WASHINGTON--A Microsoft attorney today grilled Netscape chief executive Jim Barksdale on the witness stand, asking detailed questions that appeared designed to poke holes in allegations the CEO made in 127 pages of written testimony.
Microsoft attorney John Warden focused closely on meetings between Netscape executives and Justice Department (DOJ) attorneys prior to the filing of their lawsuit in May.
Microsoft attorney John Warden. AP
Barksdale estimated that by May of this year he had met with government officials a half-dozen times, once when U.S. assistant attorney general Joel Klein and an advisor paid him a visit at his house in Palo Alto, California. Warden also questioned Barksdale about his company's hiring in the spring of 1995 of antitrust attorney and Microsoft foe Gary Reback.
Barksdale said he retained Reback "to help us make our case in the event it would help us to keep the playing field for Internet software open."
Warden also scrutinized a claim Barksdale made in written testimony that Microsoft threatened to pull Compaq Computer's Windows license if the computer maker replaced the Internet Explorer icon with that for Netscape's on the PC desktop.
"Although Compaq wanted to feature the Netscape Navigator icon on the desktops of Compaq computers, reflecting the popularity of the Netscape Navigator with consumers, Netscape learned that Compaq no longer intended to put Navigator on the desktop shortly after" the threat, Barksdale wrote in his testimony.
"Do you have any basis whatsoever for suggesting to the court that this was the case?" Warden asked Barksdale in a voice that boomed over the court room public address system. Warden was successful in getting Barksdale to concede that he had no evidence that Microsoft ever punished a computer seller for displaying the Navigator icon.
The concession, however, appears to be more a clarification of Barksdale's testimony than a contradiction to it.
For more than two hours, Warden methodically moved through Barksdale's testimony, asking for detailed definitions to terms such as "browser product," "browser," and "monopoly product." When Warden asked whether market share alone is a basis for wielding monopoly power, Barksdale said no.
Warden's tactic appears to be to discredit Barksdale's assertions by showing that Netscape has a vested interest in seeing the government succeed in the case and by pointing out contradictions in his logic. Barksdale appears to be aware of the tactic. In his written testimony, Barksdale said Microsoft has tried to paint Netscape as a "'whiner' who can't compete in the marketplace."
Following today's proceedings, Microsoft consultant Rick Rule said that Barksdale made several important concessions. "Since the spring of 1995 Netscape has been working to get the government to bring a case against Microsoft, and it's pretty clear [this] has become a central part of their corporate strategy to do that," said Rule, who headed the Justice Department's antitrust division under Ronald Reagan.
In addition, Rule contended that Barksdale's clarification regarding Compaq also was a significant victory for Microsoft.
Justice Department prosecutor David Boies, however, disagreed. "Mr. Barksdale was a very compelling witness," said Boies on the courthouse steps following today's proceedings. "He laid out in very easily understood terms and with great authority exactly what the issues are in the case."
Despite the hardball questioning, the tone in the courtroom was lighthearted at times. When asked by Warden to pinpoint the date of a spring meeting between the DOJ and Netscape, Barksdale responded that in California, it could be anytime between February and June, sparking laughter throughout the courtroom, including from the judge.
Today's cross-examination of Barksdale by Microsoft comes one day after his written testimony was released publicly (See related story).
The written testimony--considered core to the DOJ's case--details a series of alleged steps that Microsoft took to freeze Netscape out of the market. Chief among them was a June 1995 meeting in which Microsoft manager Dan Rosen allegedly proposed dividing the browser market.
Warden's questions are part of the cross-examination of Barksdale. Microsoft will continue the cross-examination tomorrow, and once it is complete, government officials will have a chance to "redirect" questions to Barksdale. Boies declined to speculate how long that process would take, but said that Avadis Tevanian, Apple Computer's chief of software, will be the next witness to take the stand.