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November 2, 1998 (A.M. Session) Back to Transcript Index

1

1 UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

2

______________________________

3 UNITED STATES OF AMERICA, :

PLAINTIFF, :

4 :

VS. : C. A. NO. 98-1232

5 :

MICROSOFT CORPORATION, ET AL. :

6 DEFENDANTS :

______________________________:

7 STATE OF NEW YORK, ET AL. :

PLAINTIFFS :

8 :

VS. : C. A. NO. 98-1233

9 :

MICROSOFT CORPORATION, ET AL. :

10 DEFENDANTS :

_______________________________

11 WASHINGTON, D. C.

NOVEMBER 2, 1998

12 (A. M. SESSION)

VOLUME IX

13

TRANSCRIPT OF PROCEEDINGS

14 BEFORE THE HONORABLE THOMAS P. JACKSON

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20 COURT REPORTER: PHYLLIS MERANA

6816 U. S. COURTHOUSE

21 3RD & CONSTITUTION AVE., N.W.

WASHINGTON, D. C.

22 202-273-0889

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1 FOR THE UNITED STATES: PHILLIP MALONE, ESQ.

DAVID BOIES, ESQ.

2 U. S. DEPT. OF JUSTICE

ANTITRUST DIVISION

3 SAN FRANCISCO, CA.

4 FOR THE DEFENDANT: JOHN WARDEN, ESQ.

RICHARD J. UROWSKY, ESQ.

5 STEVEN L. HOLLEY, ESQ.

RICHARD PEPPERMAN, ESQ.

6 SULLIVAN & CROMWELL

125 BROAD STREET

7 NEW YORK, NEW YORK

8 FOR THE STATE OF NEW YORK: STEPHEN HOUCK, ESQ.

ALAN R. KUSINITZ, ESQ.

9 N. Y. STATE DEPT. OF LAW

120 BROADWAY, SUITE 2601

10 NEW YORK, NEW YORK

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1 I-N-D-E-X

2 E X H I B I T S

3 PLAINTIFFS' IN EVIDENCE

4 20, 21, 23, 28, 29, 36, 37, 39 THROUGH 44,

5 47 THROUGH 50, 52, 53, 55, 58 THROUGH 61,

6 63, 81, 94, 102, 112, 113, 117, 125, 138,

7 142, 143, 179, 183, 193, 198, 202, 206, 218,

8 235, 254 THROUGH 256, 259, 260, 263 THROUGH

9 274, 277, 278, 281, 289, 290, 295, 328, 1085,

10 1109 AND 1167 6

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4

1 P-R-O-C-E-E-D-I-N-G-S

2 THE DEPUTY CLERK: CIVIL ACTION 98-1232 AND

3 98-1233, UNITED STATES OF AMERICA VERSUS MICROSOFT AND STATE

4 OF NEW YORK, ET AL., VERSUS MICROSOFT.

5 PHILLIP MALONE, STEPHEN HOUCK AND DAVID BOIES FOR

6 THE PLAINTIFF.

7 JOHN WARDEN, STEVEN HOLLEY, RICHARD UROWSKY AND

8 WILLIAM NEUKOM FOR THE DEFENDANT.

9 THE COURT: GOOD MORNING, MR. BOIES.

10 MR. BOIES: GOOD MORNING, YOUR HONOR.

11 THE FIRST ORDER OF BUSINESS TODAY IS TO OFFER A

12 SERIES OF GOVERNMENT EXHIBITS TO WHICH THERE IS NO

13 OBJECTION.

14 THE COURT: THESE ARE EXHIBITS IN CONJUNCTION WITH

15 DR. TEVANIAN'S DIRECT TESTIMONY?

16 MR. BOIES: THESE RELATE TO DR. TEVANIAN'S

17 TESTIMONY, AS WELL AS SOME THAT HAVE PREVIOUSLY BEEN

18 MENTIONED IN COURT BUT NOT OFFERED.

19 THE COURT: ALL RIGHT. ARE THEY THE SUBJECT OF

20 THE MOTION IN LIMINE?

21 MR. BOIES: NO.

22 MR. WARDEN: NO. I THINK YOU HAVE A SEPARATE LIST

23 FOR TEVANIAN AS A WITNESS, DO YOU NOT, MR. BOIES?

24 MR. BOIES: THERE ARE SOME SEPARATE EXHIBITS. I

25 AM TAKING THE FOUR THAT YOU OBJECTED TO OFF THIS LIST.

 

 

5

1 HE HAS OBJECTIONS TO FOUR DOCUMENTS THAT I WILL

2 OFFER LATER --

3 THE COURT: ALL RIGHT.

4 MR. BOIES: -- AFTER I SEE IF WE CAN RESOLVE THOSE

5 OBJECTIONS. BUT THESE ARE DOCUMENTS AS TO WHICH THERE IS NO

6 OBJECTION.

7 THE COURT: YES, SIR.

8 MR. BOIES: THEY ARE EXHIBITS 20, 21, 23, 28, 29,

9 36, 37, 39 THROUGH 44, 47 THROUGH 50, 52, 53, 55, 58 THROUGH

10 61, 63, 81, 94, 102, 112, 113, 117, 125, 138, 142, 143, 179,

11 183, 193, 198, 202, 206, 218, 235, 254 THROUGH 256, 259,

12 260, 263 THROUGH 274, 277, 278, 281, 289, 290, 295, 328,

13 1085, 1109 AND 1167.

14 WE OFFER THOSE EXHIBITS.

15 MR. WARDEN: MAY I JUST ASK TO SEE A COPY OF 28?

16 (CONFERRING WITH COUNSEL.)

17 MR. BOIES: YOUR HONOR, I WILL WITHDRAW, FOR THE

18 TIME BEING, GOVERNMENT EXHIBIT 28.

19 MR. WARDEN: NO OBJECTION TO THE REMAINDER OF THE

20 OFFERED EXHIBITS.

21 THE COURT: ALL RIGHT. MR. WEST, DO YOU HAVE ALL

22 OF THOSE?

23 THE DEPUTY CLERK: YES.

24 THE COURT: ALL RIGHT.

25 THE GOVERNMENT EXHIBITS JUST OFFERED BY MR. BOIES

 

 

6

1 WILL BE ADMITTED.

2 (WHEREUPON, PLAINTIFFS'

3 EXHIBITS NUMBERS 20, 21,

4 23, 28, 29, 36, 37, 39

5 THROUGH 44, 47 THROUGH 50,

6 52, 53, 55, 58 THROUGH 61,

7 63, 81, 94, 102, 112, 113,

8 117, 125, 138, 142, 143,

9 179, 183, 193, 198, 202,

10 206, 218, 235, 254 THROUGH

11 256, 259, 260, 263 THROUGH

12 274, 277, 278, 281, 289,

13 290, 295, 328, 1085, 1109

14 AND 1167 WERE RECEIVED IN

15 EVIDENCE.)

16 THE COURT: I SUPPOSE THE NEXT ORDER OF BUSINESS

17 IS THE MOTION IN LIMINE.

18 DO YOU WISH TO BE HEARD FURTHER ON IT, MR. WARDEN?

19 MR. WARDEN: ON MR. TEVANIAN, YOU MEAN?

20 THE COURT: YES.

21 MR. WARDEN: WE HAVE SOME PRELIMINARY MATTERS TO

22 RAISE WITH THE COURT.

23 MR. BOIES: MAY WE APPROACH THE BENCH, YOUR HONOR?

24 THE COURT: SURE.

25 (AT THE BENCH.)

