8007 1 IN THE IOWA DISTRICT COURT FOR POLK COUNTY ----------------------------------------------- 2 JOE COMES; RILEY PAINT, ) 3 INC., an Iowa Corporation;) SKEFFINGTON'S FORMAL ) 4 WEAR OF IOWA, INC., an ) NO. CL82311 Iowa Corporation; and ) 5 PATRICIA ANNE LARSEN; ) ) TRANSCRIPT OF 6 Plaintiffs, ) PROCEEDINGS ) VOLUME XXX 7 vs. ) ) 8 MICROSOFT CORPORATION, ) a Washington Corporation, ) 9 ) Defendant. ) 10 ----------------------------------------------- 11 The above-entitled matter came on for 12 trial before the Honorable Scott D. Rosenberg 13 and a jury commencing at 8:29 a.m., January 12, 14 2007, in Room 302 of the Polk County 15 Courthouse, Des Moines, Iowa. 16 17 18 19 20 HUNEY-VAUGHN COURT REPORTERS, LTD. 21 Suite 307, 604 Locust Street 22 Des Moines, Iowa 50309 23 (515)288-4910 24 25 8008 1 A P P E A R A N C E S 2 Plaintiffs by: ROXANNE BARTON CONLIN 3 Attorney at Law Roxanne Conlin & Associates, PC 4 Suite 600 319 Seventh Street 5 Des Moines, IA 50309 (515) 283-1111 6 RICHARD M. HAGSTROM 7 MICHAEL E. JACOBS Attorneys at Law 8 Zelle, Hofmann, Voelbel, Mason & Gette, LLP 9 500 Washington Avenue South Suite 4000 10 Minneapolis, MN 55415 (612) 339-2020 11 STEVEN A. LAMB 12 Attorney at Law Zelle, Hofmann, Voelbel, 13 Mason & Gette, LLP 550 South Hope Street 14 Suite 1600 Los Angeles, CA 90071 15 (213) 895-4150 16 KENT WILLIAMS Attorney at Law 17 Williams Law Firm 1632 Homestead Trail 18 Long Lake, MN 55356 (612) 940-4452 19 Also present: DANIEL WEST (at 3 p.m.) 20 21 22 23 24 25 8009 1 Defendant by: DAVID B. TULCHIN 2 STEVEN L. HOLLEY SHARON L. NELLES 3 JEFFREY C. CHAPMAN Attorneys at Law 4 Sullivan & Cromwell, LLP 125 Broad Street 5 New York, NY 10004-2498 (212) 558-3749 6 ROBERT A. ROSENFELD 7 KIT A. PIERSON Attorneys at Law 8 Heller Ehrman, LLP 333 Bush Street 9 San Francisco, CA 94104 (415) 772-6000 10 JOHN A. JURATA, JR. 11 DAVID SMUTNEY Attorneys at Law 12 Heller Ehrman, LLP 1717 Rhode Island Ave. NW 13 Washington, D.C. 20036 (202-912-2000) 14 BRENT B. GREEN 15 Attorney at Law Duncan, Green, Brown & 16 Langeness, PC Suite 380 17 400 Locust Street Des Moines, IA 50309 18 (515) 288-6440 19 RICHARD J. WALLIS STEVEN J. AESCHBACHER 20 Attorneys at Law Microsoft Corporation 21 One Microsoft Way Redmond, WA 98052 22 (425) 882-8080 23 24 25 8010 1 (The following record was made out of 2 the presence of the jury at 8:29 a.m.) 3 MS. CONLIN: I was here at 8 o'clock. 4 I had indicated to the defense that we wanted 5 to make a motion at 8 o'clock using the same 6 process by which they call us to Court, and 7 they did not attend. 8 Though I requested that the Court hear 9 me outside the presence of the Defendants, the 10 Court decided that would not be a good thing. 11 So, Your Honor, I do not want to be 12 responsible for keeping the jury waiting, but I 13 do wish to make a motion to strike which I 14 propose that we might try to do in a shortened 15 lunch hour. It will not be terribly long, in 16 my opinion, but I might be wrong. 17 Sharon and I have reached an agreement 18 about the other item, Your Honor, so that does 19 not need to be discussed, the other matter 20 being a complicated matter of who reads what at 21 what point in time in the read jury transcript. 22 THE COURT: Why don't I just tell the 23 jury when we take the lunch that we'll take an 24 extra 15 minutes. Is that okay? 25 MS. CONLIN: Maybe a half an hour just 8011 1 because Mr. Holley talks too long. 2 MR. HOLLEY: Well, I don't know if I 3 accept that. 4 MS. CONLIN: Well, I was here at 5 8 o'clock. That extra half an hour in the 6 morning just makes a big difference in my mood. 7 MR. LAMB: So noted. 8 MR. TULCHIN: We'll stipulate. 9 THE COURT: Was Sharon here at eight? 10 MS. CONLIN: No, Your Honor, but she 11 was not due at eight. 12 MS. NELLES: I was here at 8:10, Your 13 Honor. 14 MR. GREEN: Mr. Green was here at 15 eight. 16 MS. CONLIN: Mr. Green was not here at 17 eight. 18 MR. GREEN: Yes, I was. 19 MS. CONLIN: A little bit after. 