Sunday, August 30, 1998

Government lawyers frustrated with Gates' answers

By TED BRIDIS

Associated Press

WASHINGTON -- Government lawyers on Friday spent a second day questioning Microsoft chairman Bill Gates in preparation for a trial next month of their antitrust suit against the software giant.

One attorney, speaking on condition of anonymity, said Gates was "more responsive" during 8-1/2 hours of questioning Friday after being "evasive and non-responsive" during a similar session Thursday. A third round of questioning will be held next Wednesday, the attorney said.

Gates, the world's richest man with more than an estimated $50 billion in assets, was questioned in a conference room at Microsoft's headquarters near Seattle.

A Microsoft spokesman, Mark Murray, said of earlier complaints that Gates wasn't being responsive: "The facts don't support the government's case, so it's not surprising that the government doesn't want to hear the facts."

U.S. District Judge Thomas Penfield Jackson, who will preside over the trial, previously told government lawyers they can interview Gates "as long as it takes." The government planned to interview 15 Microsoft executives, including Gates, as it prepares for the Sept. 23 trial.

The Justice Department and 20 states allege that Microsoft used its market influence as the dominant producer of operating software for personal computers to stifle competition in the high-tech industry.

Attorney Sam Miller of San Francisco, who deposed Gates in 1994 for the Justice Department during its last investigation of Microsoft, cautioned that pre-trial depositions often can seem ponderous.

"Unlike in a trial, the lawyer can ask questions over and over again, until they get an answer they're happy with or until the defending lawyer tells the witness not to answer any further," said Miller, now with the law firm Folger, Levin and Kahn. "It's a difficult situation for any witness, not a natural conversation."

Steve Houck of the New York attorney general's office, representing the 20 states suing Microsoft, questioned Gates for roughly six hours Thursday, then the Justice Department's David Boies took his turn. Boies also will handle the interview with Gates next Wednesday.

In addition to Gates in the conference room, there were three lawyers each for the 20 states, the Justice Department and Microsoft, for a total of 10 people.

"Bill Gates will be very well prepared," said Miller, who isn't connected with the current case. "He's the son of a lawyer; he's been deposed several times, so he's well aware of the legal process. He is, by personality and background, very smart and generally can be combative."

Miller said the government also likely is considering whether Gates will make an effective witness during the upcoming trial. Gates has testified publicly in at least two previous lawsuits, once in 1986 and again in 1994.

"It gives you a very good opportunity to make a judgment about a witness, to size up a witness about how he will perform before a judge or jury," Miller said. "That would be one of the objectives of the government's lawyer."

The Seattle Times reported that Gates told the government during Thursday's deposition that he knew nothing about a reported attempt to persuade rival Netscape Communications Corp. to divide the market for Internet browsers.

The Justice Department and 20 state attorneys general contend that Microsoft met with Netscape in May 1995 and offered to divide the market for Internet browsers. Citing a deposition with Netscape co-founder Marc Andreessen, the government alleged that Microsoft offered not to make browsers except for Windows 95 if Netscape agreed not to make browsers for Windows or to help design rival operating systems.

Gates previously called the allegation about collusion "an outrageous lie." He said the 1995 meeting "was to discuss various technologies Microsoft proposed sharing with Netscape, so that Netscape's browser could take advantage of the cool new features we were developing for Windows 95."