[an error occurred while processing this directive]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

vs.

MICROSOFT CORPORATION,

Defendant.

 

STATE OF NEW YORK ex rel.

Attorney General ELIOT SPITZER, et al.,

Plaintiffs,

vs.

MICROSOFT CORPORATION,

Defendant.

 

MICROSOFT CORPORATION,

Counterclaim-Plaintiff,

vs.

ELIOT SPITZER,

Attorney General of the State of New York,

In his official capacity, et al.,

Counterclaim-Defendants.

 

 

 

Civil Action No. 98-1232 (TPJ)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Civil Action No. 98-1233 (TPJ)

 

 

 

DEFENDANT MICROSOFT CORPORATION‚S POSITION AS

TO FUTURE PROCEEDINGS ON THE ISSUE OF REMEDY

In its proposed final judgment, the government has asked the Court to break Microsoft up and then actively regulate the two resulting companies, impairing their ability to develop new products for consumers in the highly competitive software industry. As Microsoft explains in its memorandum in support of summary rejection of the government‚s breakup proposal, such radical relief is unprecedented and wholly inappropriate given the antitrust violations found by the Courtųwhich relate principally to Microsoft‚s development and distribution of Web browsing software in competition with Netscape. Should the Court not summarily reject the government‚s breakup proposal, then substantial discovery, adequate time for preparation and a full trial on relief will be required.

In addition to its attempt to rip apart Microsoft‚s integrated operations, the government seeks to impose other relief that, although characterized as a "disclosure remedy," would constitute a wholesale confiscation of Microsoft‚s intellectual propertyųthe company‚s crown jewels. Microsoft has spent billions of dollars creating operating systems like Windows 2000 and Windows 98, and it is entitled to the fruits of those research and development efforts. It is not a proper purpose of the remedy in this case to enable leading software companies like IBM, AOL/Netscape, Novell, Oracle and Sun Microsystems to appropriate Microsoft‚s inventions and innovations free of charge.

If the Court intends to consider giving Microsoft‚s competitors open access to Microsoft‚s enormously valuable intellectual propertyųby requiring Microsoft to disclose the inner workings of its operating systems as well as other proprietary information such as codecs, file formats and protocolsųthen substantial time for preparation and a lengthy evidentiary hearing will still be required. There can be no rush to judgment granting such unprecedented relief in light of the importance of the interests at stake, and the government has offered no justification for highly expedited procedures in seeking to impose its requested relief.

The need for deliberate procedures is especially strong because much of the intellectual property the government seeks to confiscate relates to products and technologies, such as Windows 2000, that were not even mentioned at trial. (As the Court is aware, Windows 2000 is the successor product to Windows NT 4.0, not Windows 9x.) There is no evidence in the record to support a de facto taking of these products and technologies, and if the Court intends to consider such draconian relief, Microsoft is entitled to address these new issues fully and deliberately.

Even if the Court rejects both the government‚s proposed breakup and confiscation of Microsoft‚s intellectual property, the remaining "conduct" relief requested by the governmentųwhich includes several provisions regulating the design of Microsoft‚s operating system softwareųis severe and unwarranted in the circumstances. As Microsoft explains in its memorandum in support of its proposed final judgment, the relief awarded by the Court should be reasonably related to the antitrust violations found. The "conduct" relief requested by the government, which goes far beyond remedying the acts the Court found to be anticompetitive, is punitive and thus improper. Microsoft is entitled to a full hearing before "conduct" remedies as regulatory, over-reaching, vague and difficult to administer as those requested by the government are imposed.

