Wrong footed by the appearance of more evidence about a key meeting between Microsoft and Netscape, the Microsoft defence team have come up with what appears to be a conspiracy theory.
Netscape attempted to aid the Department of Justice's antitrust case by manufacturing evidence against Microsoft, while the DoJ deliberately withheld evidence from Microsoft, the company now contends.
The development follows the reappearance last Friday of a crucial four-page memo sent by former Netscape attorney Gary Reback to the DoJ on 23 June, two days after the disputed meeting. The memo includes notes taken by Netscape co-founder Marc Andreessen at the meeting.
In the first week of the trial, Microsoft?s line appeared to be that the relationship between Netscape and Microsoft was friendly, and that nothing out of the ordinary happened at the key 21 June 1995 meeting. Only much later, according to MS, did Netscape come up with its claim that Microsoft had made an illegal proposal on that date to divide the browser market.
To bolster this claim, Microsoft quoted from a 28 July 1995 document written by Reback, containing a list of interactions between Microsoft and Netscape, but making no mention of the 21 June encounter.
But the appearance of the earlier 23 June memo weakens Microsoft?s interpretation of the later document ? and has sent the defence team into a frenzy.
Now, Microsoft is suggesting that Netscape had intended all along to help the government bring an antitrust case against Microsoft. And rather than an innocuous, routine meeting, Microsoft is now describing the 21 June event as a set-up.
?It is now apparent that the Netscape representatives went to the 21 June 1995 meeting for the express purpose of manufacturing evidence against Microsoft," the Redmond giant claimed in a court motion on Monday.
But the alleged anti-Microsoft conspiracy extends to DoJ officials, Microsoft suggested, accusing the government department of deliberately attempting to conceal the existence of the 23 June memo. The Microsoft court motion asks the judge to take sanctions against the DoJ.
In a procedure known as discovery, Microsoft received from the DoJ all documents that relate to the investigations that form the basis of the antitrust complaint. Microsoft now claims the 23 June letter from Reback should have been included.
The DoJ has filed a response, calling the motion for sanctions ?wholly unfounded? and arguing that the Reback letter is related to a different investigation. According to the Department, it was itself unaware of the document?s importance to the antitrust case until last Friday, when Reback himself faxed them a copy.
The DoJ claims that the disputed document was part of an earlier investigation into the bundling of MSN into Windows 95.
The 'set-up' theory is very different from the defence Microsoft presented last week. Then, it argued that Netscape?s failure to report to the DoJ immediately about the alleged illegal offer, proved the offer was never made. Now Microsoft is claiming that the intense communication between DOJ and Netscape on this issue proves the meeting was a set-up.
The apparent contradiction was not lost on Netscape. ?You can?t have it both ways," commented a spokesperson.
The DoJ also interpreted Microsoft?s reversal as a sign of weakness. ?Any time the defendant begins to say they?ve been set up, it tells you how it?s going," DoJ attorney David Boies told the press outside the courtroom.
Microsoft did manage to score some points in its fourth day of cross examining Netscape chief Jim Barksdale. It quoted internal Netscape documents that suggested that technical features of Netscape Navigator, not pressure from Microsoft, caused software house Intuit to strike a bundling deal with Microsoft.
Boies will question Barksdale on Tuesday.
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