13188 1 IN THE IOWA DISTRICT COURT FOR POLK COUNTY ----------------------------------------------- 2 JOE COMES; RILEY PAINT, ) 3 INC., an Iowa Corporation;) SKEFFINGTON'S FORMAL ) 4 WEAR OF IOWA, INC., an ) NO. CL82311 Iowa Corporation; and ) 5 PATRICIA ANNE LARSEN; ) ) TRANSCRIPT OF 6 Plaintiffs, ) PROCEEDINGS ) VOLUME XLVIII 7 vs. ) ) 8 MICROSOFT CORPORATION, ) a Washington Corporation, ) 9 ) Defendant. ) 10 ----------------------------------------------- 11 The above-entitled matter came on for 12 trial before the Honorable Scott D. Rosenberg 13 and a jury commencing at 8:30 a.m., February 9, 14 2007, in Room 302 of the Polk County 15 Courthouse, Des Moines, Iowa. 16 17 18 19 20 HUNEY-VAUGHN COURT REPORTERS, LTD. 21 Suite 307, 604 Locust Street 22 Des Moines, Iowa 50309 23 (515)288-4910 24 25 13189 1 A P P E A R A N C E S 2 Plaintiffs by: ROXANNE BARTON CONLIN 3 BRADLEY M. BEAMAN Attorneys at Law 4 Roxanne Conlin & Associates, PC Suite 600 5 319 Seventh Street Des Moines, IA 50309 6 (515) 283-1111 7 MICHAEL R. CASHMAN DANIEL N. WEST 8 Attorneys at Law Zelle, Hofmann, Voelbel, 9 Mason & Gette, LLP 500 Washington Avenue South 10 Suite 4000 Minneapolis, MN 55415 11 (612) 339-2020 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13190 1 Defendant by: DAVID B. TULCHIN 2 SHARON L. NELLES Attorneys at Law 3 Sullivan & Cromwell, LLP 125 Broad Street 4 New York, NY 10004-2498 (212) 558-3749 5 HEIDI B. BRADLEY 6 Attorney at Law Heller Ehrman, LLP 7 333 South Hope Street Suite 3900 8 Los Angeles, CA 90071-3043 (213) 689-0200 9 DAVID E. JONES 10 Attorney at Law Heller Ehrman, LLP 11 One East Main Street Suite 201 12 Madison, WI 53703-5118 (608) 663-7460 13 BRENT B. GREEN 14 Attorney at Law Duncan, Green, Brown & 15 Langeness, PC Suite 380 16 400 Locust Street Des Moines, IA 50309 17 (515) 288-6440 18 RICHARD J. WALLIS Attorney at Law 19 Microsoft Corporation One Microsoft Way 20 Redmond, WA 98052 (425) 882-8080 21 22 23 24 25 13191 1 (The following record was made out of 2 the presence of the jury at 8:32 a.m.) 3 MR. CASHMAN: Your Honor, we have one 4 or two things we would like to discuss briefly 5 before the Jury comes in. 6 THE COURT: Okay. Go ahead. 7 MR. CASHMAN: Good morning, Your 8 Honor. 9 Just briefly, the Court will recall 10 that we argued objections relative to Joachim 11 Kempin some time ago. And the Plaintiffs 12 kindly request the rulings on those so that we 13 can play that deposition coming up here. 14 THE COURT: Yeah. I have -- I only 15 have three more things to look at on that and 16 I'm done. 17 MR. CASHMAN: Okay. Thank you, Your 18 Honor. 19 THE COURT: I've been going through it 20 quite carefully. 21 But can I give it to you this 22 afternoon? 23 MR. CASHMAN: That's fine, Your Honor. 24 THE COURT: Okay. 25 MR. TULCHIN: I don't think, Your 13192 1 Honor, that it was slated to be played today or 2 even next week. I don't know why Mr. Cashman 3 is asking for such a rush. I'm not aware, at 4 least, that it's on the schedule even for next 5 week. 6 THE COURT: Okay. 7 MS. CONLIN: I don't believe that it 8 is, Your Honor. 9 MR. CASHMAN: It's the amount of time 10 that it takes to get the deposition ready to 11 play. 12 THE COURT: I'll have it done today. 13 MR. CASHMAN: Thank you. 14 And then the other issue is, just to 15 wrap up our request yesterday on Mr. Schulman's 16 first deposition and expert report. 17 THE COURT: Oh, yeah. 18 MR. TULCHIN: Your Honor, there are 19 113, or so, I'm told, documents, Microsoft 20 documents, referenced in Mr. Schulman's report. 21 We've tried to go through them. 22 And I don't anticipate any problem, 23 but in order to be sure that we are not 24 agreeing to the release of these things 25 publicly, I wonder if we could have until 8:30 13193 1 Monday morning just to make sure that we can 2 review all these documents. 3 And when I say release them publicly, 4 what's going on here is not that the Plaintiffs 5 want so much to send these materials to the 6 Department of Justice, but they want to post 7 them on their website and issue another press 8 release about them, which is what's been going 9 on with all this Schulman material. There have 10 been a number of press releases. 11 So, under those circumstances, I just 12 would like to be sure that the documents are 13 okay. 14 THE COURT: This is in regard to the 15 first depo; right? 16 MR. TULCHIN: The first deposition and 17 the first expert report. 18 THE COURT: The second one you have no 19 problem with? 20 MR. TULCHIN: The second one has 21 already been out there and it's posted on their 22 website, the whole thing. 23 THE COURT: Okay. 24 MR. CASHMAN: Your Honor, if I just 25 may respond briefly. 13194 1 All the documents which are referenced 2 in Mr. Schulman's report, as I understand, were 3 publicly available. They were from the public 4 record at the time that Mr. Schulman referenced 5 them in his report. 6 So there should be no need for 7 Microsoft to spend an additional three days 8 going through them to determine whether or not 9 they think they are confidential now. 10 And, just briefly, the issue about the 11 use of this -- and Mr. Tulchin I think has 12 mischaracterized things a little bit. And that 13 is when the second deposition was released to 14 the public, Microsoft, we understand, contacted 15 The Des Moines Register and provided a copy of 16 that transcript to The Des Moines Register, 17 which has then been inquiring about it. 18 And Microsoft has been characterizing 19 Mr. Schulman as having changed his mind or 20 changed his position, which is unfair and 21 obviously incorrect given the record, which is 22 one of the reasons why this should not be 23 confidential, the first deposition or his 24 expert report. 25 THE COURT: Very well. Any further 13195 1 argument on this issue? 2 MR. TULCHIN: No, Your Honor. 3 MR. CASHMAN: Not at this time, Your 4 Honor. 5 THE COURT: You said no, Mr. Tulchin? 6 I didn't hear you. 7 MR. TULCHIN: I said no, Your Honor. 8 THE COURT: I don't think the request 9 is unreasonable. We'll take it up at 8:30 10 Monday morning. 11 Anything else? 12 MS. CONLIN: Your Honor, the Court may 13 recall when we had that last witness, not 14 Mr. Edwards, but the one before, the question 15 arose as to whether or not attorneys were 16 permitted to follow up on questions propounded 17 by the jurors, and I went back and looked at 18 the order and it's silent as to that issue. 19 THE COURT: I saw it too. 20 MS. CONLIN: But when I made my 21 original request, Your Honor, and also in the 22 ABA guidelines, in the ALI things, in each of 23 those instances, follow-up questioning is 24 permitted. 25 And my request says if the question is 13196 1 permitted, the Court will ask it and the 2 attorneys may then follow up. 3 And I think that we could have all 4 kinds of difficulty if there isn't an 5 opportunity for follow-up. The witness may or 6 may not answer the question. There may -- it 7 may raise all kinds of other questions. 8 So I think that the brief follow-up is 9 appropriate and probably wise. 10 THE COURT: Okay. Anything else? 11 MR. TULCHIN: I would say, Your Honor, 12 that this is something that might be dealt with 13 on an item-by-item basis; that is, whether 14 follow-up should be permitted might depend on 15 the question. 16 But, of course, if the Court would 17 prefer that there be no follow-up and that's 18 the ground rule under which we all operate, 19 that's fine with us too. 20 THE COURT: I will consider it and 21 issue a ruling today. 22 How's that? 23 MS. CONLIN: Thank you, Your Honor. 24 THE COURT: Is that okay with you? 25 MR. TULCHIN: Thank you, Your Honor. 13197 1 THE COURT: All right. 2 MS. CONLIN: And, Your Honor, also -- 3 in the next weeks, couple of weeks, and maybe 4 even as early as Monday, Plaintiffs wish to 5 read excerpts from documents to the Jury. 6 I know that we can't do that for a 7 great long period of time because no one can 8 stand it, but we'd like to read those DRI 9 documents that have not yet been seen by the 10 Jury. 11 THE COURT: Have they been admitted? 12 MS. CONLIN: Some have been -- almost 13 all have been admitted, Your Honor. 14 There may be some as we go along in 15 order that have not and I'll offer them and, of 16 course, I'll have copies for everybody anyway, 17 but -- if I come to one that is not admitted, 18 we'll handle it in the usual way. 19 MR. TULCHIN: Your Honor, I wonder, if 20 the Plaintiffs intend to do that, two things. 21 I wonder if we could have notice as to what 22 documents they intend to read from; and, 23 secondly, I presume under the rule of 24 completeness that we can at that moment, if 25 they're reading from a particular document, 13198 1 let's say it's Plaintiffs' Exhibit 100, that we 2 can read from portions of it that they haven't 3 read from. 4 When they're done reading 100, we read 5 whatever portions from that same document they 6 haven't read and that we wish to bring to the 7 Jury's attention. 8 THE COURT: Okay. I'll consider it. 9 I'll have an answer for you today or Monday. 10 MS. CONLIN: Thank you, Your Honor. 11 MR. TULCHIN: Thank you, Your Honor. 12 THE COURT: Anything else? 13 MS. CONLIN: No, Your Honor, not from 14 us. 15 THE COURT: Very well. We are going 16 to finish up Mr. -- 17 MS. CONLIN: Harris. 18 THE COURT: Harris. 19 Then where do we go from there? 20 MS. CONLIN: Just a few minutes of 21 Mr. Harris, then Mr. Silverberg. 22 THE COURT: Silverberg, great. 23 MR. CASHMAN: See you, Your Honor. 24 THE COURT: Are you leaving? 25 MR. CASHMAN: I'm leaving. 13199 1 THE COURT: Okay. See you, 2 Mr. Cashman. 3 (The following record was made in the 4 presence of the jury at 8:41 a.m.) 5 THE COURT: Good morning. Everyone 6 else may be seated. 7 Continue with the deposition of 8 Mr. Harris, please. 9 (Whereupon, the following video was 10 played to the jury.) 11 Question: Tell me, what was it that 12 you asked Microsoft to address in this fax, 13 what issue? 