 

 

7

1 MR. BOIES: YOUR HONOR, PRIOR TO MR. TEVANIAN

2 TAKING THE STAND, WE'RE GOING TO OFFER A PORTION OF

3 MR. GATES' DEPOSITION AS AN ADMISSION.

4 THE COURT: ALL RIGHT.

5 MR. BOIES: THERE IS AN ISSUE THAT MR. WARDEN

6 RAISES WITH ME AS TO WHAT HAPPENS TO THE TAPE OF WHAT WE

7 PLAY -- WHETHER THE TAPE ITSELF GOES INTO EVIDENCE OR NOT.

8 I HAD UNDERSTOOD THAT THE TAPE -- FROM THE PRETRIAL ORDER,

9 THAT THE TAPE AND THE MARKED TRANSCRIPT WENT INTO EVIDENCE.

10 IF THAT IS SO, THEN THAT WOULD, OBVIOUSLY, BE AVAILABLE TO

11 THE PRESS.

12 THE COURT: YES.

13 MR. BOIES: AND I THINK MR. WARDEN IS RAISING THE

14 QUESTION AS TO WHETHER OR NOT THAT IS DESIRABLE.

15 MR. WARDEN: ACTUALLY, I HAVE SEVERAL POINTS, BUT

16 LET'S TAKE THAT ONE FIRST.

17 MY UNDERSTANDING IS THAT WHEN A VIDEOTAPE IS

18 PLAYED AND DISPLAYED ON THE MONITORS IN THE COURTROOM, THAT

19 IS RECORDED AS SHOWN AND BECOMES PART OF THE RECORD.

20 I UNDERSTOOD THIS MORNING FROM MR. BOIES THAT HE

21 INTENDED TO OFFER AS AN EXHIBIT, IF ONE WILL, NOT ONLY THE

22 MARKED TRANSCRIPT, TO WHICH I HAVE NO OBJECTION, BUT A

23 SEPARATE TAPE -- NOT THE ONE BEING MADE IN THE COURTROOM,

24 BUT A TAPE THAT -- THE TAPE THAT'S BEING PLAYED AND THEN

25 RECORDED BY THE COURT'S RECORDING SYSTEM.

 

 

8

1 THE COURT: THE RULE I HAVE ALWAYS FOLLOWED HAS

2 BEEN THAT THE TAPE ITSELF BECOMES PART OF THE RECORD IF IT'S

3 A VIDEOTAPED DEPOSITION, AND THAT PORTION WHICH HAS BEEN

4 PLAYED IS AVAILABLE ON THE PUBLIC RECORD TO THE PRESS AND

5 ALL OTHERS.

6 MR. WARDEN: WELL, I HAVE NO OBJECTION TO IT'S

7 BEING AVAILABLE TO BE VIEWED. I HAVE AN OBJECTION TO ITS

8 BEING AVAILABLE TO HAVE COPIES MADE AND USED OTHERWISE BY

9 THE PUBLIC OR THE PRESS.

10 THE COURT: YOU CAN'T PREVENT IT.

11 MR. WARDEN: LET ME STATE MY OBJECTION, IF I MAY,

12 YOUR HONOR.

13 THE COURT: ALL RIGHT.

14 MR. WARDEN: MY OBJECTION IS THAT THE RULES

15 CLEARLY PROHIBIT THE BROADCASTING OF THE PROCEEDINGS BY

16 TELEVISION OR OTHERWISE --

17 THE COURT: THAT'S CORRECT.

18 MR. WARDEN: -- AND CAMERAS IN THE COURTROOM. AND

19 THERE IS NO ACCESSIBILITY OF THE MEDIA TO ANY

20 PHOTOGRAPHICALLY RECORDED RECORD OF THE ACTUAL PROCEEDINGS

21 OF LIVE WITNESSES ON THE STAND IN THE COURTROOM. AND THE

22 PLAYING OF A DEPOSITION FOR AN EXTENDED PERIOD OF TIME AND

23 MAKING THAT AVAILABLE TO THE MEDIA FOR COPYING AND USE

24 OUTSIDE COURT, IT SEEMS TO ME, BOTH VIOLATES THE RULE AND IT

25 PROVIDES DIFFERENTIAL TREATMENT INAPPROPRIATELY OF

 

 

9

1 VIDEOTAPED DEPOSITIONS AS OPPOSED TO LIVE TESTIMONY IN THE

2 COURTROOM.

3 AND A VIDEOTAPED DEPOSITION IS ALSO A HIGHLY

4 MISLEADING RECORD -- NOT TO THE COURT OF COURSE, BUT TO THE

5 PUBLIC -- BECAUSE IT SHOWS ONLY THE WITNESS; IT DOESN'T SHOW

6 COUNSEL OR ANY OF THE SURROUNDING CIRCUMSTANCES, UNLIKE WHAT

7 ONE SEES IN A COURTROOM AS THE TRIAL PROCEEDS. AND I THINK

8 THIS KIND OF SELECTIVE DISCLOSURE OF VISUALLY RECORDED

9 EVIDENCE IS WHOLLY INAPPROPRIATE, BOTH UNDER THE RULE AND AS

10 A MATTER OF FAIRNESS.

11 THE COURT: IF IT WERE OPEN TO ME, MR. WARDEN, I

12 PROBABLY WOULD ADOPT YOUR POSITION IN TOTO. BUT THE RULE

13 THAT I HAVE FOLLOWED ALL ALONG, BECAUSE IT'S THE ONLY ONE

14 WHICH IS WORKABLE, IS THAT ANYTHING WHICH IS PRESENTED IN

15 OPEN COURT IS AVAILABLE TO THE PRESS AND TO ERECT ARTIFICIAL

16 IMPEDIMENTS TO THE PRESS HAVING ACCESS TO DO WITH AS THEY

17 WILL IS NOT ONLY UNWORKABLE, BUT IT IS PROBABLY LIKELY TO

18 INCUR MORE CRITICISM FOR US AND FOR THE PROCESS THAN IT

19 WOULD BE IF WE WERE TO ENFORCE THE RULE AS IF THIS WERE AN

20 EXTENSION OF CAMERAS IN THE COURTROOM.

21 MR. WARDEN: OKAY. THEN LET ME --

22 THE COURT: I AM GOING TO ALLOW THEM TO DO IT AND

23 YOU ARE ENTITLED TO HAVE, UNDER THE RULE OF COMPLETENESS,

24 ANY PORTIONS OF THE DEPOSITION THAT YOU FEEL MUST BE

25 INCLUDED, IN ORDER TO PUT THE EXCERPT THAT IS PLAYED IN

 

 

10

1 PERSPECTIVE, ALSO SHOWN AND ALSO MADE PART OF THE RECORD.

2 MR. WARDEN: FINE. THAT WAS MY SECOND POINT. WE

3 WANT THAT DONE IN THE ORDER IN WHICH THE QUESTIONS AND

4 ANSWERS APPEAR.

5 THE COURT: YOU CERTAINLY MAY DO THAT, BUT THIS IS

6 AN IMPLEMENTATION OF THE RULE OF COMPLETENESS.

7 MR. WARDEN: I UNDERSTAND THAT, YOUR HONOR.

8 THE COURT: IT DOESN'T MEAN THAT YOU GET TO IF YOU

9 HAVE UNRELATED PORTIONS.

10 MR. WARDEN: WE HAVE A FEW DISAGREEMENTS ABOUT

11 THAT. I THINK -- MY FRANK VIEW IS -- THERE ARE NOT A LOT.

12 MY FRANK VIEW IS THE EASIEST THING IS TO PLAY ALL OF OURS,

13 BUT IF THEY ARE NOT GOING TO DO THAT, THEN WE'RE GOING TO

14 HAVE TO ASK YOUR HONOR TO RULE IN ADVANCE OF SHOWING THEM

15 THE TAPE ON EACH OF THE THINGS THAT WE'VE

16 COUNTER-DESIGNATED, AND THEY HAVEN'T ACCEPTED UNDER THE RULE

17 OF COMPLETENESS.

18 MR. BOIES: WE HAVE ACCEPTED, FOR WHAT WE'RE

19 PLAYING TODAY, UNDER THE RULE OF COMPLETENESS, CERTAIN OF

20 THEIR COUNTER-DESIGNATIONS.

21 THE COURT: ALL RIGHT.

22 MR. BOIES: WHERE A COUNTER-DESIGNATION DOES NOT

23 RELATE TO WHAT WE'RE PLAYING; THAT IS, ONE OF THEIR

24 COUNTER-DESIGNATIONS IS TESTIMONY ABOUT AN ENTIRELY

25 DIFFERENT DOCUMENT, OR WHERE THEIR COUNTER-DESIGNATION IS

 