RECOMMENDATIONS FOR FUTURE PROCEEDINGS

A. Microsoft‚s Remedy Proposal

In accordance with the procedure established by the Court, Microsoft has submitted a proposed final judgment that fully redresses all of the antitrust violations found by the Court. Should the Court deem it appropriate, Microsoft consents to entry of that order forthwith, without prejudice to Microsoft‚s position on the merits or its right to contest on appeal the appropriateness of any granting of relief. Microsoft has no interest in delaying resolution of this case; its only interest is in ensuring that this Court, and the appellate courts that review the matter, render decisions on a fairly constructed and complete record. If the Court believes that it is imperative to enter some relief now, but wishes to consider additional relief necessitating discovery and a more extended hearing schedule, the Court could enter Microsoft‚s proposed final judgment as a preliminary injunction, providing the government with substantial immediate relief while preserving Microsoft‚s ability to make a full record with respect to any additional relief at such time as the Court may chose to consider such relief. Granting such a preliminary injunction would, of course, be subject to Microsoft‚s right to seek immediate appellate review of the basis for the preliminary injunction order before the Court imposes any remedy. See 28 U.S.C. § 1292(a)(1).

B. Proposed Alternative Schedules

The nature and scope of the procedures required at this stage of the trial depend upon the kind of remedies that the Court is prepared to consider. The more extreme the remedy under consideration, and the more that remedy is based on information outside the trial record, the more discovery and the more extensive the procedures Microsoft will need to defend and assert its interests. Accordingly, pursuant to Scheduling Order No. 8, dated April 5, 2000, Microsoft requests that the Court adopt one of the following schedules, depending on which elements of the government‚s proposals the Court elects to consider.

1. If the Court elects to consider the full range of relief requested by the government, including the government‚s breakup proposal (see Pls.‚ Proposed Final Judgment ¶¶ 1-2), Microsoft requests that the Court enter the scheduling order annexed hereto as Exhibit A, which culminates in an evidentiary hearing beginning on December 4, 2000.

2. If the Court grants Microsoft‚s motion for summary rejection of the government‚s breakup proposal (see id. ¶¶ 1-2), filed contemporaneously herewith, but elects to consider the government‚s proposed "disclosure relief" with its attendant confiscation of Microsoft‚s intellectual property (see id. ¶ 3(b)-(c)), Microsoft requests that the Court enter the scheduling order annexed hereto as Exhibit B, which culminates in an evidentiary hearing beginning on October 2, 2000.

3. If the Court rejects both the government‚s breakup proposal and its proposed "disclosure relief" now (see id. ¶¶ 1-2, 3(b)-(c)), but declines at this juncture to enter Microsoft‚s proposed final judgment, Microsoft requests that the Court enter the scheduling order annexed hereto as Exhibit C, which culminates in an evidentiary hearing beginning on August 7, 2000.

ARGUMENT

If the Court is willing to consider the full range of relief requested by the government, including the government‚s proposal to break Microsoft into two companies, then Microsoft needs significant time (i) to conduct discovery of persons who possess relevant information, and (ii) to prepare for an evidentiary hearing at which the lack of justification for, and deleterious effects of, the government‚s requested relief can be fully presented. Due process requires that Microsoft be given adequate time to defend itself against the threat of dismemberment. See United States v. National Lead Co., 332 U.S. 319, 329-31, 353 (1947) (court-ordered divestiture of separate operating units of going concern "would amount to an abuse of discretion," despite existence of substantial record on remedies consisting of more than 5,500 pages of testimony and exhibits compiled during more than three months of trial).

What the government has described euphemistically as a "reasonably implemented" proposal (Pls.‚ Mem. at 2) is, in reality, a punitive attempt to weaken or destroy Microsoft‚s position as a leading software company. Unlike requested relief in most antitrust cases, which seeks to enjoin the violations found and to undo the effects of specific conduct, the government‚s proposal is a broad-based attack on Microsoft that the government acknowledges "will profoundly affect the information industry." (Romer Decl. ¶ 3.) The government thus concedes that the intended consequences of its requested relief would be far-reaching. The unintendedųor at least unacknowledgedųconsequences would be even more far-reaching: breaking Microsoft into two pieces would damage, if not destroy, the company‚s commercial viability, making it extremely difficult for Microsoft to compete with well-financed companies like IBM and Sun Microsystems that are far more integrated than Microsoft. Understanding why the government‚s breakup proposal is so misguided involves an in-depth exploration of the myriad ways in which Microsoft‚s development and marketing efforts, as well as consumers and the industry as a whole, benefit from the unitary nature of the company‚s operations.