14 Answer: I wanted basically a type of 15 clause like a most favored clause. If they 16 give somebody else a better condition, then 17 they give it to me as well. 18 So not the price. I understand price 19 is based on quantity, but the conditions so 20 that everyone could go to market on the same 21 conditions. So a lot of contracts were signed 22 that have got a fair clause in them. 23 Question: But the particular 24 condition that you were concerned about and 25 wanted to address in this fax was the per 13200 1 processor license fee, correct? 2 Answer: Yes. That other people for 3 every CPU that we shipped that they paid a 4 royalty. 5 Question: Now, regardless of whether 6 the response you got was a little woolly around 7 the edges, was there a clear thrust to the 8 response you got from Microsoft? 9 Answer: I do not understand. 10 Question: Whether it was a little 11 fuzzy around the edges, was there a clear 12 thought that was conveyed to you by this fax? 13 Answer: My thought at the time was 14 and is still the same, that it was so woolly 15 that I did not believe it. 16 It didn't convince me, but there was 17 nothing else I could do. They were not going 18 to put anything else. I had to accept it. The 19 deal was done. 20 If it was true, why is there no such 21 thing which says Adam, we can assure you that 22 every single person is the same as you. 23 Nothing exists. 24 Question: Do you have Exhibit 598? 25 Answer: I'm sure I do. Just give me 13201 1 a minute. Got it. 2 Question: I want you to look at the 3 first page. 4 Answer: Okay. 5 Question: Do you have 598 in front of 6 you? 7 Answer: Yeah, I do. 8 Question: Okay. And this is the 9 results of the Opus survey in 1990? 10 Answer: Yes. 11 Question: I want you to look at the 12 first page of the memo. 13 Answer: Yeah. 14 Question: Are you there? 15 Answer: Yeah. 16 Question: The question 5, observation 17 is that 20 or 87 percent of the sample prefer 18 Opus to supply MS-DOS. 19 Answer: Where is that? 20 Question: On the Q5. 21 Answer: Q5, okay. 22 Question: That indicates that 13 23 percent did not prefer that Opus supply MS-DOS, 24 correct? 25 Answer: Yes. 13202 1 Question: That's 13 percent of the 2 market, right? 3 Answer: Yes. 4 Question: Is it fair to say that 13 5 percent of your respondents were at least open 6 to DR-DOS? 7 Answer: Yeah, I think -- I suppose 8 you can read that into it. 9 The bottom line is that 70 percent of 10 our customers did take it. 11 Question: And seemed very well 12 pleased with it, correct? 13 Answer: There were no complaints. We 14 did not lose those customers. We did not take 15 one order and not ship it again. So I don't 16 think even the reference of the 13 percent once 17 it was available to them, they took it. 18 (Whereupon, playing of the video 19 concluded.) 20 MS. CONLIN: Your Honor, that 21 concludes Mr. Harris' deposition. And at this 22 time, we would offer the following exhibits in 23 connection with Mr. Harris' deposition. 24 Plaintiffs' Exhibit 409, Plaintiffs' 25 Exhibit 5085 was previously admitted, 13203 1 Plaintiffs' Exhibit 5276, and Plaintiffs' 2 Exhibit 7528A. 3 May I provide these to the court 4 reporter, Your Honor? 5 THE COURT: You may. And 5085 has 6 been previously admitted? 7 MS. CONLIN: Yes, Your Honor. 8 THE COURT: Any objections to these 9 exhibits? 10 MR. GREEN: I'm going to check, Your 11 Honor. One of them is not on my list that 12 previously was given to us by the Plaintiffs. 13 409 is what has been admitted also 14 according to my records on 11-16. 15 MS. CONLIN: You mean 116? 16 MR. GREEN: I'm sorry, 1-16. 17 5276 has also been admitted. 18 You mentioned four. You only gave me 19 three. 20 THE COURT: 409, 5085, 5276, 7528A. 21 MR. GREEN: 5085 I don't have. 22 THE COURT: That's been previously 23 admitted she states. 24 MR. GREEN: Okay. 25 MS. CONLIN: Yes. 13204 1 MR. GREEN: It was previously 2 admitted. 3 And we have no objections to 7528A, 4 which I think is the only one that has been 5 produced and not admitted. 6 THE COURT: Very well. They are all 7 admitted. 8 Do you have some, Mr. Green? 9 MR. GREEN: Yes, Your Honor. We'd 10 like to offer DX 6745, DX 6746, DX 6747, DX 11 6762, DX 6767, and DX 6786. 12 And we'd also like the Jury to 13 consider in connection with this witness' 14 testimony an exhibit that's already been 15 admitted. And that is PX 5085. 16 THE COURT: Any objection? I'm sorry, 17 go ahead, sir. 18 MR. GREEN: I will hand these up to 19 everybody concerned as soon as I can get 20 through here with my legs and not trip. 21 THE COURT: You can give those to the 22 court reporter. 23 MR. GREEN: Okay. There's three 24 copies. 25 THE COURT: Any objection? 13205 1 MR. GREEN: I might have mixed up the 2 number here. 3 THE COURT: Oh, you did? 4 MR. GREEN: I said 6786 and I should 5 have said 6768. 6 THE COURT: Oh, okay. 7 MS. CONLIN: We have no objection, 8 Your Honor. 9 THE COURT: They are all admitted. 10 MR. GREEN: Thank you, Your Honor. 11 THE COURT: You're welcome, sir. 12 MS. CONLIN: Your Honor, as a part of 13 their case, the Plaintiffs will now play the 14 deposition of Brad Silverberg taken in the case 15 of Caldera versus Microsoft. 16 THE COURT: And the date, please? 17 MS. CONLIN: Yes, Your Honor. The 18 date of the deposition is 10-7-1998. 19 THE COURT: Very well. And let's see 20 if I have a copy here. You may proceed. 21 MS. CONLIN: Thank you, Your Honor. 22 (Whereupon, the following video was 23 played to the jury.) 24 Question: I'm going to ask you 25 questions. 13206 1 You realize that you are under oath; 2 correct? 3 Answer: Yes. I realize I'm under 4 oath. 5 Question: And you also realize that 6 we're videotaping your deposition here and the 7 video could possibly be played in its full or 8 in excerpt to the Jury when we go to trial in 9 this case? You're aware of that? 10 Answer: Yes, I am. 11 Question: Okay. If you don't 12 understand any of my questions today, if you 13 want me to clarify anything, I want you to know 14 that I want to hear that from you so that I can 15 try to help you understand my questions as I 16 ask them to you, okay? 17 Answer: Whatever. 18 Question: Okay. I just want to make 19 sure that we're understanding each other. 20 And to the extent that you don't like 21 my questions or you don't understand them, just 22 let me know and I'll rephrase them, okay? 23 Answer: Whatever. 24 Question: It's a yes or no. 25 Answer: Okay to what? I'm not sure. 13207 1 Question: That if you don't 2 understand my questions, you'll ask me to 3 rephrase them, okay? 4 Answer: Or I'll just say I don't 5 understand it. 6 Question: That would be fine. 7 When did you come to Microsoft 8 Corporation? 9 Answer: I began in 1990. 10 Question: Okay. What month? 11 Answer: I actually started work in 12 like June 26th, something like that. June 13 24th, June 26th. 14 Question: Before that, you had been 15 with Borland, I take it? 16 Answer: Before that, immediately 17 previously I was with Borland. 18 Question: Okay. When you departed 19 Borland, what products were you in charge of? 20 Answer: As far as I know, the entire 21 Borland product line. 22 Question: What was your entry level 23 position at Microsoft in June of 1990? 24 Answer: Vice president. 25 Question: As vice president? 13208 1 And I know that you were immediately 2 put in charge of development of MS-DOS 5.0; 3 correct? 4 Answer: Yes, I was. 5 Question: And also, was Windows 3.1 6 in the works at that point? 7 Answer: Windows 3.0 had just shipped. 8 Question: Windows 3.0 had just 9 shipped, but you were also put in charge of 10 whatever the next version of Windows was going 11 to be, which ultimately became Windows 3.11; is 12 that correct? 13 Answer: Windows 3.0 had just shipped 14 when I actually started work on a full-time 15 basis. 16 Question: You were eventually in 17 charge of Windows 3.1; correct? 18 Answer: And eventually we did ship a 19 product called Windows 3.1. And, yes, I was in 20 charge of it. 21 Question: And eventually Microsoft 22 also shipped a product called Windows 95 and 23 you were also in charge of that; correct? 24 Answer: That is correct. 25 Question: And Microsoft has just 13209 1 shipped a product called Windows 98. 2 And were you in charge of that? 3 Answer: No, I was not. 4 Question: And you're not currently -- 5 are you currently employed by Microsoft? 6 Answer: Yes, I am. 7 Question: But you are on leave? 8 Answer: No. My official status is a 9 part-time consultant. 10 Question: When did the part-time 11 consultant begin? 12 Answer: Officially, my status became 13 part-time consultant sometime in the spring of 14 this year. 15 Question: And are there plans for you 16 to return to Microsoft on a full-time basis? 17 Answer: It's up to me. 18 Question: Okay. Prior to going on 19 sabbatical, you were a member of the executive 20 committee; correct? 21 Answer: Yes. I remained a member 22 afterwards, although I attended only one 23 committee meeting in January. 24 Question: Okay. Who at that point in 25 time -- the day before June 1 of 1997, who was 13210 1 on the executive committee? 2 Answer: Who was on the executive 3 committee? 4 Question: I have it here that it says 5 it's an 8-person executive committee. 6 Answer: Okay. 7 Question: We printed this off in 8 August of '97. 9 Answer: Okay. Let's see if I 10 remember. Well, Mr. Gates, Mr. Ballmer, 11 Mr. Raikes, Mr. Maritz, Mr. Mhryvold, 12 Mr. Allchin, myself, Mr. Higgins. 13 Question: That would be eight. 14 Answer: Yeah. It's perhaps possible 15 that Mr. Vergnes who is the president of 16 Microsoft Europe was on it. I don't know. 17 Question: And this group sets 18 strategy and business planning directions for 19 Microsoft? 20 Answer: I would say primary strategic 21 direction for the company was set by 22 Mr. Ballmer and Mr. Gates. 23 Question: From the Microsoft web 24 page, it says the executive committee is the 25 top decision-making body where he helps set the 13211 1 company's most important strategic and business 2 planning directions. 3 Is that a correct statement? 4 Answer: I gave you my interpretation 5 of how -- you asked the question. I gave you 6 my interpretation of the answer. 