 

11

1 NOT, IN OUR VIEW, REASONABLY RELATED AND IS REMOVED IN TIME

2 AND SPACE FROM OUR DESIGNATION, WE HAVE DECLINED TO DO SO,

3 PARTLY, YOUR HONOR, BECAUSE ONE OF THE THINGS THEY GAVE US

4 WAS A TEN-PAGE COUNTER-DESIGNATION THAT WILL, IN OUR VIEW,

5 SORT OF LOSE THE POINT OF WHAT WE'RE TRYING TO PLAY BECAUSE

6 IT DOESN'T REALLY RELATE TO WHAT WE'RE TRYING TO PLAY.

7 THE COURT: THAT'S EXACTLY WHAT THEY WANT DO.

8 MR. BOIES: I KNOW, YOUR HONOR.

9 MR. WARDEN: I DON'T THINK IT WAS TEN PAGES FOR

10 THIS MORNING.

11 THE COURT: LET ME ESTABLISH A BRIGHT-LINE RULE

12 HERE. IF THE TESTIMONY THAT YOU'RE PROPOSING TO OFFER

13 RELATES TO A PARTICULAR DOCUMENT, THEN ANY TESTIMONY THAT

14 YOU HAVE NOT OFFERED, BUT WHICH RELATES TO THE SAME

15 DOCUMENT, WHEREVER IT MAY APPEAR IN THE DEPOSITION, MAY BE

16 OFFERED.

17 MR. WARDEN: I ASSUME THAT WOULD BE TRUE OF A

18 MEETING OR ANYTHING ELSE, NOT JUST A DOCUMENT.

19 THE COURT: WELL, A DOCUMENT --

20 MR. WARDEN: OF ANY DISCRETE EVENT.

21 THE COURT: A DOCUMENT BEING A DISCRETE EVENT.

22 MR. WARDEN: RIGHT. WELL, WE HAVE SOME

23 DISAGREEMENTS AND UNLESS WE CAN RESOLVE THEM, WE WILL HAVE

24 TO TENDER THEM TO THE COURT FOR RESOLUTION.

25 THE COURT: WELL, WE MAY HAVE TO DO THAT.

 

 

12

1 MR. WARDEN: NOW, I HAVE A COUPLE OF OTHER POINTS.

2 FIRST, I WANT TO REPEAT -- NOT TO ARGUE -- THAT THE GATES

3 DEPOSITION, IN OUR VIEW, IS THE EQUIVALENT TO CALLING A

4 HOSTILE WITNESS.

5 THE COURT: I UNDERSTAND.

6 MR. WARDEN: WE THOUGHT ONE OF THEIR 12 SHOULD BE

7 STRICKEN. YOUR HONOR WAS NOT INCLINED TO DO THAT. WE

8 THINK, THEREFORE, WE'RE ENTITLED TO NUMBER 13.

9 BUT WITH RESPECT TO WHAT MR. BOIES AND HIS

10 COLLEAGUES PROPOSE TO DO TODAY, WE HAVE A VERY SPECIFIC

11 OBJECTION. AND THAT IS, IT'S OUR UNDERSTANDING THAT THEY

12 ARE, WITH A WITNESS READY TO GO ON THE STAND -- NOT TO FILL

13 IN TIME AT THE END OF THE DAY -- THEY ARE GOING TO PLAY ONLY

14 A PORTION OF THIS DEPOSITION AS SORT OF A PRELUDE TO THE

15 PARTICULAR WITNESS' TESTIMONY.

16 AND IT'S OUR POSITION THAT YOU CANNOT CUT UP A

17 DEPOSITION WITNESS THAT'S BEING PRESENTED TO THIS EXTENT ANY

18 MORE THAN YOU COULD CUT UP A LIVE WITNESS, LIKE

19 MR. BARKSDALE, AND HAVE HIM COME, YOU KNOW, EVERY THIRD DAY

20 AND GIVE A BIT OF DIRECT TESTIMONY AS A BACKDROP TO THE NEXT

21 WITNESS.

22 THE COURT: I HAVE ALLOWED THAT IN A NUMBER OF

23 TRIALS. I HAVE ALLOWED IT IN CONSPIRACY CASES, FOR EXAMPLE,

24 WHERE THERE WERE DIFFERENT OVERT ACTS THAT HAD TO BE PROVED.

25 IT PROVED VERY BENEFICIAL TO BE ABLE TO CALL AND RECALL AND

 

 

13

1 RECALL A WITNESS WHO WOULD OFFER HIS TESTIMONY ABOUT A

2 SPECIFIC EVENT WHICH WAS THE SUBJECT OF THE TRIAL OF THAT

3 DAY.

4 MR. WARDEN: I ASSUME YOUR HONOR HAD A JURY IN

5 THAT CASE. I ASSUME YOU HAD A JURY IN THAT CASE.

6 THE COURT: SURE.

7 MR. WARDEN: WELL, WE DON'T HAVE A JURY.

8 THE COURT: WELL, A FORTIORI.

9 MR. WARDEN: WE DON'T NEED TO PROCEED THAT WAY.

10 AND I SUSPECT YOUR HONOR IS NOT TELLING ME THAT WE CAN TAKE

11 MR. MARITZ, OR SOMEONE, AND HAVE HIM COME IN HERE AND GIVE A

12 20-PAGE WRITTEN DIRECT ON ONE SUBJECT ONE WEEK AND HAVE HIM

13 COME BACK WITH A 20-PAGE WRITTEN DIRECT ON ANOTHER SUBJECT

14 NEXT WEEK.

15 THE COURT: I AM TELLING YOU THAT YOU CAN DO

16 THAT --

17 MR. WARDEN: WE CAN DO THAT.

18 THE COURT: -- ALTHOUGH ALL THE DIRECT TESTIMONY

19 WILL COME IN IN WRITING.

20 MR. WARDEN: SURE. OKAY. MY OBJECTION STANDS

21 OVERRULED. I PRESS IT. I THINK MY POSITION IS CORRECT THAT

22 YOU SHOULDN'T BE ABLE TO CUT WITNESSES UP AND, YOU KNOW,

23 HAVE LITTLE CAMEO PIECES, AND SINCE THIS IS --

24 THE COURT: ACTUALLY, I THINK OUR CIRCUIT HAS

25 APPROVED IT.

 

 

14

1 MR. BOIES: YOUR HONOR, THE OTHER THING I WOULD

2 SAY IS THAT WE'RE ENTITLED, BECAUSE OF MR. GATES' POSITION,

3 TO OFFER THIS AS AN ADMISSION.

4 THE COURT: I UNDERSTAND THAT.

5 MR. BOIES: JUST LIKE THEY PLAYED FIVE MINUTES OF

6 MR. CASE WITHOUT EVER GIVING A CHANCE --

7 THE COURT: AS AN ADMISSION.

8 MR. BOIES: -- WITHOUT ANY OPPORTUNITY TO

9 COUNTER-DESIGNATE AT ALL.

10 I THINK WE'RE ENTITLED TO PLAY MR. GATES AS AN

11 ADMISSION. IF HE SAID THIS EVEN OUTSIDE A DEPOSITION, WE

12 COULD PLAY IT.

13 MR. WARDEN: WELL, THERE IS A VERY SPECIFIC RULE

14 ABOUT DEPOSITIONS. AND THAT ONLY GOES TO ADMISSIBILITY,

15 WHICH WE CONCEDE.

16 SINCE THIS IS NOT BEING SEALED, I MUST SAY FOR THE

17 RECORD THAT WE DO NOT, CONTRARY TO WHAT HAS BEEN SUGGESTED

18 IN SOME MEDIA, OBJECT TO THE PLAYING OF MR. GATES'

19 DEPOSITION. WHAT WE WOULD LIKE THEM TO DO IS START RIGHT

20 NOW AND PLAY IT THROUGH, WHATEVER THEY WANT TO PLAY, AND

21 WHAT WE WANT PLAYED FROM BEGINNING TO END. WE DO NOT OBJECT

22 TO THE PLAYING OF THIS.

23 THE COURT: I UNDERSTAND.

24 MR. WARDEN: AND I MUST SAY THAT I DO TAKE

25 PERSONAL EXCEPTION TO THE COMMENT APPARENTLY MADE TO THE

 