20 (The following record was made in the. 21 presence of the jury at 8:34 a.m.) 22 THE COURT: Everyone else may be 23 seated. 24 Good morning, ladies and gentlemen. 25 Mr. Alepin, you may take the stand and 8012 1 you are still under oath. 2 RONALD ALEPIN, 3 recalled as a witness, having been previously 4 duly sworn, testified as follows: 5 REDIRECT EXAMINATION (CONT'D) 6 BY MR. LAMB: 7 Q. Good morning, Mr. Alepin. 8 A. Good morning. 9 Q. When we broke yesterday we were 10 discussing the AARD code. And yesterday 11 morning Mr. Holley asked you if there was a 12 malfunction in the AARD code. 13 Do you recall that question? 14 A. I recall a question concerning 15 malfunctioning and the AARD code. 16 Q. And your response was no, there was no 17 malfunction; right? 18 A. That's correct. 19 Q. And you testified that there wasn't a 20 real error. It was a false error; right? 21 A. That's correct. 22 Q. Okay. By false error, do you mean 23 that it was not true? 24 A. Yes. 25 Q. Now, have you seen evidence in the 8013 1 record that leads you to believe that Microsoft 2 knew that the AARD code was not a true error? 3 A. Yes. 4 Q. What did you see? 5 A. Well, there is a discussion of -- in 6 the record concerning what the purpose was for 7 the code. 8 It was to detect a non-Microsoft 9 operating system, and that in and of itself is 10 -- was not an error. 11 And the purpose for installing the 12 code was not to detect errors, but to detect a 13 different operating system. 14 MR. LAMB: Darin, can you put Slide 15 702 back up again? That's the error message. 16 Q. Now, Mr. Holley asked you if you had 17 seen inflammatory error messages in the 18 industry in general. Do you recall that line 19 of questioning? 20 A. I do. 21 Q. And you said that you had seen 22 impenetrable and half-baked error messages, but 23 you didn't say you'd seen inflammatory. 24 Mr. Holley didn't ask you to explain 25 that. Can you explain what you mean to the 8014 1 jury? 2 A. Well, what I intended was there are 3 error messages that don't scare people and 4 there are error messages that can scare users. 5 There are error messages that can 6 inform users and there are error messages that 7 just appear to convey no information that you 8 can understand or use in order to address the 9 issue for which the error message is being 10 presented. 11 So there's a way of conveying 12 information about error conditions, to the 13 extent they are error conditions, in ways that 14 don't cause the user to lose consciousness or 15 to worry about life-threatening or 16 data-threatening conditions when such 17 conditions don't exist. 18 Q. What type of error message is this? 19 A. Well, this is an error message that 20 conveys no real information other than telling 21 the user that some error condition has occurred 22 and giving him no basis or ability to respond 23 or react to the error condition on his own or 24 to assess or evaluate the import of the error 25 on his operation, on his continuing use of the 8015 1 computer. 2 Q. And what's the impact of that when you 3 receive a message like that? 4 A. Well, the impact is that you don't 5 know what you did and it's not readily apparent 6 how you're going to fix the problem, so the -- 7 you have a lingering concern or doubt about the 8 stability of the system, something happened, 9 and you don't know what it was, and you don't 10 know whether you're going to see something 11 happen in the future. 12 But it's an unresolved issue, and 13 you're unaware of it, so it just undermines 14 your confidence in the continuing use of the 15 system. 16 Q. Okay. Does that raise issues of 17 incompatibility? 18 A. It undermines your confidence and your 19 use of the system, which is a concern. 20 This is a new product, Microsoft 21 Windows beta, 3.11, and there's certainly 22 compatibility issues that can explain what's 23 happening here. 24 And, again, the information is not 25 helpful here other -- but you're trying to 8016 1 install Windows 3.1 on your system. There's a 2 possibility of -- strong possibility there's a 3 compatibility issue. 