In court documents filed today in federal court, Microsoft and the Justice Department traded jabs over a computer expert who was appointed to sift through evidence in the high-profile court battle between the two parties.
Microsoft argued that the appointment of visiting Harvard Law School professor Lawrence Lessig
U.S. District Judge Thomas Penfield Jackson appointed Lessig last December, ruling that the case presented "complex issues of cybertechnology and contract interpretation." He directed Lessig, a noted expert in computer and Internet law, to sift through evidence in the case and propose factual findings and legal conclusions by the end of May. The three-judge appeals panel hearing the matter suspended Lessig's appointment after Microsoft filed a challenge.
In its three-page filing, Microsoft argued that its legal dispute with the Justice Department was a contract issue based on its 1995 antitrust consent decree and did not provide the "exceptional condition" required for appointment of a special master.
"The special master is no better qualified than the district court--arguably less so, given his lack of litigation experience--to interpret the consent decree," the software giant said.
The Justice Department countered by arguing that in court filings Microsoft itself has admitted that exceptional conditions are present in the case.
"Microsoft's contention is ironic in light of its repeated assertion that the United States' position in this litigation raises technological issues for which 'poorly informed lawyers have no vocation,'" government attorneys contended. "A final determination as to whether Microsoft's conduct comports with the [consent decree] may well require applying legal principles to complex technologies, an expertise Professor Lessig's curriculum vitae readily evidences."
Microsoft also alleged Lessig has demonstrated a bias against the Redmond, Washington, company and cited an email message he sent to a public policy counsel for Netscape Communications, whose interests in the case are adverse to Microsoft's. In the email, Lessig asked whether installing Microsoft's Internet Explorer browser on a Macintosh would harm certain features in Netscape's Navigator browser. Lessig compared installing IE to having "sold [his] soul."
Microsoft argued that the email "is more than sufficient to demonstrate that the special master's impartiality 'might reasonably be questioned.'"
In a sworn declaration, Lessig explained that he had made the remark in anticipation of being teased by the Netscape executive for installing a competitor's browser. In its filing today, the government signed on to the explanation. "As for the 'tease,' a 'reasonable person knowing all the circumstances' would not draw the conclusion that Professor Lessig 'equat[ed] Microsoft with the devil,'" the government argued.
Microsoft's request to remove Lessig is known in legal parlance as a "petition for a writ of mandamus," which is considered an extraordinary measure that should be granted only in rare circumstances. "Because Microsoft cannot meet its heavy burden of demonstrating a clear abuse of discretion, mandamus, even if 'the proper vehicle for obtaining review of the district court's' order, should be denied," the government added.
The appeals court will hear arguments in the matter April 21.
Reuters contributed to this report.