U.S. Department
of Justice
United States' And Plaintiff States Memorandum In Support Of Motion To Compel Microsoft Corporation : U.S. V. Microsoft Corp.; State Of New York, Ex Rel. Attorney General Dennis C. Vacoo, Et Al.
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IN THE UNITED STATES DISTRICT COURT
A. Procedural History entitled to a higher level of protection than Confidential Information due to its commercial sensitivity." (¶A(10)). Taking into account the sensitive nature of "Highly Confidential Information," the Stipulated Protective Order further provides that "Highly Confidential Information" can only be disclosed to limited categories of people, including independent experts or consultants. (¶D(2)). Moreover, such disclosure can be made only if the independent expert or consultant agrees to be bound by the Stipulated Protective Order and further agrees to submit to the jurisdiction of the Court with regard to enforcement of the Order. (¶F(1)). B. Request No. 20
On June 17, 1998, Plaintiffs served on Microsoft its First Joint Request for Production of confidentiality and relevance objections, however, have not been resolved despite good faith efforts and are the subject of this motion. C. Microsoft Refuses to Make Available William Gates, III for Adequate Deposition On July 14, 1998, Plaintiffs served deposition notices on Microsoft. Among the notices, Plaintiffs noticed the deposition of William Gates, III, Microsoft's Chief Executive Officer. (See Exhibit C). Plaintiffs requested that Mr. Gates be made available for two days of deposition. While Microsoft recognizes the relevance of Mr. Gates' testimony in this matter and has tentatively made Mr. Gates available to testify on August 12, 1998, Microsoft has refused to make Mr. Gates available for more than eight hours of testimony. D. Employees for Deposition On July 14, 1998, Plaintiffs noticed the Rule 30(b)(6) deposition of Microsoft (see Exhibit II. ARGUMENT A. Source Code Files Of Windows 95 and 98 Microsoft continues to object to producing certain source code files for Windows 95 and 3. The Protective Order Adequately Addresses Microsoft's Confidentiality Concerns Microsoft stipulated to a Protective Order that provides adequate protection for trade livelihood for a period of twelve to eighteen months following the termination of this litigation. Such a limitation is improper in the context of this litigation and effectively prohibits Plaintiffs from employing experts knowledgeable about operating system technologies. Microsoft's requirement that Plaintiffs enter into such a license is severely undermined by its position with regard to third party Novell, Inc.'s confidentiality concerns. Microsoft subpoenaed documents and testimony from Novell, a direct competitor. Novell objected to the subpoena based on confidentiality concerns. Microsoft moved to compel Novell's compliance with the subpoena. (See Exhibit H). Acknowledging that Novell is a direct competitor, Microsoft asserted that disclosure of Novell's trade secrets to its outside counsel and consultants was appropriate under the terms of the Stipulated Protective Order because the Stipulated Protective Order provided adequate protections for the trade secrets. (Id. at 8-10). Given Microsoft's assertion that third party direct competitors, such as Novell, who did not participate in the drafting of the Stipulated Protective Order are adequately protected by the Order, Microsoft's arguments that it is not adequately protected should be rejected. Finally, the Court should note that Microsoft attempted to advance similar arguments in on-going antitrust suit with Caldera, an operating system vendor, in the District of Utah. Caldera's motion to compel production of documents including source code was heard on July 30, 1998. The Utah Court ordered Microsoft to produce the source code to Caldera. (See Exhibit I). The Court specifically refused to require the twelve and eighteen month limitations Microsoft seeks to impose here.3 UNITED STATES' MEMORANDUM IN SUPPORT OF MOTION TO COMPEL - Page 7 B. Plaintiffs' Questions Microsoft cannot justify limiting the deposition of Mr. Gates, the founder, former president, litigation of this matter. If Mr. Gates answers all of Plaintiffs' questions to the best of his ability within the first 8 hours, Plaintiffs would see no value in extending the deposition to the following day. Plaintiffs do not seek