Similarly, confiscating Microsoft‚s intellectual property by mandating disclosure to competitors of much of the company‚s proprietary information would have devastating effects on Microsoft‚s ability to develop innovative products. As explained in greater detail in Microsoft‚s summary response to the government‚s proposed final judgment, the government‚s proposal would require Microsoft to disclose to its competitorsųfree of chargeųessentially all of its intellectual property associated with its operating systems. Such a requirement would create an obvious disincentive for Microsoft to innovate. It also would discourage other companies from working with Microsoft on new innovations in Windows because such companies may not want their innovations to be disclosed immediately to the industry at large.

The government admits that its requested relief could have a dramatic impact on the entire software industry. According to one of the government‚s economists, "[t]he remedy entered by the Court in this matter will have a major influence on the nature of competition and the path of innovation in the information technology sector of the economy." (Shapiro Decl. at 29.) The government is not, in the guise of proposing a remedy for specific antitrust violations, supposed to engage in economic experimentation based on the untested views of academics who think they know better than the Nation‚s free enterprise system how the software industry should be structured. The sort of micro-management of Microsoft‚s design decisions embodied in the government‚s requested relief is precisely what the Court of Appeals has cautioned against. If the Court nonetheless elects to consider proceeding down the path suggested by the government, Microsoft must be allowed to develop the factual record necessary to enable the Court to understand fully the implications of doing so.

Basic considerations of judicial efficiency (see Fed. R. Civ. P. 1) call for the prompt denial of those aspects of the government‚s requested relief that are facially unreasonable. The government‚s breakup proposal is grossly disproportionate to the antitrust violations found. Moreover, as explained in Microsoft‚s summary response to the government‚s proposed final judgment, the breakup proposal is both inconsistent with positions asserted by the government at trial and only speculatively connected to the purported goal of increasing competition in what the Court has defined as the market for "Intel-compatible PC operating systems." For those reasons, among others, the breakup proposal should be summarily rejected.

A. If Breakup Is Considered

Although the government presumably has been formulating its remedy proposal for many months now, Microsoft learned just twelve days ago of the radical nature of the relief requested by the government and of many of the new allegations that underlie those sweeping requests. As discussed in Microsoft‚s summary response to the government‚s proposal, these allegations amount to an improper attempt by the government essentially to collapse an entirely new lawsuit, involving different products, different technologies, different competitors and different time frames, into the remedy proceeding in this case.

If the Court denies Microsoft‚s request for summary rejection of the government‚s breakup proposal, Microsoft will require significant time to conduct discovery and prepare for a full trial. In particular, Microsoft will need time to prepare and serve document requests on the government, draft and issue subpoenas for documents and deposition testimony on third parties and obtain documents and deposition testimony from the government‚s proposed trial witnesses. It will, of course, take time for third parties to respond to Microsoft‚s requests, and the government may serve its own discovery requests. At the same time it is engaged in such discovery, Microsoft will need to identify its own witnesses to present as part of its affirmative case, including expert witnesses to respond to the opinions offered for the first time by the government‚s new witnesses and fact witnesses to respond to the raft of new factual issues raised by the government‚s breakup proposal. Microsoft and its counsel cannot be expected to investigate a whole host of new issues, conduct significant third-party and other discovery, identify its witnesses and otherwise prepare its own affirmative case in less than six months, especially given that the government‚s requested relief threatens Microsoft‚s very corporate existence.