7 Question: Okay. And was my statement 8 correct, which was my question to you? Is that 9 a correct statement as well? 10 Answer: The executive committee 11 certainly had a role in it, but the ultimate 12 decision-makers were Mr. Gates and Mr. Ballmer. 13 Question: Okay. 14 Answer: I'd say both statements were 15 true. 16 Question: Then June 1, 1997, you went 17 on sabbatical? 18 Answer: Yeah. 19 Question: Why did you go on 20 sabbatical? 21 Answer: I had been working awfully 22 hard for an awfully long time and I wanted to 23 spend some time with my family. There had been 24 a number of personal activities, family 25 activities, that I had wanted to accomplish 13212 1 that were very difficult when you're working 2 full time at Microsoft. 3 So I took a sabbatical, as many other 4 Microsoft executives are doing or have done. 5 Question: No other reason than that? 6 Answer: That's the primary reason. 7 Question: Were there any 8 disagreements or conflicts that led to you 9 wanting to take a sabbatical and then become a 10 part-time consultant? 11 Answer: I was not happy with the job 12 I had managing the Office group at the time. I 13 needed a break from managing that group. 14 Question: And what was your 15 dissatisfaction there? 16 Answer: Just wasn't a product I was 17 super interested in. 18 Question: Which product are we 19 talking about? 20 Answer: Office. 21 Question: Oh, Office? 22 Answer: Yes. It was a large group. 23 Question: Who was in charge of the 24 product that became Windows 98 at that time? 25 Answer: Windows 98 at that time? I 13213 1 think Mr. Stork or Mr. Veghte. 2 Question: Was that a product that you 3 would have preferred to be working on? 4 Answer: No. 5 Question: What particular products 6 did you want to be working on as opposed to 7 Office? 8 Answer: I was mostly interested in 9 the Internet products. 10 Question: Okay. And who was in 11 charge of that? 12 Answer: I was. 13 Question: And Office was in addition 14 to that? 15 Answer: Yes. I had -- I was 16 responsible for both Office and Internet 17 products. My title at the time was senior vice 18 president of applications and Internet client 19 group. 20 Question: Okay. And just so the Jury 21 understands, the Office product, that's the 22 Office Suite of business applications? 23 Answer: Yeah. There were more than 24 -- we call it Office. It was actually desktop 25 applications division that included more than 13214 1 just Office, but the principal products is 2 Office and the office suite of products. 3 Question: Microsoft's spreadsheet, 4 Microsoft's word processing and -- 5 Answer: Yes. It's called Excel. 6 Question: -- in addition to other 7 things? 8 Answer: Microsoft Excel and Microsoft 9 Word and so on, yes. 10 Question: Okay. When you started at 11 Microsoft in June of 1990, would you consider 12 that Microsoft had a monopoly as far as the DOS 13 market is concerned? 14 Answer: No. 15 Question: Have you ever used the term 16 monopoly in regards to Microsoft's position on 17 the desktop? 18 Answer: Not that I recall. 19 Question: Okay. 20 Answer: Except to say we don't have 21 one. I know I've said that. 22 Question: You have said that? 23 Answer: Yes. 24 Question: You don't recall ever 25 saying to the contrary? 13215 1 Answer: I don't recall, no. 2 Question: Is it going to surprise you 3 to see that you have said to the contrary? 4 Answer: I know I've said we haven't, 5 so. 6 Question: And who would that have 7 been to that you would have saying that? Would 8 you have said that to the Department of 9 Justice? 10 Answer: I don't recall. 11 Question: Well, you recall saying it. 12 Who do you recall saying it to? 13 Answer: I've recalled saying it to 14 people inside the company. I've recalled 15 saying it to the members of the press. If 16 asked by the Department of Justice today, I 17 would say the same thing. 18 Question: To people inside the 19 company, you have said we don't have a 20 monopoly; correct? 21 Answer: Yes. 22 Question: Let me hand you what's 23 Exhibit 1700 to your deposition. 24 Answer: Okay. 25 Question: Please take it and make 13216 1 yourself familiar with it. 2 Do you recall this presentation? 3 Answer: No, I don't. 4 Question: It's dated on the first 5 page May 1990. Microsoft executive staff 6 retreat. 7 So this was immediately prior, the 8 month prior to you starting at Microsoft? 9 Answer: I remember the staff retreat. 10 I don't remember this document at all. 11 Question: Was Mr. Gates there? 12 Answer: Mr. Gates was there. 13 Question: Was Mr. Ballmer there? 14 Answer: Mr. Ballmer was there, yes. 15 Question: Were all of the persons 16 listed here on the first slide, Rubin, Oki, 17 Shirley, Butler, were they all there? 18 Answer: I don't recall Mr. Rubin 19 being there, and I don't recall Mr. Butler 20 being there. I do recall Mr. Shirley. 21 Question: Mr. Shirley was president 22 at the time; correct? 23 Answer: I don't know if that was the 24 case. Hallman had just been hired as 25 president. I think he was officially 13217 1 president. I'm not sure if Mr. Shirley was 2 president at the time or not. 3 Question: Was Hallman there? 4 Answer: Hallman was there, yes. 5 Question: Mr. Shirley had been 6 president. And, to your knowledge, 7 subsequently did he go on to the board of 8 directors? 9 Answer: He is a member of the board 10 of directors today, yes. 11 Question: If you look at -- there are 12 Bates numbers down at the bottom right corner. 13 If you'll go to X 205851. 14 Answer: If you're going to ask me 15 questions about this, I'm going to take time to 16 read the entire document. 17 Question: Sure. Sure. 18 Answer: I'm not going to answer 19 individual questions out of context. 20 Question: I don't want you to do 21 that. 22 Please refresh yourself. 23 Answer: Okay. I glanced through 24 this. 25 Question: Okay. If you'll turn to 13218 1 the Bates number X 205851. It's about a little 2 over halfway through the document. The Bates 3 number shifts over to the side over here. 4 Answer: Okay. 5 Question: First, it says desktop, 6 first line. 7 Could you read that first line, 8 please? 9 Answer: On the desktop, we have a 10 strategic win today, in parentheses, monopoly. 11 Question: And what did you mean by 12 that? 13 Answer: I didn't. What do you mean 14 -- you're assuming I wrote this. I didn't. 15 Question: Let's go back to the first 16 page. 17 It says, a presentation of Rubin, Oki, 18 Shirley, Butler, Silverberg and associates. 19 Answer: Right. 20 Question: Somebody put your name on 21 this without your knowledge? 22 Answer: It was a study group that I 23 was present for. It doesn't say I wrote those 24 words or even agreed with those words. 25 Question: So you didn't agree with 13219 1 those words? 2 Answer: No. 3 Question: But you let it be known 4 that this was a presentation you were 5 participating in with Mr. Gates, Ballmer, 6 Shirley, Hallman and whoever else was there 7 saying that we have a monopoly on the desktop. 8 And you disagree with that? 9 Answer: Yes, that's correct. 10 Question: Okay. Is it typically your 11 business practice to have things that you don't 12 disagree with have your name associated with -- 13 Answer: I hadn't even started work at 14 Microsoft full time at this point. It wasn't 15 my position to state to Mr. Shirley or whomever 16 authored this document that I disagreed with 17 the particular words here or there in a how 18 many pages document? 19 Question: Must be 10 or 15. 20 Answer: It's more than that. 21 Whatever. 22 Question: So you're just sort of a 23 go-along kind of guy and you wouldn't disagree 24 specifically with a superior. Is that your 25 testimony? 13220 1 Answer: I wouldn't say one way or the 2 other. It depends on the situation. In this 3 situation, I didn't say anything. I was mostly 4 an observer at this event, not a participant. 5 Question: Do you recall this now? 6 You say you didn't say anything. Do you -- 7 Answer: Yeah, I don't even recall 8 this work group. I remember that there won't 9 -- 10 Question: Then how do you know 11 whether or not you agreed or disagreed with 12 this? 13 Answer: I don't recall this 14 particular work group. It was not my view that 15 Microsoft had a monopoly. I didn't author 16 these slides. I didn't give the presentation. 17 My position was primarily as an observer at 18 that point. 19 And there would be times I would agree 20 with things or I wouldn't say some things that 21 I disagree with. Sometimes I would. It 22 depends on the circumstances. It depends on 23 the issue. 24 Question: Any idea who did, in fact, 25 write this presentation up? 13221 1 Answer: No. 2 Question: Okay. You don't have any 3 recall of it actually being presented? 4 Answer: No, I don't. 5 Question: You don't have any recall 6 of this particular slide and when it was 7 presented Mr. Gates saying, whoa, wait a 8 second, you're saying we have a monopoly on the 9 desktop, that's wrong? Do you recall that? 10 Answer: I don't recall one way or the 11 other. 12 Question: You don't recall anything 13 about that? 14 Answer: I don't recall the 15 presentation, that's correct. 16 Question: You don't recall anybody 17 saying -- the second line says, we must keep 18 the desktop. 19 Do you recall that? 20 Answer: You're asking the same 21 question over and over again and getting 22 argumentative about it. I've told you I don't 23 recall participating. I don't remember the 24 study group. I don't recall -- I wasn't even, 25 you know, a full-time member of the company at 13222 1 this point. 2 Question: Why were you invited to 3 attend? 4 Answer: Because I had accepted a 5 position. I hadn't actually started. 6 Question: How many of them attended 7 this executive retreat? 8 Answer: VPs attended. VPs and 9 members of the board of directors were invited. 10 Question: How many people did that 11 add up to? 12 Answer: I don't know. 20 maybe. 13 Question: These are the -- 14 Answer: I had accepted a position as 15 a vice president. This was a retreat for vice 16 presidents and members of the board and I was 17 invited. 18 Question: Are there executive staff 19 retreats every year at Microsoft? 