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Microsoft has doubts about court's tech coach

The software giant questions an appeals court proposal to bring in an outside expert to explain technical issues in the company's landmark antitrust case.

Microsoft on Wednesday questioned an appeals court proposal to bring in an outside expert to explain technical issues in the company's landmark antitrust case.

The software giant filed a brief with the U.S. Court of Appeals for the District of Columbia Circuit in response to an Oct. 18 court order proposing that Michael H. Hites, chief technology officer for the Illinois Institute of Technology, hold a technical review session for the court.

Meanwhile, America Online and three trade organizations filed motions with the appeals court seeking permission to file "friend of the court" briefs in support of the government's position.

Technically, Microsoft did not outright object to the participation of Hites in the case or the technical review session. The company in fact said it welcomed "the Court's interest in the technical subjects underlying the appeal," according to the papers filed in court.

Nonetheless, Microsoft argued that Hites' participation could prolong the case. The company also pointed out that Hites performed research in June on behalf of rival Sun Microsystems.

Microsoft's lawyers argued that Hites is unfamiliar with the extensive court record. Further, "fundamental disagreements" between Microsoft and the Department of Justice over basic technical issues--such as what constitutes a PC operating system--could cause problems.

Microsoft also questioned whether Hites' background in mainframe and Unix operating systems as well as Windows NT and Windows 2000 was sufficient for addressing Windows 95 and 98.

Hites' resume includes June research sponsored by Sun Microsystems--"one of Microsoft's fiercest competitors," as stated in the filing. Microsoft demanded more information about the researcher's affiliation with Sun.

Microsoft made two additional requests of the court: that no one who had testified for either side at trial be allowed to serve as technical representative and that "two lawyers for each side, rather than one," be allowed to attend the session.

The Redmond, Wash.-based software maker also asked that both parties be provided with "the substantive content of his presentation"--as opposed to an outline--in advance of the training session, scheduled for Nov. 14.

In a separate filing, the Justice Department and 19 states also raised concerns about Hite. Like Microsoft, the government argued that the "substantial amount of background information directed to disputed issues" raised concerns about the technical session.

The government seemed more concerned with how the session would be conducted rather than with any issue regarding Hite, his credentials or his affiliations. Government lawyers asked for restrictions that would prevent the session from being an "occasion to offer arguments or evidence outside the record."

Like Microsoft, the government asked for two representatives at the session, in its case two people for each the Justice Department and the 19 states.

While neither side asked the appeals court not to hold the training session, the message was clear, said Bill Kovacic, a professor at the George Washington University School of Law.

"A short translation of the filings is 'Don't do this,'" he said. "It's a polite way of saying it will not work."

The appeals process began earlier this year after U.S. District Judge Thomas Penfield Jackson's June order that Microsoft be split into separate operating systems and software applications companies. Earlier, he found that Microsoft violated two sections of U.S. antitrust law.

While documents have been filed by Microsoft, the Justice Department, and the 19 states involved in the case, the first major brief outlining the issues on appeal is scheduled to be filed by Microsoft on November 27.

In another filing with the appeals court on Wednesday, AOL and three trade associations--ProComp, the Software & Information Industry Association (SIIA), and the Computer & Communications Industry Association (CCIA)--filed documents seeking leave to file amicus, or friend of the court, briefs on behalf of the government's position.

The filings were expected, but it is unclear whether the court will allow four amicus briefs to be filed. The court has already said it wants to see only one amicus brief filed on behalf of each side. AOL's filing marks the first time the company has filed a brief directly in the case.

The briefs tended to stick to the basic themes heard throughout the case. The three trade groups, in fact, are familiar participants in the trial and have filed amicus briefs on other issues in the past.

Microsoft spokesman Jim Cullinan termed AOL and the three trade groups "four different acronyms representing the same people."