Microsoft calls hostile witness in risky move
Microsoft will attack the credibility of a senior AOL executive and grill him about his company's $10 billion acquisition of Netscape Communications.
Attorneys from the Justice Department and 19 states, meanwhile, will attempt to bolster the weakest part of their case by calling an IBM executive who negotiated the key company licenses for Windows 95 and other Microsoft products.
The decision to call AOL senior vice president for business affairs David Colburn as a hostile witness is considered a bold move. Microsoft attorney John Warden cross-examined Colburn earlier in the trial but was unable to impeach the AOL executive's most damaging testimony.
Microsoft also said it would call former Symantec chief executive Gordon Eubanks, now the top executive at Oblix, a maker of corporate software. Eubanks has long been a staunch Microsoft ally.
In addition to tipping each side's strategy during the rebuttal phase of the trial, the list of witnesses was notable for the names it did not include. Speculation had run high that Steve Case and Ted Waitt, chief executives of AOL and Gateway, respectively, would be called.
This time around, Microsoft is expected to focus on the three-way deal announced in November between AOL, Netscape, and Sun Microsystems. In a court document filed today, Microsoft said that Colburn's testimony would concern the specifics of the deal and when company executives and antitrust prosecutors knew about it.
Microsoft's decision to recall a witness who performed well earlier struck at least one court observer as risky. "It's a very dangerous tactic to call a strong hostile witness as one of your three rebuttal witnesses," said Rich Gray, an antitrust litigator at Bergeson, Eliopoulos, Grady & Gray.
Hillard Sterling, an antitrust attorney who has repeatedly criticized the government's case for failing to prove consumer harm, said Norris's designation made sense. "The government [has] suffered from a dearth of computer manufacturers" testifying in the case, said Sterling, a partner at Gordon & Glickson who is not involved in the case.
Microsoft's third witness will be Richard Schmalensee, dean of Massachusetts Institute of Technology's Sloan School of Management. The economist likely will explain earlier writings that appeared to contradict his testimony in the case, as well as refute allegations that Microsoft is a monopolist.
The government's remaining witnesses will be Edward Felten, assistant professor of computer science at Princeton University, who will testify further about the combining of Windows with the Internet Explorer browser and other technical issues. Franklin Fischer, another economist at MIT's Sloan, is expected to testify further about Microsoft's alleged monopoly.