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DOJ defends special master

The government defends the appointment of a "special master" to assist the judge in its antitrust suit against Microsoft.

The appointment of a "special master" in the Justice Department's antitrust dispute with Microsoft was warranted by the complexity of the case and well within a federal judge's authority, the government argued in a court brief today.

The document, See special coverage: Microsoft case keeps growing filed with the U.S. Court of Appeals for the District of Columbia, responds to a petition Microsoft filed earlier this month asking the appeals court to immediately suspend proceedings being conducted by visiting Harvard Law School professor Lawrence Lessig. In December, U.S. District Judge Thomas Penfield Jackson appointed the computer and Internet law expert to weigh evidence in the case and make a recommendation by May 31.

The government brought the case last October, arguing that Microsoft's licensing requirement that its Internet Explorer browser be bundled with Windows 95 violated terms of a 1995 consent decree.

Microsoft first asked Jackson to reconsider the appointment, arguing that it was not warranted by the particulars of the case. It also argued that Lessig writings in email and scholarly articles demonstrated bias against the software giant.

After Jackson issued Microsoft a blistering denial, the Redmond, Washington, company filed a "writ of mandamus" with the appeals court that argued Jackson's order was "incompatible with basic principles of American jurisprudence" because it violated Microsoft's constitutional right to have the matter handled by a federal judge.

The government's brief filed today took strong exception to Microsoft's claim, arguing that the difficulty of the case, combined with the importance of resolving it quickly, made the appointment appropriate.

"Through his ongoing proceedings and proposed findings, Professor Lessig will...focus the issues, economize the range of specialized knowledge the court must assimilate to resolve the dispute, and thereby facilitate the court's swifter resolution of it," government attorneys wrote.

"The district court did not cede authority to adjudicate the merits to the special master or otherwise withdraw from involvement in the case," the government added. "To the contrary, the findings Professor Lessig is to prepare will merely be 'consider[ed] by the court' in ruling 'on the issues raised by [the] case.'"

The government also argued that the filing of a mandamus petition--court lingo for an extraordinary appeal--was not warranted by the special master's appointment because it didn't raise any "untoward or irretrievable delegation of judicial authority."

A Microsoft spokesman said that despite today's filing, the company's position remains the same.

"The trial court has attempted to send virtually the entire case to a private citizen for all fact finding and recommendations of law, and we believe that is not permitted under the rules," said Microsoft's Mark Murray. "Microsoft has a right to have this case heard by a judge, not a private citizen."

Today's brief is just the latest in a seemingly nonstop stream of court documents and press releases. The appeals court is already considering a separate appeal of an injunction temporarily requiring Microsoft to offer a version of its operating system that does not carry Internet Explorer. The first motion on that matter will be filed this Thursday by Microsoft, and a hearing is scheduled for April 21.

At the same time, proceedings before Lessig are ongoing, but both sides have declined to give details, citing a confidentiality agreement. In today's brief, however, the government reported that Lessig "has engaged in several exchanges with the parties designed to determine the relevant technological and legal issues...[and] has expedited proceedings with a view toward meeting the May 31, 1998, deadline for his proposed findings set by the district court."