B. If Breakup Is Not Considered

Should the Court summarily reject the government‚s breakup proposal, the remedies phase will be shorter and less complicated. If the Court is not going to consider breakup, Microsoft suggests that the Court adopt proceedings similar to those that preceded the rebuttal phase of the trial: limited third-party discovery and reasonably prompt disclosure by the parties of their trial witnesses, together with a brief summary of the witnesses‚ anticipated testimony, followed by limited document and deposition discovery relevant to that testimony. Yet, given the severity of the government‚s proposed "disclosure" provisionsųwhich relate largely to products and technologies that were not at issue at trialųMicrosoft still will require adequate time (approximately four months) to conduct discovery, identify expert and fact witnesses and prepare its affirmative case should those provisions not be rejected now.

Although it may appear at first blush to be less extreme than breakup, the government‚s proposed confiscation of Microsoft‚s intellectual property is similarly radical. Indeed, the government‚s proposed relief threatens to destroy the value of Windows (which is premised entirely on its intellectual property protections) and to make it impossible for Microsoft to work with any other companies to improve the operating system. Nothing in the Court‚s Findings of Fact or Conclusions of Law remotely justifies the government‚s demand that Microsoft provide its competitors with detailed information about the inner workings of products that Microsoft has spent huge amounts of time and money to develop. Like the breakup proposal, the proposed confiscation of Microsoft‚s intellectual property is unreasonable in law and fact and should be summarily rejected.

Removing the distraction of these over-broad requests for relief would enable the parties to focus their efforts on developing a record that will aid the Court in framing a proper remedy. The government‚s remaining requests for relief, which include provisions extensively regulating the design of Microsoft‚s operating system software, are much too severe in light of the antitrust violations found by the Court, suffer from a serious lack of clarity, raise numerous practical questions as to implementation and would gravely injure the Windows platform. For these reasons and others, even these proposed "conduct" provisions would cause adverse consequences to Microsoft, its many business partners and the consuming public. They thus should not be imposed without a full and fair consideration by the Court of their costs, and Microsoft should not be required to defend against such proposed restrictions without at least two months to conduct discovery, identify witnesses and prepare its affirmative case.

CONCLUSION

The government has invited the Court to destroy or hobble an American company that is a model of success in the high technology arena and to do so explicitly to reshape the single most productive and envied industry in the United States. In contrast, Microsoft has filed with the Court todayųand consents to the Court‚s immediate entry ofųa proposed final judgment that fully addresses the antitrust violations found by the Court in a manner consistent with the law of antitrust remedies. If the Court declines to enter that order, Microsoft requests that the Court adopt a schedule that gives the parties adequate time to obtain discovery and prepare for an evidentiary hearing, consistent with fundamental principles of due process.

Respectfully submitted,

______________________________

William H. Neukom John L. Warden (Bar No. 222083)

Thomas W. Burt Richard J. Urowsky

David A. Heiner, Jr. Steven L. Holley

Diane D‚Arcangelo Theodore Edelman

Christopher J. Meyers Michael Lacovara

MICROSOFT CORPORATION Richard C. Pepperman, II

One Microsoft Way Christine C. Monterosso

Redmond, Washington 98052 Bradley P. Smith

(425) 936-8080 SULLIVAN & CROMWELL

125 Broad Street

New York, New York 10004

(212) 558-4000

Counsel for Defendant

Counterclaim-Plaintiff

May 10, 2000 Microsoft Corporation

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

vs.

MICROSOFT CORPORATION,

Defendant.

 

STATE OF NEW YORK ex rel.

Attorney General ELIOT SPITZER, et al.,

Plaintiffs,

vs.

MICROSOFT CORPORATION,

Defendant.

 

MICROSOFT CORPORATION,

Counterclaim-Plaintiff,

vs.

ELIOT SPITZER,

Attorney General of the State of New York,

In his official capacity, et al.,

Counterclaim-Defendants.

