Microsoft turned to an appeals court on Friday as the latest step in its campaign to prevent Harvard professor Lawrence Lessig acting as special adviser in its battle with the US Justice Department.
Lessig was appointed by Judge Thomas Jackson last December to provide expert opinion in the case of the Justice Department versus Microsoft. But his appointment has been bitterly contested by the supplier, which alleges that Lessig is biased and not suited to the role.
Judge Jackson last Thursday rejected Microsoft?s accusations - which he said were defamatory - and insisted that Lessig stay in place, forcing the supplier to launch an appeal against that decision on Friday morning.
In the appeal, attorneys for Microsoft request: "Because the special master has already initiated his review of this matter (over Microsoft's objections) and because he is continuing to conduct extensive proceedings, Microsoft respectfully requests that this [federal appeals] court immediately stay the district court's order."
Microsoft goes on to insist that the appointment of Lessig as a special master is "incompatible with basic principles of American jurisprudence."
The appeal reiterates Microsoft?s complaint that Lessig is supposedly unsuitable because he sent an email message that "compares installing a Microsoft product on his computer to selling his soul." The message went to an employee of Netscape, which Microsoft?s appeal describes as "a fierce rival of Microsoft in developing and marketing Internet-related software."
Judge Jackson - who made his irritation with Microsoft evident during last week?s hearing - also comes under fire as the supplier accuses him of overstepping his authority by improperly delegating his responsibility to collect evidence to a private citizen.
Meanwhile Microsoft claims on its Web site that it feels encouraged by the way events went in the contempt hearing, which was called by Jackson last week to determine whether the supplier had flouted the judge?s injunction on bundling Internet Explorer and Windows95 (see previous stories).
The hearing will conclude on 22 January, but Bob Hergold, Microsoft executive vice president, predicted that things had gone well for the supplier. "We believe that we were able to show that we complied in good faith with the Court?s order," he said. "Even the Government?s witness testimony acknowledged out point that IE cannot be removed from Windows95 without it breaking key parts of the operating system."
But despite his confidence, he added that if the ruling went against Microsoft, the supplier would comply with it. ?Depending on what the court orders us to do, Microsoft might have to appeal, but we would do whatever we could to comply imediately.?
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And becomes the team's executive chairman to boot