Microsoft disclosure 11 problem was getting far worse? 12 Answer: I don't read it that way, and 13 you are really asking me to speculate about 14 what Mr. Mendelsohn thought or didn't think, 15 and I would encourage you to ask Mr. Mendelsohn 16 those questions. 17 Did that impact you? 18 A. Yes. 19 Q. In what way? 20 A. Well, I considered the knowledge of 21 Mr. Mendelsohn and Mr. Kliger's deferral to 22 Mr. Mendelsohn with respect to information that 23 Mr. Mendelsohn would have. 24 Q. And did you view Mr. Kliger as 25 essentially saying that the person with the 8213 1 most information about this was Mr. Mendelsohn? 2 A. Well, I think there is additional 3 information in the record that that's my 4 understanding and my understanding from other 5 sources concerning Mr. Mendelsohn's knowledge 6 and roles. 7 Q. Mr. Holley asked you about DRI trying 8 to test Win beta 3.1 over the phone with the 9 Novell engineers. Do you recall that, sir? 10 A. That's correct, I do. 11 Q. And first, Novell had a right to have 12 that beta; correct? 13 MR. HOLLEY: Objection. Calls for a 14 legal conclusion. 15 THE COURT: Sustained. 16 Q. Do you have any reason to believe that 17 Novell shouldn't have had that beta? 18 MR. HOLLEY: Same objection. 19 THE COURT: Sustained. 20 Q. Mr. Holley told you that they had the 21 beta; right? 22 A. Yes. 23 Q. So you assumed that they had the beta? 24 A. I did. This is Novell -- 25 Q. Novell. 8214 1 And Mr. Holley wasn't suggesting to 2 you that there was some problem with them 3 having the beta; right? 4 A. No. 5 Q. Why wasn't it good enough to test the 6 beta over the phone? 7 A. Well, the problem that the Digital 8 Research folks with their laboratory in England 9 faced was -- and this is before the day of net 10 meeting and videoconferencing and things like 11 this -- was that the Digital Research 12 developers had to provide test suites, if you 13 will, test programs and test scenarios that 14 they could have the Novell folks, who are at 15 the other end of the telephone, run on the 16 computer, and then they'd have to get the 17 results back and say whether this worked or 18 didn't work or what the consequence of the 19 particular thing that they were trying with 20 Windows 3.1 beta and the Digital Research 21 product, what was the result of doing that. 22 So they were basically flying blind is 23 the way I understood the circumstances. 24 One man at the other end of the 25 telephone saying, all right, try this test and 8215 1 what happened, and then another man saying try 2 this test and what happened. 3 And those reports are relayed -- I 4 mean, when we do normal software testing and 5 normal software development, you've got the 6 product on your computer and you can, as I had 7 talked about with Mr. Holley, you can use 8 debuggers, you can do file dumps. You can do 9 all these other kinds of things interactively 10 and pursue the leads and understand what had 11 happened. 12 And it's one thing to script out a 13 series of tests, it's another thing to run a 14 test, be able to find out where that leads and 15 what that information tells you and follow that 16 path. 17 And so I'm doing this over the 18 telephone eight, seven hours of time zone 19 difference. Flying blind is a very difficult 20 task. 21 Q. Now, DRI then didn't have the benefit 22 of the internal E-mails described in this 23 process; right? 24 A. I'm sorry, I don't -- know what the -- 25 Q. You're talking about doing this over 8216 1 the phone so there's E-mails that go back and 2 forth between Microsoft that relate to this 3 debugging; right? 4 A. There are E-mails that go back and 5 forth within Microsoft about the debugging. 6 Q. And did DRI have those? 7 A. DRI didn't have access to that record, 8 no. 9 Q. Let's shift to the whole issue 10 regarding the Sun documents and the rigging of 11 the testing. 12 You saw some Sun documents -- you saw 13 some documents in some E-mails today; right? 14 A. I did. 15 Q. Was there any test rigging mentioned 16 in there? 17 A. I didn't see any test rigging. 18 Q. Okay. Did you consider that to be 19 test rigging? 20 A. I think I told you -- I told you -- I 21 told Mr. Holley that the community had been 22 beating on Sun in a nice way to get more tests, 23 to get more test suites, to get more elaborate 24 test suites in order to reduce problems 25 associated with portability in the infancy of 8217 1 the Java platform. 2 Rigging is -- test suites rigging is 3 just not the sense -- no, so it's not. It's 4 not at all the idea. 5 Q. What is the sense that you had that 6 they were doing, sir? 7 A. They were responding to the 8 communities' very real need to help establish 9 what it meant to be Java compliant so that you 10 could offer the users the -- you could deliver 11 on the promise of write once, run everywhere, 12 and to do that, you needed to be able to test 13 the meets and bounds of all of that. 14 You needed to be able to confirm that 15 they -- that everyone who is implementing a 16 Java Virtual Machine and being -- and calling 17 themselves Java compliant will produce the same 18 results on as many possible different 19 combinations of interfaces and uses as 20 imagination can generate. 21 Q. And is this to keep the standard from 22 being polluted, as you put it earlier? 23 A. It has one of the -- as one of its 24 very important effects to prevent pollution of 25 the standard, yes. 8218 1 MR. LAMB: Can I see Slide 1004 that 2 you used again, please? 3 Q. Okay. This is the green tunnel slide; 4 right, sir? 5 A. Yes. 6 Q. Okay. I'm not going to put it up on 7 the board, but I'm just going to read you 8 Conclusion of Law 4.1 again. 9 Microsoft maintained the monopoly 10 power in the operating systems market by the 11 following, quote, anticompetitive conduct, end 12 quote, i.e., conduct which caused harm to the 13 competitive process and thereby harm to the 14 consumers. 15 11, deceiving Java developers about 16 the Windows-specific nature of Microsoft's Java 17 developer tools. 18 Sir, the green tunnels, is that the 19 Windows-specific nature of Microsoft's Java 20 developer tools? 21 MR. HOLLEY: Your Honor, he's now 22 being asked to interpret this. 23 THE COURT: Overruled. 24 A. That is in part the -- what is 25 intended by my Java -- by my green tunnels. 8219 1 They are the Windows-specific programming 2 interfaces. 3 Q. Now, there was some discussion -- 4 there was some questioning earlier this 5 afternoon with Mr. Holley about this concept of 6 church and state and timing and when this 7 happened. 8 And are you familiar with and have you 9 reviewed essentially a speech by Steve Ballmer 10 called systems software where he talked about 11 this issue, church and state, Chinese wall and 12 the separation? 13 A. Do you have the date for me? 14 Q. Sure. March 1988. 15 MR. HOLLEY: Your Honor, I'll just 16 observe for the record that there is no date on 17 this document and, therefore, what's the 18 foundation for counsel asserting the date of 19 the document? 20 THE COURT: Rephrase your question. 21 Q. Do you recall Mr. Ballmer giving such 22 a speech? 23 A. I recall a speech on those subjects, 24 yes. 25 Q. Do you recall approximately when it 8220 1 happened? 2 A. Late 1980s there was -- it was an 3 important topic. 4 Q. I'm going to read -- and who is Steve 5 Ballmer again? 6 A. Steve Ballmer is now the chief 7 executive at Microsoft. He was the head of 8 sales in the 1980s. Very senior Microsoft 9 employee for a very long time. 10 Q. Okay. And do you know what he was in 11 relation to Mr. Maples? 12 A. I believe he was a -- gosh, I want to 13 say I believe he was a peer, but he might have 14 been under Mr. Maples as a senior executive at 15 the time. 16 Q. How about now? 17 A. Mr. Maples has left the company -- has 18 been gone for 10, 15 years now, Mr. Maples. 19 Q. And Mr. Ballmer is the number two 20 person? 21 A. Well, I think now practically he's the 22 number one person, although -- 23 Q. Don't tell Bill that. 24 A. Although I would not want to -- would 25 not want to say that. 8221 1 Q. I'm going to read portions of this to 2 you. 3 On page 5, in the second paragraph he 4 says, as we move forward, Microsoft continues 5 to believe in the open system philosophy. 6 What's your understanding of what an 7 open system philosophy is? 8 A. That the people will be able to 9 develop products to work on and with the 10 Microsoft products. 11 Q. The bottom of the page he goes on to 12 say, when we say open systems, we're talking 13 about something that's just a little different. 14 We're talking about software products that are 15 open in the sense that we document all of the 16 programmatic interfaces. 17 A. Yes. 18 Q. What does that mean to you, 19 documenting all of the programmatic interfaces? 20 A. We document all of the APIs that are 21 available on our platform. 22 Q. He goes on to say in the middle of the 23 page, for years Microsoft has walked the line 24 with our competitors in the applications 25 business who ask the question, are you being 8222 1 really open? Is there really a separation 2 between your systems work and your applications 3 work? 4 He goes on a couple sentences later to 5 say, this really is an open platform and that 6 all third-party application developers have an 7 equal opportunity to do real exciting great 8 applications. 9 What is your understanding of what an 10 open platform is? 11 A. Well, open platform is a platform that 12 would be -- would enable third parties, 13 independent software vendors, to attach 14 products that would be -- have been developed 15 using the same amounts of information, same 16 quality and the same timeliness of information 17 as that would be available to the Microsoft 18 developers who were developing applications. 19 Q. Okay. And what does that mean in 20 terms of access to APIs? 21 A. Means that there's -- that they have 22 the access to the same amount of information. 23 Q. Mr. Ballmer goes on to say at the top 24 of page 8, in the context of what I just said, 25 I don't own the applications software, and 8223 1 there really is this separation of church and 2 state. 3 Okay. And is that consistent with 4 what your understanding is of what Microsoft 5 had said during that time period? 6 A. That's entirely consistent with the 7 understanding -- my understanding and I believe 8 the understanding of industry participants, or 9 at least it was devoutly wished by the industry 10 participants. 11 MR. LAMB: And that's Exhibit 8742 for 12 the record. 13 May I approach, Your Honor? 14 THE COURT: Yes. 15 Q. I've handed you what's been marked as 16 Plaintiffs' Exhibit 619, and it appears to be 17 an E-mail from w-Claire to Cameron M. and some 18 others? 19 A. Uh-huh. 20 Q. Do you see that, sir? 21 A. I do. 22 Q. Now, again, the w-Claire, that's the 23 PR firm? 24 A. Weggener Edstrom, and Claire is an 25 employee of that firm. 8224 1 Q. So that's the company that basically 2 puts forth the public relations of Microsoft; 3 right? 4 MR. HOLLEY: Objection, Your Honor. 5 Leading. 6 THE COURT: Sustained. 7 Q. What is it that you understand that 8 company does, sir? 9 A. As I mentioned before, Weggener 10 Edstrom was Microsoft's public relations firm 11 with a significant responsibility in 12 interacting with the trade press and the media. 13 Q. Okay. And this is dated March 21, 14 1991; right? 15 A. It was. 16 Q. And then it says to Cameron M., Jon 17 L., and then MSFTPR. Is that a group? 18 A. That's a -- yes, that would be a mail 19 group, Microsoft public relations. 20 Q. Okay. So the internal public 21 relations folks; right? 22 A. The people who are signed up on that 23 mailing list, yes. 24 Q. The last person, who is that to? 25 A. Steve Ballmer. 8225 1 Q. Steven Ballmer. 2 And the subject is trip report by SPA 3 press interviews by Cameron M. Do you see 4 that? 5 A. Yes. 6 Q. This is basically telling you what 7 Mr. Cameron M. said when he went out; right? 8 A. If you let me -- 9 Q. Go ahead, take a look at it. 10 A. Thank you. 11 Yes, yes. 12 Q. So Cameron Myhrvold posted some 13 meetings in San Francisco for the press; right? 14 A. Among other things, this is at the 15 software publisher association meeting. 16 Q. What's the software publishers 17 association? 18 A. I think if I've got this correct, it's 19 the -- I think it's the -- well, SPA is in our 20 industry, it's a trade association where -- 21 that -- of software publishers, and they do 22 other things in addition to helping people 23 count how many -- how much total sales there 24 were in a software category, for example. 25 Q. Under key messages, bullet point six 8226 1 is, it's in Microsoft's own best interest to 2 make sure that all the major applications 3 support MS systems software. There is nothing 4 to gain from giving MS apps an unfair 5 advantage. The Chinese wall is real. 6 Do you see that, sir? First page, 7 number six. 8 A. Number six, yes, I do. 9 Q. And is that consistent with your 10 understanding of what Microsoft was telling the 11 community? 12 A. That this is, in fact, the message 13 that Microsoft was seeking to convey. 14 Q. Okay. 15 A. To make the Chinese wall, as people 16 who use that term, have intended it. To make 17 it appear to be real. 18 Q. Okay. So Microsoft is telling the 19 world that it's real; right? 20 A. That's correct. 21 I mean, these -- at the top, the six 22 points or so, the key messages that we have to 23 convey include we love ISVs and there is a -- 24 there is a Chinese wall. 25 Q. Okay. We love ISVs and there is a 8227 1 Chinese wall? 2 A. Uh-huh. 3 Q. Okay. And at least in your 4 professional opinion, in actuality there was no 5 wall; right? 6 A. That's quite correct. That's very 7 correct. 