Microsoft shortens witness list

WASHINGTON--Microsoft chopped eight people off its witness list Monday, potentially speeding the close of testimony in its remedy proceeding.

But headliners Steve Ballmer, Microsoft's CEO, and Jim Allchin, the senior executive over Windows, are still scheduled to testify. They could take the witness stand as early as next week.

At least one of the witnesses, Richard Fade, had been scheduled to testify this week and in fact could have taken the stand as early as Tuesday. Fade is the liaison between Microsoft and PC makers, who were directly affected by the company's antitrust violations.

Brian Valentine, senior vice president over the Windows division, also had been viewed as a potentially important witness. In addition, two other Microsoft witnesses have been removed from the list of 29 witnesses: Jeff Raikes, vice president, business productivity services, and Microsoft Research Managing Director Roger Needham.

Four third-party witnesses also were removed from the witness list: Avanade CEO Mitchell Hill; Philip Schoonover, an executive vice president with Best Buy; Charter Communications CTO Steven Silva; and John Johnston, a partner with August Capital.

"After reviewing the progress made so far in our case as well as assessing the states' witnesses and what we believe are shortcomings in the states' case, Microsoft has decided that we will not call several individuals who were originally designated to be witnesses in the remedy proceedings," said Microsoft spokesman Jim Desler.

Microsoft Chairman Bill Gates testified for about three days last week, largely rehabilitating his appearance during the main trial via videotaped deposition. Gates did not testify in court in person during the trial's main phase.

Bob Lande, an antitrust professor with the University of Baltimore Law School, said the change in the witness list isn't surprising, especially considering the number of people tentatively scheduled to testify.

"It could be (that) as the case progressed, they decided what it was they needed," Lande said, and "they reached a point where they decided to drop" witnesses.

That leaves only nine more witnesses to testify, including Robert Short, a Microsoft corporate vice president responsible for the Windows OS kernel. Short submitted written testimony, followed by the states' cross-examination Monday afternoon. Gregg Sutherland, Qwest Communications International's senior vice president of corporate strategy, testified on Microsoft's behalf earlier in the day.

Short's cross-examination is expected to conclude on Tuesday, followed by the submission of portions of the deposition of Tom Green, California assistant attorney general. California is one of the nine states, along with the District of Columbia, seeking tougher sanctions against Microsoft. The others are Connecticut, Florida, Iowa, Kansas, Massachusetts, Minnesota, Utah and West Virginia.

Stuart Madnick, professor of engineering systems at the Massachusetts Institute of Technology; Will Poole, vice president of Microsoft's Windows Media Division; and Linda Averett, a product unit manager over the Windows Digital Media Platform, also could testify this week.

Besides Ballmer and Allchin, the remaining witnesses include: John Bennett, a computer science professor at the University of Colorado; Gayle Brock, Microsoft OEM account manager; and Kenneth Elzinga, a professor of economics at the University of Virginia.

Microsoft's shortening of its witness list could greatly accelerate this portion of the nearly 4-year-old antitrust case. The nine litigating states and District of Columbia presented 15 of 16 witnesses to support the proposed remedy against the software giant.

The states are seeking stiffer sanctions than those agreed to in a settlement between the Justice Department, nine other states and Microsoft. The November settlement largely puts restrictions only on Microsoft's business practices.

But the litigating states want restrictions affecting Microsoft software code. They want Microsoft to distribute a second version of Windows with so-called middleware, such as Web browsing and media playback software removed; license through auction its Office software for use on competing operating systems; and give away the source code, or blueprint, to the Internet Explorer Web browser, among other remedies.

In June 2001, a seven-panel Court of Appeals upheld about a dozen separate antitrust violations against Microsoft. The court concluded Microsoft used illegal and anticompetitive means to maintain a monopoly in Intel-based operating systems.

Throughout the remedy proceeding, Microsoft has attempted to narrow the scope of the case to the specific violations upheld by the Court of Appeals.

Besides assessing what remedy to impose based on the current proceeding, U.S. District Judge Colleen Kollar-Kotelly must separately decide what to do about the Justice Department settlement. She can either approve or reject the proposed deal, which, according to the Tunney Act, she must deem is in the public interest in order to accept it.