carte blanche access to Mr. Gates; rather, Plaintiffs simply want to be able to schedule Mr. Gates for two consecutive days, so that they may exercise their rights under the Federal and Local rules to seek all relevant information and testimony from Mr. Gates. D. The Court Should Order Microsoft To Schedule All Noticed Depositions Based on agreements among the parties and the Court, the Court's Pretrial Order No. 1 did not set any limits on the parties' ability to take depositions, except to instruct the parties to Anot tak[e] unreasonably large number of depositions. (a) (¶ 3) Thus far, Plaintiffs have only sought the testimony of 15 Microsoft employees and two 30(b)(6) witnesses. Neither Microsoft, nor the individual employees for that matter, have objected to or sought leave of court for a protective order from the deposition subpoenas. (See Fed. R. Civ. Proc. 26(c).) Rather, Microsoft unilaterally refuses to schedule more than nine of the seventeen depositions. Plaintiffs repeatedly sought to address Microsoft's concerns about the numbers of depositions. Plaintiffs proposed to place a number of the witnesses into several tracks, and to take depositions of the witnesses in each track in order of priority. (See Exhibit F). If an earlier witness in that track provides all the information needed on the subject matter of that track and further depositions in that track would merely be cumulative, Plaintiffs would cancel subsequent depositions in that track. Because of the limited time for discovery and the difficulty in coordinating schedules among UNITED STATES' MEMORANDUM IN SUPPORT OF MOTION TO COMPEL - Page 9 the various parties and witnesses, at a minimum, all depositions must be scheduled. Doing so will ensure that all parties are prepared to take the depositions if needed and that Plaintiffs can complete discovery in time for trial. Microsoft's unilateral decision that Plaintiffs are entitled to no more than nine depositions, and refusal to even schedule the remaining eight depositions, impairs Plaintiffs ability to prepare for trial. III. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court compel Microsoft to produce the requested source code, to schedule Mr. Gates' deposition for two days, and to schedule the Rule 30(b)(6) depositions and depositions of Microsoft employees. DATED: July 31, 1998 _____________/s/______________ U.S. Department of Justice
UNITED STATES' MEMORANDUM IN SUPPORT OF MOTION TO COMPEL - Page 10 FOOTNOTES
1 Plaintiff United States and Plaintiff States expressly reserve their right to move to compel production in response to other requests for production not discussed herein. 2 Microsoft bases its relevance objections on the Plaintiffs' Responses to Defendant Microsoft Corporation's First Set of Interrogatories. Plaintiffs disagree that their responses could, or do, render the request for Microsoft's source code irrelevant. Specifically, Plaintiffs responses state only that their Complaints do not make any contentions about which code comprises Internet Explorer. The responses do not indicate that the Windows source code is irrelevant to addressing various Microsoft contentions. Any Microsoft objection based on these responses, however, has been superseded by Microsoft's Answer, which directly puts technical matters at issue. 3 The Court did agree to incorporate certain other terms from Microsoft's license agreement into an enforceable amendment its protective order. Plaintiffs already have informed Microsoft that they too are willing to agree to incorporate a substantial number of terms from Microsoft's license agreement into an amendment to the Stipulated Protective Order. Microsoft has refused Plaintiffs' offer absent an agreement to the twelve and eighteen month limitations. 4 Indeed, Microsoft's stubborn refusal to permit full access to Mr. Gates is perplexing in light of the fact that Microsoft has already found it necessary to take depositions of the non-party witnesses which exceed the unilateral 8-hour duration. Microsoft's noticed deposition of Mr. Mark Andreesen, vice president of products and marketing for Netscape Communication Corporation, lasted over 12 hours. Despite the fact that neither Mr. Andreesen nor Netscape are parties to this litigation, Microsoft found it necessary to depose Mr. Andreesen well into the night, without any pressure from the United States' to limit the duration of the deposition. |