8 Q. Okay. Now, really, the last thing 9 that Mr. Holley asked you about was -- we went 10 back to these Quicken and Norton comparatives, 11 and he asked you some questions about them, and 12 I just want to be clear. 13 And you testified earlier that you 14 reviewed a lot of information in relation to 15 this case, and one of the things that you did 16 was you reviewed some of the jury instructions; 17 right? 18 A. I did. 19 Q. Okay. Jury Instruction 6, the first 20 paragraph only, says as to the first element, a 21 relevant product market consists of all the 22 products that are reasonable substitutes for 23 one another; that is, products that compete 24 with each other. 25 In other words, the relevant product 8228 1 market includes the products that a consumer 2 believes are reasonably interchangeable or 3 reasonable substitutes for each other for the 4 same purpose. Products need not be identical 5 or precisely interchangeable as long as they 6 are reasonable substitutes. Okay. 7 Now, again, sir, Quicken, is that a 8 product that's a reasonable substitute, in your 9 opinion, for Windows XP? 10 MR. HOLLEY: Your Honor, I object to 11 the preamble to the question. It's for the 12 Court alone to tell the jury what the law is. 13 THE COURT: Sustained. 14 Q. Sir, is Quicken a reasonable 15 substitute, in your opinion, for Windows XP? 16 A. No, it is not. 17 Q. In your opinion, is Quicken reasonably 18 interchangeable with Windows XP? 19 A. No, it is not. 20 Q. In your professional opinion, sir, is 21 Norton Internet Security a reasonable 22 substitute for Windows XP? 23 A. No, sir, it is not. 24 Q. In your professional opinion, sir, is 25 Norton Internet Security interchangeable, 8229 1 reasonably interchangeable with Windows XP? 2 A. No, it is not. 3 MR. LAMB: I have no further 4 questions. 5 MR. HOLLEY: Can I ask just one, Your 6 Honor? 7 THE COURT: Yes, Mr. Holley. 8 RECROSS-EXAMINATION 9 BY MR. HOLLEY: 10 Q. I'd like to take you to this speech by 11 Mr. Ballmer entitled systems software on page 12 7. Do you still have that up here? 13 A. I never -- 14 Q. No one ever gave it to you. I'm 15 sorry. 16 MR. HOLLEY: May I approach the 17 witness, Your Honor? 18 THE COURT: Yes. 19 Q. So Mr. Lamb read you in his last 20 examination -- I've lost track of where the 21 tennis ball is at the moment, but he read you 22 various statements from this document, correct? 23 Including the one on the top of page 8 that 24 said there really is this separation of church 25 and state. Do you recall that? 8230 1 A. I'm just getting my hands around the 2 document. 3 Q. Fine. 4 A. Just a second. You're on page 8? 5 Q. I am at the top of page 8, which is, I 6 believe, where Mr. Lamb read from, and he said, 7 in the context of what I just said, I don't own 8 the application software and there really is 9 this separation of church and state. 10 You recall being asked about that 11 statement; correct? 12 A. I do. 13 Q. You do not recall because you weren't 14 read the following statement on the prior page: 15 We put an incredible amount of time, 16 as I said, into our work with people like Lotus 17 and Ashton/Tate and WordPerfect and Borland and 18 Software Publishing, et cetera, et cetera, and 19 that will certainly continue. 20 People are sometimes surprised. 21 Frankly, I think I spend more time working with 22 the development groups of some of our 23 competitors than I do with our own applications 24 group. That may say something about our own 25 applications group's overwhelming competence, 8231 1 but we certainly spend a lot of time with our 2 competitors. I'm responsible for the piece of 3 the business that owns the systems software. 4 Now, Mr. Ballmer does not say that he 5 is unable to talk to our own applications group 6 because they're on the other side of some wall; 7 correct? He doesn't say that? 8 And, in fact, he says he spends time 9 with Microsoft's applications developers just 10 like he does with the applications groups at 11 companies like Lotus, Ashton/Tate, WordPerfect 12 and Borland; correct? 13 A. Yes. 14 MR. HOLLEY: No further questions, 15 Your Honor. 16 THE COURT: Anything else? 17 MR. LAMB: No, sir. 18 THE COURT: Consistent with 19 Preliminary Instruction No. 28, is there any 20 written questions by any members of the jury? 21 If so, raise your hand. 22 The two prior questions that were 23 given to me some time ago, which I've passed on 24 to counsel, have those questions been answered 25 or do you wish me to pose them to the witness? 8232 1 Very well. You may step down. This 2 witness is excused. 3 You're excused due to the lateness of 4 the day. Was there anything else before I let 5 the jury go? 6 MR. LAMB: Your Honor, before you let 7 the jury go, we'd offer Exhibits 874 and 69 -- 8 619 into evidence. I'm sorry, 874, 619. 9 THE COURT: I'm sorry? It's 874, 169? 10 MR. LAMB: I'm sorry, sir. Try again. 11 874. Next exhibit, 619. I apologize. 12 THE COURT: Two exhibits? 13 MR. LAMB: Yes, sir. 14 THE COURT: Very well. Any objection? 15 MR. HOLLEY: No objection, Your Honor. 16 And at this time Microsoft would move 17 the admission of Defendant's Exhibit 6750, 18 6751, and 6752. 19 THE COURT: Any objection? 20 MR. LAMB: Oh, I'm sorry, I misspoke. 21 It's 8742. 22 MR. HOLLEY: No objection, Your Honor. 23 THE COURT: 87 -- 24 MR. LAMB: I'm sorry. 8742. My 25 mistake. 8233 1 THE COURT: All right. Do you have 2 any objection to 8742? 3 MR. HOLLEY: No, Your Honor. 4 THE COURT: 6750, 6751, 6752 are 5 admitted. 6 MR. TULCHIN: Those are Defendant's 7 exhibits, those numbers. 8 THE COURT: Right. 9 Members of the jury -- did you get it 10 right? Was there anything else? 11 MR. LAMB: No, Your Honor. 12 THE COURT: I will let you go for the 13 weekend. It's a long weekend, I believe, so I 14 won't see you till Tuesday at 8:30 a.m. 15 Your notebooks will be quite safe. 16 Before we go, I'm going to read to you 17 the admonition as I promised. 18 On your oaths as jurors in this case 19 you are admonished that it is your duty not to 20 permit any person to speak with you on any 21 subject connected with this trial -- with the 22 trial of this case. 23 You are not to talk with any of the 24 parties, their attorneys or witnesses during 25 the trial, even upon matters wholly unrelated 8234 1 to this trial. 2 Should anyone try to discuss this case 3 with you or in your presence, you should not 4 listen to such conversation. You should 5 immediately walk away. If a person should 6 persist in talking to you, try to find out 7 their name and report it immediately to the 8 Court. 9 You also are admonished not to 10 converse among yourselves or with anyone, 11 including family members, on any subject 12 connected with the trial of this case. 13 You should not form or express an 14 opinion on this case and you should keep an 15 open mind until you've heard all of the 16 evidence, the statements and arguments of 17 counsel, the instructions of the Court, and the 18 case is finally submitted to you and you have 19 retired to your jury room to deliberate. 20 Not only must your conduct as jurors 21 be above reproach, but you must avoid the 22 appearance of any improper conduct. 23 You must avoid reading, listening to, 24 or watching news accounts of this trial. You 25 also should avoid any interest or looking at 8235 1 any websites concerning this trial, if there 2 should be any. 3 Sometimes such accounts are based upon 4 incomplete information or contain matters which 5 would not be admissible in Court and could 6 unduly influence your ultimate decision. 7 You may not -- this doesn't apply 8 here, but you may not visit or investigate the 9 scene of this occurrence unless you're directed 10 to do so by the Court, but that's the standard 11 language they put in. 12 As a jury you are the Judge of the 13 facts, while the Court is the Judge of the law. 14 During the course of this trial I will be 15 required to decide legal questions, and before 16 you leave to deliberate this case, the Court 17 will instruct you on the law to follow in 18 reaching your verdict. 19 You should give careful attention to 20 all of the testimony as it is presented to you, 21 for you will only hear it once and you must 22 depend upon your recollections of the testimony 23 when deliberating in your jury room. But, as 24 stated before, do not form an opinion and keep 25 an open mind until all of the evidence has been 8236 1 received. 2 Time to time during the trial, the 3 Court will be required to confer with the 4 attorneys upon points of law that require only 5 the consideration of Court -- of the Court. 6 These conferences will be conducted 7 outside the presence of the jury. It is 8 impossible to predict when these conferences 9 will be required or how long they may last. 10 However, these conferences will be 11 conducted so as to consume as little of your 12 time as possible while still being consistent 13 with the orderly progress of the trial. 14 Also, from time to time during the 15 trial the Court will be required to rule on 16 objections or motions of the lawyers. You 17 should not infer anything by reason of the 18 objection, nor may you infer anything from the 19 rulings on the objections or that the Court has 20 any opinion one way or the other concerning the 21 merits of the case. 22 If an objection to a question of the 23 witness is made and the objection is sustained 24 and the witness is not permitted to answer, you 25 should not speculate on what the answer may 8237 1 have been nor may you draw any inference from 2 the question itself. 3 Additionally, in your jury room, you 4 must not refer to or give consideration to any 5 testimony which may have been given, but then 6 was stricken from the record by the Court. 7 Also, the lawyers in this case are 8 under an obligation not to talk with you. Do 9 not consider them to be aloof if they do not 10 greet you outside of the courtroom. They are 11 merely abiding by their own rules of ethics and 12 the rules of this Court. 13 Each time we recess, I will ask you to 14 remember the admonition. 15 Have a very nice weekend. Drive 16 careful. 17 We'll see you at 8:30 a.m. on Tuesday. 18 You're dismissed. Thank you. 19 All rise. 20 (A recess was taken from 2:55 p.m. 21 to 3:07 p.m.) 22 (The following record was made out of 23 the presence of the jury.) 24 MS. CONLIN: Your Honor, Mr. West is 25 an attorney with the Zelle, Hofmann law firm. 8238 1 He's an attorney in good standing. He has not 2 been formally pro hac viced, but will not be 3 participating orally in the proceedings, but in 4 an excess of caution, Your Honor, at this time 5 I move for the admission of -- the provisional 6 admission of Mr. West pro hac vice 7 THE COURT: Any objection? 8 MR. ROSENFELD: No objection. 9 MR. GREEN: Your Honor, I don't have 10 an objection, but just out of other caution for 11 you, I don't think you can do that under the 12 new rules. 13 THE COURT: The rules have been 14 changed by the Iowa Supreme Court recently. 15 MR. GREEN: There's very specific 16 things that you have to do. 17 MS. CONLIN: I'm aware of that, Your 18 Honor, and I'm not even sure that it's 19 necessary for him to be pro haced, because a 20 legal assistant could sit up and hand papers. 21 So if it's not a comfortable thing for the 22 Court to do, then, that's fine. I just wanted 23 to -- 24 THE COURT: Despite the no objection, 25 I think I have to decline at this time. I 8239 1 think Mr. Green is correct, the rules were 2 changed, what, two months ago, wasn't it? 3 MR. GREEN: Yes. 4 THE COURT: But he's allowed to sit up 5 here. He's like a legal assistant anyhow. 6 Sorry to demote you. 7 That does not give Mr. Hagstrom free 8 reign to decrease your salary for the time 9 you're here. 10 Mr. Rosenfeld, you have a motion? 11 MR. ROSENFELD: Thank you, Your Honor. 12 And I at least am cautiously 13 optimistic that we could get this done 14 expeditiously and everybody can make their 15 respective planes, and I think it's regrettable 16 that we're here. 17 This is exactly to the day one month 18 after your order of December 12th, your third 19 order with respect to Microsoft's initial 20 motion to get the Plaintiffs to comply with 21 their discovery obligations, their expert 22 discovery obligations in this case. 23 You issued prior orders on November 24 21st and November 28th, and then on December 25 12th, told them, in no uncertain terms, to, if 8240 1 you will, get the job done. 2 Unfortunately, we still find ourselves 3 in a situation where Plaintiffs have failed to 4 fully comply with their obligations with regard 5 to expert discovery, and they persist in 6 playing word games and taking positions that 7 are simply not consistent with what this Court 8 has ordered. 9 And I will go into that in detail 10 momentarily, but I want to put this in context. 11 These violations of the discovery 12 rules and other tactics that the Plaintiffs 13 have engaged in are particularly problematic 14 here because -- and I think, Your Honor, you 15 may have gotten your first taste of it with 16 Mr. Alepin. 17 Plaintiffs have a lot of experts, but 18 they are -- there's almost a web of 19 interdependency among them. They all in one 20 way or another rely for a core part of their 21 analysis on yet another member of the 22 Plaintiffs' expert team. 23 So Mr. Alepin relied on Mr. Martin, 24 Mr. Schulman. 25 Mr. Noll -- Professor Noll relies on 8241 1 Mr. Alepin. 2 Professor Mackie-Mason relies on 3 Professor Noll, Mr. Schulman, and Mr. Alepin. 4 Doctor Netz relies on Professor 5 Mackie-Mason and Professor Noll, among others. 6 Professor Stiglitz, who we are 7 deposing on Monday in New York, relies on 8 Mr. Alepin, Doctor Warren Boulton, Professor 9 Noll, Professor Mackie-Mason, and Doctor Netz. 10 And on and on it goes, with Doctor 11 Gowrisankaran who relies on Mr. Smith, Mr. 12 Martin, and Doctor Netz, and so on. 13 In that context, getting the materials 14 that these experts relied upon in forming their 15 opinions is particularly critical. 