 

15

1 PRESS BY SOMEONE ON THE GOVERNMENT'S SIDE THAT I WAS SOMEHOW

2 FILIBUSTERING LAST WEEK TO PREVENT THE PLAYING OF THE GATES

3 DEPOSITION.

4 THE COURT: MR. WARDEN, IF YOU START TAKING

5 UMBRAGE AT WHAT THE PRESS SAYS, I DON'T KNOW WHAT --

6 MR. WARDEN: WHAT COUNSEL IN THE PROCEEDINGS SAID

7 TO THE PRESS IS WHAT I AM TAKING UMBRAGE AT.

8 MR. BOIES: YOUR HONOR, I WOULD SAY FOR THE RECORD

9 WHAT I HAVE SAID TO A NUMBER OF PEOPLE IN THE PRESS, WHICH

10 IS I DO NOT BELIEVE MR. WARDEN WAS FILIBUSTERING AND I DO

11 NOT INTEND TO SECOND-GUESS ANY TRIAL LAWYER'S DECISIONS.

12 MR. WARDEN: FINE. THANK YOU.

13 THE COURT: LET'S NOT GET IN A WAR WITH THE PRESS,

14 GENTLEMEN.

15 MR. WARDEN: OH, NO. I HAVE NO DESIRE TO DO THAT.

16 THE COURT: BECAUSE IT'S ONE WE'RE GOING TO LOSE,

17 ALL OF US.

18 MR. WARDEN: ALL RIGHT. YOUR HONOR, AS LONG AS

19 WE'RE AT THE SIDE BAR -- AND WE MAY NOT BE AGAIN THIS

20 WEEK -- I DON'T HAVE -- THIS WITNESS WHO IS GOING TO BE

21 CROSSED BY MR. TEVANIAN -- BY MR. EDELMAN. MR. TEVANIAN IS

22 GOING TO BE.

23 THE COURT: OKAY.

24 MR. WARDEN: AND ASSUMING THAT NO WITNESS THAT I

25 AM RESPONSIBLE FOR APPEARS THIS WEEK, I WOULD LIKE TO BE

 

 

16

1 EXCUSED ON THURSDAY AFTERNOON. I HAVE TO GO TO A MEETING IN

2 CHARLOTTESVILLE.

3 THE COURT: YOU MAY, INDEED, AT ANY TIME.

4 MR. WARDEN: I WOULD LIKE TO LEAVE AT THE

5 AFTERNOON BREAK.

6 THE COURT: CERTAINLY.

7 MR. WARDEN: THANK YOU VERY MUCH.

8 THE COURT: OKAY.

9 MR. BOIES: FOR THE COURT'S INFORMATION,

10 MR. MALONE WILL HANDLE THIS WITNESS FOR US AS WELL.

11 THE COURT: MR. TEVANIAN OR DR. TEVANIAN?

12 MR. BOIES: YES, DR. TEVANIAN WILL BE HANDLED BY

13 MR. MALONE.

14 THE COURT: ALL RIGHT. THAT'S PERFECTLY ALL

15 RIGHT.

16 NOW, IS THE FIRST ORDER OF BUSINESS TO PLAY THE

17 DEPOSITION EXCERPT?

18 MR. BOIES: YES.

19 THE COURT: BUT DO WE THEN HAVE TO AGREE DETERMINE

20 IF YOU REALLY OBJECT TO SOME OF THEIR COUNTER-DESIGNATIONS?

21 MR. BOIES: AS I SAY, THERE'S ONE TEN-PAGE

22 DESIGNATION THAT I VERY MUCH OBJECT TO.

23 THE COURT: WELL, IF HE CUTS IT DOWN TO FIVE

24 PAGES, IS IT --

25 MR. BOIES: WELL, YOUR HONOR, ONE OF THE THINGS

 

 

17

1 THAT I SAID TO THEM, YOU KNOW, IS THAT IF THEY HAD SOME

2 SMALL PORTIONS ADJACENT TO WHAT WE'RE PLAYING --

3 THE COURT: YES.

4 MR. BOIES: -- I WOULD PLAY IT WHETHER WITH I

5 THOUGHT IT WAS RELATED OR NOT. HOWEVER, WHAT I AM VERY MUCH

6 TRYING TO DO IS AVOID A SITUATION IN WHICH WE HAVE LONG

7 PLAYING OF THIS IN A WAY IN WHICH THE POINT THAT WE'RE

8 TRYING TO GET AT GETS LOST.

9 THEY HAVE THE RIGHT TO PLAY ANY PORTION THAT THEY

10 WANT. I HAVE AGREED TO PLAY PORTIONS THAT ARE ADJACENT IF

11 IT RELATES TO OUR -- WHAT WE'RE DOING.

12 THE COURT: ALL RIGHT.

13 MR. BOIES: BUT, FOR EXAMPLE --

14 THE COURT: WELL, WHAT IS THE SUBJECT OF THE

15 ADMISSION THAT YOU'RE GOING TO --

16 MR. BOIES: ALL RIGHT. WHAT WE'RE GOING TO DO

17 IS, YOU KNOW, PLAY A FEW SECTIONS THAT RELATE TO THE JUNE 21

18 MEETING, AND THEN WE WILL PLAY DESIGNATIONS THAT RELATE TO

19 APPLE.

20 NOW, LET ME GIVE YOU AN ILLUSTRATION OF WHAT

21 PROBABLY INVOLVES MORE THAN HALF OF THE DISPUTED

22 COUNTER-DESIGNATION.

23 MR. WARDEN: EXCUSE ME. MAY I ASK MR. UROWSKY TO

24 COME UP, BECAUSE HE HAS BEEN DOING THESE

25 COUNTER-DESIGNATIONS FOR US?

 

 

18

1 THE COURT: SURE.

2 THE DEPUTY CLERK: I WILL GET HIM, MR. WARDEN.

3 MR. WARDEN: THANK YOU.

4 THE COURT: THIS IS MR. EDELMAN?

5 MR. WARDEN: NO. NO. THE GATES DEPOSITIONS,

6 MR. UROWSKY. AND MR. EDELMAN WILL TAKE THE WITNESS.

7 THE COURT: OKAY.

8 (MR. UROWSKY COMING TO THE BENCH.)

9 THE COURT: WHAT WE'RE DEALING WITH ARE

10 DESIGNATIONS AND COUNTER-DESIGNATIONS OF THE VIDEOTAPE

11 DEPOSITION OF MR. GATES.

12 MR. UROWSKY: YES, YOUR HONOR.

13 THE COURT: AND MR. BOIES WAS ABOUT TO GIVE US AN

14 EXAMPLE OF WHAT HE IS GOING TO OFFER FOR PURPOSES OF

15 DETERMINING WHAT WOULD OR WOULD NOT BE RELATED FOR PURPOSES

16 OF ALLOWING A COUNTER-DESIGNATION BY YOU UNDER THE RULE OF

17 COMPLETENESS.

18 MR. UROWSKY: RIGHT.

19 MR. BOIES: I THINK THAT APPROXIMATELY HALF OF THE

20 DISPUTED DESIGNATIONS OR COUNTER-DESIGNATIONS ARE PORTIONS

21 THAT RELATE TO TESTIMONY EITHER ABOUT JAVA RUNTIMES OR ABOUT

22 WHY MICROSOFT WANTED TO GET A BROWSER SHARE ON MACINTOSH.

23 NEITHER OF THOSE SUBJECTS -- CERTAINLY NOT THE

24 LATTER, AND THE FORMER, IF AT ALL, ONLY IN A VERY INDIRECT

25 WAY, IS THE SUBJECT OF ANYTHING THAT WE'RE READING NOW. IT

 

 