4 Q. Now, this doesn't happen on MS-DOS; 5 right? 6 A. This error message does not appear 7 when a user would be installing the Christmas 8 beta on MS-DOS. 9 Q. It only happens on DR-DOS; right? 10 A. It only happens on DR-DOS, I believe. 11 Q. Okay. And who is it created by? 12 A. It was created by Microsoft, Microsoft 13 employees. Aaron Reynolds, in particular, at 14 the direction of Microsoft. 15 Q. And AARD, is that an acronym for Aaron 16 Reynolds? 17 A. That's my understanding, that those 18 were his initials. 19 Q. Now, Mr. Holley asked if you had seen 20 a declaration of a David Weiss from Microsoft 21 which he claimed listed certain error messages 22 in the Christmas beta. 23 Do you remember that question? 24 A. I do. 25 Q. And despite earlier telling you that 8017 1 it would be unfair to you to ask you a question 2 about a document without showing you, he never 3 showed you the declaration of Mr. Weiss, did 4 he? 5 A. No, I don't recall seeing it. 6 Q. Now, the implication of his 7 questioning was that there was lots and lots of 8 errors in the Christmas beta. Do you remember 9 that? 10 A. Lots of error messages. 11 Q. Lots and lots of error messages, okay. 12 Is there a difference between an error 13 message that's normally generated because 14 there's an error which can be fixed and an 15 error message which is false, which as you 16 said, you don't know what you did, you don't 17 know how to fix it, and there's a stability 18 issue? 19 A. Well, there are differences between 20 errors that occur because of a condition that 21 arises that is unexpected by the programmer. 22 I mean, programmers -- for example, if 23 you're reading or writing from a floppy 24 diskette and you open the floppy diskette or 25 you get an error message that informs you that 8018 1 you've taken the diskette out -- and in some 2 instances the software developer has written it 3 from the perspective of I can't write to the 4 floppy diskette. 5 In other instances he may say, well, 6 it seems like you took the diskette out. 7 But there's a difference between those 8 kinds of error conditions that are -- or error 9 messages that are precipitated or caused by 10 circumstances that happen as the software is 11 interacting with the user and its environment 12 and other pieces of software and this 13 particular kind of error message here. 14 Q. Are you familiar with a deposition of 15 a Bruce Fryer, an individual that was taken in 16 a prior proceeding relating to Microsoft? 17 A. I believe so. 18 Q. And did you review that? 19 A. At points in time, yes. 20 MR. LAMB: Can you call up number 2, 21 the transcript from Fryer, particularly page 22 111? 23 Q. Starting on line 15, the question is: 24 Did that fact have any impact in 1993, that 25 event that you've told me about, the error 8019 1 message in the Windows 3.1 beta, have any 2 impact on the decision in 1993, or the 3 consideration in 1993, with respect to the 4 desktop machine you were contemplating, whether 5 or not to utilize DR-DOS? 6 Answer: It did. 7 And Mr. Fryer was an individual who 8 went to work for Zenith Data Systems. Do you 9 recall that? 10 A. Yes, I did. 11 Q. Can you explain to the jury what 12 Zenith Data Systems was back in the 1993 time 13 frame? 14 A. They were a personal manufacturer. 15 They were an OEM. 16 Q. Okay. Now, in that question and 17 answer, did you understand when he's referring 18 to the error message, he's referring to the 19 AARD error message? 20 A. That's my understanding. 