DOJ: Microsoft may have withheld evidence

The evidence in question revolves around a software program designed by Princeton University professor Edward Felten that allegedly allows users to remove Internet Explorer from the Windows 98 operating system. Felten testified about the program earlier this month, and a hotly contested war of words between Microsoft and the DOJ ensued.

The DOJ contends that Felten's program demonstrates that the browser and the operating system are in fact two separate programs, a key pillar in the government's case. Microsoft, for its part, contends that the program doesn't totally remove the browser code.

The software giant repeatedly has tried to discredit Felten's work through cross-examination and various court filings. The DOJ has described these efforts as a "blatant misrepresentation."

The current controversy surrounds Microsoft's in-house testing of Felten's program. In a September court filing aimed at discrediting Felten, Microsoft said it concluded that the program didn't work as Felten claimed it did.

The DOJ, however, quickly responded that Jim Allchin, a top Microsoft executive who headed up the company's testing of Felten's program, flatly refused to testify in his deposition on the results of the tests, claiming that "the testing isn't complete." His deposition, however, was dated after the September court filing.

"Mr. Allchin's deposition testimony, coupled with Microsoft's attempt to cross-examine to challenge the effects of Dr. Felten's prototype removal program, plainly indicate that plaintiffs have been deprived of a full and adequate opportunity to conduct discovery of Mr. Allchin," the DOJ said in its court filing.

The DOJ now is requesting that it at least get an opportunity to question Allchin on Microsoft's testing of the program before he appears as a witness when the trial resumes on January 4.

Felten's December 14 testimony that he had devised a program to remove IE from Windows 98 with relative ease quickly became a flash point in the trial. The fact that the program existed and worked, he said, eroded two of Microsoft's major arguments: one, that the two programs couldn't be separated; two, that their bundling adds customer value.

Felten said that bundling really only had the effect of reducing customer choice.

"I know of no reason why Microsoft should take away choice" from the consumer by bundling the two products together, he testified.

Microsoft countered by stating that Felten's program didn't work, arguing that it covered up only a tiny bit of the functionality of IE, and that it didn't work properly anyway.

Felten and the DOJ countered those assertions by charging that Microsoft was playing word games. Regardless of the amount of code Felten's program eliminated, it fully prevented users from running IE, they said.

Their second argument was more powerful. Felten testified that the program only stopped working fully after it had been in Microsoft's hands for months. The software giant, he asserted, changed underlying code in Windows to disable Felten's program.

"Are you telling me that, as part of discovery, you provided this code in September, whereupon there appears to have been product changes by Microsoft?" presiding judge Thomas Penfield Jackson asked in astonishment.

"Yes," Felten answered.

Microsoft then terminated its questioning of Felten suddenly, but subsequently filed a document entitled, "Representation of Microsoft Corporation" that purportedly confirmed Felten's testimony. In that filing Microsoft claimed that Felten admitted his program did not remove IE, and instead only hid some functionality.

The filing, the DOJ said, "is little more than a Microsoft press release, improperly captioned as a pleading and submitted to this court, containing erroneous and misleading attempts to introduce 'facts' through unsworn 'testimony' of Microsoft's counsel."

The DOJ has requested that the court reject the filing.