19

1 MAY BE THAT THOSE PORTIONS ARE RELEVANT TO OTHER PORTIONS

2 THAT WE MAY OFFER AT A DIFFERENT TIME.

3 BUT WHAT WE'RE OFFERING NOW ARE PORTIONS --

4 LEAVING THE INTRODUCTORY PORTIONS THAT RELATE TO THE JUNE 21

5 MEETING ASIDE, WHAT WE'RE OFFERING ARE A SERIES OF

6 SELECTIONS ABOUT MICROSOFT TRYING TO UNDERMINE SUN WITH

7 APPLE, MICROSOFT USING THE THREAT OF CANCELLING THEIR OFFICE

8 PROGRAM FOR APPLE, AND MICROSOFT USING INDUCEMENTS AND

9 THREATS TO GET APPLE TO ADOPT INTERNET EXPLORER AS ITS

10 BROWSER OR ITS DEFAULT BROWSER.

11 TO THE EXTENT THAT WE TALK ABOUT SUN AND JAVA, IT

12 IS AS A SMALL AMOUNT OF CONTEXT FOR THE POINT ABOUT

13 MICROSOFT TRYING TO UNDERMINE SUN WITH APPLE. AND WE DON'T

14 THINK THAT IT IS, THEREFORE, APPROPRIATE TO SORT OF DUMP IN

15 ANYTHING THAT HAS TO DO WITH SUN OR JAVA IN THIS PARTICULAR

16 DESIGNATION, NOR ARE WE TALKING THERE ABOUT MARKET SHARE.

17 WE DO -- WE HAVE SOME OTHER DESIGNATIONS ABOUT MARKET SHARE,

18 BUT WE'RE NOT PLANNING TO PLAY THOSE TODAY.

19 WHAT WE'RE TRYING TO DO IS PLAY PORTIONS THAT ARE

20 GOING TO BE RELATED TO THIS WITNESS SO THAT THE COURT HAS A

21 CONTEXT FOR WHAT THIS WITNESS IS GOING TO TESTIFY TO. AND

22 WE DON'T WANT TO, IN EFFECT, DOUBLE THE LENGTH OF THAT BY

23 HAVING STUFF PUT IN THAT WE THINK IS FRANKLY, EXTRANEOUS.

24 THE COURT: I UNDERSTAND. MAYBE THE BEST THING TO

25 DO IS TO JUST HAVE YOU GO BACK TO THE TABLE AND HAND ME THE

 

 

20

1 TRANSCRIPTS AND LET ME LOOK AT THE TRANSCRIPTS, AND I WILL

2 TELL YOU WHAT IS OR IS NOT, IN MY Judgment, RELATED.

3 MR. WARDEN: I THINK THEY OUGHT TO TAKE TEN

4 MINUTES TO SEE IF THEY CAN GET CLOSER TO AN AGREEMENT.

5 THE COURT: SURE.

6 MR. WARDEN: ONE OF THE PROBLEMS, I AM TOLD WE

7 HAVE, IS -- AND THIS IS NOT AN ACCUSATION -- THAT SOME OF

8 THEIR DESIGNATIONS THEY WITHDREW AND WE WOULD HAVE

9 COUNTER-DESIGNATED THOSE PIECES IF THEY HADN'T, YOU KNOW,

10 AND SO ON.

11 I ALSO QUESTION -- BUT I THINK THE TWO OF THEM

12 SHOULD WORK THIS OUT -- WHETHER THE JUNE 21 MEETING HAS

13 ANYTHING TO DO WITH MR. TEVANIAN -- DR. TEVANIAN'S

14 TESTIMONY.

15 MR. BOIES: THE REASON IT'S OFFERED IS THAT ONE OF

16 THE THINGS THAT MR. GATES IS ASKED ABOUT IS WHETHER HE KNOWS

17 ANYTHING AT ALL ABOUT THE MARKET DIVISION MEETINGS WITH

18 APPLE. AND HE SAYS HE DOES NOT -- NEVER HEARD ABOUT IT.

19 AND WE'RE JUST PLAYING -- THIS IS WHERE HE SAYS THE SAME

20 THING ABOUT THE JUNE 21 MEETING. WE THINK THAT'S

21 APPROPRIATE CONTEXT. AND IT IS CERTAINLY ADMISSIBLE. WE

22 DON'T -- WE COULD PUT THAT IN ANY TIME WE WANTED TO, IN MY

23 VIEW, YOUR HONOR.

24 THE COURT: ALL RIGHT. WELL, WHY DON'T WE TAKE A

25 BRIEF RECESS AND THEN SEE IF WE CAN'T COME UP WITH THE

 

 

21

1 TRANSCRIPT.

2 NOW, DO YOU WISH TO BE HEARD FURTHER ON THE

3 SUBJECT OF THE MOTION IN LIMINE?

4 MR. BOIES: NOT FROM OUR STANDPOINT.

5 MR. WARDEN: ON DR. TEVANIAN?

6 THE COURT: ON DR. TEVANIAN'S TESTIMONY IN ITS

7 ENTIRETY?

8 MR. WARDEN: MR. EDELMAN WAS GOING TO ARGUE THAT

9 IF ARGUMENT WERE NEEDED. IT'S THE SAME AS THE BARKSDALE

10 MOTION. I THINK HE WOULD ARGUE IT.

11 THE COURT: WELL, I THINK THERE IS AN ADDITIONAL

12 ARGUMENT HAVING TO DO WITH THE EXPRESSION OF AN OPINION OF

13 ONE NOT QUALIFIED.

14 MR. WARDEN: THAT'S ABSOLUTELY RIGHT.

15 THE COURT: IT MIGHT BE EASIER, UNLESS YOU WANT TO

16 BE HEARD ON IT FURTHER, IF I GO AHEAD AND RULE ON IT RIGHT

17 NOW.

18 MR. WARDEN: LET ME ASK HIM.

19 THE COURT: ALL RIGHT.

20 (MR. WARDEN CONFERRING WITH MR. EDELMAN AND

21 RETURNING TO THE BENCH.)

22 MR. WARDEN: THE ANSWER IS YES, MR. EDELMAN WOULD

23 LIKE --

24 THE COURT: HE WOULD LIKE TO BE HEARD ON IT?

25 MR. WARDEN: -- TO MAKE A BRIEF ORAL STATEMENT IN

 

 

22

1 RESPONSE TO THEIR PAPERS, YES.

2 THE COURT: ALL RIGHT. WELL, YOU'RE GOING TO

3 START OFF WITH THE DEPOSITION; IS THAT RIGHT?

4 MR. BOIES: YES, SIR.

5 THE COURT: MAYBE WE OUGHT TO JUST DEAL WITH THAT

6 AT THE TIME AND THEN, BEFORE DR. TEVANIAN TAKES THE STAND,

7 WE'LL HEAR FROM MR. EDELMAN ON THE SUBJECT.

8 MR. WARDEN: ALL RIGHT.

9 THE COURT: AND BEFORE WE CONCLUDE THIS BENCH

10 CONFERENCE, LET ME TAKE AT LEAST A SMALL AMOUNT OF

11 SATISFACTION OUT OF THE FOOTBALL GAME YESTERDAY.

12 MR. BOIES: YOUR HONOR, AS A JETS FAN AND NOT A

13 GIANTS FAN, I AM DOUBLY PLEASED.

14 THE COURT: OKAY. I UNDERSTAND.

15 ALL RIGHT. WE'LL TAKE A TEN-MINUTE RECESS.

16 (RECESS WAS TAKEN.)

17

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25

 

 

23

1 (IN CHAMBERS.)

2 THE COURT: GOOD MORNING, LADIES AND GENTLEMEN.

3 MR. BOIES: GOOD MORNING.

4 MR. WARDEN: GOOD MORNING.

5 THE COURT: OFF THE RECORD.

6 (DISCUSSION OFF THE RECORD.)

7 MR. BOIES: WE HAVE MADE SOME PROGRESS, BUT I

8 THINK THERE IS SOMETHING WE'RE GOING TO NEED A RULING ON.

9 THE COURT: OKAY.

10 MR. BOIES: THIS IS THE DESIGNATIONS AND

11 COUNTER-DESIGNATIONS THAT WE HAD PROPOSED TO PLAY.

12 (PASSING TO COURT.)