16 And we are now at the beginning of the 17 beginning, I guess, of the Plaintiffs' case. 18 We've heard their first expert, and we are 19 still fighting over expert discovery. 20 And, indeed, we still have to take at 21 least one, and we suspect several more 22 depositions of Plaintiffs' experts. 23 Now, as we noted in our papers, there 24 are about five specific incidents here that we 25 think constitute a violation of your order, and 8242 1 I want to walk through them. 2 The first one has to do with what we 3 call the Pfau memo. This is -- Mr. Pfau is a 4 staff member who worked with Doctor 5 Mackie-Mason in the preparation of his report. 6 THE COURT: How do you spell his name? 7 MR. ROSENFELD: P-f-a-u. 8 THE COURT: Okay. 9 MR. ROSENFELD: In the deposition I 10 examined Doctor Mackie-Mason. 11 First we discussed the drafting 12 process, and consistent with the stipulation 13 between the parties, we did not inquire into 14 the details of the drafts, comments on the 15 drafts, notes relating to the drafts, because 16 both sides had agreed that that was not fair 17 game, and so we respected that in the 18 deposition. 19 During the course of my examination, 20 however, I asked Doctor Mackie-Mason, excluding 21 drafts, if there was anything else, and in the 22 course of giving his answers, and I believe 23 this is reflected in Exhibit A to our reply 24 memo, he said, you know, in thinking about 25 this, I now recall a memo that I got from 8243 1 Mr. Pfau, and this memo in rough terms was -- 2 and I think this is the exact phrase Doctor 3 Mackie-Mason used -- a work plan. 4 He referenced that I think he got it 5 almost a year ago, and it was a recitation of a 6 number of issues that needed to be 7 investigated, research that needed to be done, 8 and so on in connection with Doctor 9 Mackie-Mason providing his expert report. 10 Now, what is significant about that is 11 that that discussion of that work plan was 12 separate from the discussion of the drafting 13 process and, indeed, quite distinct from that 14 drafting process. 15 Professor Mackie-Mason said the way I 16 do the draft is I get it online. I work with 17 my staff. They have on there track changes. I 18 look at what they've said. I either accept it 19 or I reject it. That is my drafting process. 20 And consistent with our understanding, 21 we inquired no further. 22 This discussion of the working draft 23 -- excuse me -- of the work plan was separate 24 and distinct from that drafting process. 25 It's quintessentially what you want 8244 1 when you're inquiring into the work that an 2 expert is doing because you want to know what 3 issues were investigated, what things the 4 expert decided to pursue, what things the 5 expert decided not to pursue, what work he 6 requested that he got, and what work he 7 requested that he didn't get, and so on. 8 It is part and proper expert 9 discovery. 10 Plaintiffs have refused to provide 11 this working -- this work plan to us. 12 They've said this is a draft. 13 Contrary to what Doctor Mackie-Mason said, they 14 have maintained that this is a draft, and 15 therefore -- or part of the drafting process, 16 and, therefore, we are not entitled to it. 17 Now, you will look in vain, if my 18 memory serves me, for any declaration from 19 Professor Mackie-Mason saying this work plan 20 was a draft. 21 There is no such sworn statement with 22 this motion. There is only one sworn 23 statement. That is Professor Mackie-Mason's 24 testimony in his deposition where he 25 distinguished this from the drafting process 8245 1 and identified it as a work plan. 2 Plaintiffs have refused to provide it 3 in the face of a request from us. That one 4 seems (a) material to which we are clearly 5 entitled. The refusal is in contravention of 6 this Court's repeated orders in connection with 7 expert discovery. It is inexcusable. 8 Inexcusable. 9 Second, another of the Plaintiffs' 10 experts, Mr. Martin -- 11 THE COURT: This is the second 12 instance? 13 MR. ROSENFELD: Yes, this is the 14 second one. 15 Mr. Martin, as I said in describing 16 this interlocking web of experts, all of whom 17 rely on each other, Mr. Martin provided an 18 expert report. He is also a partner of Mr. 19 Smith, another of the experts. 20 He also was a go-between and 21 communicated directly with Doctor 22 Gowrisankaran. 23 It's kind of interesting we've had to 24 piece that together. Doctor Gowrisankaran 25 never acknowledged that he got any help, but 8246 1 Mr. Smith and Mr. Martin -- excuse me -- 2 Mr. Smith explained that Mr. Martin was the 3 go-between. 4 Mr. Martin provided an expert report 5 on June 2nd. At that time he was obligated to 6 provide the discovery, the background materials 7 that he reviewed or relied upon in connection 8 with that report. 9 On August 21st you ordered production 10 by September 1st of those materials. 11 Three months later, in the midst of 12 the trial, on December 15th, and without 13 producing any materials, any additional 14 materials pursuant to the Court's order, we got 15 a letter from Mr. Reece -- I believe this is 16 Exhibit N to Microsoft's motion -- where he 17 simply says we are withdrawing Mr. Martin as an 18 expert. 19 Now, presumably that is an effort to 20 avoid providing the discovery that we would 21 otherwise be entitled to, but it is simply too 22 late. 23 Mr. Martin in this case provided an 24 expert report. By so doing, he incurred the 25 obligation to comply with the discovery 8247 1 requirements that the parties had agreed to and 2 that this Court has enforced to make available 3 to us materials that he reviewed or relied upon 4 in connection with his report. 5 Plaintiffs have taken the position 6 that they are no longer subject to that 7 obligation because they have withdrawn him as a 8 witness. 9 Now, this is particularly problematic 10 because, as I said before, a number of the 11 experts in this case rely on Mr. Martin's 12 report. 13 Indeed, it was very interesting this 14 morning when Mr. Lamb was examining Mr. Alepin, 15 and you'll recall he went through Exhibit B, 16 which is the list of materials that were 17 reviewed or relied upon. 18 Mr. Lamb was attempting to bolster the 19 credibility of Mr. Alepin by suggesting that he 20 had relied on lots and lots of materials, and 21 just coincidentally, he stopped at the 22 reference to Mr. Martin's report, which is 23 listed in Doctor Alepin's Exhibit B as 24 something that he reviewed or relied upon. 25 But Mr. Lamb didn't stop there. He 8248 1 said and you didn't merely look at his report, 2 you looked at the exhibits that were attached 3 to his report. 4 Mr. Alepin is not the only one. He 5 actually wrote sections, so we've learned, of 6 Mr. Alepin's report. He provided information 7 to Mr. Alepin. He provided assistance to 8 Mr. Smith. He provided assistance to Doctor 9 Gowrisankaran. Doctor Warren Boulton also 10 indicated that he had reviewed Mr. Martin's 11 report. 12 Under these circumstances where a 13 report was tendered, it was relied upon by 14 others on the Plaintiffs' expert team. We are 15 entitled to get the material that Mr. Martin 16 reviewed and relied upon. 17 If he is not going to testify, sobeit. 18 Others are relying on his work, and we ought to 19 have the ability to know and to be able to 20 assess the quality and credibility and bona 21 fides and basis and support of that work. 22 And it just doesn't work at the 23 eleventh hour to say we're not going to do what 24 the Court ordered us to do. 25 We're not going to do not once, not 8249 1 twice, but three times ordered us to do. We're 2 not going to comply with an obligation that 3 ripened many, many months ago. We're just 4 going to conveniently withdraw him and deny 5 Microsoft the ability to have the underlying 6 materials. 7 That -- I think that conduct actually 8 speaks for itself. That's number two. 9 That's number two. 10 Number three, and this one is, I 11 think, utterly perplexing. 12 This has to do with Doctor 13 Gowrisankaran, who you will remember, Your 14 Honor, is Plaintiffs' damage expert in 15 connection with their security claim. 16 He did calculations relating to the 17 so-called security damages. He's the subject 18 of many, many of the summary judgments and 19 motions in limine. 20 Plaintiffs produced to us, and I 21 believe it is Exhibit B -- excuse me -- Exhibit 22 P to the original memo, our original memo. And 23 this is one it might be useful to look at. 24 They produced to us in connection with 25 the Court's order, I believe this was on the 8250 1 15th of December; is that correct? 14th or 2 15th. -- E-mails as part of producing 3 documents that not only were reviewed -- excuse 4 me -- not only relied upon, but were reviewed. 5 But if you look at those E-mails, 6 mysteriously there are redactions on them. 7 There is material that apparently was 8 in these E-mails, one of which is an E-mail 9 from Mr. Reece from the Zelle, Hofmann firm, 10 the materials that have been redacted. 11 So we said given that there is no 12 privilege with an expert, what you give the 13 expert you have to produce. There's no basis 14 for redacting these documents. 15 And we were told, well, it's simply 16 transmittal information. It's the name of 17 nontestifying consultants. 18 That may all be the case, but it is 19 not a reason for not producing the material. 20 There is no privilege, there is no 21 provision in the stipulation, and it was not 22 done by Microsoft. 23 They've also suggested there should be 24 an in camera review by the Court. While we 25 have great confidence in Your Honor, in camera 8251 1 review is appropriate when a privilege is at 2 issue. 3 There is no privilege here. 4 Now, it's interesting that these 5 redacted materials were provided to us the same 6 day that Mr. Martin was withdrawn as an expert. 7 Now, we don't know why we don't have 8 much of an insight into what's motivating this 9 conduct, so we're trying to piece together the 10 the connections, and that's one piece of the 11 connection. 12 But the other thing I would say is 13 that in the course of expert discovery in this 14 case, Microsoft has provided precisely the kind 15 of information that Plaintiffs are refusing to 16 provide. 17 Exhibit B to our reply memo, for 18 example, is testimony by Mr. Hubbard, Doctor 19 Hubbard, Professor Hubbard, where he's asked 20 who did you get information from, who did you 21 work with, and he provided all of that 22 information. 23 Simply put, there is no basis 24 whatsoever for denying us this information. 25 And, again, it seems to be of a piece 8252 1 with Plaintiffs' efforts to at the margin 2 continue to skirt the discovery obligations 3 that you have explained now three times. 4 The fourth incident has to do with 5 handwritten notations on documents. 6 Microsoft has produced, and we were 7 chided for quietly producing -- I believe this 8 was on December 14th -- quietly producing the 9 underlying reports that our experts reviewed, 10 the underlying reports that have been presented 11 by the Plaintiffs, and we produced them because 12 we learned that our experts had written on 13 them. 14 They had made notes in the course of 15 going through and reading them. They had 16 underlined and they had made notes. And so we 17 said Plaintiffs are entitled to that, and we 18 produced it to the Plaintiffs. 19 Plaintiffs said we did it quietly. I 20 don't know what noisily would have been, but 21 we'll take a quiet production from the 22 Plaintiffs. All we want are the documents. 23 Now, Plaintiffs have said to us we're 24 informed that nobody made such notations on the 25 documents. And that may be, but given the past 8253 1 history here, we think the Court ought to 2 require the Plaintiffs to make an unequivocal 3 and clear inquiry of all of their experts to 4 satisfy themselves and the Court, and 5 incidentally, us, that they have, in fact, 6 requested that information if it exists and 7 that it has been provided to us. 8 That has not been done. We did that 9 for two experts, Professor Bennett -- and I 10 think these were voluminous stacks of reports 11 that have been annotated -- and Professor 12 Morrison-Paul. 13 Fifth category -- and I think I was 14 not quite correct, I think there's six instead 15 of five, Your Honor. 16 Fifth category, and I think this one 17 actually explains a great deal. These are 18 materials looked at after the filing of the 19 expert report. 20 Again, on August 30th, well before the 21 Court's orders, certainly the latest of them, 22 the two orders, Microsoft produced from its 23 experts, two experts, materials that the expert 24 had reviewed after the expert report was 25 submitted, but prior to the deposition. 8254 1 And this document is Exhibit D to our 2 reply brief, and I think it is worth looking at 3 because it's short, but it speaks volumes. 4 On August 30th we wrote to 5 Mr. Hagstrom, and we said, find additional 6 backup material for Sharon Oster, one of our 7 experts, and Kathy Morrison-Paul another, that 8 these experts have reviewed or relied upon 9 subsequent to the filing of their expert 10 reports. 11 Although these are not materials that 12 were reviewed and/or relied upon for the 13 purpose of preparing their expert reports, they 14 were subsequently reviewed or relied upon in 15 connection with their expert work in this 16 matter, and we're producing them to you. 17 And we did it. And we did that before 18 their depositions. 19 Plaintiffs didn't say to us, well, 20 that's a mistake on your part, Microsoft. 