Microsoft's Motion to Conduct Late Discovery on New Witnesses.
Re: DOJ v. Microsoft, Case No. 98-1232, 1233.
Date: October 9, 1998.
Source: Microsoft. The caption, signatories, and Certificate of Service have been deleted. Otherwise, this document has been edited for HTML, but not for content.

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DEFENDANT MICROSOFT CORPORATION’S MOTION FOR LEAVE OF THE COURT TO INITIATE DISCOVERY CONCERNING NEW WITNESSES

Pursuant to the Court’s Final Pretrial Order, defendant Microsoft Corporation ("Microsoft") hereby respectfully requests leave of the Court to initiate new discovery concerning the new additions, Avadis Tevanian of Apple Computer, Inc. ("Apple") and James Gosling of Sun Microsystems, Inc. ("Sun"), identified by plaintiffs on their schedule of trial witnesses filed with the Court on October 8, 1998.

Plaintiffs have agreed that the parties should be permitted to depose recently identified trial witnesses such as Messrs. Tevanian and Gosling. Having already received all of the document discovery they need from Microsoft, plaintiffs have refused to agree to any other discovery concerning new trial witnesses.

To be able effectively to depose Messrs. Tevanian and Gosling, Microsoft needs to obtain from Apple and Sun certain documents relevant to those witnesses’ anticipated subjects of testimony. Given the shortness of time before trial, Microsoft will attempt to keep its document requests as narrowly tailored as possible, but Microsoft does need to obtain documents from Apple and Sun to be able to depose and later cross-examine Messrs. Tevanian and Gosling at trial. The Federal Rules of Civil Procedure do not require parties to fly blind in deposing and cross-examining trial witnesses, and it is unfair for plaintiffs to ask Microsoft to do so here. Not surprisingly, plaintiffs sought document discovery from Microsoft, Compaq Computer Corp. and Rational Software Corp. before deposing the persons identified on Microsoft’s September 4, 1998 list of trial witnesses.

Given the sweeping nature of the subjects about which Messrs. Tevanian and Gosling may testify, Microsoft also may need to depose other current or former employees of Apple and Sun concerning those subjects. Once again, Microsoft will take only depositions that are essential to its defense, but Microsoft should not be hamstrung in its efforts to rebut the evidence adduced by plaintiffs at trial.

If Microsoft is not permitted to conduct the basic discovery that plaintiffs oppose, it will be unfairly hindered in responding to the anticipated testimony of Messrs. Tevanian and Gosling. Microsoft should not be denied a fair opportunity to pursue such essential discovery just because plaintiffs waited until the last possible moment to add Messrs. Tevanian and Gosling to their witness list. Plaintiffs were well aware of Messrs. Tevanian and Gosling (and the subjects about which they would be willing to testify) long before plaintiffs filed their original witness list on September 4, 1998. Yet plaintiffs waited until yesterday when they filed their pretrial statements to designate them as trial witnesses. Microsoft did not previously pursue discovery from Apple and Sun on the subjects about which Messrs. Tevanian and Gosling may testify because those subjects are not mentioned in plaintiffs’ complaints. The Court surely did not permit the parties to substitute two new witnesses in their pretrial statements to enable the sort of sandbagging in which plaintiffs are engaged. Microsoft is entitled to conduct the discovery of plaintiffs’ two new trial witnesses that is contemplated under the Federal Rules of Civil Procedure.

For the foregoing reasons, Microsoft respectfully requests that the Court grant it leave to initiate discovery concerning the new trial witnesses identified on plaintiffs’ October 8, 1998 schedule of witnesses.

Dated:  New York, New York
October 9, 1998

Respectfully submitted,

__________________________
John L. Warden (Bar No. 222083)

[other signatories omitted]

[Certificate of Service omitted]

Microsoft's Proposed Order

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ORDER GRANTING DEFENDANT MICROSOFT CORPORATION’S MOTION FOR LEAVE OF THE COURT TO INITIATE DISCOVERY CONCERNING NEW WITNESSES

UPON CONSIDERATION OF Defendant Microsoft Corporation’s Motion for Leave of the Court to Initiate Discovery Concerning New Witnesses, requesting leave to initiate discovery concerning the two new witnesses identified on plaintiffs’ schedule of witnesses filed with the Court on October 8, 1998, and it appearing to the Court that there is good cause for Microsoft Corporation to initiate such discovery,

It is hereby ORDERED that Microsoft Corporation may initiate document and deposition discovery concerning the anticipated subjects of testimony of Avadis Tevanian and James Gosling.

Dated:  Washington, D.C.

October __, 1998

SO ORDERED:

_______________________
Thomas Penfield Jackson
United States District Judge

Please serve copies of Order on:

A. Douglas Melamed, Esq.
Antitrust Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Phillip R. Malone, Esq.
Antitrust Division
U.S. Department of Justice
450 Golden Gate Avenue, Room 10-0101
San Francisco, California 94102

Stephen D. Houck, Esq.
Chief, Antitrust Bureau
New York State Attorney General’s Office
120 Broadway, Suite 2601
New York, New York 10271

Christine Rosso, Esq.
Chief, Antitrust Bureau
Illinois Attorney General’s Office
100 West Randolph Street, 13th Floor
Chicago, Illinois 60601

William H. Neukom
Microsoft Corporation
One Microsoft Way
Redmond, Washington 98052-6399

James R. Weiss
Preston Gates Ellis & Rouvelas Meeds
1735 New York Avenue, N.W.
Washington, D.C. 20006

John L. Warden
Richard J. Urowsky
Steven L. Holley
Sullivan & Cromwell
125 Broad Street
New York, New York 10004