20 Answer: I believe so. 21 Question: What is the purpose of 22 these retreats? 23 Answer: You'd have to ask Mr. Gates. 24 He calls the retreats. 25 Question: Okay. Was direction for 13223 1 the company set? 2 Answer: You'd have to ask Mr. Gates. 3 Question: I'm asking you. 4 Answer: Mr. Gates is the one who sets 5 the direction. 6 Question: Okay. Is the direction of 7 the company discussed at these retreats? 8 Answer: Sometimes. 9 Question: Was it discussed in May of 10 1990? 11 Answer: Yes, it was. 12 Question: Was one of the directions 13 discussed making sure that Microsoft maintained 14 control of the desktop? 15 Answer: Not that I recall. 16 Question: The rest of this deals -- 17 back on the first page, indicating that 18 Microsoft is up in Redmond, IBM is down in, is 19 that Boca Raton? Is that where it's located, 20 the development? 21 Answer: I believe so. 22 Question: So this is talking about 23 the relationship between Microsoft and IBM; 24 correct? 25 Answer: What's this? 13224 1 Question: This presentation. 2 Answer: This whole presentation? I 3 don't know. I didn't read it in enough detail 4 to -- that was one aspect of this presentation 5 based on my just quick perusal of it. I 6 wouldn't characterize that as you just did. 7 Question: How would you characterize 8 it? 9 Answer: I'd have to read this 10 document for a couple of hours to understand 11 it. I can take that time if you'd like me to. 12 Question: No. I actually would just 13 rather clarify for the Jury that it would take 14 you a couple of hours to look at a 20-page 15 document and characterize it? 16 Answer: And digest it all, yes, 17 that's correct. 18 Question: What was the relationship 19 between Microsoft and IBM as of May of 1990? 20 Answer: Influx. 21 Question: Going from what to what? 22 Answer: We didn't know. 23 Question: Where had it been prior to 24 this? 25 Answer: Hard for me to say. I wasn't 13225 1 at the company so I couldn't speak firsthand 2 about the relationship between the two 3 companies. 4 Question: If you go to page X 205848. 5 The top slide says divorce, and I do note in 6 the top left corner it says Microsoft and IBM. 7 What does that mean? 8 Answer: What does it mean? 9 Question: In the context of Microsoft 10 and IBM. 11 Answer: I didn't author this 12 presentation. I can't tell you what the author 13 of this presentation -- 14 Question: You've never heard 15 reference to Microsoft and IBM getting 16 divorced? 17 Answer: That wasn't your question. 18 Question: Okay. 19 Answer: Your question was referring 20 to this presentation. 21 Question: Okay. Were there 22 discussions on this retreat about the pending 23 divorce between Microsoft and IBM? 24 Answer: No. There were discussions 25 about the possibility of divorce. Your 13226 1 question stated as -- 2 Question: I don't need -- 3 Answer: Your question said pending. 4 There was no pending divorce at that point. 5 Question: Okay. Well, was there a 6 formal marriage recognized by the state of 7 Washington? I mean, I'm trying to understand 8 -- 9 Answer: There was no pending divorce 10 at that point. 11 Question: You have heard discussion 12 of the phrase Microsoft and IBM getting a 13 divorce; correct? 14 Answer: At the time Microsoft and IBM 15 had some areas of disagreement. 16 Question: Okay. 17 Answer: And it was discussed the 18 possibility of what a divorce might mean. 19 There was no decision to pursue that path, it 20 was just a possibility that was being 21 considered. 22 Question: Did Microsoft and IBM at 23 this point in time, May 1990, let's say June 24 1990, after you've arrived, have disagreements 25 about the direction for what operating systems 13227 1 should continue to be developed and marketed 2 for personal computers? 3 Answer: There were disagreements, 4 yes, between the two companies. 5 Question: Okay. IBM wanted to 6 continue developing and improving and marketing 7 OS/2; correct? 8 Answer: They did want to do that. 9 I'm not -- I don't know the full nature of the 10 disagreements between the two companies because 11 that was not part of my responsibility. 12 Question: Microsoft as of June 1990 13 wanted to place the development emphasis on 14 Windows; correct? 15 Answer: No, that's not correct. 16 Question: Where did Microsoft want to 17 put the emphasis? 18 Answer: Microsoft's emphasis in June 19 of 1990 was on OS/2 and on NT. 20 Question: Was there a disagreement 21 between Microsoft and IBM about what role 22 Windows would play? 23 Answer: I don't know at that point. 24 Question: Did there ultimately come 25 to be disagreement about that? 13228 1 Answer: Yes. 2 Question: When? 3 Answer: I don't recall when that 4 began. 5 Question: Could have been as early as 6 June 1990? 7 Answer: I don't believe so. 8 Question: Okay. 9 Answer: I don't recall it being then. 10 At that point in Microsoft, 11 Microsoft's operating system strategy was 12 focused around OS/2. 13 Question: Did that strategy change? 14 Answer: A number of years later. 15 Question: Okay. What did it change 16 to? 17 Answer: Ultimately it changed to 18 Windows and Windows NT, but it was -- there was 19 a couple years before that occurred. 20 Question: Okay. You referred just 21 then to Windows and Windows NT. Can you 22 explain for the Jury what the difference -- 23 when you refer to one as Windows and one as 24 Windows NT, what are the distinguishing 25 characteristics of each? 13229 1 Answer: They were different code 2 bases, they were different development teams. 3 Question: And it's something Windows 4 -- when you made the distinction between 5 Windows and Windows NT, am I correct in 6 assuming that when you referred simply to 7 Windows, you're talking about a graphical user 8 interface that runs on top of DOS? 9 Answer: No. I was referring to the 10 Windows 3.1 operating system. 11 Question: Did Windows 3.1 require 12 MS-DOS or some DOS to be of any use to the end 13 user? 14 Answer: Windows 3.1 did require 15 MS-DOS or PC-DOS. 16 Question: Whereas, Windows NT did 17 not? 18 Answer: Windows NT does not. 19 Question: If I ask you as to any 20 particular year about MS-DOS market share, are 21 you going to know an answer? 22 Answer: No, I won't. 23 Question: You're in charge of MS-DOS, 24 but you're not -- you'd have no recall of what 25 market share was? 13230 1 Answer: That's correct. 2 Question: Okay. Were you concerned 3 about whether MS-DOS was doing well or not well 4 in terms of market share? 5 Answer: I was concerned in terms of 6 how well it was doing in terms of popularity or 7 revenue. Market is very broad. 8 Question: Market is very broad? 9 Answer: Yes. 10 Question: Why is that? 11 Answer: Because the market for 12 operating systems is a very broad market. 13 Question: Okay. Have you ever heard 14 of the term MS-DOS market or DOS market? 15 Answer: I don't know. I just heard 16 it right now. 17 Question: Of course, you did. 18 Have you ever heard it from anybody 19 inside Microsoft? 20 Answer: I don't recall. 21 Question: Did you ever hear Brad 22 Chase, Rich Freedman, or Mark Chestnut refer to 23 it? 24 Answer: I don't recall. 25 Question: Okay. So we would be 13231 1 unable to have a conversation about the MS-DOS 2 market because you disagree that there is such 3 a market? 4 Answer: I would define market much 5 more broadly than you would. 6 Question: Okay. What about the 7 Windows market? Would you agree that there is 8 a Windows market? 9 Answer: Similar answer. 10 Question: Similar answer? 11 Answer: Yes. 12 Question: If someone was to refer to 13 having a certain percentage market share of 14 Windows, do you know what that would mean? 15 Answer: I'd have to look at the 16 specific instance and see if I could refer 17 whether the term market was used in a 18 colloquially loose manner or a specific legal 19 manner. 20 Question: Are you a lawyer? 21 Answer: I'm not. 22 Question: Do you work with lawyers 23 frequently? 24 Answer: Not frequently. On occasion. 25 Question: So colloquially within 13232 1 Microsoft people might be talking about high 2 market share and narrowly defining markets, but 3 when it's in a legal sense, then Microsoft, you 4 would define it much more broadly so that the 5 market share looks lower? 6 Answer: No, that's not -- you're 7 putting words in my mouth. 8 Question: No, I'm just giving you a 9 statement and you can tell me you disagree with 10 it or not. 11 You disagree with that? 12 Answer: I disagree with that, yes. 13 Question: But you did just say that 14 colloquially within Microsoft sometimes people 15 refer to -- 16 Answer: It's possible, yes. On 17 occasion it's possible, yes. 18 Question: Let me hand you what's been 19 marked as Exhibit 1701. 20 And please take some time to refresh 21 yourself on this. 22 Answer: Okay. 23 Question: Okay. This is an e-mail 24 from within Microsoft; correct? 25 Answer: That's what it appears to be. 13233 1 Question: Okay. 2 Answer: I have no recollection of the 3 document. 4 Question: Okay. I'm going to 5 represent to you that I didn't type this up 6 myself and sign your name to it; okay? 7 Answer: I wasn't the author of it. 8 Question: Well, you forwarded it to 9 somebody. And it does indicate at the very 10 top, from Brad Silverberg to richt; correct? 11 Answer: That is correct. 12 Question: Brad Silverberg is you? 13 Answer: There is some other things 14 that were forwarded. And I was not the author 15 of, correct? 16 Question: And I'm getting to that, 17 but I'm just -- below that, then, is from Paul 18 Maritz to Bradc, which that's your e-mail? 19 Answer: Bradsi. 20 Question: Bradsi, is that -- 21 Answer: Bradc is Brad Chase. 22 Question: Bradc is Brad Chase. Brad 23 squared is when we refer to both of you, I 24 guess. 25 Joachimk is Joachim Kempin; correct? 13234 1 Answer: I'm sorry. 2 Question: Joachimk is Joachim Kempin? 3 Answer: That's correct. 4 Question: Who is in charge of OEM 5 sales? 6 Answer: I believe so. 7 Question: And Mikemap is Mike Maples? 8 Answer: Mike Maples, yes. 9 Question: Steveb is Steve Ballmer? 10 Answer: Steve Ballmer, yes. 11 Question: All executives; correct? 