21 You're not obligated to produce those documents 22 to us. They didn't say that. 23 Indeed, at the deposition, 24 particularly, I believe, at the deposition of 25 -- is it Morrison-Paul? Oh, excuse me, Wright. 8255 1 Excuse me. It's Wright and Oster; I'm sorry. 2 In the deposition of Wright because we 3 also provided similar materials, and that's 4 reflected in Exhibit E. 5 They also didn't send that back. 6 Instead, at her deposition, they 7 questioned her about those materials. And that 8 was fine and that was proper because the 9 depositions were designed to provide 10 information about the expert opinions. That's 11 why we had it. 12 If there were materials that were 13 reviewed after the report, that's fair game for 14 questioning at the depositions, and we made 15 them available and they were questioned about 16 them. 17 Now, what did Plaintiffs do in 18 response to this? 19 Well, you'll remember, Your Honor, on 20 December -- I think it was the 12th. Excuse 21 me, the 15th. 22 December 15th, when Plaintiffs came to 23 give a status report on their production, 24 Mr. Hagstrom mentioned at the end of that 25 report, he said, of course this doesn't have to 8256 1 do with materials that are used to prepare our 2 experts to testify at trial because we're all 3 in the process of preparing our experts, and it 4 doesn't. 5 And Mr. Holley said, very quickly, no, 6 we agree with that, and you said so, as well, 7 Your Honor, and that's reflected in Exhibit L 8 to our opening brief. 9 Everybody agreed that materials that 10 we were all using to prepare our experts to 11 testify at trial fell into a different 12 category. 13 Plaintiffs, however, didn't stop 14 there, but they did what they did throughout 15 the process, and that is that they took the 16 language and they pushed it beyond what 17 everybody had agreed to. 18 And if you look at -- I believe it's 19 Exhibit 8 to Plaintiffs' resistance, it's a 20 letter to Mr. Jurata from Mr. Reece. 21 It's dated December 18th, a mere three 22 days after the Court's last hearing and after 23 the mutual understanding about documents used 24 to prepare experts to testify. 25 And Mr. Reece says at the end of the 8257 1 first paragraph, consistent with the parties' 2 mutual understanding as discussed in court, no 3 materials subsequent to the reports or for the 4 purpose of trial preparation need to be 5 produced. 6 I'm going to read that again. 7 No materials subsequent to the reports 8 or for the purposes of trial preparation need 9 to be produced. 10 That's not what the parties agreed to, 11 and that's not what you said a mere three days 12 before. 13 This is a quintessential example of 14 how Plaintiffs have played with the Court's 15 orders and with the stipulation that the 16 parties agreed to. 17 We did not agree the documents that 18 were reviewed subsequent to the expert reports 19 and, for example, prior to the depositions were 20 not fair game. 21 We produced them. They knew we 22 produced them. It's appropriate that we all be 23 provided with that material and have the 24 opportunity to cross-examine the experts on 25 materials they looked at after their report, 8258 1 and certainly before their deposition. 2 Not only haven't Plaintiffs produced 3 those materials, but they attempted to play 4 fast and loose with what was said in open court 5 to skirt that obligation. 6 They should be required to produce 7 those materials for all of their experts. 8 This to me is the most transparent 9 example of the way in which Plaintiffs have 10 dealt with this Court's orders and with the 11 general obligations for expert discovery. 12 Finally, the Court has ordered on a 13 number of occasions a list of deleted or 14 destroyed documents, and we've gotten in 15 various letters a statement about this witness 16 or that witness. 17 We haven't gotten any of the detail 18 that the Court asked for, just a generalized 19 statement, and we think Plaintiffs ought to be 20 required to confirm in writing that they have 21 asked their experts, each and every one of 22 them, including Mr. Martin, what they destroyed 23 and deleted and should make a good faith effort 24 to specify the subject matter that was 25 involved. 8259 1 Indeed, that is what this Court 2 ordered, I believe, on the 12th of December and 3 on the 28th of November. 4 Now, I want to be clear, I'm not 5 taking the position that destroying notes or 6 what have you -- it happens. I mean, it 7 happened. It happened on our side too. And we 8 told them. 9 And in the deposition when that 10 happened, we allowed full inquiry of the 11 witness into the circumstances of the 12 documents. What was involved; what did you 13 say. We didn't instruct; we didn't limit the 14 examination. 15 Plaintiffs did. They did on the basis 16 of their construction of the original 17 stipulation. 18 The things that were reviewed, however 19 you define that term, didn't count. 20 And since these documents were not, 21 according to their various experts, relied 22 upon, we were not allowed to inquire as to the 23 circumstances surrounding the destruction or 24 the deletion of the documents or the subject 25 matter. 8260 1 Their witnesses were instructed 2 repeatedly not to answer the question. 3 In Doctor Mackie-Mason's deposition, 4 Mr. Reece instructed in excess of 20 times in a 5 context where there is no privilege, and that 6 pattern persisted and persisted. 7 So this requirement for Microsoft to 8 get the detailed information about destroyed or 9 deleted documents is all the more critical, 10 precisely because we were denied the 11 opportunity to inquire into the circumstances 12 in the depositions. 13 Of course, that list was originally 14 requested in our first motion and repeatedly 15 referenced, Your Honor, in what is now your 16 three orders dealing with this discovery 17 situation. 18 That brings us to the end of my 19 presentation, except to talk about our request 20 for sanctions. 21 And we have repeated this request and 22 repeated this request and repeated this 23 request, and we've had it repeated because we 24 still -- what is it, seven months after this 25 discovery was supposed to be made available, 8261 1 two months into trial; and as we all know, 2 Plaintiffs go first, so we're dealing with 3 their experts, one of whom, because of his 4 travel schedule, we're having to depose in the 5 middle of trial. 6 We have first requested to the extent 7 that there are significant new materials 8 provided to us, and there have been -- in the 9 case of Mr. Schulman, I believe there are 10 potentially a thousand or more pages. Mr. 11 Smith, the same thing. These are new 12 productions postdeposition. 13 We've requested in the case of 14 Mr. Schulman already that we have a deposition. 15 Now, I grant you, Microsoft produced 16 materials relating to source code late in the 17 process. 18 We're not complaining that 19 Mr. Schulman provided an expert report after 20 the deadline. We're not complaining about that 21 at all. We simply want an opportunity to 22 inquire. 23 And he used the excuse of providing a 24 supplemental report to provide and present new 25 opinions that didn't have anything to do with 8262 1 the source code. 2 We've requested his deposition. We've 3 been rebuffed, predictably, by the Plaintiffs, 4 and we filed a motion to get that deposition. 5 We think we will also need a 6 deposition of Mr. Smith and potentially, 7 potentially several others of the Plaintiffs' 8 experts. 9 And we believe, and I think we said 10 this in our papers, that Plaintiffs should not 11 be allowed to put their experts on the stand 12 until 30 days after we've been given that 13 opportunity to depose them. Because we should 14 not be prejudiced by their failure to comply 15 with the rules. 16 We've also requested the exclusions of 17 Mackie-Mason -- Professor Mackie-Mason, Doctor 18 Netz, Doctor Gowrisankaran because of the 19 evidence in this case, particularly relating to 20 Doctors Mackie-Mason and Netz that they were 21 following different rules relating to what you 22 are obligated to -- excuse me. 23 I'm informed that I didn't ask for 24 Netz; that we asked for -- oh, Mr. Alepin -- 25 it's just Mackie-Mason and Gowrisankaran. 8263 1 Excuse me. 2 Because it does appear that they were 3 following different rules in terms of what they 4 were obligated to make available. 5 Microsoft consistently interpreted the 6 stipulation the way the Court did and 7 consistent with its plain language and plain 8 meaning, review and/or rely upon. And we 9 produced materials that were reviewed, as well 10 as those relied upon. 11 And, frankly, the production on 12 August 30 of the materials after the expert 13 report, our production is the best evidence of 14 that. There wasn't any order that 15 reinterpreted that point. That was our 16 unilateral action because we thought both sides 17 understood the plain meaning of review and rely 18 upon. 19 We have adhered to that stipulation. 20 So under these circumstances, it's -- 21 I think perplexing is about the mildest word I 22 can come up with as to why we find ourselves 23 here, on the 12th of January, a month after 24 your last order, which was quite in fact, why 25 Plaintiffs still seem to be skirting the order, 8264 1 skirting the rules, trying to withdraw experts 2 and thereby deny us of discovery, 3 mischaracterize testimony to deny us materials, 4 redact E-mails when there is absolutely no 5 basis to do so. 6 Under these circumstances, we think 7 sanctions are in order, and we also think these 8 materials must be produced without further ado, 9 and the Court ought to get an assurance that 10 there aren't going to be any more games. 11 I think, Your Honor, that sums it up. 12 This is, I hope, the last chapter in 13 what I think has been a pretty sorry story. 14 I'll stop with that. 15 THE COURT: Mr. Hagstrom? 16 MR. HAGSTROM: Your Honor, it is 17 regrettable that we are here because this is 18 another example of Microsoft negotiating a 19 stipulation with the Plaintiffs and then 20 twisting it and not living up to it and 21 misrepresenting it to the Court. 22 And I will get into that a little bit 23 more in detail in a few minutes. 24 It's also quite ironic that Microsoft 25 can dribble source code to us over -- for 8265 1 months. And part of that source code has 2 viruses that had we not caught it, it would 3 have destroyed our data bases. Fortunately, we 4 caught it. 5 They never told us about that. We had 6 to tell them. 7 They go ahead and contact class 8 members in direct contravention of your several 9 orders. The orders didn't matter. 10 And so what happened? Your Honor did 11 give them the benefit of the doubt. No 12 sanctions were imposed. 13 I'm going to go through the six 14 categories that Mr. Rosenfeld has referred to, 15 but I also want to go through the history of 16 this because as Your Honor may recall, about 17 four weeks ago, Ms. Conlin, at the end of the 18 day, talked about the discovery rules and the 19 stipulation and kind of how we got there and 20 how this is so far off track, it's 21 unbelievable. 22 Let me first take a look at the first 23 issue, the Pfau memo. 24 And, unfortunately, my computer just 25 shut down. It's got this ridiculous thing that 8266 1 if you don't move a key within a certain period 2 of time, it shuts down on you. 3 The stipulation between the parties, 4 there is no question, and I heard Mr. Rosenfeld 5 concede this -- 6 Darin, can you put up Exhibit 18? 7 This is the original stipulation. It 8 talks about there in the first paragraph, for 9 each expert designated to testify in this case, 10 opposing counsel will receive the testifying 11 expert's final report and copies of all 12 materials reviewed and/or relied upon by the 13 testifying expert for the purpose of preparing 14 the testifying expert's report. 15 Let me just stop a moment there. 16 The reports, Plaintiffs' reports were 17 submitted June 2nd. That's where the 18 obligation ceased. So I'm going to get into 19 that a little bit later with regard to this 20 other category of postreport documents, but let 21 me focus you down on the next highlighted area. 22 The parties shall not be entitled to 23 discover, receive, or use, and the parties or 24 experts are not obligated to retain (a) drafts 25 of the testifying expert's reports, affidavits, 8267 1 declarations, or written testimony. 2 (B) written communications or notes of 3 discussions regarding a draft or final expert 4 report, affidavit, declaration, or written 5 testimony. 6 You have the benefit that it's up 7 there on the screen. 8 Now, it was made clear by Mr. 9 Rosenfeld, and it was also made clear by 10 Mr. Jurata in the hearing on June 9, 2006, I 11 want to make very clear that Microsoft is not 12 seeking draft reports. Microsoft is not 13 seeking an expert's notes regarding draft 14 reports or any other people's notes regarding 15 draft reports. 16 Any other people's notes regarding 17 draft reports. 18 Now, I should have provided a copy of 19 the pages from the Professor Mackie-Mason 20 deposition. 21 And Microsoft gave you a portion of 22 that deposition, page 60, where the Pfau memo 23 is discussed. 24 But if you go to the prior page, the 25 whole lead-in of the discussion, Mr. Rosenfeld 8268 1 asking the questions concerns the drafting 2 process. 3 And on page 59, he testifies, and then 4 in the course of drafting my report, based on 5 my understanding of what the issues were, my 6 understanding being largely the questions I 7 have formulated that I thought were relevant, I 8 started to structure the report around those 9 questions, those issues, then asked my staff to 10 provide the facts that we discussed that seemed 11 relevant to those issues. 