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WASHINGTON -- A top Microsoft executive two years ago urged the company to take retaliatory action against PC makers developing devices that support Linux, according to an e-mail the nine nonsettling states want admitted as evidence in the remedy case.

In motion filed earlier this week in U.S. District Court, the states asked that a memorandum written by Joachim Kempin, who headed Original Equipment Maker relations for Microsoft and had testified in the earlier, original trial, be included in the trial record.

In an August 14, 2000, memo sent to company Chairman Bill Gates and others, Kempin complained that Intel was encouraging employees at large PC makers to support Linux as well as to fund devices that would work well with that operating system.

Working Underground

In the memo, which was included with the state's motion, Kempin said that to "play this the hard way" would "get more attention then we need."

Instead, he concluded that Microsoft should "work underground with the clear understanding to promote and advantage guys with less market share without declaring that to be our strategy. I would further try to restrict source code deliveries where possible and be less gracious when interpreting agreements--again without being obvious about it."

The states attempted to get the memo introduced earlier in the remedy phase, but Microsoft objected, and Judge Colleen Kollar-Kotelly didn't allow its admission. The new motion asked the judge to revisit that decision.

Ready to Respond

Microsoft spokesperson Jim Desler said the company will outline its reasons for opposing its admission in a response it intends to file this week.

The nine states say the memo points to the need to stricter enforcement provisions against Microsoft.

Desler said the e-mail represents "random thoughts" of a company executive. "There is no evidence that the e-mail was acted on," he said. "It was simply passed along."

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