 

 

 

Civil Action No. 98-1232 (TPJ)

 

 

 

 

 

 

 

 

 

Civil Action No. 98-1233 (TPJ)

 

 

 

 

 

 

 

 

[MICROSOFT CORPORATION‚S PROPOSED] SCHEDULING ORDER NO. 9

In accordance with the proceedings at the hearing of May 24, 2000, it is, this ______ day of May, 2000,

ORDERED, that discovery on issues relevant to the appropriate remedy to be entered in this action shall commence immediately; and it is

FURTHER ORDERED, that the parties shall serve all document requests and interrogatories no later than June 5, 2000; and it is

FURTHER ORDERED, that the parties shall not serve interrogatories other than those seeking the identification of persons with knowledge of the issues to be tried; and it is

FURTHER ORDERED, that pursuant to Fed. R. Civ. P. 34(b), each party and non-party shall respond, including objections, to any document requests or interrogatories within twenty-one calendar days of service of any such requests or interrogatories; and it is

FURTHER ORDERED, that pursuant to Fed. R. Civ. P. 30(a) and Local Rule 208, each party may take depositions upon oral examination on ten calendar days‚ notice; and it is

FURTHER ORDERED, that the presumptive limitations on depositions set forth in Local Rule 207(b) shall not apply, but counsel for the parties shall exercise their good judgment in not taking an unreasonably large number of depositions; and it is

FURTHER ORDERED, that pursuant to Fed. R. Civ. P. 45, the parties shall serve all third-party subpoenas no later than July 7, 2000; and it is

FURTHER ORDERED, that all discovery except for document and deposition discovery of the parties‚ trial witnesses shall be completed by September 22, 2000; and it is

FURTHER ORDERED, that on August 18, 2000, plaintiffs shall file with the Court and serve on defendant their list of witnesses they intend to call at the trial on remedies, together with a brief description of the subject matters to be addressed by each of those witnesses; for each expert witness so identified, plaintiffs shall produce the reports and other materials required under Fed. R. Civ. P. 26(a)(2)(A)-(B); and it is

FURTHER ORDERED, that on September 8, 2000, defendant shall file with the Court and serve on plaintiffs its list of witnesses it intends to call at the trial on remedies, together with a brief description of the subject matters to be addressed by each of those witnesses; for each expert witness so identified, defendant shall produce the reports and other materials required under Fed. R. Civ. P. 26(a)(2)(A)-(B); and it is

FURTHER ORDERED, that if any of the trial witnesses so identified by the parties have not been deposed in this action since the Court issued its conclusions of law, a party may, at any time after the identification of such witnesses but before the final pretrial conference, serve document requests on such witnesses (and, for non-experts, the companies for which they work) and may depose such witnesses, provided that no such deposition may last more than one eight-hour day (with the exception of depositions of expert witnesses, which may last two eight-hour days) without leave of Court; and it is

FURTHER ORDERED, that on November 10, 2000, plaintiffs shall file their pretrial statement setting forth the disputed factual and legal issues to be heard; and it is

FURTHER ORDERED, that on November 17, 2000, defendant shall file its pretrial statement setting forth the disputed factual and legal issues to be heard; and it is

FURTHER ORDERED, that the final pretrial conference shall be held at 10:00 A.M. on December 1, 2000; and it is

FURTHER ORDERED, that these actions are scheduled for a trial on the appropriate remedy to be entered in this action to commence at 10:00 A.M. on December 4, 2000.

 

___________________________

Thomas Penfield Jackson

U.S. District Judge

EXHIBIT B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



UNITED STATES OF AMERICA,

Plaintiff,

vs.

MICROSOFT CORPORATION,

Defendant.

 

STATE OF NEW YORK ex rel.

Attorney General ELIOT SPITZER, et al.,

Plaintiffs,

vs.

MICROSOFT CORPORATION,

Defendant.

 

MICROSOFT CORPORATION,

Counterclaim-Plaintiff,

vs.

ELIOT SPITZER,

Attorney General of the State of New York,

In his official capacity, et al.,

Counterclaim-Defendants.