12 Then I reviewed the documents, the 13 sources, source material for those facts, 14 reviewed other source materials to make sure I 15 was getting sort of a complete nonbiased 16 summary of the facts and engage in a 17 collaborative drafting process with my staff to 18 incorporate the material we had learned into 19 the report in an expositive of what we had 20 hoped was a readable fashion. 21 He then goes on to testify about -- 22 that there were communications with his staff, 23 and then he goes on and says at page 60, I 24 believe -- yes, he talks about then quite some 25 time ago, maybe about a year ago, I believe 8269 1 that I prepared an outline, if you will, of 2 topics I thought we would want to address. In 3 other words, in the report. 4 I'm adding that language. 5 And then one of my staff annotated 6 with his thoughts about what issues were 7 important, what worked, what sort of evidence 8 might be out there, where we might go look for 9 it. It was part of developing a work plan. 10 That's precisely what it was, and I'm 11 going to go in a few minutes here to what 12 Doctor Murphy, Kevin Murphy, Microsoft's expert 13 did. 14 Well, so what happened here was, as 15 what's true with their experts, not all of 16 them, and was true with not all of our experts, 17 there were expert reports in the Minnesota 18 case. 19 This case is somewhat different. 20 You've heard Microsoft complain, oh, this case 21 is so much different, it's broader, et cetera, 22 et cetera. 23 Well, the Minnesota reports were the 24 base, if you will, the starting point for the 25 Iowa reports. 8270 1 So then the next step in the drafting 2 process is to identify those items, outline 3 what we're going to be drafting. 4 And this is precisely the draft plan, 5 the drafting process that Microsoft has 6 conceded in Court, as well as conceded in our 7 stipulation that is not discoverable. 8 Now, I mentioned Doctor Murphy. He, 9 in his deposition, identified approximately 19 10 people who were helping him with his report. 11 And you know what, they didn't 12 exchange a single E-mail. Nothing in writing, 13 and nothing was produced. Amazing, 19 people 14 working with Doctor Murphy and everything was a 15 draft. 16 So let's take a look at -- let's take 17 a look at Exhibit 32, Darin. 18 Let's first go to page 123. 19 And Doctor Murphy is Microsoft's 20 liability expert. 21 And you see Mr. Reece. I'm just 22 looking -- I just want to make sure we've got 23 all the written documents identified. I think 24 what -- to be fair, I think what you've said is 25 you've looked at other written documents, but 8271 1 they have either been drafts of your report or 2 notes about your report; is that fair? 3 Answer: Yes, they pertain to -- yes, 4 drafts or notes about this particular report. 5 Question: About the literal report? 6 Answer: About what's going to be in 7 that report, yes. 8 About what's going to be in that 9 report. 10 As I read for you from Doctor 11 Mackie-Mason, the work plan was what was -- 12 what the report was going to contain. 13 It was an initial outline for the 14 changes from the Minnesota report, and Doctor 15 Murphy didn't produce any of these documents. 16 Microsoft did not produce any of these 17 documents. 18 And at the November 9, 2006 hearing, 19 Mr. Jurata told the Court that Doctor Murphy 20 did not see anything in writing from his staff; 21 that he only communicated orally. 22 Let's take a look at that, Darin, 29B. 23 What I was not very well articulating 24 was that Mr. Reece was talking about the fact 25 that there are not any E-mails or memorandums 8272 1 from Professor Murphy's staff that were turned 2 over with Professor Murphy's report. And 3 that's because he did not ask for any such 4 E-mails or memos from his staff. 5 He did his own work. When he dealt 6 with his staff, he dealt with them orally. And 7 every document that he looked at was produced 8 with his expert report. 9 So 19 people working on a report, I 10 guess what they did, they must have had this 11 master document and everybody writes their 12 little notes on there or types them in 13 electronically so that every possible 14 communication was in the form of a draft. 15 And yet somehow when they do a draft 16 work plan, that's not producible, but 17 Mr. Pfau's memo, at the direction of 18 Mackie-Mason, along the lines of the draft 19 outline of the issues he wants to cover in his 20 report is supposedly producible. 21 It's regrettable that we are here on 22 this issue. 23 Let's take a look at Doctor Martin. 24 Doctor Martin was an expert in 25 Minnesota. Doctor Martin was an expert in the 8273 1 California case. Doctor Martin's deposition 2 was taken in California and Minnesota. 3 Mr. Alepin referred to two tiny little 4 pieces in Doctor Martin's report. One was 5 definitional and the other, I forget, it was 6 about some computer file and that -- it was 7 DOS+. And Doctor Martin was extensively 8 examined on that, and I believe Mr. Alepin was 9 examined on that. 10 Microsoft's experts refer to each 11 other's reports. They refer to experts -- 12 expert reports that aren't even included in 13 this case, I believe. I mean, this is no 14 different than an expert citing an article. 15 Mr. Alepin cited Doctor Martin's 16 report. Microsoft has claimed that they need 17 this discovery for purposes of 18 cross-examination. 19 They've already taken the depositions 20 of Doctor Martin. They have his report. And 21 you heard, Your Honor, Microsoft, Mr. Holley 22 asking Mr. Alepin about things regarding Doctor 23 Martin. 24 Now, there's no question that if we 25 look back at the stipulation that it refers to 8274 1 testifying experts. 2 Now, let me just explain a little bit 3 about what Plaintiffs had anticipated Doctor 4 Martin's role to be in this case. 5 In Minnesota, he was the only 6 technical expert, but you know a fair amount of 7 his Minnesota report -- 8 THE COURT: Go ahead. Sorry. 9 MR. HAGSTROM: No problem. 10 -- was definitional, really explaining 11 terms, sort of -- you know, sort of a primer, 12 if you will, of computer terms and so forth. 13 We determined that here in Iowa, if he 14 was going to be called at all, he would provide 15 -- be providing that primer. 16 Alternatively, it could have been 17 offered by Mr. Alepin. 18 We had a stipulation -- I guess we 19 still do have a stipulation with Microsoft, in 20 principle, that -- and that was executed on 21 July 10th -- that the experts in this case, to 22 the extent they had been previously deposed in 23 a prior case, the material couldn't be covered 24 again; only changes to the expert reports could 25 be the subject of a deposition in this case. 8275 1 Well, what happened from Doctor 2 Martin's Minnesota report to Iowa was instead 3 of being like this, covering a lot of these 4 technical acts and so forth that Mr. Alepin has 5 discussed over the last week, it was compressed 6 for purposes of Iowa to just the primer. 7 Microsoft chose not to take Doctor 8 Martin's deposition in Iowa. And, of course, 9 we took the position that, you know, we don't 10 think you need it because, sure, there's a 11 couple of words changed in the primer part, it 12 would be a waste of everybody's time. 13 So Microsoft did not take Doctor 14 Martin's deposition. 15 And ultimately we determined that in 16 light of the pace of this trial and where we 17 think we're going to be, we had been 18 considering dropping Doctor Martin for a period 19 of time, and we finally notified Microsoft. 20 Now, that's not to say, Your Honor, 21 that when we provided Doctor Martin's report on 22 June 2nd he had an extensive list -- I think it 23 was Appendix B or C -- of articles referenced, 24 documents reviewed, et cetera. 25 So those materials were previously 8276 1 provided. Or, obviously, the agreement of the 2 parties was we didn't physically provide them 3 again if Microsoft already had them from a 4 prior case. I mean, that was the agreement 5 both ways. 6 So we have the stipulation that 7 Microsoft is only entitled to materials from 8 testifying experts. Well, they've got the 9 materials. 10 Their only complaint now is that, 11 well, there must be something that Doctor 12 Martin looked at but rejected. 13 I'll get into the November 28th order 14 because that's -- that's the modification. 15 That's different than what the parties 16 stipulated to. 17 And the only things that Alepin cited 18 to in Martin are things that are no longer in 19 the Iowa report or things that are already 20 examined -- that Microsoft already examined -- 21 had already conducted an examination on in 22 Minnesota. 23 So they clearly weren't discoverable 24 per the stipulation. 25 So we've got the stipulation of the 8277 1 parties that discovery is only as to testifying 2 experts. That's the agreement. Doctor Martin 3 is not a testifying expert. 4 That should be the end of the story. 5 Nevertheless, if that isn't enough -- 6 and Your Honor has commented about why do the 7 parties do stipulations in this case, nobody 8 seems to live by them. 9 Well, I'm beginning to understand your 10 frustration, Your Honor. 11 I have to tell you that weekly I ask 12 myself why do we bother stipulating to 13 anything. 14 But beyond the stipulation, case law 15 says that a party can withdraw an expert and 16 the other side is not entitled to their -- to 17 that expert's materials. 18 Again, despite the fact that we've 19 already provided materials, Minnesota and with 20 the June 2 Iowa report. 21 For instance, there's a case called -- 22 I'm not sure if I'm going to pronounce it 23 correctly. I don't know why it seems to be 24 that when I get away from the antitrust cases I 25 get these strange names that I don't know how 8278 1 to pronounce. 2 It's Mantolete, M-a-n-t-o-l-e-t-e, 3 versus Bolger, B-o-l-g-e-r, 96 Federal Rules, 4 Decision 179. The jump cite is 181. It's out 5 of the Federal Court, Arizona, 1982. 6 And in that case it says, while 7 pretrail exchange of discovery -- Your Honor, 8 can we hand up the copy of the case? And we'll 9 provide one to Microsoft counsel. 10 THE COURT: Thank you, sir. 11 MR. HAGSTROM: While pretrial exchange 12 of discovery regarding experts to be used as 13 witnesses aids in narrowing the issues, 14 preparation of cross-examination and the 15 elimination of surprise at trial, there is no 16 need for a comparable exchange of information 17 regarding nonwitness experts who act as 18 consultants and advisors to counsel regarding 19 the course the litigation should take. 20 Then Microsoft has cited to a case 21 called Squealer Feeds versus Pickering. 22 I didn't hear Mr. Rosenfeld mention it 23 today, so I don't know if they're still relying 24 upon it, but it's in their opening brief. 25 It's totally irrelevant. 8279 1 The case dealt with the issue of 2 whether the designation of a former attorney as 3 a testifying expert in the same case waived the 4 attorney/client privilege for documents in the 5 insurer's claim file. It has nothing to do 6 with this case. 7 But, in fact, the Squealer Feeds Court 8 recognized that a party can withhold discovery 9 from a withdrawn expert. 10 It cited, for instance, the Nelson 11 Drainage case versus Bay. 12 And this talked about once an expert 13 had been withdrawn, there wasn't an allowance 14 for defendants to depose the plaintiff's 15 experts once the plaintiff decided not to call 16 him as a witness at trial. 17 That's 470 N.W. 2d 449, jump cite 452. 18 That's a Michigan Court of Appeals, 1991. 19 THE COURT: That's the Nelson case? 20 MR. HAGSTROM: Yes, Nelson Drainage 21 versus Bay. 22 MS. CONLIN: Your Honor, excuse me. I 23 need to get my coat or I'm going to get sick 24 again. 25 THE COURT: Go ahead. 8280 1 MR. CONLIN: It's freezing in here. 2 Go right on. I just wanted to ask the Court's 3 permission before I come back here. 4 THE COURT: Go ahead, Mr. Hagstrom. 5 MR. HAGSTROM: So, as I mentioned, 6 Microsoft's argument is that it needs to have 7 Doctor Martin's additional materials, 8 supposedly something we haven't produced. 9 We believe we fully complied with the 10 stipulation so that they can cross-examine 11 other experts. 12 Well, they've deposed Doctor Martin. 13 They have his materials. 14 We've withdrawn Doctor Martin as we're 15 entitled to do, and under the parties' 16 stipulation they're not entitled to anything 17 further with regard to him. 18 And under the case law, once an 19 expert's -- testifying expert is withdrawn, 20 they're not entitled to further material. 21 Now, if -- actually, I can go on and 22 on and on about Doctor Martin, but basically as 23 I mentioned, Doctor Martin is cited in 24 Mr. Alepin's report, and Microsoft had full 25 opportunity to take discovery with regard to 8281 1 Doctor Martin. 2 So let's move -- let me move on to the 3 next topic. 4 We might have to come back to Doctor 5 Martin for a minute. 6 But Doctor Gowrisankaran -- and I hope 7 Tammy has the spelling. 8 The issue there is that when we 9 produced further information in response to the 10 November 28th order, one of the E-mail 11 exchanges had the identification of a 12 nontestifying consultant, somebody that did 13 research for us, and then along with that, you 14 know, transmittal information, you know, time, 15 who from, et cetera. That was redacted. We 16 told Microsoft that was redacted. 17 Under virtually any discovery rule I 18 know, federal rules, Minnesota state rules, I 19 think Iowa rules, the identification of a 20 nontestifying consultant is not discoverable. 21 That's why we redacted it. It's pure and 22 simple. 23 That's all there is with regard to 24 Doctor Gowrisankaran. 25 And, you know, it's rather interesting 8282 1 that, you know, Microsoft has said it needs 2 these extra materials, it needs the 3 identification of this consultant, I don't 4 know, for purposes of cross-examination. I 5 don't think so. 6 I mean, that's been their whole 7 mantra, that they need this extra stuff for 8 purposes of cross-examination. 