21 Q. Okay. Then it goes on to say at line 22 22: 23 Question: How did it affect it? 24 Answer: When putting together a 25 business proposal, you like to envision 8020 1 different scenarios and try to understand the 2 impacts. One of the scenarios that we 3 envisioned, based on the experience with the 4 beta bug, was the fact that Microsoft might 5 intentionally put code in Windows that would 6 cause problems with DR-DOS. 7 Therefore, for those contingencies we 8 allowed additional technical resources to fix 9 those problems, and also we evaluated that 10 there may be a potential that if a Windows 11 release came up, that this particular product 12 line might be delayed to market by a factor of 13 maybe, let's say, 60 days, while we worked to 14 get work-arounds from the bugs that Microsoft 15 introduced into the product. Again this is 16 just a scenario. 17 Now, when he refers to the fact that 18 Microsoft might intentionally put code in 19 Windows that would cause problems with DR-DOS, 20 in your professional opinion what impact does 21 that have on DR-DOS? 22 A. Well, if you can overcome the concerns 23 as an OEM that this might happen and you are 24 willing to take a license to bundle the DR-DOS 25 operating system with your hardware and 8021 1 preinstall it, then you are certainly preparing 2 for additional costs associated with providing 3 the DR-DOS system to your customers, as 4 Mr. Fryer is observing; that he has to build in 5 additional contingencies, additional costs, 6 anticipating that this is not going to happen 7 just once, but would happen a couple of times 8 during the period where ZDS, Zenith Data 9 Systems is bringing computers to market that 10 have DR-DOS installed instead of MS-DOS. 11 Q. So would the fact that Microsoft might 12 intentionally put code in Windows that would 13 cause problems with DR-DOS make it more 14 attractive or less attractive for an OEM to go 15 with DR-DOS instead of MS-DOS? 16 A. It would make it less attractive. 17 Q. He goes on to refer to this 60 days, 18 this time period that it might take. 19 Are you familiar with the term time to 20 market? 21 A. Very much so, yes. 22 Q. Can you explain what that means to the 23 jury? 24 A. Time to market is the amount of time 25 from a point -- from a particular date until 8022 1 you're able to get a particular product 2 software or hardware into the market and 3 available for consumers. 4 And market here, I mean your retail 5 outlets if you're selling your product through 6 a retail store, are available for users. 7 If they're personal computer 8 manufacturers, it's how long it takes you to 9 get your product available for businesses to 10 order off the Internet. 11 I mean, there's this -- time to market 12 is this idea of how long it takes from when you 13 have something in your hand to your ability to 14 put it in a product and get it out the door and 15 into the hands of your consumers. 16 Q. So the longer the time to market, the 17 worse it is? 18 A. That's generally -- generally true and 19 it's a -- almost always true. 20 Q. And how significant is 60 days? 21 A. 60 days is particularly -- is very 22 significant in the PC business when you look at 23 the introduction of new products. 24 You look at -- we have Christmas 25 buying seasons, we have back-to-school seasons. 8023 1 There are some Windows here that are 2 very, very significant for PC manufacturers in 3 particular, and that same kind of importance 4 comes up when it's attached to new products, 5 new product release. 60 days is -- can be an 6 eternity. 7 Q. And do you understand Mr. Fryer 8 conveying concern about potential future 9 incompatibilities? 10 A. He's definitely speaking of the 11 potential condition based on his experience 12 with the Christmas beta. 13 MR. LAMB: If you could call up number 14 6. 15 Q. This was used before. It's the 16 extract of the Corey transcript that was read 17 for you. 18 And do you remember who Mr. Corey was? 19 A. Excuse me. He was, I believe, the 20 vice president of marketing, if I'm not 21 mistaken, for Novell. 22 Q. He was marketing at Novell; right? 23 A. Marketing at Novell. 24 Q. And at some point in time, DRI was 25 acquired by Novell; right? 