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Gates Deposition Amuses Judge

Semantic dual between Gates and government lawyers approaches the famous "What 'Is' is" conundrum.

By Elizabeth Wasserman, IDG News   

The federal judge presiding over Microsoft's antitrust trial shook his head and laughed during portions of Bill Gates's videotaped deposition played in court Monday, which featured the company's founder and chair denying that his company targeted a "jihad" against the Internet browser of rival Netscape Communications.

In a rambling 50-minute segment pulled from the three-day deposition, Gates engaged in a verbal dual with U.S. Justice Department attorney David Boies, splitting hairs over literal interpretations of e-mail messages and memos and refusing to concede that company officials focused their efforts primarily on Netscape.

Boies confronted Gates with an e-mail message that the Microsoft chair wrote to a subordinate on January 5, 1996 that said in part, "Winning Internet browser share is a very, very important goal for us." Gates said he didn't remember writing that specifically. But Boies pressed him about what companies he would include in the term "browser share."

"There's no companies included in that," Gates responded.

"Well, if you're winning browser share, that must mean that some other company is producing browsers and you're comparing your share of browsers with somebody else's share of browsers," Boies replied. "Is that not so, sir?"

"You asked me if there are any companies included in that and now--I'm very confused about what you're asking," Gates replied. After Boies rephrased his question, Gates played the artful dodger. "It doesn't appear I'm talking about any other companies in that sentence," he replied.

The deposition clip was used by the government in its wide-ranging antitrust case against the world's largest software manufacturer to lay the groundwork for a technical witness expected to take the stand later this morning. That witness, software consultant Glenn Weadock, has testified in a written statement submitted to the court that there are no consumer benefits to Microsoft's integration of Internet Explorer with its market-dominant operating system.

While the tape was rolling, however, all eyes were on U.S. District Court Judge Thomas Penfield Jackson, who audibly laughed and shook his head during the sometimes comical war of words between the argumentative attorney and the hostile witness. Jackson hasn't made much effort to hide his impatience with some of Microsoft's bevy of lawyers from the Wall Street firm of Sullivan & Cromwell, and has chastised some attorneys in open court and pressured others to step up the pace of their cross-examination.

At the conclusion of the Gates deposition segment this morning, Jackson asked, "How long did the deposition take?"

"Three days," Boies responded in an exchange that implied that the questioning required so much time because Gates was evasive to the point of appearing confused at numerous points.

What Holy War?

Gates was shown a March 13, 1997 document sent to him by Brad Chase, a Microsoft vice president, that said, "We need to continue our jihad next year. ... Browser share needs to remain a key priority for our field and marketing efforts."

"It doesn't say Microsoft," Gates said in his deposition.

"Well," said Boies, "when it says 'we' there, do you understand that means something other than Microsoft sir?"

"It could mean Brad Chase's group," Gates replied.

Gates was more forthcoming when asked what Chase meant by "jihad."

"I think he is referring to our vigorous efforts to make a superior product and to market that product," Gates said.

Some of the exchanges evoked laughter in the courtroom. After introducing Gates's e-mail into evidence, Boies quizzed him about what "non-Microsoft" browsers he was concerned about when he wrote it in January 1996.

Gates said he was confused. "I'm sure--what's the question? Is it--are you asking me about when I wrote this e-mail or what are you asking me about?"

Said Boies, "I'm asking you about January of 1996."

Replied Gates: "That month?"

Said Boies, "Yes, sir."

Replied Gates, "And what about it?"

After 20 minutes of bobbing and weaving Boies's questions, Gates testified that he and other company officials were looking at rivals' browsers, including Netscape's then-market dominant Navigator browser and the browser then used by America Online, which was called Booklink.

At another point, Boies pressed Gates on whether he was concerned about competition from those browsers. After more back-and-forth about what the word meant and why the question was being posed, Boies lost his patience: "Is 'concerned' a term that you're familiar with in the English language?"