12 Answer: Yes. 13 Question: And Paul Maritz, what is 14 his -- 15 Answer: Maritz. 16 Question: I'm sorry, Paul Maritz. 17 And this is dated in February of 1993. 18 At that time what was Paul Maritz's 19 position, if you recall? 20 Answer: I'm not sure, not 100 percent 21 sure. 22 Question: Did you report to him at 23 the time? 24 Answer: It's possible. I did report 25 to him sometime in 1993. I don't recall at 13235 1 what point I began reporting to him. 2 Question: But he was an executive of 3 Microsoft at that time; correct? 4 Answer: Yes, he was. 5 Question: An officer; correct? 6 Answer: Yes, he was. 7 Question: And who is Richt? That's 8 who you're forwarding this to. Is that Rich 9 Tong? 10 Answer: Richt would be Rich Tong, 11 yes. 12 Question: And is he a marketing 13 person? 14 Answer: He was a marketing person, 15 yes. 16 Question: For Windows; correct? 17 Maybe some other things too, but at least for 18 Windows? 19 Answer: I don't know what his 20 position in 1993 was. 21 Question: And you're forwarding it 22 saying this is perfect for Lizw. Do you know 23 who Lizw is? 24 Answer: Liz Welch. 25 Question: And who was she? 13236 1 Answer: I don't know what her 2 position at the time was. 3 Question: Was she a PR person or 4 marketing? I mean, I have no idea who she is, 5 so I'm just wondering what type of 6 responsibilities she had. 7 Answer: At that point I have no idea 8 either. 9 Question: What ultimately -- what 10 familiarity do you have with any of her 11 responsibilities at any point in time? 12 Answer: Well, when I first joined the 13 company, she was a marketing person somewhere 14 in Word, I think. And today I think she has 15 something to do with educational sales. What 16 she did in between, I have no recollection. 17 Question: Mr. Maritz's e-mail to you 18 and to others begins, the following trends are 19 fairly obvious for systems software revenues in 20 the coming years. 21 1, Windows has become an OEM 22 phenomenon. We have 80 percent plus market 23 share. 24 Do you have any idea what he was 25 referring to there? 13237 1 Answer: You'd have to ask Mr. Maritz. 2 I don't know what he means there. 3 Question: Do you recall e-mailing him 4 back and saying what do you mean by 80 percent 5 plus market share for Windows? 6 Answer: No, I don't recall not doing 7 it either. 8 Question: Do you -- considering -- 9 sitting here now in 1998 thinking back on 10 February 1993, do you think that Windows had 80 11 percent plus market share? 12 Answer: No. 13 Question: And what basis do you have 14 for believing that it did not have 80 percent 15 plus market share? 16 Do you recall percentages? 17 Answer: I don't recall specific 18 percentages. I don't believe -- well, first of 19 all, I don't believe Mr. Maritz was correct in 20 terms of the rate of adoption by OEMs of 21 Windows at that point. 22 I don't think as many -- my 23 recollection is not as many OEMs as perhaps he 24 may be trying to represent here was true. 25 The Macintosh was very popular in 13238 1 1993. 2 There's still OEMs who are shipping 3 their machines without Windows on it. IBM was 4 shipping quite a number of machines with OS/2. 5 There were many other operating 6 systems that were shipping. That Microsoft 7 share, the percentage of Windows compared to 8 that was not anywhere close to 80 percent. 9 Question: When you say it was not 10 anywhere close to 80 percent, what was it close 11 to, in your opinion? 12 Answer: I wouldn't want to hazard a 13 guess without data. 14 Question: Okay. You can't -- but 15 you're confident it wasn't 80 percent? 16 Answer: It doesn't seem right at all 17 to me, no. That's correct. 18 Question: Mr. Silverberg, when you 19 started at Microsoft in June of 1990, did you 20 have an opinion about the quality of MS-DOS as 21 a product at that time? 22 Answer: Yes, I did. 23 Question: What was that opinion? 24 Answer: Low. 25 Question: Why is that? 13239 1 Answer: Well, MS-DOS 4, PC-DOS 4 were 2 flops in the market, and deservedly so. 3 Question: And -- well, go ahead if 4 you want to continue on. 5 Answer: Customers didn't buy it. 6 OEMs didn't pick it up. 7 Question: And do you know why -- 8 Answer: Got bad reviews. 9 Question: Do you know why that is, 10 that customers and OEMs weren't buying it? 11 Answer: I had my opinions. 12 Question: Okay. Can you give me your 13 opinions? 14 Answer: Eight years later, I can't 15 recall them all. They're ancient history. 16 Question: Okay. I'm going to hand 17 you some ancient history that has been marked 18 as Exhibit 1702, and your name is on the first 19 page. 20 Please take a moment to glance through 21 it. 22 Do you recall this document? 23 Answer: No, I do not. 24 Question: Okay. Before we continue 25 with this document, were you aware when you 13240 1 started at Microsoft of Digital Research and 2 its efforts in trying to bring versions of 3 DR-DOS to the market? 4 Answer: Can you restate the question? 5 Question: I take it in June of 1990 6 you knew who Digital Research was? 7 Answer: I've heard of Digital 8 Research, yes. They were a CP/M. 9 Question: They also wrote DR-DOS; 10 correct? 11 Answer: Yes, they did. 12 Question: Okay. When you started at 13 Microsoft in June of 1990, were you aware of 14 DR-DOS? 15 Answer: I don't know. 16 Question: Don't recall whether you 17 ever even had heard of it at that point? 18 Answer: I may have heard of it, yeah. 19 It's possible. 20 Question: I mean, when I use the term 21 DR-DOS, you know what I'm talking about, don't 22 you? 23 Answer: In 1998, yes. 24 Question: Okay. Well, in 1991, you 25 knew what DR-DOS was; correct? 13241 1 Answer: Yes. 2 Question: Okay. If you'll look at 3 the third page of what was marked as Exhibit 4 1702. 5 Answer: I didn't see the word DR-DOS 6 in this presentation in my quick reading of it, 7 though. 8 Question: I didn't -- it's not in 9 this presentation, to my knowledge. I'm just 10 asking you some questions about it. 11 There's a page here that says -- 12 Answer: Which page are we on? 13 Question: Third page, MS7019565, and 14 it's got some pictures on it. Actually, I 15 guess we need to clarify some things about this 16 document. 17 You don't recall this document, I 18 believe you said? 19 Answer: That is correct. 20 Question: Do you recall when you 21 might have given this presentation? 22 Answer: I don't recall this document. 23 I don't recall whether it was ever presented. 24 You made an assumption that there was a 25 presentation given. I don't recall whether 13242 1 that occurred or not. 2 Question: When you -- 3 Answer: I notice the document isn't 4 dated. 5 Question: It's not dated. 6 Answer: Or I didn't see a date on it. 7 Question: Now, are these -- this type 8 of document, we looked at the previous exhibit 9 and we agreed, I believe, that it was a 10 Microsoft e-mail. 11 Answer: Which one? 12 Question: Exhibit 1701. It's this 13 one here. 14 Answer: This one here? 15 Question: Yeah. That's an e-mail. 16 It's not a letter. It's not a whatever. It's 17 an e-mail, correct, that's been printed off, 18 and that's why it looks like that; right? 19 Answer: That is correct. 20 Question: This type of document that 21 has these slides, I take it that this is a hard 22 copy of slides that could be used for an 23 overhead projector or something like that if 24 they were on transparent sheets; correct? 25 Answer: It could be used for that. I 13243 1 don't know that's what it was used for. It 2 appears to me it may have been a PowerPoint 3 presentation, which doesn't require 4 transparencies. It could have just been notes 5 to myself. I don't know. 6 Question: Okay. But a PowerPoint 7 presentation, what is PowerPoint? Explain to 8 the Jury what that is. 9 Answer: PowerPoint is a program 10 developed and sold by Microsoft for producing 11 -- one of the uses is for producing 12 presentations. 13 Question: Okay. And when you prepare 14 something with PowerPoint -- 15 Answer: It may be for your own use 16 also. 17 Question: Correct, you can prepare it 18 for your own use and put it in your files. 19 But one of the uses is to prepare 20 things so that you can present it to large 21 audiences and perhaps have speaking points to 22 work from; correct? 23 Answer: Or small audiences or to 24 nobody, that's right. 25 Question: Correct. All right. So 13244 1 the third page says, your old DOS. Whether 2 this was -- are you in the habit of making -- 3 using PowerPoint to put graphical things on a 4 PowerPoint presentation and then just tucking 5 it away in your files? Is that something you 6 do as a business practice? 7 Answer: I have done, sure. 8 Question: So, in fact, that might be 9 all this is? You might have put Brad 10 Silverberg, vice president systems on the first 11 page and then done a little presentation to 12 yourself and put it in your files; correct? 13 Answer: That is correct. Since I 14 don't recall the document, I can't tell you how 15 it was ever used, if it was ever used. 16 Question: And, in fact, I mean, do 17 you suspect having reviewed this that somebody 18 else prepared it and simply put your name on 19 top of it? Is that a suspicion that you might 20 have? 21 Answer: It's certainly a possibility. 22 It has happened numerous times where people do 23 prepare presentations, put my name on it. 24 Sometimes I don't ever see it. And it may have 25 been filed away. I don't know. 13245 1 Question: I mean, is that something 2 that runs rampant at Microsoft, that people put 3 their names on other people's stuff and file it 4 away or circulate it? 5 Answer: That's a silly question. 6 Move on to the next question. 7 Question: I'm going to ask you the 8 question again and I'll ask you to answer it. 9 Answer: Sometimes people will prepare 10 presentations for other people to give and 11 sometimes a presentation may be cancelled and 12 maybe plans change and never be given. 13 Question: On the third page there's a 14 picture, and correct me if I'm wrong, it looks 15 like a face of a pig, a typewriter and a bottle 16 of poison. 