 

 

 

Civil Action No. 98-1232 (TPJ)

 

 

 

 

 

 

 

 

 

Civil Action No. 98-1233 (TPJ)

 

 

 

 

 

 

 

 

[MICROSOFT CORPORATION‚S PROPOSED] SCHEDULING ORDER NO. 9

In accordance with the proceedings at the hearing of May 24, 2000, it is, this ______ day of May, 2000,

ORDERED, that discovery on issues relevant to the appropriate remedy to be entered in this action shall commence immediately; and it is

FURTHER ORDERED, that the parties shall serve all document requests, which must be narrowly tailored to the appropriate remedy to be entered in this action, no later than June 5, 2000; and it is

FURTHER ORDERED, that pursuant to Fed. R. Civ. P. 34(b), each party and non-party shall respond, including objections, to any document requests within fourteen calendar days of service of any such requests; and it is

FURTHER ORDERED, that pursuant to Fed. R. Civ. P. 30(a) and Local Rule 208, each party may take depositions upon oral examination on seven calendar days‚ notice; and it is

FURTHER ORDERED, that pursuant to Fed. R. Civ. P. 45, the parties shall serve all third-party subpoenas no later than June 26, 2000; and it is

FURTHER ORDERED, that all discovery except for document and deposition discovery of the parties‚ trial witnesses shall be completed by August 25, 2000; and it is

FURTHER ORDERED, that on July 10, 2000, plaintiffs shall file with the Court and serve on defendant their list of witnesses they intend to call at the trial on remedies, together with a brief description of the subject matters to be addressed by each of those witnesses; for each expert witness so identified, plaintiffs shall produce the reports and other materials required under Fed. R. Civ. P. 26(a)(2)(A)-(B); and it is

FURTHER ORDERED, that on July 17, 2000, defendant shall file with the Court and serve on plaintiffs its list of witnesses it intends to call at the trial on remedies, together with a brief description of the subject matters to be addressed by each of those witnesses; for each expert witness so identified, defendant shall produce the reports and other materials required under Fed. R. Civ. P. 26(a)(2)(A)-(B); and it is

FURTHER ORDERED, that if any of the trial witnesses so identified by the parties have not been deposed in this action since the Court issued its conclusions of law, a party may, at any time after the identification of such witnesses but before the final pretrial conference, serve document requests on such witnesses (and, for non-experts, the companies for which they work) and may depose such witnesses, provided that no such deposition may last more than one eight-hour day (with the exception of depositions of expert witnesses, which may last two eight-hour days) without leave of Court; and it is

FURTHER ORDERED, that on September 15, 2000, plaintiffs shall file their pretrial statement setting forth the disputed factual and legal issues to be heard; and it is

FURTHER ORDERED, that on September 22, 2000, defendant shall file its pretrial statement setting forth the disputed factual and legal issues to be heard; and it is

FURTHER ORDERED, that the final pretrial conference shall be held at 10:00 A.M. on September 27, 2000; and it is

FURTHER ORDERED, that these actions are scheduled for a trial on the appropriate remedy to be entered in this action to commence at 10:00 A.M. on October 2, 2000.

___________________________

Thomas Penfield Jackson

U.S. District Judge

EXHIBIT C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



UNITED STATES OF AMERICA,

Plaintiff,

vs.

MICROSOFT CORPORATION,

Defendant.

 

STATE OF NEW YORK ex rel.

Attorney General ELIOT SPITZER, et al.,

Plaintiffs,

vs.

MICROSOFT CORPORATION,

Defendant.

 

MICROSOFT CORPORATION,

Counterclaim-Plaintiff,

vs.

ELIOT SPITZER,

Attorney General of the State of New York,

In his official capacity, et al.,

Counterclaim-Defendants.