13 THE BLUE ARE THE PLAINTIFFS' DESIGNATIONS; THE RED

14 ARE THE DEFENDANT'S COUNTER-DESIGNATIONS.

15 THE COURT: ALL RIGHT.

16 MR. BOIES: THE DEFENDANT HAS PROPOSED THREE

17 ADDITIONAL COUNTER-DESIGNATIONS, TWO SHORT AND ONE LONG.

18 THE TWO SHORT WE HAVE AGREED TO OFFER AT THE SAME TIME THAT

19 THIS MATERIAL IS OFFERED. HOWEVER, BECAUSE WE DO NOT HAVE A

20 VIDEO OF IT, THEY WOULD HAVE TO BE READ INTO THE RECORD, AND

21 WE COULD DISPLAY IT ON THE ELMO, OR HOWEVER THEY WANTED TO.

22 THEY ARE OBJECTING TO US OFFERING IT IN THAT WAY

23 BECAUSE IT IS DIFFERENT FROM THE WAY THAT WE ARE PLAYING THE

24 REMAINDER OF THE DESIGNATIONS. WE SIMPLY DON'T HAVE THEIR

25 OTHER COUNTER-DESIGNATIONS ON A TAPE, AND THEY APPARENTLY DO

 

 

24

1 NOT EITHER.

2 THE SECOND ISSUE IS THEY HAVE A SIX-PAGE

3 COUNTER-DESIGNATION THAT IS RESPONSIVE TO A FEW LINES OF

4 WHAT WE DESIGNATED. WE SIMPLY ASKED MR. GATES WHETHER HE

5 WAS AWARE OF ANY ALLEGED MARKET DIVISION. HE SAID HE

6 WASN'T. WE POINTED OUT IT HAD BEEN IN THE NEWSPAPERS. HE

7 SAID HE HADN'T READ THEM.

8 THEY WANT TO PLAY SIX PAGES OF TESTIMONY ABOUT

9 DISCUSSIONS RELATING TO WHAT APPLE'S PLANS WERE FOR

10 QUICKTIME, WHICH WE DON'T THINK IS 106-TYPE TESTIMONY. IT

11 MIGHT BE APPROPRIATE CROSS. THEY MIGHT BE ABLE TO PLAY IT

12 THEMSELVES, BUT CERTAINLY WE DON'T THINK THAT THAT IS

13 SOMETHING THAT WE HAVE TO INCORPORATE IN OUR OFFER.

14 THE COURT: ALL RIGHT. IS THAT MARKED IN THE

15 TRANSCRIPT?

16 MR. BOIES: HE HAS A COPY OF IT.

17 MR. UROWSKY: I CAN GIVE YOU THE LINE. YOUR

18 HONOR, MAY I BE HEARD ON THIS, PLEASE?

19 THE COURT: SURE.

20 MR. UROWSKY: I THINK THERE WERE THREE AREAS OF

21 DISAGREEMENT BETWEEN THE PARTIES, AND I APOLOGIZE FOR

22 BURDENING YOUR HONOR WITH THIS, BUT WE DIDN'T GET SOME OF

23 THESE DESIGNATIONS UNTIL LAST NIGHT, AND IT MAKES IT

24 DIFFICULT TO RESPOND TO.

25 THE FIRST AREA IS WHETHER THE JUNE '95 NETSCAPE

 

 

25

1 DISCUSSIONS ARE AN APPROPRIATE SUBJECT FOR DEPOSITION

2 TESTIMONY THIS MORNING, GIVEN THE FACT THAT WE DIDN'T GET

3 THE DESIGNATION UNTIL YESTERDAY EVENING.

4 SECOND, THERE ARE THE TWO SMALL PIECES OF

5 TESTIMONY THAT RELATE TO APPLE THAT MR. BOIES HAS SAID HE

6 NOW BELIEVES ARE PROPERLY READ ALONG WITH THE TESTIMONY HE

7 INTENDS TO INTRODUCE. AND IF THAT WERE THE ONLY ISSUE

8 DIVIDING US, I WOULD AGREE TO THE READING OF IT. SO THAT'S

9 A FAIRLY NARROW ISSUE, THOUGH I DON'T THINK -- I THINK IN

10 THE FUTURE, WE OUGHT TO GET THESE DESIGNATIONS 48 HOURS IN

11 ADVANCE, IDENTIFIED BY PAGE AND LINE, BECAUSE THESE TAPES

12 ARE MADE BY THE PLAINTIFFS FOR PURPOSES OF PLAYING, AND THEY

13 CAN'T INCORPORATE IT AT THE VERY LAST MINUTE, BUT THEY COULD

14 INCORPORATE IT IF WE GAVE THEM OUR PROPOSALS 24 HOURS IN

15 ADVANCE.

16 THE THIRD SUBJECT IS APPLE'S QUICKTIME TECHNOLOGY.

17 WHAT MR. BOIES PROPOSES TO READ -- TO PLAY IN COURT IS AN

18 EXCERPT IN WHICH MR. GATES EXPLICITLY DENIES THAT HE KNOWS

19 ANYTHING ABOUT A, QUOTE, MARKET DIVISION DISCUSSION WITH

20 APPLE OVER QUICKTIME. THAT SNIPPET OF TESTIMONY FOLLOWS

21 FIVE PAGES OF TESTIMONY IN WHICH HE DESCRIBES DISCUSSIONS

22 THAT HE IS AWARE OF BETWEEN APPLE AND MICROSOFT REGARDING

23 QUICKTIME, WHICH, IN HIS VIEW AND IN OURS, WERE NOT MARKET

24 DIVISION DISCUSSIONS.

25 SO TO HAVE HIM DENY IT WITHOUT SHOWING THAT HE

 

 

26

1 ACKNOWLEDGES HE KNEW THAT THESE DISCUSSIONS TOOK PLACE AT

2 THE SAME TIME AND THAT HE KNEW THAT THESE WERE BENIGN,

3 ROUTINE DISCUSSIONS, COULD BE HIGHLY MISLEADING,

4 PARTICULARLY IN VIEW OF THE INTENSITY OF PRESS ATTENTION TO

5 ANYTHING RELATED TO MR. GATES AND HIS CREDIBILITY.

6 THE COURT: DO YOU HAVE THE SIX PAGES?

7 MR. UROWSKY: I CAN DO THIS, YOUR HONOR. I CAN

8 GIVE IT TO YOU BY PAGE AND LINE.

9 MR. BOIES: YOU NEED TO SHOW HIM THE TRANSCRIPT.

10 WHILE HE'S DOING THAT, YOUR HONOR, WITH RESPECT TO

11 THE TIMING OF THIS, WE GAVE THEM THESE PARTICULAR

12 DESIGNATIONS LATE YESTERDAY AFTERNOON. HOWEVER, ALL OF

13 THESE WERE INCLUDED IN THE BROADER DESIGNATIONS THAT WE HAD

14 PREVIOUSLY GIVEN THEM. IN OTHER WORDS, WE CUT BACK JUST ON

15 WHAT WE INTENDED TO PLAY TODAY, BECAUSE WHAT WE WERE

16 INTENDING TO DO --

17 THE COURT: I UNDERSTAND THAT, BUT I THINK HE HAS

18 GOT A POINT WHEN HE OBJECTS TO HAVING INSUFFICIENT TIME TO

19 ENABLE YOU TO INCORPORATE IN YOUR EDITED VIDEO EXCERPT THOSE

20 COUNTER-DESIGNATIONS THAT THEY WANT TO MAKE. I THINK YOU

21 HAVE TO GIVE HIM AS MUCH LEAD TIME AS YOU WILL REQUIRE TO

22 MAKE THOSE --

23 MR. BOIES: I HAVE NO OBJECTION TO A 48-HOUR RULE,

24 YOUR HONOR, AS LONG AS IT'S CLEAR IN ADVANCE.

25 THE COURT: ALL RIGHT.

 

 

27

1 MR. BOIES: AND IT DIDN'T TAKE THEM -- IT TOOK

2 THEM 10 MINUTES OR 15 MINUTES TODAY TO GIVE US THESE TWO

3 COUNTER-DESIGNATIONS, OR PROPOSED THREE. WE COULD HAVE

4 GOTTEN THOSE LAST NIGHT, TOO.

5 MR. UROWSKY: THE SUBSTANTIAL DISAGREEMENT BETWEEN

6 US, WHICH RELATES TO QUICKTIME, ENCOMPASSES PAGE 459, LINE

7 16, THROUGH 465, LINE 16.