17 Any idea having reviewed this document 18 what that might mean? 19 Answer: Well, when I read this 20 document just now, I had a feeling what the pig 21 stood for. I didn't know what the typewriter 22 or the bottle stood for. 23 Question: What do you think the pig 24 stands for? 25 Answer: The pig -- I think the pig 13246 1 pretty well in my mind stands for MS-DOS and 2 PC-DOS 4 were pigs, memory pigs. 3 Question: Memory hogs? 4 Answer: Among other things. They 5 were just pigs. 6 Question: Slow? 7 Answer: They were slow, memory hogs. 8 Just products, like I said, I didn't think very 9 highly of them. 10 Question: Okay. You may have guessed 11 I'm not in the software business. Is that a 12 term of art, whether derogatory or not, if you 13 call some other software a pig -- 14 Answer: I don't recall this drawing. 15 Question: Oh, derogatory. But if you 16 say something is a pig and you're referring to 17 software, does that have a special meaning 18 that's understood by software people? 19 Answer: I wouldn't say it has special 20 meaning. I mean, it's a pig. It's a memory 21 hog. That's one aspect of it. It's certainly 22 rarely a sign of affection. 23 Question: Okay. And so it says your 24 old DOS, a pig. And that is in line with your 25 opinion about old versions of DOS when you came 13247 1 on board at Microsoft; correct? 2 Answer: No. 3 Question: MS-DOS 4.0? 4 Answer: MS-DOS 4. 5 Question: And that's all? 6 Answer: Yes. 7 Question: Okay. And that was the 8 most recent version that had been developed and 9 brought to market by both Microsoft and IBM; 10 correct? 11 Answer: I think 4.1 was -- 12 Question: Is it 4.1 or 4.01 was 13 Microsoft's? 14 Answer: I remember it as 4.1. 15 Question: Okay. 4.X, whatever. 16 Version 4 was the one that had currently been 17 brought to market? 18 Answer: That was the one that had 19 been made available to customers. 20 Question: Okay. Who had primarily 21 designed and coded MS-DOS 4? 22 Answer: It was developed before I was 23 at Microsoft. My understanding is that it was 24 developed primarily by IBM. 25 Question: Okay. 13248 1 Answer: MS-DOS 4 was. And Microsoft 2 made some changes, some improvements for MS-DOS 3 4.X, whatever that X is. X not equals zero. 4 Question: And the typewriter; do you 5 have an understanding or an opinion about what 6 that might mean in the context of its use in 7 this document? 8 Answer: I'd have to -- you know, I'd 9 have to read this document more carefully. 10 Otherwise, it would just be a speculation. 11 Question: Okay. I saw noted a little 12 bit later on a page, MS7019572, it's referring 13 to ease-of-use utilities. 14 Answer: Are you asking me to look at 15 that page? 16 Question: Yeah, would you look at 17 that page, please? It's where I also see a 18 typewriter graphic. 19 Answer: This page here? 20 Question: Yeah. Ease-of-use 21 utilities, was that a goal for MS-DOS 5? 22 Answer: Having ease-of-use utilities 23 was a goal for MS-DOS 5, yes. 24 Question: Did you have an opinion 25 whether MS-DOS, PC-DOS 4 or MS-DOS 4.1 was not 13249 1 easy to use? 2 Answer: Certainly the shell in MS-DOS 3 4, PC-DOS 4 was poor and it was lacking these 4 other ease-of-use utilities. These were all 5 new. 6 Question: And then the last graphic 7 back on that third page, which is also there, 8 is that a bottle of poison, or do you have an 9 understanding of what that might be? 10 Answer: Could be. 11 Question: It's got a skull and 12 crossbones on a bottle. 13 Answer: It could be medicine, just 14 medicine. Not necessarily poison. 15 Question: With a skull and 16 crossbones, okay. 17 Do you have any idea what that means? 18 Answer: Only from what I see here, 19 no. It refers to some additional capabilities 20 -- this page with this picture refers to some 21 capabilities we put in MS-DOS 5. 22 Question: Okay. Was MS-DOS 5.0 when 23 it shipped a bug-free product? 24 Answer: No. 25 Question: Is there really such a 13250 1 thing in the software industry as a bug-free 2 product? 3 Answer: I'm not aware of any products 4 that are -- 5 Question: I mean, when a product -- 6 I'm sorry. 7 Answer: -- 100 percent totally 8 bug-free. 9 Question: Okay. Microsoft, in fact, 10 shipped MS-DOS 5.0 knowing that there were some 11 bugs in it, correct, Mr. Silverberg? 12 Answer: Yes. 13 Question: Did you say yes or I guess? 14 Answer: Yes. 15 Question: Why did you ship it knowing 16 there were bugs in it? 17 Answer: Going back to your previous 18 statement, there's no such thing as a product 19 without any bugs, as a software product without 20 any bugs. 21 Question: But you knew there were 22 some bugs in there? When it was going to be 23 released, you knew there was going to be some 24 bugs? 25 Answer: Yes. 13251 1 Question: Why didn't you have those 2 bugs fixed? 3 Answer: As with any software product, 4 you can't fix everything. You'll never ship 5 any product. No product in the history of 6 software will ever have shipped if every known 7 bug was fixed. 8 You have to make a judgment call in 9 terms of which ones are appropriate to fix and 10 which ones are not. 11 Question: Which ones are appropriate 12 to fix? 13 Answer: The ones -- again, it 14 involves judgment calls. You can't know 15 everything that your product is running on. 16 You can't anticipate every scenario, 17 every eventuality, every piece of hardware that 18 may be developed after the product is shipped, 19 every application that may be developed after 20 it shipped. You can't know all those things 21 ahead of time. 22 The ones -- the bugs that we are most 23 concerned about are ones that cause data loss. 24 Question: Who is Mike Dryfoos? 25 Answer: Mike Dryfoos was a 13252 1 development manager for MS-DOS. 2 Question: Okay. And was he in charge 3 of overseeing and resolving bug fixes with 4 MS-DOS 5.0 as it was getting ready for 5 shipping? 6 Answer: I don't know. 7 Question: Okay. Was he in charge of 8 making the call as to what bugs would get fixed 9 and what bugs didn't get fixed? 10 Answer: Some occasion, yes; some 11 occasion, no. 12 Question: Who did that call usually 13 go to? 14 Answer: There was a group called 15 DOSwar that had that responsibility 16 collectively. 17 Question: And I think we've 18 established that a severe bug is one that leads 19 to data loss; correct? 20 Answer: I would characterize a bug 21 that causes data loss as a severe bug, yes. 22 Question: What other -- 23 Answer: I would characterize a 24 cosmetic bug as not a severe bug. 25 Question: What's a cosmetic bug? 13253 1 Answer: Oh, a pixel off here or 2 there, and off by one error in terms of 3 displaying some information. 4 Question: And for the Jury, a pixel 5 being what? 6 Answer: An element on the screen, a 7 bit of color or light, one element. The screen 8 may be 640-byte, 480 pixels wide or whatever. 9 Just something that's painted. Like this 10 picture of a pig, I would consider that a 11 cosmetic bug. 12 Question: Okay. What is it that 13 causes bugs to exist in a product? 14 Answer: Many, many reasons causes the 15 bugs to exist. I mean, you could spend a year 16 studying the causes of bugs. 17 Question: I mean, does it mean that 18 there's a coding problem? 19 Answer: Perhaps. 20 Question: What else could it mean? 21 Answer: Faulty assumption, timing 22 problems, not understanding hardware, not 23 understanding software properly, not 24 understanding what another piece of code that's 25 supposed to interact with does. It's a fairly 13254 1 loose term. 2 Question: Does the likelihood of a 3 bug occurring increase as features are added? 4 Let's refer specifically to operating systems. 5 As features are added to an operating 6 system, does the likelihood of encountering 7 bugs increase or decrease? 8 Answer: Not necessarily. 9 Question: Okay. Would that just 10 depend on how careful coders are and the amount 11 of time they have to work on the product? 12 Answer: That would be one factor. I 13 wouldn't characterize the issue. 14 Question: As features are added to an 15 operating system, does it become more complex? 16 Answer: Can be. It depends on 17 whether -- it can be. 18 Some have to do with the design of the 19 product itself, how well it anticipated the 20 future. 21 (Whereupon, playing of the video 22 adjourned.) 23 THE COURT: We'll take our recess at 24 this time for ten minutes. 25 Remember the admonition previously 13255 1 given. 2 All rise. 3 You can leave your notebooks here. 4 (A recess was taken from 9:48 a.m. 5 to 10:02 a.m.) 6 THE COURT: Everyone else may be 7 seated. 8 Please continue, sir. 9 (Whereupon, the following video was 10 played to the jury.) 11 Question: After MS-DOS 5.0 shipped, 12 Microsoft released an update called MS-DOS 13 5.0a; correct? 14 Answer: I believe so. 15 Question: And that was a silent 16 update, as Microsoft terms it? 17 Answer: I don't recall. 18 Question: Were bugs fixed in MS-DOS 19 5.0a? 20 Answer: I don't recall what the 21 contents of 5.0a was. 22 Question: Why was it called 5.0a? 23 Answer: Because it wasn't 5.0. 24 Question: I know, and it wasn't 5.1, 25 was it? 13256 1 Answer: Yeah, I don't recall the 2 reasons. 3 Question: All right. Now, I believe 4 you testified that data loss is the most severe 5 bug that software could have; correct? 6 Answer: I don't think I'd put it in 7 those words. I said data loss is a severe bug, 8 yes. 9 Question: Okay. What's the most 10 severe? 11 Answer: Well, a bug that would fry 12 your hardware would be worse than that. 13 Question: Okay. Short of something 14 that actually corrupts the hardware, is there 15 anything that would be more troubling to an end 16 user, in your opinion, than the loss of data? 17 Answer: It depends on the extent of 18 the loss of data. Data loss is a severe 19 problem, I'll grant you that. I don't want to 20 engage in a debate over how severe it is. It's 21 a severe problem, yes. 22 Question: Okay. When MS-DOS 6.0 23 shipped, users were experiencing data loss; 24 correct? 25 Answer: No. 13257 1 Question: They were not? 2 Answer: That's correct. 3 Question: No users experienced data 4 loss? 5 Answer: There were reports of it, 6 reports that we were not able to confirm. 