9 I mean, the identity of this person 10 that did some research, pulled some articles, 11 which have been produced, by the way, even 12 though they were not called for with regard to 13 the stipulation. They've been produced. 14 So redacting the name of somebody and 15 the related transmittal information is entirely 16 proper. 17 And we wrote in our brief, Your Honor, 18 that, you know, if you want to take a look at 19 the document yourself, we're happy to do that. 20 We just don't think we're required to turn it 21 over to Microsoft. 22 And I should also mention that on the 23 one hand, Microsoft seems to be taking the 24 position that they want to see everything that 25 somebody looked at, but then on the other hand, 8283 1 like on November 9, 2006, I think Your Honor 2 was a little bit puzzled about that. 3 And you asked, you don't want things 4 like a letter from someone's aunt or uncle 5 saying, by the way, how is your report going? 6 You're not getting that ridiculous with me, are 7 you? 8 Mr. Jurata: No, Your Honor, we're not 9 looking for every document that the expert ever 10 looked at. 11 But essentially with some of this 12 material, that is precisely what Microsoft is 13 doing. 14 Sure, Doctor Gowrisankaran saw the 15 name of this nontestifying consultant. It was 16 in an E-mail. But it's been redacted by us. 17 We believe that that's entirely appropriate. 18 Now, I'm really sick and tired of the 19 word games that Microsoft plays, and yet what 20 does Mr. Rosenfeld turn around and do, oh, 21 Plaintiffs are playing word games. 22 This is just unbelievable. 23 This next category has to do with 24 handwritten annotations. 25 And we went -- after the November 28th 8284 1 order, we went and either discussed, had 2 lengthy telephone discussions with each of the 3 experts or met personally with them to go over 4 any possible additional document that would be 5 responsive to the order. 6 The only one that had handwritten 7 notes on these documents was Mr. Schulman, and 8 we produced those documents, but that ain't 9 good enough for Microsoft. 10 And let me just say that during this 11 same time frame -- let me back up. 12 Microsoft's experts' depositions were 13 taken -- I'm trying to recall -- it was in 14 September of 2006, and Microsoft's experts had 15 a lot of notes on things, as we found out, not 16 in August, not August 2nd when the reports were 17 due, not any time in August, not any time in 18 September, except when some of their experts 19 disclosed taking notes, one expert said, yeah, 20 I took notes on the Plaintiffs' reports, but, 21 gee, I threw them away. My counsel didn't tell 22 me to keep them. 23 So they were gone. We didn't get a 24 list from Microsoft detailing every note that 25 was made or when it was made or when it was 8285 1 deleted or thrown away or thrown in the 2 fireplace or whatever was done with it. 3 So we heard about some notes then. 4 We included those -- that reference in 5 our briefing on these issues. 6 Microsoft comes into Court and -- on 7 November 9th and makes -- throws its hands all 8 around, waving their arms, making arguments 9 about how Plaintiffs aren't producing 10 materials. 11 Meanwhile, we just kept saying, well, 12 you've identified -- we've seen things in your 13 experts' depositions you haven't given us. 14 Then we have the -- I forget my 15 dates -- December 11th discussion, 11th and 16 12th when Mr. Jurata got on the stand; 17 Mr. Reece. It was about that time, in any 18 event. 19 And Mr. Holley's pounding the table 20 talking about how this is absolutely absurd 21 that Microsoft hasn't gotten the documents. 22 Absolutely absurd, it's horrible. 23 And Mr. Rosenfeld is right, we wrote 24 in our brief that in the meantime Microsoft is 25 just quietly producing these documents with the 8286 1 notes on that had been identified in previous 2 depositions three months earlier. 3 And, of course, all the time 4 representing to Your Honor that as soon as we 5 find something, we turn it over. Not true. 6 So additionally -- so this is -- 7 remember, 11th, 12th -- if I'm recalling 8 correctly, the 11th was a Monday, Mr. Jurata 9 was on the stand. Tuesday, the 12th, Mr. Reece 10 was on the stand. 11 Well, on the 14th Microsoft quietly 12 gives us some documents. And on the 15th 13 Microsoft quietly gives us some documents. 14 And with regard to on the 15th, I 15 believe, Mr. West here, hopefully, will correct 16 me if I'm wrong -- so the burden is on you -- 17 we got a whole bunch of materials with notes on 18 that we never heard about before. I think 19 these were some Morrison-Paul notes -- I'm 20 sorry, I got Bennett and Morrison-Paul 21 reversed. I apologize. 22 So we got notes from Doctor Bennett. 23 And you heard about Doctor Bennett today, Your 24 Honor. He's Microsoft's -- one of their 25 experts. 8287 1 So we get notes from Morrison-Paul 2 months after they are identified in a 3 deposition. We get notes from Bennett months 4 after his deposition is taken, but, you know, 5 never, never disclosed in the deposition. 6 We get another document on the 14th 7 from Microsoft that talks about a meeting that 8 Microsoft had with Doctor Bennett, and that 9 document includes the identification of 10 attendees and so forth, including Mr. Holley, 11 and yet he's in here pounding the table about 12 how Plaintiffs inexcusably have not produced 13 documents. 14 Your Honor, it is regrettable we're 15 here on this issue. 16 So suffice it to say, to the best of 17 our knowledge, we have produced documents 18 responsive to Your Honor's order with any 19 handwriting on them. The only documents I 20 believe we produced in such fashion in the mid 21 December time frame was Mr. Schulman. 22 Obviously, if we become aware of 23 something else, we will produce it. 24 The next category, materials looked at 25 after filing of the expert report. So we'll 8288 1 just refer to these as the post -- postreport 2 documents. 3 Well, again, Your Honor, we have a 4 stipulation. And what does Microsoft do? 5 They're trying to move the goalposts again. 6 Can we have the stipulation up, Darin, 7 18? 8 For each expert designated to testify 9 in this case, opposing counsel will receive the 10 testifying expert's final report and copies of 11 all materials reviewed and/or relied upon by 12 the testifying expert for the purpose of 13 preparing the testifying expert's report. 14 I think it's very straightforward that 15 if something is prepared, you know, looked at 16 for purposes of your order, but more 17 importantly for purposes of the stipulation, 18 reviewed or relied upon, it can't happen after 19 June 2, 2006, with regard to Plaintiffs. 20 Now, let me clarify that a little bit 21 further. 22 As you have heard, Microsoft has, you 23 know, dribbled out information in response to 24 motions to compel and so forth; dribbled out 25 the source code. 8289 1 We had to do a supplemental report of 2 Doctor Netz. She had to do a supplemental 3 report because of some additional information. 4 Doctor Warren -- I'm trying to think, 5 Doctor -- excuse me, Mr. Schulman did a 6 supplemental report just in the last few weeks 7 because of the dribbling out of source code. 8 Now, with these supplemental reports, 9 the materials reviewed or relied upon were 10 provided to Microsoft. 11 So when Mr. Rosenfeld has talked about 12 well, you know, certainly Microsoft provided 13 supplemental reviewed or relied-upon materials, 14 number one, I'm not quite sure which materials 15 he's referring to. But we have provided -- 16 we've provided supplementation where it is 17 required by the parties' stipulation, or, 18 indeed, after the November 28th order. We 19 believe we have fully complied with that. 20 So if a party's stipulation means 21 anything, it's clear by the words of the 22 stipulation that you can't review or rely upon 23 something generated afterwards for purposes of 24 your report. 25 Now, during this past summer, we 8290 1 started working with our experts about trial 2 planning because we knew trial planning was 3 necessary to begin because we knew we were 4 going to be busy. 5 And 2006 was an incredibly busy year. 6 I hate to tell you how many hours I've put in, 7 and the entire team has put in. 8 And so as a result, we started talking 9 to our experts about trial preparation with the 10 understanding that anything that we talked 11 about was not covered by our stipulation. 12 I think our stipulation is clear in 13 that regard. 14 The sixth category, the list of 15 deleted documents. 16 We have provided -- what we did, Your 17 Honor, is during the mid December time frame, 18 we went through and talked to the experts and 19 tried to identify anything that had not 20 previously been produced. And I really need to 21 describe what was supplemental. 22 THE COURT: Just a minute. 23 (An off-the-record discussion was 24 held.) 25 THE COURT: Go ahead. 8291 1 MR. HAGSTROM: So, in the mid December 2 time frame, as I mentioned, we contacted every 3 expert. 4 What had been previously produced in 5 response to our stipulation with Microsoft that 6 we honored in full -- the production had 7 already taken place. But Your Honor's November 8 28th order modified that stipulation. 9 It provided that we were to -- I don't 10 have the exact words right in front of me. But 11 anything that was looked at or seen for 12 purposes of preparing the expert report, but 13 was rejected. 14 So, for instance, Mr. Smith, the 15 security expert, you know, he had done a lot of 16 searches on the web about, you know, different 17 articles and so forth that he didn't really 18 review or rely upon, but he'd seen them, 19 determined that they weren't applicable, 20 nevertheless went back and reconstructed that, 21 and we produced, you know, many, many pages. I 22 think over a thousand pages for Mr. Smith. 23 Electronic articles from the web and so forth 24 that really have nothing to do with his report. 25 He didn't rely upon them. They were simply 8292 1 seen. 2 And the same is true of other experts 3 that had supplementations. 4 So there was Mr. Smith, Mr. Schulman 5 went back. I mean, same kind of thing. 6 He had been doing lots and lots of 7 research on Microsoft's source code. That was, 8 as Your Honor knows, produced in dribbles over 9 the period of a lengthy period of time. 10 So he was operating under the -- you 11 know, the very tight confidentiality 12 restrictions of the revised protective order, 13 and so he had to write his own code for 14 purposes of, you know, examining that source 15 code. 16 He ran different programs looking for 17 undocumented APIs. And it's my understanding 18 that he's gone through and even his own 19 proprietary searching code has now been 20 produced to Microsoft. 21 So we've done, you know -- we've done 22 the best possible job we can. 23 Yet, Microsoft continues to complain. 24 So I was getting to this category six 25 of deleted documents. 8293 1 So once we went through this with the 2 experts, the only identified -- or I should say 3 identifiable, and maybe the only identified 4 documents that may have been deleted were 5 really items identified in the depositions of 6 Roger Noll, Professor Mackie-Mason, and Doctor 7 Janet Netz. 8 Now, Mr. Rosenfeld made a big thing 9 about well, gee, if we had some deletions, we 10 let Plaintiffs' counsel ask questions about it. 11 Well, Doctor Janet Netz, she brought 12 up in her deposition she had recalled oh, yeah, 13 you know, in the drafting process, I think she 14 said, well, I was double-checking something and 15 I doodled something, confirmed, threw it away. 16 Well, Microsoft counsel, Mr. Smutney, 17 who is here in the courtroom, you know examined 18 Doctor Netz for several pages on that 19 particular doodle. Wasn't any restriction. 20 With regard to E-mails, Microsoft made 21 a huge deal about deleted E-mails between 22 Professor Mackie-Mason and Professor Noll. 23 Well, Microsoft counsel was able to 24 examine -- 25 (An off-the-record discussion was 8294 1 held.) 2 MR. HAGSTROM: Tammy, what was I 3 saying? 4 (Requested portion of the record 5 was read.) 6 MR. HAGSTROM: Right, Microsoft 7 counsel examined these experts in full, and 8 what was the word game used by Microsoft 9 counsel in both of these depositions, they 10 didn't ask about communications between experts 11 for purposes of preparing the expert report as 12 is required by the stipulation. They just 13 asked about communications. 14 Well, Your Honor -- Your Honor had 15 asked Mr. Jurata about, well, you're not asking 16 about -- you're not seeking, you know, your 17 Aunt Tilly calling up and saying, well, how is 18 the report going. 19 Well, these E-mails, as testified to 20 by both Professors Noll and Mackie-Mason were 21 that we've been colleagues for years. We've 22 known each other for years. Despite the fact 23 that Professor Mackie-Mason is in Ann Arbor and 24 Professor Noll is out at Stanford, they've 25 communicated for years. 8295 1 And so, I mean, Your Honor has 2 probably done the same thing. If you go on to 3 CNN or something and you see an article that 4 you find of interest, gives you an option to 5 E-mail it to somebody. That's what they did. 6 If they saw something of interest, of 7 economic interest, whether with regard to 8 Microsoft or not, they would shoot it off. 9 And, of course, when you do that, to 10 my knowledge, you don't -- you know, that -- 11 you know, like if I send an E-mail on my 12 computer, I can go into the sent folder and see 13 what I've sent. But when you're doing that 14 through CNN, you don't have a sent folder. 