8 THE COURT: 459, LINE 16, THROUGH 465, LINE 16?

9 MR. UROWSKY: YES, SIR.

10 THE COURT: ALL RIGHT.

11 MR. UROWSKY: AND THE PLAINTIFF'S DESIGNATION

12 IS -- ON THIS SCORE IS 468, LINE 13, TO 469, LINE 5.

13 I AM SORRY. I AM SORRY. I BEG YOUR PARDON, YOUR

14 HONOR. THE LAST THING I SAID WAS INCORRECT. I WAS LOOKING

15 AT THE WRONG SPOT ON THE PAGE. IT'S PAGE 465, LINE 17, TO

16 466, LINE 22.

17 MR. BOIES: EXCUSE ME. COULD YOU GIVE ME THAT

18 AGAIN?

19 MR. UROWSKY: I BELIEVE IT'S 465, LINE 17.

20 MR. BOIES: THESE ARE OUR DESIGNATIONS?

21 MR. UROWSKY: YES.

22 MR. BOIES: AND WHAT WAS YOUR COUNTER-DESIGNATION?

23 MR. UROWSKY: 459, LINE 16, TO 465, LINE 16, WHICH

24 IS THE TEXT IMMEDIATELY PRECEDING YOUR DESIGNATION.

25 THE COURT: BUT YOU DON'T HAVE THAT MARKED IN

 

 

28

1 HERE?

2 MR. UROWSKY: NO, BUT I --

3 THE COURT: IN THIS TRANSCRIPT?

4 MR. UROWSKY: NO.

5 THE COURT: I WON'T LOOK AT YOUR MARKINGS.

6 MR. UROWSKY: THEY WERE DONE BY A FIRST-YEAR

7 ASSOCIATE WHO HAS PARTICULAR INSIGHT INTO THIS CASE, YOUR

8 HONOR.

9 THE COURT: ALL RIGHT. FAIR ENOUGH.

10 ALL RIGHT. WHY DON'T YOU LEAVE ME TO MY OWN

11 DEVICES HERE. DON'T GO AWAY YET, BUT I DON'T THINK WE'LL DO

12 ANYTHING SUBSTANTIVE THIS MORNING. I WILL JUST COME OUT AND

13 RULE ON THIS. ALL RIGHT.

14 MR. BOIES: YOUR HONOR, COULD I PERHAPS MAKE A

15 SUGGESTION? SINCE THIS COMES AT THE VERY END OF OUR

16 PLAYING, WOULD IT MAKE SENSE TO PLAY THE MATERIAL THAT

17 PRECEDES IT NOW AND THEN DEAL WITH THE --

18 THE COURT: I THINK IT'S PROBABLY JUST BETTER TO

19 GET THIS OUT OF THE WAY AND PROBABLY ALSO TO DEAL WITH THE

20 MOTION IN LIMINE AND GO ON FROM THERE. AND THEN WE'LL PICK

21 UP WITH THE PLAYING AND THE TESTIMONY THAT IS TO FOLLOW AT

22 2:00.

23 MR. BOIES: AND, YOUR HONOR, WHAT WE WILL TRY TO

24 DO -- AND WE MAY BE ABLE TO DO IT -- IS OVER THE LUNCHEON

25 RECESS WE WILL TRY TO GET THOSE TWO PORTIONS --

 

 

29

1 THE COURT: IN VIDEO?

2 MR. BOIES: -- IN VIDEO IF WE CAN.

3 THE COURT: GOOD.

4 MR. WARDEN: AND THIS AS WELL, IF HE GRANTS IT?

5 MR. BOIES: AND THIS AS WELL, IF HE GRANTS IT.

6 ALTHOUGH THIS IS LONGER AND --

7 MR. WARDEN: RIGHT.

8 MR. BOIES: -- IT MAY NOT BE POSSIBLE TO PUT THE

9 ENTIRE THING ON ON VIDEO BY LUNCH, BUT I THINK WE CAN GET

10 THE TWO SHORT ONES ON THE VIDEO.

11 MR. WARDEN: YOUR HONOR, JUST TO BE CLEAR, YOU'RE

12 GOING TO SIT WITH THIS NOW AND THEN COME OUT AND GIVE YOUR

13 RULING ON THIS BEFORE LUNCH?

14 THE COURT: THAT'S RIGHT.

15 MR. WARDEN: AND YOU WOULD LIKE TO HEAR THE MOTION

16 IN LIMINE BEFORE LUNCH?

17 THE COURT: YES.

18 MR. WARDEN: THANK YOU.

19 THE COURT: INCIDENTALLY, I AM SURE YOU'RE ALL

20 AWARE OF THE FACT THAT THE PRESS IS COMPLAINING THAT THIS

21 TRIAL IS NOT PROCEEDING RAPIDLY ENOUGH. THAT IS NOT MY

22 SENTIMENT.

23 ALL RIGHT.

24 MR. BOIES: THANK YOU, JUDGE.

25 MR. UROWSKY: THANK YOU, YOUR HONOR.

 

 

30

1 MR. WARDEN: THANK YOU, YOUR HONOR.

2 (END OF CHAMBERS CONFERENCE.)

3

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31

1 (IN OPEN COURT.)

2 THE COURT: GENTLEMEN, THIS IS FAIRLY EASY. I

3 THINK BOTH OF YOUR DESIGNATIONS ARE ENTIRELY APPROPRIATE TO

4 BE READ. SO I WOULD ASK THE PLAINTIFFS IF THEY WILL ARRANGE

5 TO HAVE VIDEOS MADE OF THE COUNTER-DESIGNATIONS THAT

6 MR. UROWSKY HAS MADE AND WE WILL SEE IT ALL.

7 MR. BOIES: WE CAN HAVE THAT DONE OVER THE

8 LUNCHEON RECESS, YOUR HONOR.

9 THE COURT: I WOULD APPRECIATE IT IF YOU WOULD.

10 MR. WEST, DO YOU WANT TO RETURN THEIR TRANSCRIPTS

11 TO THEM.

12 NOW, MR. EDELMAN, DO YOU WANT TO BE HEARD FURTHER?

13 MR. EDELMAN: YES, YOUR HONOR. THANK YOU.

14 THE COURT: AND, ONCE AGAIN, IN THE INTEREST OF

15 EXPEDITION, I WILL TELL YOU WHAT MY TENTATIVE INCLINATION

16 IS, AND THAT IS TO DENY YOUR MOTION IN LIMINE AND TO DO SO

17 FOR ESSENTIALLY THE REASONS THAT THE GOVERNMENT HAS

18 ADVANCED, WITH YOUR, NEVERTHELESS, COGENT OBSERVATIONS WITH

19 RESPECT TO THE TESTIMONY TO GO TO THE WEIGHT THAT I WOULD

20 GIVE IT AT THE CONCLUSION OF THE CASE.

21 MR. EDELMAN: I WILL BE BRIEF, YOUR HONOR.

22 THE COURT: ALL RIGHT.

23 MR. EDELMAN: I JUST WANT TO QUICKLY ADDRESS FIVE

24 VERY QUICK POINTS BASED ON THE GOVERNMENT'S PAPERS, WHICH WE

25 RECEIVED WHEN WE ARRIVED AT COURT THIS MORNING.

 

 