7 Question: Okay. So if somebody 8 reported to you that there was instances of 9 data loss after MS-DOS 6.0 shipped, that was in 10 error? 11 Answer: No. When people called us, 12 you know, if they heard, you know, they claimed 13 there was data loss, it was something we took 14 extremely seriously. We had people 15 investigating it. We weren't able to determine 16 the cause of their data loss and whether MS-DOS 17 6 was the source of that loss or not, of that 18 alleged loss even. 19 Question: Okay. And so in your 20 opinion -- well, would it also be your 21 testimony, then, that when Microsoft shipped 22 MS-DOS 6.2, that was not to correct bugs that 23 were in MS-DOS 6.0? 24 Answer: The purpose was to correct 25 the perception that there were problems with 13258 1 MS-DOS 6. 2 Question: What does that mean? 3 Did you just slap a new label on it 4 and say we've fixed the problems and so don't 5 worry about it anymore, and, in fact, had done 6 nothing to it? 7 Answer: We didn't do much. 8 Question: But you told people that 9 you did? 10 Answer: We told people to test it. 11 We made -- we added a couple utilities. We 12 were never able to find the source of what 13 people claimed were data loss errors. We've 14 renamed the version, and lo and behold, the 15 people who said there were problems with MS-DOS 16 6.0 now said those problems didn't exist with 17 MS-DOS 6.2. It was quite amazing to watch. 18 Question: So there were no reports of 19 data loss problems with MS-DOS 6.2; that's your 20 testimony? 21 Answer: Not that I can recall. 22 Question: Okay. 23 Answer: I know that the magazine that 24 complained the most about problems with MS-DOS 25 6.0 said there were no problems with MS-DOS 13259 1 6.2. 2 Question: And that would be 3 Infoworld? 4 Answer: That magazine would be 5 Infoworld, yes. 6 Question: Let me hand you what's 7 marked as Deposition Exhibit 1704. 8 Answer: Okay. 9 Question: Mr. Chase was a direct 10 report to you at this point in time, correct, 11 May 1993? 12 Answer: Yes, he was. 13 Question: And he was product manager 14 for MS-DOS 6; correct? 15 Answer: That was among his 16 responsibilities, yes. 17 Question: Okay, yeah. 18 He reports -- now, this e-mail, again, 19 is a thread, and the first on the thread is 20 from Mr. Chase to you, Mr. Maples, and 21 Mr. Maritz, and he's cc'ing Bill Gates, Steve 22 Ballmer and some others. 23 This first sentence says, we have 24 completed the thorough analysis of the PSS 25 data. 13260 1 What is PSS? 2 Answer: PSS, product support. 3 Something or other, I don't know. Tech 4 support, product support. 5 Question: Would -- I mean, what is 6 the PSS division of Microsoft? 7 Answer: It was a division, product 8 support. 9 Question: Which means what? 10 Answer: Technical support. 11 Question: For end users to call in or 12 -- 13 Answer: Among other things, yes. 14 Question: Who else? 15 Answer: Corporations, OEMs, partners. 16 Question: Were calling in for 17 technical support on Microsoft products; 18 correct? 19 Answer: They may call in. They may 20 send e-mail. They may have other relationships 21 with other company. 22 Question: The third paragraph of 23 Mr. Chase's e-mail says, the current number of 24 US MS-DOS 6 upgrade customers losing data (full 25 or partial) is about 3 in 1,000. 13261 1 Do you recall whether that's accurate 2 or not? 3 Answer: No. 4 Question: Do you have a reason to 5 dispute Mr. Chase in his estimation of how much 6 full or partial data loss was occurring at this 7 point in time following the shipment of the 8 MS-DOS 6 upgrade? 9 Answer: My impression is I would 10 characterize that as people who are claiming to 11 have lost data. 12 Question: Mr. Chase goes on in that 13 paragraph to say, this number includes 14 customers who lose data because of crosslinked 15 files, a number that may be no different than 16 MS-DOS 5, but is something double space users 17 are more aware of because we automatically 18 report it when we detect it. 19 With any other version of MS-DOS, you 20 essentially have to run with -- is that check 21 disk? 22 Answer: I'm sorry. I'm not following 23 what you're saying. Are you reading something 24 from this? 25 Question: Yeah. I didn't mean to 13262 1 bore you with it. Why don't we start over. 2 Answer: Which paragraph are you 3 reading? You didn't say which paragraph. 4 Question: Third paragraph. 5 Answer: Okay. 6 Question: Third sentence. 7 This number includes customers who use 8 data because of crosslinked files, and then he 9 goes on. So let's just focus on that. 10 Answer: Okay. 11 Question: Are you saying that -- is 12 Mr. Chase there reporting that customers have 13 actually lost data or not? 14 Answer: I think Mr. Chase is 15 reporting people who may have already lost data 16 and weren't aware of it. 17 Question: The next paragraph he says, 18 we have a meeting set up with you to review the 19 data and recommendations. 20 About 40 to 60 percent of the problems 21 are either things we will never be able to fix 22 (for example, we can't do anything about the 23 person whose hard disk is about to go bad and 24 they run defrag and double space and it is the 25 catalyst that sends the disk to hard drive 13263 1 heavy) or problems that defy explanation even 2 given our considerable research. 3 You would agree that that is at least 4 acknowledging that problems do exist, wouldn't 5 you? 6 Mr. Silverberg, is Mr. Chase talking 7 about actual problems or mere perception? 8 Answer: You would have to ask 9 Mr. Chase. 10 Question: Because you have no -- did 11 he make it a habit of sending things to you 12 that made no sense or didn't have anything to 13 do with the products he was in charge of? 14 Answer: Mr. Chase could be referring 15 to problems with the hard disk problems that 16 already existed, preexisting conditions on that 17 person's personal computer. 18 He could be referring to a number of 19 things and was referring to those things, as 20 the previous paragraph describes. Those 21 problems already existed and MS-DOS 6 just 22 reported it, and then people said MS-DOS 6 23 caused it. I would call that a perception 24 problem. 25 Question: Do you recall anything 13264 1 about the decision to do an update to MS-DOS 6 2 after it shipped? 3 Answer: Yes. I recall that we 4 decided to ship some utilities which basically 5 told the customer you already have a 6 preexisting condition problem, and so we did 7 that. 8 And we looked at the code over and 9 over and over again and didn't find any 10 problems in the double space code that would 11 cause data loss errors. 12 Question: So it wasn't a problem with 13 a Microsoft product, it was a problem with -- 14 it was the customer's problem, not Microsoft's 15 problem; is that what you're saying? 16 Answer: The customer may have had a 17 and very often did have a preexisting condition 18 where their computer already had desktop loss 19 errors, already had crosslinked files. 20 And then once you get the situation 21 where people are starting to blame MS-DOS 6, 22 you know, we saw people just blaming MS-DOS 6 23 for eczema. It became a negative perception 24 problem and we had to respond to it. 25 I mean, we were very concerned about 13265 1 actual data loss customers were having and we 2 wanted to do everything we could to help warn 3 them to let them know you may already have a 4 problem before you even touch MS-DOS 6. 5 And that's the primary effort that was 6 involved in MS-DOS 6, or the utilities, to warn 7 them they had crosslinked files already. 8 Question: Did Microsoft ship an 9 MS-DOS 6.0a? 10 Answer: No, it did not. 11 Question: Mr. Chase says in the last 12 paragraph on the first page of Exhibit 1704, 13 with this data, I now think we should do an 14 MS-DOS 6.0a. The objective is to reduce data 15 loss problems and help customers. 16 So an MS-DOS 6.0a was not shipped? 17 Answer: That is correct. 18 Question: And, instead, Microsoft 19 shipped MS-DOS 6.2? 20 Answer: Microsoft shipped MS-DOS 6.2. 21 Question: And there continued to be 22 reports of data loss problems with MS-DOS 6.2; 23 correct? 24 Answer: Not that I recall. 25 I recall Infoworld said the product is 13266 1 fine. It's all fixed. 2 Question: Let me hand you what's been 3 marked as Exhibit 1705. 4 Answer: Okay. 5 Question: Okay. Do you recall this 6 e-mail? 7 Answer: No, I do not. 8 Question: Again, it's a thread. The 9 top of it indicates that Brad Chase is 10 forwarding something to you and Mr. Maritz; 11 correct? 12 Answer: Yes. 13 Question: Subject: FW. That stands 14 for forward; right? 15 Answer: FW stands for forward, right. 16 Question: Confirmed data loss 17 problems in MS-DOS 6.0/6.2. 18 Did I read that correctly? 19 Answer: Yes, you did. 20 Question: Okay. And what Brad Chase 21 is forwarding to you is the e-mail below which 22 was from Eric Straub to Brad Chase; correct? 23 Answer: Apparently, yes. 24 Question: Okay. Who is Eric Straub? 25 Answer: Eric Straub was a product 13267 1 manager on MS-DOS -- no, a program manager, 2 excuse me, strike that. Program manager. 3 Question: What's the difference 4 between program manager and product manager? 5 Answer: Well, it tends to be program 6 managers are involved in the product 7 definition, product production and development 8 of the software; whereas, product managers tend 9 to be more focused on the marketing. But not a 10 hard and fast distinction. 11 Question: Okay. His first sentence 12 says, we now have three confirmed data loss 13 problems in MS-DOS 6.2, and he lists them. 14 I take it you have no recall of these 15 data loss problems being reported to you? 16 Answer: That's correct. 17 Question: Did 6.2, MS-DOS 6.2a ever 18 get shipped? 19 Answer: I don't know. 20 Question: What was the last version 21 of MS-DOS to ship, if you recall? 22 Answer: Don't know, don't know. 23 Question: I note that he says, Eric 24 Straub, of the three confirmed data loss 25 problems he's reporting, he states, Number 2 is 13268 1 kernel bug, which has been in since MS-DOS 5, 2 but was never encountered until we did 3 automount. 