Microsoft judge won’t allow e-mail

May 31, 2002

THE AUGUST 2000 e-mail from then Microsoft Vice President Joachim Kempin to other top level officials, including Chairman Bill Gates, said that chipmaker Intel was lobbying other computer makers “who are not (Microsoft) friendly in the first place and ... encouraging them to go to Linux.” Linux is a free operating system that competes with Microsoft Windows. (MSNBC is a joint venture between Microsoft and NBC.)

During the initial six-week remedy hearing Judge Colleen Kollar-Kotelly ruled that lawyers for the nine states pushing the court to impose tougher sanctions on Microsoft couldn’t admit the Kempin e-mail while cross-examining Gates. Kollar-Kotelly ruled the e-mail was outside the scope of the initial antitrust trial for which the company was found to have violated antitrust laws.

But earlier this month the states abruptly asked the court to reconsider her initial ruling and admit the document into evidence. If she accepted the document, Kollar-Kotelly would be required to consider its ramifications on her decision whether or not to impose harsher penalties on Microsoft.

Friday the judge issued an order squashing the states’ request, saying that the states hadn’t given her any compelling reason to reconsider her initial call from the bench.

The states “offer no explanation for the nearly three-week delay” between the time they first tried to use the memo and when they renewed their request, the judge wrote. “Certainly the arguments advanced in Plaintiffs’ motion were available to them at the time the Court made its ruling… and on each day thereafter, in advance of the close of evidence,” the judge’s order says.

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To admit the document at this stage of the process, Kollar-Kotelly said, “It is certain that (Microsoft) would suffer considerable prejudice if the Court were to abandon its prior ruling.” ANNOYED AT INTEL

In his e-mail to Gates, Kempin lays out a strategy for a unilateral strike against Intel for having the audacity to suggest to computer makers that Linux might be a choice for consumers. Kempin said he planned to “stop any go-to-market activities with Intel (and) only work with their competitors.”

Kempin also notes that he would “try and restrict source code deliveries where possible and be less gracious when interpreting agreements — again without being obvious about it.”

The states are seeking the court to mandate that Microsoft release huge chucks of its proprietary software code in order to allow competitors to level the playing field when it comes to designing products that work well with Windows. The states have argued that Microsoft selectively releases the blueprints for Windows to favored customers as a way of keeping them loyal. Companies that don’t well Microsoft don’t get timely technical information and are placed at a competitive disadvantage when it comes to putting products in the stores.

In their May 15th filing, the states argued that Microsoft hadn’t initially objected to the memo and that it was relevant to help prove that without harsh penalties, Microsoft would continue its anticompetitive ways. But the judge didn’t buy the argument.

“The litigation process presumes that the parties will present their case only once and will present their best arguments at that time,” Kollar-Kotelly wrote in her order.

The judge is now considering whether to adopt some or all of the states requests for harsher penalties. Among those proposed penalties is a mandate the Microsoft sell a modular version of Windows that would allow consumers to pick and choose which features they actually want to pay for and install. Microsoft has steadfastly denied they could develop such a modular version.

“We’d be forced to pull Windows from the market,” Gates said under oath during the remedy phase of the trial.

Meanwhile, Kollar-Kotelly also must consider the terms of a proposed consent decree that settles the initial antitrust case. Those terms were negotiated by the Justice Department, Microsoft and nine other states that also sued the company for antitrust violations.

Microsoft and the states are due back in court on June 19th to present their closing arguments. The judge can make her ruling any time after that.