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Microsoft wants more time

The software giant gives the first official indication how it plans to respond to lawsuits filed by the Justice Department and 20 states.

Microsoft today gave the first official indication how it plans to respond to lawsuits filed by the Justice Department and 20 states in court documents filed in preparation for a scheduling conference to be held tomorrow.

The documents, filed in See special report:
Microsoft sued U.S. District Court in Washington, ask that Microsoft be given an "enlargement of time" of seven months to respond to motions for a preliminary injunction and an order consolidating the two lawsuits. But despite the procedural focus of the filings, Microsoft attorneys dispensed with a liberal amount of rhetoric refuting the governments' position.

"The extraordinary relief requested by the DOJ and the states would require Microsoft, among other things, to develop a new operating system that would not include any 'Internet Explorer' technologies," attorneys wrote in one of four documents filed. "Such an operating system--which would take many months (if not years) to develop and test--would bear little, if any, resemblance to Windows 98 because Internet Explorer technologies are such a critical element of that product."

The brief goes on to say that such an operating system "would be of no commercial value: all other vendors of operating system software currently include Internet-related technologies in their products."

The document asks the court to give Microsoft six months to subpoena documents and take depositions of government investigators and third-party witnesses. Microsoft asks for an additional month to file its opposition to the governments' motion for a preliminary injunction, and that the state and federal regulators file their reply to Microsoft's opposition 30 days later.

"Given the breadth of the injunctive relief requested by the DOJ and the states--and the severe adverse impact that such relief would have not only on Microsoft, but also on other companies in the personal computer industry--Microsoft deserves adequate time to conduct discovery and prepare its response to the DOJ's and State's preliminary injunction motions," Microsoft's brief states.

In a separate filing, Microsoft asks that the federal and state actions be consolidated, a move that a number of legal observers expected.

"The DOJ's and states' actions are based on the same factual allegations and legal theories," the brief argues. "That is not surprising because the actions emanate from coordinated investigations in which the DOJ and the states worked arm-in-arm to conduct broad discovery and formulate their claims."

Given the overlapping allegations, the brief concludes, "consolidation will produce significant savings of time and resources for the court and the parties."

The Justice Department filed suit Monday accusing Microsoft of engaging in a broad course of anticompetitive conduct to illegally maintain its monopoly in desktop operating systems and to build a new monopoly in Internet browsers. Attorneys general for 20 states and the District of Columbia filed a separate suit the same day that contains almost identical allegations. Microsoft vigorously refutes the charges.

Both federal and state regulators seek a preliminary injunction that would require Microsoft to do a number of things, including: remove Internet browser functions from Windows 98, or alternatively to include a copy of the most recent version of Netscape Communications' Navigator browser with each copy of Windows 98 sold. Regulators also asked for the court to preliminarily require Microsoft to refrain from exclusionary agreements with partners and to prevent Microsoft from imposing "first-screen" restrictions on computer makers that prevent them from promoting competitors' browsers.

According to one of Microsoft's court briefs filed today, Justice Department attorneys do not object to the software giant's motion seeking extra time to respond to the motions for a preliminary injunction but that the government "does not agree to the schedule proposed by Microsoft...and that the DOJ will provide its views to the court on this subject at the May 22, 1998 conference."

The hearing is scheduled to begin at 11 a.m. ET before U.S. District Judge Thomas Penfield Jackson, the jurist assigned to the similar case the Justice Department filed in October.