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Microsoft, DOJ to go before judge

The software giant and regulators will meet before a judge to discuss a motion by the DOJ on Bill Gates's deposition.

Microsoft and the Justice Department will appear before U.S. District Judge Thomas Penfield Jackson on Wednesday to discuss differences over pretrial testimony.

The hearing comes three days after federal trustbusters filed a motion compelling Microsoft chief executive Bill Gates to be deposed for two days--what they consider an "adequate" time period--as part of the antitrust lawsuit against the software giant.

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Microsoft counters that an eight-hour deposition is sufficient.

The ten-page filing marks the first sign of tangible friction between the two sides in the massively complicated discovery portion of the closely watched case.

The court document seeks to depose 15 Microsoft employees in total, including the company's president, Steve Ballmer. It also seeks source code files of certain versions of Windows 95 and Windows 98.

According to the filing, "Microsoft has tentatively made Gates available to testify on August 12, [but] has refused to make Gates available for more than eight hours of testimony." Court documents reveal Gates's "personal involvement in most of Microsoft's critical corporate decisions, many of which are at the heart of this case," the filing added.

It also contended: "Microsoft unilaterally has refused to schedule more than seven depositions in addition to the depositions of Gates and Steve Ballmer. Despite plaintiffs' good-faith agreement to evaluate the need for any depositions that appear to be duplicative on an ongoing basis as the depositions proceed, Microsoft persists in its refusal even to schedule the depositions."

If Gates answers all the questions "to the best of his ability" within eight hours, the DOJ said it would see "no value" in extending the deposition for another day. "Plaintiffs simply want to be able to schedule Gates for two consecutive days, so they may exercise their rights to seek all relevant information."

As for the code the DOJ is requesting, the court filing said: "Microsoft objected...on the ground that it was burdensome, irrelevant, and required disclosure of "extremely confidential, highly sensitive trade secrets.

"It appears an accommodation can be reached [with regard to burden, but] Microsoft's improper confidentiality and relevance objections have not been resolved."

A Microsoft spokesman countered that the company "has been fully cooperating with the Justice Department during its 18-month investigation. We believe we've been more than reasonable in providing information while we need to move ahead with our short time frame. We believe eight hours is a perfectly reasonable amount of time to provide access to the Justice Department lawyers to Bill Gates."

On the source code issue, he said: "We believe our source code is the ultimate intellectual property. It is our responsibility to take steps necessary to protect trade secrets. We will work with the government to provide that kind of balance."

The DOJ said Microsoft tried to make a similar argument in its ongoing antitrust suit with Caldera. In that case, Caldera prevailed but Microsoft said it would comply.