"Microsoft has not met its burden of justifying why each of its documents initially filed under seal should remain sealed," the Justice Department's brief argued. "In fact, Microsoft makes only generalized, blanket assertions that its filed documents are confidential. Such a showing is plainly insufficient."
A Microsoft spokesman explained the software giant's position by arguing: "We have asked the court to keep a number of documents under seal because they contain confidential business information."
Meanwhile, the judge hearing the case has limited to 12 the number of witnesses each side can call at the trial, which is scheduled to begin September 8, a Justice Department spokeswoman said. The decision to limit testimony, made by U.S. District Judge Thomas Penfield Jackson at a scheduling conference today, indicates that he plans to keep the case on a fast-track schedule.
The confidential documents are expected to contain more details of the so-called smoking guns that the DOJ cited as evidence in its lawsuit against the software giant. In its lawsuit filed last month, the DOJ cited depositions, interviews, and email messages from Microsoft and its competitors. It included correspondence from Microsoft chief executive Bill Gates, among other top Microsoft executives, that appear to bolster the department's case that Microsoft engaged in anticompetitive conduct.
One exhibit included statements from Paul Maritz, vice president of Microsoft's platform and application group, in which he advocated slowing "Netscape's ability to drive new protocols" and to stop the momentum of Sun Microsystems' Java to "protect our core asset windows." In another exhibit, Maritz described the company's "strategic objective" as trying to "kill cross-platform Java by grow[ing] the polluted Java market."
Microsoft has said PC makers are free to choose any software for customers.
Under normal circumstances, documents filed in court cases are presumed to be public documents, unless they contain trade secrets or other types of confidential information, in which case a party to the case can ask that they be sealed. According to today's filing, Microsoft and the Justice Department entered into an agreement in February that requires the government initially to file exhibits under seal but then requires Microsoft to prove that specific documents contain "confidential information."
"Microsoft has not done so," today's filing argues. "Instead, it has made only broad and sweeping characterizations about its documents as a group."