8024 1 A. Yes. 2 Q. Okay. But Novell did product 3 development from what location, sir? 4 A. Well, its principal development 5 facilities were in Provo, Utah. 6 Q. Provo, Utah. 7 And where did DRI do product 8 development? 9 A. Digital Research's R and D, research 10 and development laboratories were in the United 11 Kingdom in England. 12 Q. Now, when Mr. Holley asked you -- 13 before he asked you about the Corey transcript, 14 he asked you a question about API 15 compatibility. Do you recall that? 16 A. I know he asked me that question. I'm 17 not sure the sequence. 18 Q. Now, do you see anything in that 19 transcript, in the wording of that transcript 20 that mentions undisclosed APIs or API 21 incompatibility or anything of that nature? 22 A. No, I don't. 23 Q. And again, Corey is in charge of 24 marketing; right? 25 A. Yes, that's my understanding. 8025 1 Q. Now, according to this person from 2 marketing at Novell, what he's saying is he's 3 not aware of any instance where they didn't get 4 the beta; right? 5 A. That's what his testimony is, yes. 6 Q. Does he say when he got the betas? 7 A. No, he does not. 8 Q. Okay. Does it matter when you get the 9 betas? 10 A. It does. 11 Q. Tell the jury why. 12 A. Well, the earlier you get the betas, 13 the sooner you can begin work to identify and 14 correct any incompatibilities, as well as the 15 earlier you can get started on trying to take 16 advantage of features and functions in the 17 other beta software to make your product 18 better. 19 So it's not just getting it -- getting 20 it to work without any problems. It's also 21 giving you a chance to make your product better 22 and to take advantage of the new features and 23 functions that are available or will be 24 forthcoming in the new version of the software. 25 So the earlier you get that, the more 8026 1 able you are to do both of those things. 2 The later you get that in the cycle, 3 that is to say the closer to the actual launch 4 date of the product, the less you can do in 5 terms of rigorous testing, in terms of complete 6 testing, and the less you can do to improve 7 your product. 8 I need to point out that at this time 9 users -- most users weren't connected to any 10 form of what we take for granted now, any form 11 of Internet. 12 So getting fixes to your users is 13 going to be a difficult problem, and you are 14 going to have to get those fixes out in ways 15 that they can get them that don't rely 16 necessarily on dialing up a telephone number 17 using your computer and downloading the binary 18 files that contain these 1- or 2-bit -- again, 19 these 1 or 2-bit changes that were ultimately 20 the bugs that needed to get fixed. 21 Q. I'd like to show you now Exhibit 9923. 22 MR. LAMB: If you could highlight the 23 date and go down through the second paragraph, 24 if you could. 25 Thanks, Darin. 8027 1 Q. Okay. This is a letter from Microsoft 2 to Mr. Leonard Liu, the president of Acer, 3 Incorporated. Do you see that? 4 A. I do. 5 Q. The time frame is 1989. 6 Can you explain to the jury what Acer 7 is? 8 A. Excuse me. Acer is a PC maker, an OEM 9 that has some -- had at the time some business, 10 some substantial business in the United States, 11 but also was a global personal computer 12 manufacturer. Global in the sense that they 13 sold their product to PCs in Asia and in 14 Europe. 15 MR. LAMB: And can you go quickly to 16 the second page so we can just show the to/from 17 line. Be the yours sincerely, Jeremy Butler. 18 Q. Jeremy Butler, senior vice president 19 at Microsoft. Do you see that? 20 A. I do. 21 MR. LAMB: And if you could go back to 22 the first column, Darin. 23 Q. Mr. Butler says to Mr. Liu, attached 24 to this note is your personal copy of our 25 analysis of the ROM versions of DRI's product 8028 1 versus Microsoft's. 2 I think you'll see that we have a 3 large advantage over DR-DOS in the size of the 4 operating system kernel. This is surely 5 critical in machines designed to ship with 256K 6 memory. There are several other important 7 strengths mentioned in the document. 