WASHINGTON, D.C., October 12, 1998 — Microsoft filed three motions Friday in Federal District Court in response to the government’s most recent attempt to expand and rewrite its case in the antitrust lawsuit by adding two witnesses intended to support new allegations that have nothing to do with the original complaint.
In one of the motions, Microsoft said: “This is just the latest confirmation that the government is walking away from the case it filed and seeking to expand that case by introducing extraneous issues. This tactic has placed Microsoft in the untenable position of having to respond on an extremely compressed sche-dule to matters about which Microsoft had no notice in the complaints.”
On October 8, just 11 days before trial, the government added Avadis Tevanian of Apple Computer, Inc., and James Gosling of Sun Microsystems, Inc., to the list of witnesses it intends to call in the trial that is scheduled to begin October 19. Microsoft responded by seeking Court permission to secure documents through discovery from both Apple and Sun – documents that are required for Microsoft’s attorneys to prepare to depose the two new government witnesses. Microsoft also asked the Court for a two-week continuance until November 2 to allow the company time to prepare to defend itself against these new allegations, and sought to modify its own witness list to respond more effectively to the new witnesses’ anticipated testimony.
Microsoft accused the government of “sandbagging” the company by waiting until the last minute to designate the two new witnesses, even though government attorneys knew about both men and the topics about which they could testify long before the government filed its original witness list on September 4. Having already received all of the documents it needs from Microsoft related to these two new witnesses, the government is now refusing to agree to allow Microsoft to initiate discovery of materials that would allow the company to conduct informed depositions of the two men.
“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,” Microsoft said in its motion for discovery. “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.”