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Microsoft rebuts DOJ in filing

The software giant argues it should be allowed to deliver Windows source code to regulators on its own terms, not anyone else's.

Contending that the source code for Windows 98 is "the software equivalent to the formula for Coca-Cola," Microsoft today argued why it should be allowed to deliver that code to the Justice Department on its own terms, not anyone else's.

Microsoft also argued that chief executive Bill Gates is "an extremely busy person," and that if he were to be deposed for two days, as the DOJ has requested, it would be an "unfair and misguided imposition."

A court filing by Microsoft today also disclosed that depositions of its officers and employees in the DOJ's and states' lawsuits "are to begin later this week" and listed those executives who will be participating.

Microsoft also said it questioned Netscape executive vice president Mark Andreessen and noted that he is one of five Netscape employees "likely to be deposed in connection with this matter." In addition, Redmond has deposed Netscape chief executive Jim Barksdale and Sun Microsystems CEO Scott McNealy.

The 25-page document comes two days before Microsoft and the DOJ are expected to appear before U.S. District Judge Thomas Penfield Jackson to discuss differences over pretrial testimony in the closely watched antitrust lawsuit. The dispute, which surfaced last week, has been the first sign of tangible friction between the two sides in the discovery portion of the case. The hearing had been set for tomorrow, but was rescheduled until Thursday at 2 p.m. ET.

The dispute comes barely a month before the trial is supposed to begin--on September 8--fueling speculation that it may be delayed.

Last week, the DOJ said two days of deposition by Gates was "adequate." The DOJ also wants to depose more executives than Microsoft argues is necessary. The agency's request comes as it and attorneys general from 20 states continue to investigate the software giant's business practices beyond the issues raised in the lawsuit. One point of contention: Microsoft's involvement with the programming language Java.

Microsoft countered today that "there is no point in wasting Mr. Gates's time with questions that have already been answered by persons more directly involved in the development of Windows 98 and the promotion and distribution of Internet Explorer technologies."

For example, Joachim Kempin, who manages "all of Microsoft's relationships with OEMs and is responsible for dealing with such OEMs," according to the filing, has been deposed twice already.

The filing also said the DOJ either has taken or soon will take depositions of James Allchin, Microsoft's senior vice president responsible for operating systems; Steve Ballmer, the company's president, who is responsible for sales of all Microsoft products; Joe Belfiore, program manager responsible for developing the user interface for Windows 95 and Windows 98; Brad Chase, vice president responsible for marketing Windows 95 and Windows 98; David Cole, vice president responsible for developing the Windows 98 user interface; and Moshe Dunie, vice president responsible for developing desktop operating systems, including Windows 98.

The list also includes Chris Jones, vice president responsible for all aspects of the development of Internet Explorer 4 and Internet Explorer 5; Paul Maritz, group vice president in charge of developing nearly all Microsoft products; Yusuf Mehdi, program manager responsible for marketing IE technologies in Windows; Cameron Myhrvold, vice president responsible for marketing Internet Explorer technologies to ISPs; Brad Silverberg, former senior vice president responsible for developing Windows 95, including its IE technologies; and Bill Veghte, general manager responsible for developing Windows 98.

As for the Windows 98 source code issue, the filing said that "Microsoft has agreed to produce the requested source code as long as appropriate protections are put in place. The assertion that 'Microsoft continues to object to producing' the source code is, at best, misleading."

It added: "Curiously absent from plaintiffs' motion is any acknowledgment that the investigating states previously entered into an identical source code licensing agreement to the one that Microsoft has proposed here." The agreement, Microsoft argued, is needed to protect its "valuable intellectual property."