8 Do you see that, sir? 9 A. I do. 10 Q. And based on your background in the 11 industry, is it your understanding that 12 Mr. Butler is trying to sell Mr. Liu MS-DOS 13 rather than DR-DOS? 14 A. That's correct. A particular kind of 15 MS-DOS, yes. 16 Q. Okay. 17 MR. LAMB: Can you turn the page? 18 Just highlight the first paragraph there. 19 Q. Mr. Butler says to Mr. Liu in that 20 last sentence, it only takes a couple of 21 reports about noncompatibility to give the kiss 22 of death to a PC. We've seen that on the 23 hardware side, as well as in the operating 24 system area. 25 Do you see that? 8029 1 A. I do. 2 Q. Is that phrase, the kiss of death, in 3 relation to compatibility, is that a common 4 industry term? 5 A. It's a common industry term; commonly 6 understood industry term. 7 Q. Can you explain it to the jury, 8 please? 9 A. Well, I believe I had a slide in my 10 presentation, as well, to talk about this -- 11 this is the notion that -- that one -- the user 12 perceives a particular software product to be 13 incompatible with another product that he may 14 actually be using or may potentially in the 15 future be using. 16 And a couple of these reports, even 17 though they may not affect what the user is 18 doing or even what the user plans to do, these 19 reports of incompatibility become part of the 20 reputation of the product, and the -- once a 21 product is identified as being incompatible, 22 even though it's not going to affect large 23 sloths of users, it's the kiss of death. 24 That product is labeled or branded in 25 the minds of potential customers as being 8030 1 incompatible, and that's the equivalent of the 2 kiss of death from the -- I'm not sure whether 3 it's from the Godfather or not, but that's the 4 idea. 5 Q. I think I got the visual. 6 Now, Mr. Holley, when he talked to you 7 and asked you questions about AARD and Bambi 8 and nested task, he took each of those subjects 9 separately. 10 Do you recall that, sir? 11 A. I do. 12 Q. And when he asked you the question, he 13 said he wanted to change to a different topic, 14 but did you consider AARD, Bambi, and nested 15 task separately, sir? 16 A. Well, in terms of penetrating the 17 particular details, of course, each one of 18 those had to be examined, but they were part of 19 the incompatibility tactic that targeted the 20 DR-DOS and its ability to be incompatible with 21 Microsoft's Windows product. 22 Q. So you considered them cumulatively? 23 A. I considered them cumulatively, as I 24 believe they must be considered. 25 Q. Why do they have to be considered 8031 1 cumulatively? 2 A. Well, it's not clear, for example, 3 that you would be able to get the message out 4 of incompatibility relying exclusively, for 5 example, on developer tools. 6 Verify DOS played in the developer 7 tools products initially, although it was 8 certainly planned to be in all of Microsoft's 9 products, and Microsoft's applications 10 executives committed to installing it in all of 11 Microsoft's applications products. 12 It's not clear that the message is 13 going to get out quickly and touch all of the 14 users, so the more chances you have of creating 15 circumstances in which the incompatibility 16 message through the no error error message of 17 AARD or through the warranty message in verify 18 DOS or through the Bambi code, the more chances 19 you have to do that, the more likely the user 20 is going to get the message. 21 Q. Okay. So is what you're saying, sir, 22 that even if the incompatibilities are false or 23 real, whether they're true or false, a few of 24 them reported, such as AARD, Bambi, and nested 25 task can have a kiss of death on a product? 8032 1 A. Absolutely, yes. 2 Q. And in your professional opinion, is 3 that what happened here? 4 A. Yes. 5 MR. LAMB: Could you put up Exhibit B, 6 I think it's 14 on your call-out, Darin, on 7 your system that you enlightened me on 8 yesterday afternoon. 