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Microsoft cries ambush

In surprise court filings, Microsoft says new evidence warrants a six-month delay, while prosecutors say the company is witholding more evidence.

    Microsoft told a federal judge that antitrust prosecutors are attempting to ambush it with new evidence that's unrelated to the current case and asked for the allegations to be excluded or the trial delayed by six months.

    In its own filing, meanwhile, the government accused the software giant of dragging its feet in turning over potentially damning evidence just three weeks before trial is set to start. The dueling briefs were filed late today in U.S. District Court in Washington.

    Responding to a host of new material the Justice Department and 20 states introduced yesterday, Microsoft said the prosecutors are "threatening to convert this proceeding into a trial by ambush." It maintains the government's move unfairly violates Microsoft's ability to prepare for trial, which was put on an fast-track schedule and has been limited to testimony from a dozen witnesses per side.

    "It is challenging for Microsoft to respond to plaintiffs' initial allegations with just 12 witnesses," Microsoft attorneys argued in their brief. "The situation will become impossible if Microsoft is forced to respond to a raft of additional issues while operating under that same constraint."

    Microsoft's brief goes on to ask U.S. District Judge Thomas Penfield Jackson for an order excluding the new matters. "If the Court is not inclined to hold the plaintiffs to the case they brought, trial should be delayed for at least six months to permit Microsoft to [gather evidence], and no limitation should be placed on the number of witnesses to be called by each side," Microsoft added.

    In a brief filed yesterday, government prosecutors introduced new evidence that went beyond allegations relating to Netscape Communications, which were central to prosecutors' earlier court filings.

    In briefs filed both yesterday and today, prosecutors maintain that the new evidence--detailing Microsoft's dealings with partners Intel, Apple Computer, and RealNetworks--establishes a pattern of allegedly predatory conduct that is at the heart of the case.

    "Plainly, evidence of Microsoft's attempts to induce others, including Intel and Apple, to take action to hamper Netscape or Java or to undermine the threat they pose to Microsoft's monopoly is relevant to and probative of numerous key issues here," prosecutors wrote in today's filing.

    They went on to ask Jackson to order Microsoft to respond to certain "discovery" requests within 24 hours.

    Specifically, the government wants all evidence relating to all meetings between Microsoft chief executive Bill Gates or group vice president Paul Maritz and any Intel representative that took place between January 1, 1995, and December 31, 1997. Prosecutors also want all evidence relating to meetings Microsoft executives Eric Engstrom or Chris Phillips and anyone from Apple that occurred between January 1, 1996, and August 14, 1998.

    The government is trolling for evidence that Microsoft "engaged in a comprehensive plan and pattern of anticompetitive conduct to monopolize markets." Specifically, it wants to know whether the software giant pressured Intel or Apple into curtailing efforts related to Netscape's Navigator, Sun Microsystems' Java, or multimedia products.

    The government originally requested the information from Microsoft on August 14, but has been unable to receive the information so far.

    Filed in May, the government's complaint accused Microsoft of violating antitrust laws through a broad pattern of conduct. While touching on conduct spanning a number of different fronts, the suit focused on Microsoft's efforts to tie its Internet Explorer browser to its Windows operating system. A federal appeals ruling issued in June raised significant doubts about whether a tying claim alone would be enough for prosecutors to prevail. Trial is set to begin on September 23.

    "The government apparently has lost faith in the case it brought last May, so it is trying to expand and rewrite its case without going through the proper legal procedures and allowing Microsoft to respond," Microsoft spokesman Jim Cullinan said.

    A Justice Department official disagreed. "It is unfortunate that Microsoft is seeking to avoid confronting all of the evidence that the United States has amassed in support of the claims contained in the complaint we filed in May," the official said.

    A hearing on both briefs has been set for tomorrow at 2 p.m. ET.

    Separately, an article penned by the author of the latest Microsoft tell-all claims that a former employee has admitted under oath that the software giant destroyed evidence sought by Caldera and government officials. The story says the Justice Department is now investigating the alleged obstruction of justice, which is a felony.