4 Do you have any idea what that means? 5 Answer: I don't know what automount 6 is. 7 Question: Okay. Are you familiar 8 with the term vaporware, Mr. Silverberg? 9 Answer: With the term vaporware. 10 I've heard the term used. 11 Question: Do you have an 12 understanding what it means? 13 Answer: Why don't you tell me what 14 you think it means and I'll tell you whether I 15 agree with that definition, because it can mean 16 many different things in different contexts. 17 Question: Okay. I'd like to get all 18 the different meanings that it can have as far 19 as you're concerned. 20 What different things can vaporware 21 mean? 22 Answer: Again, it can mean many 23 different things. Sometimes a company may 24 announce a product that it has never -- it 25 hasn't developed yet. Sometimes people use it 13269 1 to refer to products which are in development, 2 actually may even be in the beta test, but 3 somebody calls it vaporware because it's not 4 commercially available yet. 5 At times it may be referred to as a 6 presentation of future directions. It can mean 7 many different things depending on the context 8 and the intentions of the person using the 9 term. 10 Question: Is there a difference 11 between the term vaporware and product 12 preannouncement, in your opinion? 13 Answer: Yes. 14 Question: Okay. What is a product 15 preannouncement? 16 Answer: It could also mean many 17 things. 18 Question: Okay. 19 Answer: You may be informing 20 customers or partners of products before 21 they're actually shipped, give you a sense of 22 future direction, get feedback on product 23 ideas. 24 Question: Does Microsoft ever make 25 preannouncements to freeze OEMs and ISVs in 13270 1 their product plans? 2 Answer: No. 3 Question: Were you aware of Microsoft 4 ever engaging in preannouncement of MS-DOS 5 products to stall market acceptance of DR-DOS 6 products? 7 Answer: To stall market adoptance of 8 DR-DOS products? Not put that way. 9 Question: When you started at 10 Microsoft in June of 1990, what was the status 11 of development of MS-DOS 5.0? 12 Answer: When I started it had 13 recently gone to beta, first beta. 14 Question: Had MS-DOS 5.0 been 15 announced at that point? 16 Answer: Certainly the act of going to 17 beta announces a product. 18 Question: Had Microsoft indicated 19 when that product would be available to end 20 users? 21 Answer: I don't recall. 22 Question: Had Microsoft stated, to 23 the best of your recollection, that MS-DOS 5.0 24 would be available by the end of the year, the 25 year being 1990? 13271 1 Answer: My recollection is that our 2 expectation was that it would be available 3 then. 4 When I started, that's when the deputy 5 told me they thought the product would ship by. 6 Question: And had Microsoft -- 7 persons at Microsoft been communicating that to 8 the media, those expectations? 9 Mr. Holley: At what time? 10 Question: June 1990. 11 Answer: I don't recall. 12 Question: Okay. The first beta that 13 had gone out, did it have all of the features 14 included that were in the final version of 15 MS-DOS 5.0? 16 Answer: No, it did not. 17 Question: Do you recall what features 18 were added? 19 Answer: Quite a number of features 20 were added. I couldn't recall all of them. 21 Question: Can you recall any of them? 22 Answer: Yes. 23 Question: Okay. Will you please do 24 so? 25 Answer: We added undelete, we added 13272 1 the inclusion of network redirectors. And we 2 substantially improved the memory management. 3 Those are the ones I recall off the top of my 4 head. 5 Question: Do you know when DR-DOS 5.0 6 was released? 7 Answer: No. Sometime in 1990, I 8 would guess. 9 Question: Okay. Were you aware of 10 the features that were included in DR-DOS 5.0? 11 Answer: June 1990. I don't know what 12 awareness I had of particular features. I was 13 probably aware of the existence of the product. 14 I don't know if I knew what the specific 15 features of DR-DOS was at that time. 16 Question: Features were added -- 17 Answer: I don't know if DR-DOS was 18 shipping then, the new DR-DOS 5, I don't know 19 what the current version at that time was. I 20 don't know. 21 Question: Features were added to 22 MS-DOS 5.0 after the first beta specifically in 23 response to the features that were shipping in 24 DR-DOS 5.0; correct? 25 Answer: Features were added to MS-DOS 13273 1 5 to make it a more attractive product, 2 including responding to some features that may 3 have been in DR-DOS, but not restricted to 4 that. 5 Question: Some of the features that 6 Microsoft added after the first beta of MS-DOS 7 5.0 added features that were in the shipping 8 version of DR-DOS 5.0; correct? 9 Answer: That were similar to features 10 that DR-DOS may have had. 11 Question: Okay. 12 Answer: I won't say the same. I'll 13 say maybe similar. 14 Question: Were those features added 15 to compete with DR-DOS 5.0? 16 Answer: They were added to make 17 MS-DOS 5 a more attractive product, sell more 18 product. 19 Question: By more attractive, do you 20 mean more attractive to OEMs, to end users? 21 Answer: Including end users, OEMs, 22 potential users. 23 Question: Did adding features impact 24 the anticipated delivery date of MS-DOS 5.0? 25 Answer: It was one factor that did, 13274 1 yes. 2 Question: I take it by that answer 3 the delivery date for MS-DOS 5.0 did slip? 4 Answer: Yes, it did. 5 Question: Was that communicated to 6 OEMs directly, the fact that it was slipping? 7 Answer: I don't recall. 8 Question: Do you recall disclosures 9 being made to the media so that end users would 10 know that the product was slipping? 11 Answer: I don't recall. 12 Question: Okay. Do you recall there 13 being an accusatory article in PC Week that 14 Microsoft had preannounced MS-DOS 5.0 to 15 forestall sales and market acceptance of DR-DOS 16 5.0? 17 Answer: I don't recall the accusation 18 is false, but I don't recall the article. 19 Question: I'm sorry? 20 Answer: That accusation you just made 21 is false, but I don't recall the article. 22 Question: I'll hand you what has 23 previously been marked as Deposition Exhibit 24 907. This was marked and used in prior 25 depositions. 13275 1 This is a PC Week article from October 2 22, 1990, entitled Microsoft outlines DOS 5.0 3 to ward off DR-DOS, and it's by Paul Sherer. 4 Please take some time to review it. 5 Answer: Okay. 6 Question: Do you recall this article 7 now? 8 Answer: No. 9 Question: Do you recall writing a 10 letter to the editor about this article? 11 Answer: No. 12 Question: Okay. The second to the 13 last paragraph states, Microsoft vice president 14 Brad Silverberg denied that the company was 15 using openness as a ploy against DR-DOS. 16 Do you remember making comments like 17 that or being interviewed to that effect? 18 Answer: No. 19 Question: Okay. The fourth paragraph 20 states, Microsoft, in a shift in its policy of 21 not commenting on unreleased products -- has 22 been unusually cooperative in confirming 23 details about MS-DOS 5.0. 24 Now, by October of 1990, you had been 25 at Microsoft for approximately five months; 13276 1 correct? 2 Answer: Well, let's count it out. 3 July, August, September, October. Well, less 4 than four months. 5 Question: Okay, I guess it depends on 6 when you started in June. 7 Okay, four months. 8 Did you know -- 9 Answer: Less than four, but June 10 26th. I think I testified to that numerous 11 times. 12 Question: Good recall. 13 Do you have a good memory? 14 Answer: Sometimes, sometimes not. 15 Question: Okay. It depends on what? 16 Answer: I remember the day I started 17 Microsoft. It was either the 24th or 26th. 18 Question: Okay. 19 Answer: I remember my birthday. I 20 remember my anniversary. 21 Question: Prior to -- did you have an 22 understanding when you started at Microsoft 23 what the policy of Microsoft was about 24 commenting on unreleased products? 25 Answer: No. 13277 1 Question: Was that something that was 2 explained to you when you started? 3 Answer: No. 4 Question: Never had any discussions 5 with anybody about that? 6 Answer: Not that I recall. 7 Question: Not with anybody in PR? 8 Answer: Not that I recall. 9 Question: Okay. Is it just up to you 10 the extent to which you wanted to disclose 11 features and anticipated dates for shipping 12 unreleased products? 13 Answer: It wasn't just up to me, no. 14 Question: What constrains you in that 15 regard? 16 Answer: Other people may have other 17 views. 18 When you go to beta with a product, 19 it's hard to deny ultimately that the product 20 exists. When the product is external outside 21 the company, it's rather difficult to deny its 22 existence. 23 Question: Are you aware of any 24 Microsoft officials telling any member of the 25 press before MS-DOS 5.0 went into beta one that 13278 1 MS-DOS 5.0 would be out by the end of 1990? 2 Answer: No, I don't recall that. 3 Question: I believe you testified 4 that you don't recall writing a letter to the 5 editor -- 6 Answer: That's correct. 7 Question: -- of PC Week in response 8 to this article? 9 Answer: That's correct. 10 Question: Okay. 11 Answer: I'll also say that it was -- 12 when I started, it was Microsoft's expectation 13 that the product would ship by the end of the 14 year. I'll repeat, I've mentioned that 15 earlier. Perhaps worth repeating. 16 Question: Let me hand you what's been 17 marked as Deposition Exhibit 1706. 18 Answer: Okay. 19 Question: Do you recall this letter 20 now having read it? 21 Answer: No. 22 Question: Do you see any false 23 statements in this letter? 24 Answer: Any false statements? No. 25 Question: Do you dispute that you 13279 1 wrote and submitted this letter to PC Week? 2 Answer: I don't recall writing it, 3 but it's possible. 4 Question: Do you agree that this is a 5 letter written in response to the October 22 6 article that we were just looking at? 7 Answer: I don't recall writing it, so 8 I can't answer that question definitively. 9 Question: Okay. 10 Answer: I don't recall this article. 11 I don't recall this response, so it's hard to 12 answer that question.