9 Q. Okay. There were a series of 10 questions from Mr. Holley about documents and 11 documents that you'd reviewed. Do you remember 12 that, sir? 13 A. Yes, I do. 14 Q. And, hopefully, I'll just cover this 15 briefly, but Mr. Holley essentially accused you 16 of only reviewing 501 documents in order to 17 present your testimony to this jury. Do you 18 recall that? 19 A. Well, I think there was some sort of 20 suggestion to that effect, yes. 21 Q. Okay. All right. 22 And you disagreed with that; right? 23 A. Very strongly. 24 Q. Do you think it's fair to claim that 25 you only reviewed 501 documents? 8033 1 A. Oh, no. 2 MR. LAMB: Let's just -- if we could 3 just go through this and kind of scroll through 4 it page by page. I'll tell you when to stop, 5 Darin. 6 Keep going. Keep going. Keep going. 7 Keep going. 8 All right. Now stop there for a 9 second. 10 Q. When you looked at the expert report 11 of Doctor David Martin, the first document, did 12 that include documents attached to it? 13 A. A large number of documents. 14 Q. A large number of documents, okay. 15 How about the expert report of Doctor 16 John Bennett? 17 A. Very large, as I remember it. Very 18 large and very many -- 19 Q. Tell the jury who Doctor John Bennett 20 is. 21 A. Doctor John Bennett is a -- an expert 22 witness that Microsoft has offered in other 23 proceedings on the matters of -- I believe on 24 the matters of the DR-DOS incompatibilities. 25 Q. Okay. 8034 1 MR. LAMB: If you could scroll down 2 again, Darin. 3 Keep going. Keep going. Keep going. 4 Keep going. 5 6 Q. All right. Now, at the end there, it 7 says, I also reviewed the materials from the 8 remedies proceedings in New York versus 9 Microsoft. 10 That's another case; right? 11 A. Yes. 12 Q. And when you say the materials, what 13 do you mean? 14 A. Excuse me. The materials include the 15 submissions by Microsoft and the government -- 16 the states, nonsettling states and settling 17 states, the intervenors, people who sought to 18 present information on one side or another 19 favorable to the government or favorable to 20 Microsoft that included deposition testimony, 21 direct testimony during the proceedings, 22 reports filed by experts. 23 It's quite a large record by itself. 24 Q. Did it include exhibits also? 25 A. It did. 8035 1 Q. And then in the next block, in the 2 final paragraph you reference the MDL. That's 3 multidistrict litigation? 4 A. That's correct. 5 Q. Another case; right? 6 A. Another case. 7 Q. The California litigation, another 8 case? 9 A. Yes. 10 Q. Caldera versus Microsoft, another 11 case? 12 A. Yes. 13 Q. And then there's several other cases; 14 right? 15 A. Yes. 16 Q. And that includes the pleadings, the 17 reports, the deposition transcripts, trial 18 transcripts if they were included, and exhibits 19 that were submitted by the parties and third 20 parties in those cases; right? 21 A. That's correct. 22 Q. Now, you reviewed all this stuff, but 23 you didn't necessarily rely on all of it for 24 your testimony here in the past week or so; 25 right? 8036 1 A. No. 2 Q. Correct? 3 A. That's correct. 4 Q. Now I want to talk about undocumented 5 APIs for a while. 6 Do you remember there was some 7 discussion yesterday about undocumented APIs 8 and documented APIs? 9 A. Yes. 10 Q. Let's take a look at, first, the 11 Kliger extract. 12 MR. LAMB: I think it's your Code 4, 13 Darin. 14 Q. And this is something that was read to 15 you, okay. 16 And before it was read to you, 17 Mr. Holley asked you in the transcript at 7545, 18 line 24, for the record, quote, did you read 19 the testimony of Mr. Kliger, K-l-i-g-e-r, who 20 testified that he was a developer for IBM and 21 then later for Lotus and then for WordPerfect 22 in forming your views about whether Microsoft 23 had undocumented APIs? 24 A. Yes. 25 Q. Do you recall that? 8037 1 A. Yes. 2 Q. And I'm looking at this, and I'm 3 trying to see a reference to undocumented APIs. 4 Do you see anything about undocumented APIs? 5 A. No. 6 Q. Do you see anything about APIs? 7 A. No, I don't see it. 8 Q. All right. I want to -- 9 MR. LAMB: Can you give them Exhibit 10 2246, please? 