Gates to take stand in antitrust trial

WASHINGTON--Microsoft Chairman Bill Gates is scheduled to make his first appearance on the witness stand next week as part of the continuing antitrust trial, the company said Friday.

Gates is scheduled to appear following the conclusion of testimony from David Cole, senior vice president of the MSN and Personal Services Group. Cole, the first Microsoft executive to appear on the company's behalf during this portion of the antitrust case, took the stand late Thursday. His testimony is expected to conclude Monday.

"Bill Gates is glad to have the opportunity to testify in the remedy proceedings," said Microsoft spokesman Jim Desler. "He will address the evolution of the PC industry and the critical role Microsoft, PC manufacturers and independent software vendors have played in making computing accessible to consumers and making technology an engine for economic growth."

Gates' appearance next week would be his first in-person appearance at the trial. In the main portion of the trial, Gates appeared in a videotaped deposition. In portions of that videotape, Gates repeatedly answered questions with "I don't know" and "I don't recall." His statements were frequently contradicted by e-mails he had sent and received, and he frequently claimed no recollection of the messages.

Microsoft's legal team appears to have a different strategy this time. "Like other Microsoft witnesses, including representatives from many sectors of the PC ecosystem, he will speak to the potential harm to consumers and the industry posed by the non-settling states' remedy proposals," Desler said.

Like other witnesses, Gates will submit written testimony to the court before being cross-examined by a states' attorney. In his testimony, Gates is expected to explain the importance of keeping Windows an integrated product, said sources familiar with Microsoft's legal strategy.

One of the states' remedy provisions would compel Microsoft to sell a version of Windows stripped of so-called middleware--such as Web browsing or media streaming technology.

Gates is expected to testify about the importance of Windows as a standard to which software developers can write applications and how a fragmented operating system would shatter the stability the industry has come to expect, sources said.

Besides Gates, Microsoft also has scheduled the following people to testify: Chris Jones, vice president of the Windows client team; Rob Short, vice president of the Windows Base OS Kernel; and several third-party high-tech witnesses.

Legal experts warned that bringing Gates to testify is a risky strategy, particularly given his previous videotaped deposition, and the somewhat weak case put forth by the nine states and the District of Columbia that are continuing with the litigation against Microsoft. In November, the Justice Department and nine other states settled with Microsoft. That deal is awaiting approval or rejection by U.S. District Judge Colleen Kollar-Kotelly.

"It's what we sometimes call a high-variance strategy," said Emmett Stanton, an antitrust lawyer with Fenwick & West in Palo Alto, Calif. "It could be a very terrific performance and very persuasive, or it could be a disaster--and probably not in between."

"The states' attorneys have to be salivating," said Rich Gray, a Silicon Valley-based attorney closely following the trial. "We'll see if he's taking the advice of his attorneys now in a way that he didn't when his deposition was taken in the case before (U.S. District) Judge Thomas Penfield Jackson."

Gates' testimony could be an opportunity to "redeem himself as a witness and save the day," Stanton said. "It will be interesting to see if he's the same seemingly belligerent, uninformed witness in the first go-around."

But the antitrust attorney warned that the states could attempt to bring back portions of that earlier deposition if there is a great deal of variance from Gates' deposition for next week's court appearance or his testimony on the stand.

"There's an awful lot of Gates' videotape deposition excerpts that he could be confronted with--and the consensus was he hadn't done all that well in the deposition," Stanton said. "If (it) turns out he is a very different kind of witness, the states may want to show excerpts just to show the contrast in style."

Microsoft could attempt to limit the amount of the earlier deposition shown in court, particularly given the scope of the current proceeding. Gates is not testifying at a trial but at a hearing that could eventually determine a remedy for the company's antitrust violations.

"But as much as the judge will allow, the states can also cross-examine on general matters of credibility, and that means (they) could get some snippets in from the earlier deposition," Stanton said.

With the remedy proceeding potentially going better for Microsoft than expected, Microsoft may be bringing Gates to testify for the public relations value, Gray speculated.

"Mr. Gates' testimony will be far more important in the court of public opinion than it will be to Judge Kollar-Kotelly," he said. "Why would they put him on the stand? Because they know it's going to draw massive press coverage."

Gates' appearance may wow the media, but it may not impress the judge, Gray emphasized.

"No federal judge will be impressed simply because it's Mr. Gates," he said. "Star power carries no weight in the courtroom. If Barney the purple dinosaur showed up there might be a brief flurry of attention, but it wouldn't affect the substance of the proceeding."

Gates almost certainly will testify on Monday, said sources familiar with Microsoft's legal strategy. Should the states plan to keep Cole on the stand for a long time, Microsoft is expected to ask Gates to pre-empt the continued cross-examination for scheduling reasons.

Besides the two other Microsoft witnesses scheduled to testify next week, Richard Ulmer from Unisys and Gregg Sutherland from Qwest Communications International also are on the list.