Microsoft Judge Nixes States Over Interviews, Video

Microsoft Corp.

U.S. District Judge Colleen Kollar-Kotelly said the nine states seeking stiff sanctions against Microsoft should have made their request earlier under a timetable she issued before the hearings began.

"Before the trial started, something should have been said," said Kollar-Kotelly, who is weighing what remedies should apply against Microsoft for illegally maintaining its Windows monopoly in personal computer operating systems.

The judge said she would allow portions of the pre-hearing depositions to be entered during cross-examination of Microsoft employees if the material was touched on in their written testimony. She added that she might make some exceptions.

The nine states, nearing the end of their 16-witness slate, had approached Kollar-Kotelly over the weekend seeking to admit the transcripts and play up to an hour of video in resting their case.

Any video of Gates would almost certainly invite comparison with video played during the original trial nearly four years ago in which he appeared uncooperative and quibbled with government lawyers over the meaning of common words.

In court Wednesday, Microsoft lawyer John Warden objected to the introduction of the depositions, saying the software giant would have conducted its defense differently if it had known earlier about the states' plan.

"There is obviously a clear prejudice when the number of witnesses more than doubles (for the states)," Warden said.

Attorneys for the states said they misunderstood the deadline for requesting that the depositions be entered as evidence, thinking they could notify the court within five days of resting their case.

Five of the 18 Microsoft employees deposed ahead of the remedy hearing were not named by Microsoft as witnesses. The states offered to drop those five but could not sway Kollar-Kotelly.

Microsoft is expected to call its first witness next Monday, but it is not clear who that will be. Both Gates and Chief Executive Steve Ballmer have been listed among the 13 employees named as expected witness.

Kollar-Kotelly is also considering whether to endorse a proposed settlement of the case reached between Microsoft and the U.S. Justice Department in November.

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