Would Microsoft CEO Bill Gates have been an asset or a hindrance to his company's defense? Would he have been a liability or an aid to the Department of Justice?
The questions are hypothetical, and for a good reason: Oddly, Gates will testify -- but not live -- in person. He'll make an appearance at the company's antitrust trial now underway in Washington via videotape, starting this Thursday. But you have to wonder why -- why the man who symbolizes Microsoft -- won't represent it in the flesh, during one of the most critical junctures in its history.
Some say that Gates should have been called as a witness because he was a central figure in nearly every decision under scrutiny as part of the current antitrust case. Even if Microsoft didn't want to call him, Justice should have named Gates a hostile witness, some claim.
Others say Gates is too unpredictable and moody for either Microsoft or the U.S. Department of Justice to have counted on. The Washington Post ran a story Tuesday, citing legal experts who called Gates a "potentially prickly and combustible witness who could have undermined Microsoft's case."
Gates: Spoiled rotten?
Gates is no peach, as Microsoft employees, competitors and partners are quick to admit. But is he truly spoiled fruit?
Known for his sharp retorts and pointed barbs from which no reporters, colleagues or others with questions deemed too "random" or "stupid" are spared, Gates has reined in his temper, at least publicly, in recent years.
Nonetheless, it wasn't surprising the DOJ didn't name Gates to its list of 12 allowable witnesses when it issued its proposed lineup in September. Initially, Microsoft officials expressed dismay that Gates wasn't going to testify. But Microsoft's disappointment wasn't enough for the company to have Gates take the stand, either.
Microsoft's public line is Gates wasn't the best man for the job. "If the government had wanted to use Gates, they should have called him [as a witness]," says Microsoft corporate spokesman Tom Pilla. "Our witnesses are the best people, in our opinion to dispute the government's claims."
You have to wonder, however, about the content of Gates' deposition. Based on "snippets" of his testimony that were made public at the start of the trial, it sounds as though Gates spent more time claiming to be Rip Van Winkle (I don't remember...) than providing answers to the questions posed by the DOJ and state attorneys general.
The government's forces grilled Gates in Redmond for 20 hours over the course of several days in late August. Gates' deposition was videotaped so it might be shown later if and when an appellate court overturns a U.S. Court of Appeals ban on the media's right to have attended the depositions of Gates' and other key Microsoft officials.
(Several media outlets including Ziff-Davis, which publishes ZDNN, filed a motion requesting the right to attend these depositions earlier this year.)
"We don't know what was in that video, but both sides do. And based on that, there were reasons Bill wasn't called," says Lewis Mettler, an attorney who's been keeping close tabs on the case. Mettler played the judge in a "mock trial" held in San Francisco in September.
Mettler declined to speculate on what might be keeping Microsoft and the DOJ from calling Gates as a witness, but he pooh-poohed the notion that Gates is too much of a hot potato for either side to handle.
"As we saw in the [U.S. Senate Judiciary Committee] hearings this summer, Gates can handle himself well when he's on the stand."
Indeed, Gates has come a long way from the days of his infamous public blow-ups, such as the time he stormed out of CBS-Connie Chung interview after she asked him about another DOJ antitrust investigation -- the one that led to the 1995 Consent Decree which forbade Microsoft from tying independent products.
These days, Gates is a much more polished, albeit wooden, speaker, relatively comfortable with performing publicly. He's mastered the art that other public figures, from presidents to CEOs, have likewise perfected -- dodging a tough question while avoiding outright lies.
But all the time Gates has invested in smoothing his rough edges is time he's taken away from day-to-day involvement in the details of product and strategy development. Could it be that Microsoft declined to call its CEO as its star witness because he might not know the answer to a specific contractual or technical question? Fear of looking dumb kept IBM's CEO Lou Gerstner locked away from the trade press for years, rumor has it.
"It may be that Microsoft didn't want the big guy to be embarrassed," acknowledges attorney Mettler. "If someone's head has to roll, it's better if it's somebody else's."
Bring on the popcorn
On Thursday, DOJ attorneys are planning to show sections of Gates' taped deposition in court. The total amount of time will be dictated by how far both sides get in questioning the next DOJ witness, America Online senior vice president David Colburn.
The DOJ originally planned to show up to eight hours of Gates' deposition, but Microsoft's attorneys protested, claiming that the DOJ should have called Gates as a witness if it wanted to publicize so much of his deposition. Rather than substitute one of its existing witnesses with the Gates videotape, as Microsoft suggested, the DOJ suggested it would limit the videotape deposition to four hours.
Boies used bits of Gates' deposition, juxtaposed with contradictory e-mail messages allegedly written by the chief executive, in his attempt to show that Gates knowingly misled government investigators when they questioned him in August.
Gates might still show
Despite all arguments to the contrary, there's still a chance that U.S. District Court Judge Thomas Penfield Jackson could require the DOJ or Microsoft to call Gates in person. The Judge might allow both sides to call an additional witness or two. Or he could cut back the DOJ's or Microsoft's current witness lists and force one-- or both sides -- to call Gates.
"The DOJ wants 13 witnesses and wants Microsoft to have 11, and vice versa," notes Mettler.
Maybe 13 could be somebody's lucky number.Then again, it could be their unlucky one, too.
