01/13/2007 05:37 PMWired News: New Charges 'Too Much, Too Late'Page 1 of 4http://web.archive.org/web/20070113223259/http://www.wired.com/news/business/1,14806-0.html

New Charges 'Too Much, Too Late'

ÂByArik Hesseldahl|Alsoby this reporter

04:00 AM Sep, 03, 1998

Replying Thursday to Microsoft's motion to limit trial, the US Justice Departmentcalled the software company's tactics "a thinly veiled attempt to delay or disrupt atrial that Microsoft knows it cannot win."In a statement, the Justice Department addressed Microsoft's claim that too muchevidence was being introduced too late in the day and that it had little bearing onthe original antitrust case filed in May."It is neither necessary nor appropriate to identify all of a party's evidence in acomplaint or to suggest that a party may not discover additional evidence in thecourse of preparing for trial and use that evidence at trial," said the JusticeDepartment. The procedure was "precisely the function of pretrial discovery."The government's official statement addressed a motion filed by the software giantlate Wednesday claiming that the Department of Justice had unfairly widened itsantitrust case. The company urged Judge Thomas Penfield Jackson to eitherdismiss the latest allegations or delay the trial for at least six months.Microsoft also asked the court to exclude new allegations that the company tried tokill Sun Microsystems' Java technology, plus allegations relating to lawsuits byUtah-basedCalderaand byBristol Technologies. Microsoft said Justice Department officials were threatening to "convert thisproceeding into a trial by ambush" and "seeking to head down a path that wouldeither transform this case into an IBM-like 'kitchen sink' monstrosity, or woulddeny the Microsoft procedural due process." The company was referring to thegovernment's unwieldy and unsuccessful antitrust case against IBM a decade ago.A senior Justice Department official said, "It is unfortunate that Microsoft isseeking to delay the trial so as to avoid confronting the evidence the United Stateshas amassed to support the claims it made in its complaint in May."In the government's statement Thursday, the Justice Department reiterated itsclaims that Microsoft "has attempted to crush the competition" in an effort to"protect its operating system monopoly" and that the company has had since Mayto prepare for this trial.

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Not surprisingly, Microsoft quickly refuted the allegation. "The Justice Departmentis trying to distance itself from the original case filed in May by adding new andgroundless allegations right on the eve of the trial," said company spokesman TomPilla.The latest round of sparring comes on the heels of the government motion earlierthis week demanding, specifically, that Microsoft hand over evidence regardingmeetings between Microsoft executives and those of Intel and Apple within thepast three years, together with certain Microsoft databases related to its Windowsoperating system.The Justice Department and the 20 states that are party to the lawsuit also asked fordocuments connected to meetings Microsoft may have had with PC manufacturersregarding Apple's QuickTime software. According to the affidavit, the governmentfirst requested the documents on August 14. The new motion requests thatMicrosoft turn over the documents within 24 hours."Plainly, evidence of Microsoft's attempts to induce others, including Intel andApple, to take action to hamper Netscape or Java or to undermine the threat theypose to Microsoft's monopoly is relevant," the federal-state filing said.The government case initially contended that Microsoft sought to illegally carve upthe browser market with Netscape Communications, allegations the Redmondsoftware company strongly denies.Elsewhere Wednesday, Charles "Rick" Rule, head of the Justice Department'santitrust unit during the Reagan Administration, said the government's case poses athreat to both the "credibility of antitrust enforcement, and to the long-terminterests of consumers."In a speech to the National Press Club, Rule claimed to have signed some 200antitrust indictments, more than any other antitrust chief.He said the government has allowed its concern for the welfare of Microsoft'scompetitors -- mainly Netscape -- to cloud its judgment in the case. "Thegovernment is politically astute enough to deny that it wants to design software."However, actions speak louder than words. The government's attacks ... areredolent of arrogant bureaucrats who think they know better than the business folkin the trenches what is necessary to make software efficient and innovative."Rule addressed the latest Justice Departmentallegations, saying the government isnow "scrounging for any additional anti-Microsoft allegations, no matter howtrivial, in a last-ditch effort to resuscitate its case."By bringing new allegations now, Rule said the government has become"desperate."Mike Pettit, Executive Director of Procomp, a Washington-based organizationdedicated to preserving competition in the software industry said Ruleâ

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argument offered nothing new and that the critical questions in the case againstMicrosoft have yet to be answered."By all accounts, the government is finding some eye-opening facts that mayindicate a broader pattern of anti-competitive behavior than they originallythought. Despite Rick Ruleâ

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™s posturing, Microsoft has some answering to do,â

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Pettit said.The Justice Department had no immediate comment on Ruleâ

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™s speech.Rule's comments were made two days after the government outlined new chargesagainst Microsoft, that the company acted illegally toward other companies,including Apple Computer, Intel, and RealNetworks. Citing email obtained undersubpoena, the government claimed efforts by the software giant to "divide themarket and restrict or eliminate the competition."The Justice Department on Wednesday was also expected to name the expertwitnesses it would call in the trial, which is set to begin September 23. A DOJspokeswoman said the list of experts was not expected to be made public.