15 So that's been testified to in full by 16 Professors Mackie-Mason and Noll, and it's also 17 been made clear that those E-mails had nothing 18 to do with preparing their expert reports in 19 this case. Nothing. 20 Now, I can throw that up on the 21 screen, their testimony, but I know it's late 22 in the day, and I want to try to get finished 23 here. 24 So these E-mails have nothing to do 25 with the reports. Exchanges pleasantries, 8296 1 information between the two experts, but 2 nothing to do with these expert reports. 3 So we have disclosed in the letters as 4 -- one by one as they were given to Microsoft. 5 You know, if we're aware of something deleted, 6 we described it in general. 7 For instance, in the letter describing 8 Mackie-Mason deletions, we referred to this 9 issue about E-mails. Same with -- you know, 10 both Mackie-Mason and Noll were done the same 11 thing. 12 The doodling issue has been talked 13 about to death. 14 And other than that, we're unaware of, 15 you know, anything that -- number one, we don't 16 think those items are responsive to the 17 stipulation or the order for the reasons 18 previously stated. Drafting -- the doodling 19 was drafts. E-mails weren't for purposes of 20 preparing the report. 21 But the bottom line is, we're not 22 aware of anything else deleted at all, you 23 know, other than in the ordinary course. But 24 definitely not with regard to materials 25 reviewed or relied upon, looked at, whatever 8297 1 kind of words you want to use, for purposes of 2 preparing the expert's reports. 3 Now, Mr. Rosenfeld also said, well, 4 Plaintiffs' lawyers instructed not to answer 5 several questions. 6 Well, you know, I don't want to spend 7 the Court's time on it, but I can pull you off 8 volumes of pages where Microsoft's lawyers 9 instructed their experts not to give any 10 answers about drafting or any other thing 11 regarding agreed materials that were not to be 12 produced pursuant to the parties' stipulation. 13 Your Honor, what I want to do is -- I 14 literally can go on and on about this, I'm so 15 perturbed, but what I'd like to do is I'd like 16 to just -- 17 Darin, can you put up Slide 73? 18 Just quickly, Your Honor, here's the 19 language from the March 8th stipulation. 20 THE COURT: Is that Exhibit 18? 21 MR. HAGSTROM: Yes. 22 All materials reviewed or relied upon 23 by the testifying expert for the purpose of 24 preparing the testifying expert's report. 25 Now, then in the August 21 order -- 8298 1 well, in between, obviously, Microsoft brings a 2 motion to compel. 3 And in that -- or in our resistance, I 4 put in an affidavit addressing my discussions 5 with Sharon Nelles where we had talked about 6 using different language other than reviewed or 7 relied upon, but that's what we agreed to. 8 Nevertheless, Ms. Nelles submits an 9 affidavit saying, oh, no, reviewed includes 10 rejected. 11 Well, my affidavit said it didn't. 12 And had our stipulation been meant to include 13 looked at but rejected, it should have said so. 14 But more importantly, I would have 15 never ever agreed to it because it's not 16 required by the federal rules. It's not 17 required by the Iowa rules, as I understand it. 18 Nevertheless, we lost the motion. 19 Your Honor issued an order, reviewed, 20 looked at, or used in preparing their expert 21 opinions or reports. 22 So then we produced a couple documents 23 that we really didn't think were responsive, 24 but we decided, okay, we're going to be safe, 25 we're going to produce them. 8299 1 Then we come to the November 28, 2006 2 order, and Microsoft again argues, well, it 3 isn't just reviewed and relied upon; it's not 4 just reviewed, it's not just relied upon, it's 5 anything possibly seen at any point in time 6 during the course of time that they're working 7 on their expert report. 8 But, oh, by the way, because we, 9 Microsoft, have worked this out with our 10 experts, that we're going to make sure every 11 communication is a quote-unquote draft, 12 Plaintiffs are getting nothing, but we're going 13 to make darn sure that we're going to 14 over-reach and change this stipulation in the 15 courtroom. 16 Here's what happens. Microsoft 17 misleads you about the purpose and scope of the 18 stipulation and all of this extra language gets 19 put in. Saw, read, looked at, or reviewed, 20 whether it was used to prepare their expert 21 opinions or reports or not. 22 The intent of the Court's order was to 23 provide the Defendant not only material used in 24 preparing the expert opinions or reports, but 25 material that was looked at, read, or reviewed 8300 1 by experts, but was then rejected or not used 2 in preparing the experts' opinions or reports. 3 Let's take a look at Slide 77. Here 4 is the March 8th stipulation. 5 Here's how the stipulation gets 6 modified by reason of the November 28th order. 7 I didn't agree to that. I negotiated 8 this stipulation with Microsoft. I would have 9 never agreed to it, period. 10 Nevertheless, Your Honor, we have done 11 our very best to comply with this language. 12 After this order came out, we spent, I 13 don't even know how many hours, dozens, if not 14 a few hundred hours, going back through 15 everything to make sure that we complied with 16 this November 28th order, despite the fact that 17 Microsoft didn't comply with it and despite the 18 fact that this was not the parties' agreement. 19 So we're left with this order. We 20 don't even think that's -- as Ms. Conlin 21 explained that one day in December, we think 22 that's -- that Your Honor has been led down a 23 path that's even beyond the scope of the Iowa 24 rules and, you know, things like that happen. 25 You know, I think of sort of the 8301 1 analogy, if you've ever been out somewhere and 2 you want to go walking in the woods, woods you 3 aren't familiar with, and you start walking 4 down a path and you decide that, well, it's 5 time to walk back to the road, maybe you're out 6 hunting, grouse hunting, or what have you, and 7 you decide to turn around. 8 As you walked into the woods, you 9 notice, okay, the sun's at my back. I don't 10 have my compass with me, but, you know, I've 11 got that orientation to walk out. 12 And as I turn around and walk out, you 13 know, there's deer paths and so forth, how they 14 get kind of traveled through the woods, and you 15 think, okay, well, I'm on the same path, and lo 16 and behold, you finally get it back out to the 17 road, and you've taken a different path because 18 you see your car way down the road. 19 You say, well, thank goodness I got 20 out and I'm on the road and I can see my car. 21 But there were things along the way 22 that led you off of the same path. And 23 Microsoft has been successful here in leading 24 the Court off the path. 25 And another thing I'd like you to keep 8302 1 in mind, Your Honor, is Microsoft never served 2 expert discovery in this case. 3 Under the Iowa rules -- 4 72, Darin. 5 -- as Your Honor knows, expert 6 discovery is not mandatory. It has to be asked 7 for. 8 Microsoft never submitted 9 interrogatories or document requests. The 10 Rules 1.508 provide a party to submit such 11 discovery. 12 Now, we had stipulated to an order 13 that -- in the scheduling orders that provided 14 only expert reports and supporting backup 15 material. 16 Nothing in the scheduling orders about 17 reviewed or relied upon, and certainly nothing 18 in the scheduling order about looked at, seen, 19 whether used or rejected, et cetera. 20 And, of course, under the federal 21 rule, it's mandatory. 22 Microsoft never served discovery in 23 this case. 24 And although, Your Honor, the 25 stipulation is dated March 8, 2006, I didn't 8303 1 sign it till May 26th, about a week before our 2 expert reports were due. 3 I just didn't get around to it, but 4 had I had any idea how Microsoft counsel would 5 twist that stipulation and we would be spending 6 literally hundreds of hours dealing with 7 frivolous motions to mislead this Court, boy, 8 in hindsight, I guarantee you, I would have not 9 signed that stipulation because they would have 10 been stuck with what was in the order, which 11 was just the expert reports and the backup 12 materials. 13 So with all of that, we're down this 14 long road where we're supposedly the bad guys. 15 That's unbelievable to me. 16 We have complied with the stipulation. 17 We have complied to the best of our knowledge 18 and ability with the Court's orders, and 19 Microsoft is in here saying, oh, strike their 20 experts, strike Mackie-Mason because he didn't 21 keep some E-mails exchanged with Doctor Noll or 22 because his draft work plan wasn't produced, 23 even though Microsoft has conceded the drafts 24 are not required to be produced. 25 And I think Mr. Rosenfeld said he 8304 1 wants to strike Doctor Gowrisankaran because we 2 redacted the name of a nonconsulting expert. 3 Give me a break. I mean, the case law 4 -- case is very, very clear that for purposes 5 of sanctions to strike -- to strike an expert 6 is absolutely extraordinary. 7 Iowa courts have recognized that, 8 quote, exclusion of an expert as a witness is 9 the most severe sanction and should not be 10 imposed lightly. Lambert versus Sisters of 11 Mercy Health Corp., 369 N.W. 2d 417. Jump cite 12 is 421. Iowa 1985. 13 You can also take a look at the Iowa 14 -- Eighth Iowa Practice Civil Procedure Section 15 54.2. 16 There are other cases, like a 17 Minnesota case, R-i-e-w-e, versus Arnesen, 18 381 N.W. 2d 448, jump cite 457. Minnesota 19 Court of Appeals 1986. 20 Exclusion of an expert testimony is a 21 harsh measure reserved for those situations 22 where the failure to disclose is willful and 23 clearly prejudicial to the opposing side, 24 closed quote. 25 Now, Microsoft has trumped up their 8305 1 claims of all sorts of prejudice -- actually, I 2 don't know that I heard the word prejudice, but 3 I think I heard Mr. Rosenfeld say, well, we've 4 got to take these depositions. 5 Well, we received a notice of 6 deposition for Schulman, but as I understand 7 it, that's for -- resulted from a supplemental 8 report that was submitted -- like I said, I 9 can't keep my dates straight anymore -- within 10 the last few weeks. 11 And, of course, the only reason he had 12 to do a supplemental report this late in the 13 game is because Microsoft took months -- 14 Ms. Conlin says years -- to get us the 15 documentation. 16 So where are we at? We're at the 17 point where we write 30 on this issue in 18 journalist's term. 19 This should be the end of it. The 20 parties should act in good faith, and if they 21 see -- if they discover some materials that 22 should be produced and it's responsive, they're 23 under an obligation to do so. 24 We have fully complied to the best of 25 our knowledge and ability. 8306 1 The items that Microsoft has described 2 are not further producible for the reasons I 3 discussed. 4 Like I said, if Your Honor wants to 5 see this redaction on the Gowrisankaran E-mail, 6 you know, we can provide that. We don't think 7 that's -- we don't think it's responsive to the 8 order. We don't think it's responsive to the 9 stipulation. 10 We think it's nondiscoverable, 11 presuming they had served discovery, but, you 12 know, to move the process along, to bring an 13 end to this thing, you know, we'll do that. 14 The stipulation provides for the 15 materials used for the reports reviewed or 16 relied upon for preparing the report. 17 You know, we've been basically in 18 trial mode, getting ready for trial over the 19 last several months. 20 And I think what Mr. Rosenfeld would 21 like to do is to now open the door, open the 22 issue of well, okay, if it's something 23 generated after the report, you've still got to 24 produce it because the expert's seen it, and 25 now they want to preview issues we're thinking 8307 1 about for trial. 2 And that should not be allowed. It 3 wasn't asked for in any discovery requests by 4 Microsoft, and it certainly was not the 5 agreement of the parties. 6 So I've, hopefully, covered all six 7 categories. 8 Ms. Conlin probably wants to give me 9 something. 10 Two quick final points, Your Honor. I 11 apologize this takes so long, but I'd have to 12 think long and hard -- I've been practicing 13 30-plus years, and I don't think I've ever been 14 in this situation with a sanctions motion. 15 I've brought sanctions motions against opposing 16 parties. 17 We talked about Microsoft quietly 18 producing these materials in December. The 19 reason we used the term quietly producing -- I 20 should say a couple of reasons. 21 Number one, Microsoft has been 22 pounding the table for months saying they have 23 fully complied with the parties' stipulation, 24 fully complied, even though some of these items 25 produced in mid December were identified in 8308 1 their experts' depositions in September. 2 Then there was the additional Bennett 3 material that wasn't identified in Bennett's 4 deposition. 5 So ask yourself, Your Honor, we ask 6 this of ourselves, why was it that suddenly in 7 mid December this material gets produced, even 8 though both sides knew about some of it? 9 The reason, they understood the 10 stipulation the same way we did, but Your 11 Honor's November 28th order changed the rules, 12 changed the stipulation, as Your Honor saw up 13 there. 14 So Microsoft decided, well, I guess we 15 better start complying with that November 28th 16 order as well. And, of course, we filed our 17 motion that they be required to comply with 18 that order as well, and that's technically up 19 for discussion today, and I don't need to say 20 anything more about it. 21 The obligation should be mutual, but 22 the important point is, by their conduct, they 23 understood the stipulation was just reviewed or 24 relied upon for purposes of preparing the 25 experts' report, not for materials seen and 8309 1 rejected. Not the additional language that was 2 in that November 28th order. 