 

 

 

Civil Action No. 98-1232 (TPJ)

 

 

 

 

 

 

 

 

 

Civil Action No. 98-1233 (TPJ)

 

 

 

 

 

 

 

 

[MICROSOFT CORPORATION‚S PROPOSED] SCHEDULING ORDER NO. 9

In accordance with the proceedings at the hearing of May 24, 2000, it is, this ______ day of May, 2000,

ORDERED, that discovery on issues relevant to the appropriate remedy to be entered in this action shall commence immediately; and it is

FURTHER ORDERED, that the parties shall serve all document requests, which must be narrowly tailored to the appropriate remedy to be entered in this action, no later than May 30, 2000; and it is

FURTHER ORDERED, that pursuant to Fed. R. Civ. P. 34(b), each party shall respond, including objections, to any document requests within fourteen calendar days of service of any such requests; and it is

FURTHER ORDERED, that pursuant to Fed. R. Civ. P. 30(a) and Local Rule 208, each party may take depositions upon oral examination on seven calendar days‚ notice; and it is

FURTHER ORDERED, that on June 12, 2000, plaintiffs shall file with the Court and serve on defendant their list of witnesses they intend to call at the trial on remedies, together with a brief description of the subject matters to be addressed by each of those witnesses; for each expert witness so identified, plaintiffs shall produce the reports and other materials required under Fed. R. Civ. P. 26(a)(2)(A)-(B); and it is

FURTHER ORDERED, that on June 19, 2000, defendant shall file with the Court and serve on plaintiffs its list of witnesses it intends to call at the trial on remedies, together with a brief description of the subject matters to be addressed by each of those witnesses; for each expert witness so identified, defendant shall produce the reports and other materials required under Fed. R. Civ. P. 26(a)(2)(A)-(B); and it is

FURTHER ORDERED, that if any of the trial witnesses so identified by the parties have not been deposed in this action since the Court issued its conclusions of law, a party may, at any time after the identification of such witnesses but before the final pretrial conference, serve document requests on such witnesses (and, for non-experts, the companies for which they work) and may depose such witnesses, provided that no such deposition may last more than one eight-hour day (with the exception of depositions of expert witnesses, which may last two eight-hour days) without leave of Court; and it is

FURTHER ORDERED, that on July 21, 2000, plaintiffs shall file their pretrial statement setting forth the disputed factual and legal issues to be heard; and it is

FURTHER ORDERED, that on July 28, 2000, defendant shall file its pretrial statement setting forth the disputed factual and legal issues to be heard; and it is

FURTHER ORDERED, that the final pretrial conference shall be held at 10:00 A.M. on August 4, 2000; and it is

FURTHER ORDERED, that these actions are scheduled for a trial on the appropriate remedy to be entered in this action to commence at 10:00 A.M. on August 7, 2000.

___________________________

Thomas Penfield Jackson

U.S. District Judge

CERTIFICATE OF SERVICE

I hereby certify that on this 10th day of May, 2000, I caused a true and correct copy of the foregoing Defendant Microsoft Corporation‚s Position as to Future Proceedings on the Issue of Remedy to be served by facsimile and by overnight courier upon:

Phillip R. Malone, Esq.

Antitrust Division

U.S. Department of Justice

450 Golden Gate Avenue, Room 10-0101

San Francisco, California 94102

Fax: (415) 436-6687

Kevin J. O‚Connor, Esq.

Office of the Attorney General of Wisconsin

P.O. Box 7857

123 West Washington Avenue

Madison, Wisconsin 53703-7957

Fax: (608) 267-2223

Christine Rosso, Esq.

Chief, Antitrust Bureau

Illinois Attorney General‚s Office

100 West Randolph Street, 13th Floor

Chicago, Illinois 60601

Fax: (312) 814-2549

And by facsimile and by hand upon:

Richard L. Schwartz, Esq.

Deputy Chief, Antitrust Bureau

New York State Attorney General‚s Office

120 Broadway, Suite 2601

New York, New York 10271

Fax: (212) 416-6015

 

 

______________________

Bradley P. Smith

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