Judge Jackson Grants DOJ's Pretrial Discovery Motion
Microsoft to File Motion for Summary Judgment on Monday

(August 6, 1998)  Federal District Court Judge Thomas Penfield Jackson granted the government's requests to depose Bill Gates for two days, and to get copies of Microsoft's source code for Windows 95 and 98.  Microsoft attorneys used the hearing to announce that they would file a motion for summary judgment on Monday, August 10.

"I do not intend to place a time limit on the time Mr. Gates can be deposed," Judge Jackson stated from the bench.  The Department of Justice and Microsoft had been unable to agree on the length of the deposition.  The DOJ wanted to interrogate Gates for two days, while Microsoft lawyers wanted to limit the questioning to one day.  Microsoft lost.

"I am aware that discovery can be abused," added Jackson.  However, he said that "I have no reason to expect that will occur."  "In the unlikely event there is a reason to apprehend an abuse of the discovery process ... I will be available."  Judge Jackson offered to allow the parties to use his courtroom for Mr. Gates' deposition, and to be available to resolve any disputes.  Microsoft attorney Warden politely declined.

Judge Jackson also ruled that Microsoft must turn over to the DOJ copies of its Windows source code.  He cautioned this was subject to a protective order, and stringent penalties for its violation.

Microsoft attorney John L. Warden, of the law firm of Sullivan & Cromwell, informed the Court that on Monday Microsoft would file a Motion for Summary Judgment.   He predicted that it would affect the schedule and conduct of the case.  "We believe that even if it is not granted in its entirety, which we believe it will be, it will shape the conduct of the case."

Judge Jackson cautioned that he would not put off the trial date.

About fifteen technology and business reporters attended the hearing.  Immediately after the hearing Microsoft spokesman Mark Murray stated that the motion would be filed early on Monday, and would seek judgment on every one of the counts in the plaintiffs' complaint.  "Microsoft will seek dismissal of the entire case."

Attorneys for both sides sought to take advantage of the phalanx of cameras and reporters who staked out the building because of the appearance of Monica Lewinski before a grand jury sitting in the same building.  First, the DOJ lawyers stood in front of a panel of microphones and cameras outside the main front door.  They commented on the Judge's ruling, and the history of disposition of summary judgment motions in cases based on antitrust law.  One stated that "in an antitrust case a summary judgment is highly disfavored."  One cameraman on the Lewinsky watch muttered "I'm really exited."

Next, the Microsoft legal team made its appearance.  Vice President and General Counsel William Neukom made the following statement, and then rushed off.

"Good afternoon.  Microsoft wants to have this controversy resolved just as soon as possible, for the good of the customers, and the good of the entire software industry.  We have cooperated now for over two years with these government investigations, and government lawsuits.  Given the fact that the Court of Appeals in its recent decision has found that Windows 95 was fully and legitimately integrated, and given the fact that we are able to confirm in our discovery over the past several months uncontrovertable facts, we are moving for a summary judgment disposition of this case.   We believe that the facts and the law are on our side.  We are prepared to go to trial if need be.  But we believe that we can avoid the expense and the delay of a trial by bringing this responsible motion for summary judgment.  We will be filing it on Monday.  We anticipate that the matter will be reviewed by the court prior to the current trial date.  Thankyou."

Note: The U.S. District Court for the District of Columbia does not permit the use of tape recorders in its courtrooms.  All quotes of Judge Jackson and John Warden in this article are based on handwritten notes taken at the hearing, and have not been checked against an audio recording.