32

1 FIRST OF ALL, YOUR HONOR, THE GOVERNMENT MAKES THE

2 ASSERTION THAT THE HEARSAY EVIDENCE SHOULD COME IN BECAUSE

3 THERE IS A SUFFICIENT GUARANTEE OF THE TRUSTWORTHINESS OF

4 THE EVIDENCE.

5 WE'D JUST POINT OUT, YOUR HONOR, THAT THE HEARSAY

6 EVIDENCE THAT WE HAVE IDENTIFIED IN THE MOTION IS, IN FACT,

7 IN MANY RESPECTS MULTIPLE HEARSAY, AND THAT THE EVIDENCE

8 THAT DR. TEVANIAN IS PROVIDING IS EVIDENCE OF COMMUNICATIONS

9 THAT HE HAD INTERNALLY AT APPLE ABOUT SOME CONVERSATION THAT

10 SOMEONE HAD WITH SOMEBODY NOT AT APPLE. AND WE'D SUBMIT

11 THAT THERE IS NO GUARANTEE OF TRUSTWORTHINESS AT ALL,

12 BECAUSE THIS WITNESS IS NOT COMPETENT TO VOUCH ONE WAY OR

13 THE OTHER FOR THE VERACITY OF THOSE COMMUNICATIONS.

14 SECONDLY --

15 THE COURT: IT DOES, HOWEVER, GO TO HIS STATE OF

16 MIND.

17 MR. EDELMAN: WELL, THE WITNESS' STATE OF MIND.

18 THE COURT: YES.

19 MR. EDELMAN: BUT THE GOVERNMENT MAKES THE

20 ASSERTION, YOUR HONOR, THAT THIS INFORMATION SHOULD COME IN

21 FOR THE DECLARANT'S STATE OF MIND.

22 FOR EXAMPLE, IN THE CASE OF AVID OR THE CASE OF

23 TRUEVISION, THE GOVERNMENT MAKES THE ASSERTION THAT WHAT

24 THEY ARE OFFERING IS, IN FACT, EVIDENCE THAT ONE OR BOTH OF

25 THOSE ENTITIES WAS, IN SOME SENSE, IN FEAR OF MICROSOFT.

 

 

33

1 BUT IF ONE LOOKS AT THE TESTIMONY, FOR EXAMPLE, ON

2 PAGES 40 AND 41 OF DR. TEVANIAN'S DIRECT TESTIMONY, ONE SEES

3 THAT WHAT IS BEING ASSERTED THERE IS A WHOLE SERIES OF

4 COMMUNICATIONS ABOUT MICROSOFT'S CONDUCT. SO WHAT, IN FACT,

5 DR. TEVANIAN'S TESTIMONY PUTS AT ISSUE IS NOT THE STATE OF

6 MIND OF THE DECLARANT, BUT THE CONDUCT OF MICROSOFT.

7 ADDITIONALLY, WITH RESPECT TO THE EXPERT POINT,

8 THE GOVERNMENT MAKES THE ASSERTION THAT WHAT DR. TEVANIAN'S

9 TESTIMONY IS BEING OFFERED FOR IS FOR THE ASSERTIONS WITH

10 RESPECT TO WHAT DR. TEVANIAN PERCEIVES AS MARKETS, MARKET

11 POWER AND WHAT-HAVE-YOU, AND I'D SUBMIT TO THE COURT THAT,

12 IN FACT, DR. TEVANIAN'S DEPOSITION TESTIMONY IS INCONSISTENT

13 WITH THAT ASSERTION.

14 FOR EXAMPLE, ON PAGE 89 OF THE DEPOSITION

15 TRANSCRIPT OF HIS November 19 DEPOSITION, HE WAS ASKED,

16 QUOTE: ARE YOU ASSERTING AS A FACT THAT MICROSOFT HAS A

17 MONOPOLY?

18 AND HIS ANSWER AT LINE 5 IS: THAT'S MY TESTIMONY.

19 SO, IN FACT, DR. TEVANIAN IS HERE TO OFFER

20 OPINIONS, NOT SIMPLY ON HIS PERCEPTIONS, BUT ON WHAT HE

21 UNDERSTANDS TO BE THE REALITY -- THE FACT. AND WE WOULD

22 SUBMIT, BASED ON THE ARGUMENTS MADE IN OUR BRIEF, THAT HE IS

23 NOT QUALIFIED TO DO SO.

24 THE GOVERNMENT'S RETORT IS THAT DR. TEVANIAN HAS A

25 PH.D IN COMPUTER SCIENCE, BUT DR. TEVANIAN HAS ACKNOWLEDGED

 

 

34

1 THAT HE HAS NO LEGAL TRAINING AND NO TRAINING IN ECONOMICS.

2 AND SO WE'D SUBMIT THAT HE HAS NOT ESTABLISHED HIS

3 COMPETENCE, EITHER AS AN EXPERT OR AS A LAYPERSON, TO

4 PROVIDE THE KIND OF TESTIMONY THAT HE'S PROVIDING.

5 AND I'D SUBMIT EVEN FROM PARENTHETICAL CITATION OF

6 THE THIRD CIRCUIT CASE FROM 1995 THAT THE GOVERNMENT CITES

7 IN ITS BRIEF, THAT PARENTHETICAL CITATION OR QUOTATION

8 REFERS TO THE REQUIREMENT THAT EVEN THE LAY WITNESS

9 ESTABLISH SOME COMPETENCE TO PROVIDE THE TESTIMONY, AND WE'D

10 SUBMIT THAT HE HASN'T DONE THAT.

11 AND, FINALLY, WITH RESPECT TO DR. TEVANIAN'S

12 MARKET -- RELIANCE OR MARKET RESEARCH INFORMATION, IN FACT,

13 THE EVIDENCE SHOWS THAT DR. TEVANIAN REALLY CANNOT DESCRIBE

14 OR DISCUSS WHAT THAT EVIDENCE IS.

15 SO, FOR THOSE REASONS, WE WOULD REQUEST THAT THE

16 COURT EXCLUDE THE PORTIONS OF DR. TEVANIAN'S TESTIMONY

17 IDENTIFIED IN MICROSOFT'S MOTION.

18 THE COURT: ALL RIGHT. THANK YOU, MR. EDELMAN.

19 MR. EDELMAN: THANK YOU, YOUR HONOR.

20 THE COURT: MR. MALONE, DID YOU WISH TO BE HEARD?

21 MR. MALONE: VERY BRIEFLY, YOUR HONOR.

22 I WOULD JUST SAY THAT FOR THE REASONS WE DO

23 ADVANCE IN OUR BRIEF, WE BELIEVE THAT ALL OF THE STATEMENTS

24 IN DR. TEVANIAN'S TESTIMONY ARE ADMISSIBLE. WE BELIEVE THE

25 COURT IS ABSOLUTELY RIGHT THAT ANY CONCERNS ABOUT IT GO TO

 

 

35

1 THE WEIGHT WHICH THE COURT CAN AND WILL PROPERLY EVALUATE,

2 RATHER THAN THE ADMISSIBILITY.

3 WE THINK THAT IN THE CONTEXT OF HIS TESTIMONY AS A

4 WHOLE, IT WILL HAVE CONSIDERABLE WEIGHT, BUT THAT'S,

5 OBVIOUSLY, SOMETHING THAT YOUR HONOR WILL BE IN A POSITION

6 TO JUDGE ONCE THE EVIDENCE ALL COMES IN. WE DO NOT BELIEVE

7 IT'S A QUESTION OF ADMISSIBILITY.

8 THE COURT: ALL RIGHT. THE MOTION IN LIMINE IS

9 DENIED.

10 WE'LL TAKE OUR NOONTIME RECESS NOW, AND I WILL

11 ANTICIPATE WITH SOME PLEASURE THE VIDEOTAPE DEPOSITION

12 TESTIMONY THIS AFTERNOON, BEGINNING AT 2:00.

13 (WHEREUPON, AT 11:59 A.M., THE ABOVE-ENTITLED

14 MATTER WAS RECESSED FOR LUNCH.)

15

16 CERTIFICATE OF REPORTER

17 THIS RECORD IS CERTIFIED BY THE UNDERSIGNED REPORTER TO

18 BE THE OFFICIAL TRANSCRIPT OF THE PROCEEDINGS INDICATED.

19 ______________________________

20 PHYLLIS MERANA

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