3 And no matter what they're going to 4 say now about this, actions speak a lot louder 5 than words. 6 And the final point, as Your Honor can 7 guess, if Your Honor struck Professor 8 Mackie-Mason, precluding him from testifying, 9 our case is over. 10 If Your Honor were to strike Doctor 11 Gowrisankaran's testimony, our security 12 vulnerabilities claim is over. 13 That's what they want, but I guarantee 14 you, they're not entitled to it, and they 15 certainly should not be rewarded for misleading 16 me obviously with the intent of the stipulation 17 that I entered into and certainly should not be 18 rewarded for misleading this Court. 19 Thank you. 20 THE COURT: Rebuttal? 21 MR. ROSENFELD: Your Honor, I have 22 just a few minutes. I'd like to respond. 23 I'm not going to raise my voice and 24 I'm not going to pound the table, but 25 Mr. Hagstrom talks about putting 30 to this, 8310 1 whatever that means, and yet he spent 40 2 minutes rearguing the stipulation that Your 3 Honor had ruled on not once, not twice, not 4 three times -- but three times. 5 There was a stipulation. 6 The reason we have these problems to 7 begin with is not because Microsoft changed its 8 position, it's because Mr. Hagstrom and his 9 colleagues played fast and loose with the 10 ordinary meaning of the English language. 11 The notion that reviewed and relied 12 upon was construed by them to mean relied upon 13 -- and not merely relied upon in the broad 14 sense, but in preparation of your report, and 15 that Doctor Netz had the temerity to say in the 16 deposition that she interpreted reviewed to 17 mean looked at twice and didn't even keep 18 documents that worked -- and Mr. Reece said on 19 the stand in this courtroom that he supported 20 that interpretation. 21 Your Honor, you did not get it wrong. 22 You were not misled. Mr. Hagstrom's 23 interpretation is beyond laughable. It's 24 preposterous. 25 In every case in which I have ever 8311 1 been involved in, the parties always 2 understand, and the rules governing the 3 admission of expert testimony focus on the fact 4 that an expert is not only supposed to consider 5 evidence that supports his or her position, but 6 is supposed to make a balanced inquiry by 7 looking at evidence that also doesn't. 8 And the notion that you could limit 9 what you produce to the other side to simply 10 the material that supported your position is a 11 joke. It is simply a joke. 12 And the using reviewed and relied upon 13 in the ordinary course of the English language 14 and the way we interpreted it meant if the 15 expert got it, if the expert got it, it was 16 turned over to the other side. 17 That issue has been resolved by this 18 Court. 19 Microsoft did not take the contrary 20 view. Indeed, we argued to this Court as early 21 as August, once we found out in the deposition 22 that the Plaintiffs were taking this position 23 regarding the meaning of the word reviewed, we 24 argued in a deposition that that was not 25 consistent with the stipulation, and then we 8312 1 came to this Court. 2 We never ever, ever took the other 3 view, nor would anybody else who reads and 4 understands the King's English. 5 Now, with regard to Mackie-Mason. 6 Mackie-Mason said in his deposition, 7 he talked about the drafting process. In the 8 process of drafting my reports, I worked with 9 my staff. They suggested edit or changes or 10 insertions or deletions. They always leave 11 track changes on, and then I review that, and I 12 either accept or reject those changes. 13 So I review various drafts of the 14 report that we were collaboratively editing. 15 And then he said, I asked him, so you 16 did not get any summaries, memos, any other 17 kind of written report relating to the work 18 that was being done by your staff? 19 And he said -- first he said, I don't 20 believe he did. 21 And then he said, actually in this 22 line of questioning I think I may have 23 remembered one thing that I had forgotten 24 earlier. 25 And then he discusses this work plan 8313 1 that he got a year earlier, a year earlier. 2 It wasn't in connection with drafting 3 his report. This is after-the-fact word games. 4 Mackie-Mason said under oath what the 5 work plan was. It wasn't a draft of the 6 report. It was setting out what they were 7 going to do to investigate the allegations. 8 And yes, they've been working on this 9 for seven or eight years around the country, 10 but this wasn't a draft. It was a work plan. 11 And that's what Mackie-Mason said 12 under oath. And he didn't come in here and he 13 didn't say to the contrary under oath. 14 Notwithstanding the fact the Plaintiffs have 15 briefed this issue before this Court. 16 As to Martin, the cases Plaintiffs 17 cite have to deal with a case where an expert 18 is designated and then withdrawn. Martin 19 provided a report. It was relied upon by other 20 experts. 21 When he tendered that report, it was 22 in the game, in this case for our use, and he 23 had to comply with the discovery obligations. 24 The cases they cite don't deal with 25 that issue. 8314 1 We are entitled to the discovery, and 2 if he reviewed things, we ought to get them 3 even if he didn't rely upon them, just like we 4 should get them from every other expert. 5 With regard to Doctor G., Doctor 6 Gowrisankaran -- I'm sorry -- the identity of 7 the individuals who do the work for the experts 8 has been fair game in this case from the very 9 beginning. 10 We have testified about it, they've 11 asked our experts about it, and we have asked 12 their experts about it. 13 And never ever, ever before did they 14 say you can't get it. On this they did not 15 instruct in the deposition, but they gave us 16 names, just like we did. Never did they say 17 before you're not entitled to the names. It's 18 only with regard to Doctor G. And you know 19 what -- Doctor Gowrisankaran. 20 And you know what, it makes me quite 21 suspicious because maybe it was the child of 22 one of the lawyers, or maybe it was somebody 23 else who had some affiliation and would give 24 rise to legitimate cross-examination about 25 whether this person was qualified to do the 8315 1 work, whether it was reliable. That's why you 2 ask those questions. 3 And the fact that only with regard to 4 Doctor Gowrisankaran that they have drawn this 5 line is all the more reason why this 6 information needs to be provided to us. 7 Now, with regard to materials after 8 the expert report, this Court's order said 9 preparation of the expert's report or opinions. 10 The depositions in this case were 11 designed to get at the experts' opinions. 12 That's why we produced that information, and 13 the notion that they didn't, in light of this 14 Court's order, I think is just wrong. 15 Now, at the end of the day Mr. 16 Hagstrom can say I never would have agreed to 17 this; I never would have agreed to it. 18 He's a very experienced lawyer. He 19 speaks English quite well. Reviewed and relied 20 upon means what it says. 21 The fact that we didn't serve 22 interrogatories or seek expert discovery in 23 other ways is irrelevant. 24 We entered into a stipulation for 25 discovery in this case to supplant the 8316 1 underlying discovery rules on expert discovery. 2 That's what we did. That's what we adhered to. 3 And so the fact that the underlying 4 rules wouldn't provide for this discovery or 5 this approach to discovery is beside the point. 6 We had a stipulation, and, Your Honor, you 7 interpreted that stipulation exactly right. 8 You saw right through the fact that a 9 game was being played here; that they were only 10 going to give us what was relied upon and then 11 only in preparation of their expert reports. 12 Hunting metaphors or stories to the 13 contrary notwithstanding -- I'm not a hunter -- 14 the stipulation said what it said. The 15 language was crystal clear. And you got it 16 right, and it is time -- well past time to stop 17 rearguing that point. 18 They lost three times. They now have 19 to play by the rules, and the three key 20 examples we have cited here make it clear that 21 they haven't. 22 Now, if they have checked and we've 23 gotten a list of all the deleted information, 24 that's fine. 25 But their conduct -- their repeated 8317 1 conduct and their repeated efforts to get out 2 of a stipulation they have signed warrant 3 sanctions. 4 I'm done. 5 THE COURT: So I assume that Defendant 6 has no objection to the Plaintiffs' motion to 7 compel Defendant to produce expert discovery in 8 accordance with my orders? 9 MR. ROSENFELD: I'm sorry? 10 THE COURT: I assume Microsoft has no 11 objection to the Plaintiffs' motion to compel 12 Microsoft to produce expert discovery in 13 accordance with the Court's orders of August 14 21st and November 28th? 15 MR. ROSENFELD: No, we do not object. 16 We have done it. 17 THE COURT: Then if I enter an order 18 to that effect, you will abide by it; right? 19 MR. ROSENFELD: Absolutely. We have 20 done it. 21 THE COURT: And that issue is 22 foreclosed. 23 Anything else. 24 MR. HAGSTROM: Can I have two minutes? 25 THE COURT: Just two. 8318 1 MR. ROSENFELD: Thank you. 2 MR. HAGSTROM: Number one on 3 sanctions. 4 As Your Honor knows, there has to be 5 some willful intent. There is clearly no 6 willful intent, and clearly in light of the 7 history of the stipulations and the Court's 8 order, the November 28th order, as we've 9 already shown, changes significantly the 10 stipulation. 11 Next, Mr. Rosenfeld is quite accurate. 12 I can understand the King's English, and when I 13 look at the definition of review in the English 14 language dictionary, nowhere does it say 15 reject. 16 If they wanted to reject, it should 17 have been in the stipulation, and as I said, I 18 wouldn't have agreed to such a stipulation. 19 But review does, in fact, say to review or see 20 again, to examine or study again, to reexamine 21 judicially, to look back on, take a 22 retrospective review of, to go over or examine 23 critically or deliberately. 24 And Doctor Netz went on to explain 25 just because somebody does this and he might 8319 1 see that momentarily, that's not review. It's 2 to look at judicially, to examine critically. 3 So rejected wasn't in there. 4 The Mackie-Mason work plan. As they 5 know, Professor Mackie-Mason was retained for 6 purposes of this case a couple of years ago, 7 two to three years ago. 8 What was the purpose of the work plan? 9 To prepare his report. He knew he was working 10 on a report. He knew he had to do a report. 11 That's the purpose. 12 Your Honor, like I said, on this 13 Gowrisankaran thing, you know, oh, gee, maybe 14 it's a family member or somebody at Applicon or 15 whatever. I can assure you it isn't -- again, 16 we're more than satisfied to give Your Honor 17 unredacted version and tell you who the person 18 is and assure you -- I'll put in an affidavit, 19 to the best of my knowledge this person doesn't 20 know any of the experts or any of their staff 21 or what have you. 22 Of course, I better check that to make 23 sure. 24 But the person lives in Minneapolis. 25 None of our experts lives in the Twin Cities. 8320 1 Actually, I don't even know if she's in 2 Minneapolis. But in the Twin Cities. 3 We agreed to modify the rules of 4 discovery. As my affidavit said, our intent, 5 per my discussions with Sharon Nelles, was to 6 narrow the discovery. Narrow. And yet, you 7 know, in retrospect, I understand now what 8 Microsoft did. 9 My view is this was entirely a setup 10 because they now -- they come in and argue for 11 words that aren't in the stipulation. 12 And in the meantime, with their 13 experts, they say ha, ha, ha, everything's 14 going to be a draft other than obviously 15 documents that are in the record, you know, 16 with the Bates numbers and all those kind of 17 things, publicly available articles. 18 But our means of communication solely 19 are going to be in the form of a draft report 20 or comments on that report. 21 It's a trap, unfortunately set, and 22 it's -- you know, hunting metaphors I think are 23 entirely appropriate here. 24 And just, finally, I mentioned the 25 July 10th stipulation. 8321 1 That's Exhibit 17, Darin. 2 The only reason I point this out is 3 with regard to Doctor Martin. 4 Microsoft fully examined Doctor Martin 5 in California and Minnesota, and we agreed no 6 party shall depose an expert offered by the 7 other party on any topic about which that 8 expert was previously deposed in any indirect 9 purchaser case -- or excuse me -- action 10 against Microsoft. 11 They've had full discovery with regard 12 to Doctor Martin. 13 Thank you for your patience, and thank 14 you, Tammy, for staying late. 15 MR. ROSENFELD: On that I agree with 16 Mr. Hagstrom. Thank you both. 17 MS. CONLIN: Thank you, Your Honor. 18 Have a nice weekend. 19 (Proceedings adjourned at 5:10 p.m.) 20 21 22 23 24 25 8322 1 CERTIFICATE TO TRANSCRIPT 2 The undersigned, Official Court 3 Reporters in and for the Fifth Judicial 4 District of Iowa, which embraces the County of 5 Polk, hereby certifies: 6 That she acted as such reporter in the 7 above-entitled cause in the District Court of 8 Iowa, for Polk County, before the Judge stated 9 in the title page attached to this transcript, 10 and took down in shorthand the proceedings had 11 at said time and place. 12 That the foregoing pages of typed 13 written matter is a full, true and complete 14 transcript of said shorthand notes so taken by 15 her in said cause, and that said transcript 16 contains all of the proceedings had at the 17 times therein shown. 18 Dated at Des Moines, Iowa, this 12th 19 day of January, 2007. 20 21 22 ______________________________ Certified Shorthand Reporter(s) 23 24 25