The Department of Justice was back in control on the sixth day of the historic Microsoft antitrust trial, while the MS team still appears stricken by the sudden reappearance this weekend of a 'lost' Netscape memo.
Yesterday, the DoJ took over the questioning of Netscape chief executive Jim Barksdale, who had been cross examined by Microsoft for four days.
More than ever, a crucial issue in the trial appears to be what happened during a 21 June 1995 meeting between executives from Netscape and Microsoft. The government claims Microsoft proposed an illegal market division, where Microsoft alone would control the Windows 95 browser market and Netscape would develop browsers only for other platforms.
During the first days of questioning Barksdale, Microsoft attorney John Warden argued that the two companies were on good terms both before and immediately after the meeting. But over the weekend, a memo from former Netscape attorney Gary Reback to the DoJ surfaced. The memo was sent two days after the meeting and led MS to change its tack on Monday and allege an elaborate scheme by Netscape to 'frame' it (see Newswire 27 October).
Warden suggested that the meeting had been set up by Netscape expressly to manufacture evidence against Microsoft, in order to facilitate an antitrust case.
DoJ attorney David Boies worked hard to discredit the 'set-up' theory on Tuesday. While Microsoft has shown no real evidence of such a scheme, Boies produced evidence to suggest Microsoft did indeed plan to make some kind of business proposal to Netscape in the 21 June meeting.
Boies introduced a 2 June 1995, email from Microsoft executive Dan Rosen to Bill Gates. The email states that the number one goal of the 21 June meeting was to "establish Microsoft ownership of the Internet client platform for Windows 95".
Mocking Microsoft?s conspiracy theory, Boies rhetorically asked Barksdale whether Netscape had broken into Microsoft?s email system and fabricated the message. Barksdale, of course, said he had not.
Boies also showed an excerpt from the videotaped deposition of Microsoft executive Chris Jones, who was present at the 21 June meeting. Jones was asked whether Microsoft was seeking to divide the market with Netscape, or merely to strike a stronger relationship with the company. ?It was both," Jones replied. Jones conceded that Microsoft had tried to persuade Netscape not to compete with it.
On Wednesday, Microsoft will cross examine David Colburn, senior vice president of America Online. Microsoft will try to demonstrate that AOL chose Microsoft?s Internet Explorer over Netscape?s browser because of its technical merits, not because of undue pressure.
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