Microsoft Seeks Revocation of “Special Master” Process to Ensure Complete Fairness in DOJ Case

REDMOND, Wash., Dec. 23, 1997 — Microsoft Corp. today asked U.S. District Court Judge Thomas Penfield Jackson to revoke the appointment of a special master in the consent decree compliance case to ensure fairness and address a number of legal and procedural issues.

“The issues in this case are absolutely critical to Microsoft and the future of the entire software industry, so we need to be sure that this is a completely fair process,” said William H. Neukom, Microsoft’s senior vice president for law and corporate affairs. “Microsoft has concerns about the way the court created this special master position, so we are asking the court to reconsider its decision.”

In an order handed down Dec. 11, Judge Jackson ordered the appointment of a special master to receive evidence and propose findings of fact and conclusions of law for consideration by the court no later than May 31. In its motion filed with the District Court today, Microsoft cited a number of potential legal and procedural errors in the court’s action creating the special-master position. Most significantly, the motion said, the court exceeded its authority in delegating so much of the case to a special master.

“Under court rules, unless the parties consent, special masters can only be appointed for specific and limited purposes, which are not applicable in this case,” Neukom said. “These rules exist to protect the parties’ constitutional right to have their federal cases heard by a federal judge.”

Neukom said Microsoft might support the appointment of a more narrowly defined technical assistant to the court, to advise the court on complex questions involving software code or software industry business practices.

Neukom also expressed concern that – contrary to the usual procedures for appointment of a special master – Microsoft did not receive any notice that the court was contemplating the appointment of a special master, was not provided the opportunity to object, and was not given an opportunity to suggest candidates or review the qualifications of any candidates under consideration.

“The scope of the special master’s authority, and the procedure employed to identify the right person for the job, should be reconsidered to ensure that Microsoft’s rights are fairly protected,” Neukom said. Judge Jackson appointed Lawrence Lessig, a Harvard University professor, to be special master. In its brief, Microsoft cited several examples of Lessig’s writings to illustrate why the parties should be permitted to fully review the potential biases of special-master candidates before an appointment is made.

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