11 Q. Now, the line of questioning that 12 Mr. Holley was referring to in terms of Kliger 13 related to undocumented APIs in relation to 14 various disclosures and nondisclosures by 15 Microsoft; right? 16 A. Yes. 17 Q. Was he talking about anything 18 specifically, as you understood it, when he was 19 asking you the questions; any particular set of 20 APIs? 21 A. No, not that I recall. 22 MR. LAMB: If you could pull up 23 Exhibit 2246, please. 24 If you could highlight the to and from 25 and the first paragraph. No. The second 8038 1 to/from. Sorry. There you go. 2 Q. This is an E-mail to John Landry, 3 Ilene Lang, and Tom Lemberg from Noah 4 Mendelsohn. Do you know who Noah Mendelsohn 5 is? 6 A. Noah Mendelsohn, I believe, was a 7 developer inside Lotus. 8 Q. And do you know who John Landry, Ilene 9 Lang, and Tom Lemberg were? 10 A. They were executives inside that 11 company. 12 Q. And according to Mr. Mendelsohn, he 13 says, this note summarizes my concerns 14 regarding Microsoft's support for ISVs 15 implementing the new OLE controls, parens, OCX, 16 parens, technology. 17 Do you see that? 18 A. I do. 19 Q. Now, Kliger was, according to 20 Mr. Holley, at Lotus; right? 21 A. Yes. 22 Q. And Mendelsohn is at Lotus; right? 23 A. Yes. 24 Q. Now, can you explain to the jury what 25 the OLE controls were? 8039 1 A. Well, the simplest way to think of 2 them is if we are familiar with DLLs, they're 3 like DLLs. They're like dynamic link 4 libraries, but they're used in a somewhat 5 different context. 6 They enable one application to use 7 another application programmatically. So if 8 you want to think about a -- if you have a Word 9 document and you want to put a spreadsheet into 10 that document, you could just copy what it 11 looks like, or you could actually copy the 12 spreadsheet as a -- we call them objects -- and 13 whenever you clicked on the area inside your 14 Word document where the spreadsheet was, it 15 would actually get you to work with the 16 spreadsheet program. 17 So you'd be inside your word 18 processing program and you'd actually be using 19 the spreadsheet program to deal with that 20 portion of the -- of the document. 21 And that kind of capability is 22 provided by a layer of software that is called, 23 in the Microsoft context, OLE, OLE, object, 24 linking, and embedding. 25 MR. LAMB: Okay. Can you highlight 8040 1 the next paragraph, Darin? 2 Q. Mr. Mendelsohn goes on to say, OLE 3 controls, which are implemented as enhancements 4 to OLE 2.0, are emerging as the key component 5 architecture for the Windows operating system 6 platform. 7 Microsoft has also disclosed that OLE 8 controls will be used as the basis for the 9 desktop user interface in Cairo, the successor 10 to Windows NT. 11 A. I see that. 12 Q. What are OLE controls -- I mean, how 13 does that relate to the desktop user interface? 14 Maybe there's a way that you can draw it out. 15 MR. LAMB: Is that okay with the 16 Court? 17 THE COURT: Sure. 18 A. So the idea behind the object, 19 linking, and embedding, or OLE, was to be able 20 to create applications software and other 21 software components, sometimes called objects. 22 So object, linking, and embedding. 23 And you would be able to within your 24 application make use of these objects and 25 combine them in certain ways in order to create 8041 1 a composite application or an application that 2 was able to reuse these various elements, 3 including, for example, a simple grid. 4 You could -- you could create a 5 control, which the software -- a piece of 6 software, and that control could be used by 7 other pieces of software for the purpose, let's 8 say, of -- the specialized purpose of drawing a 9 grid on the screen, a table, and allowing the 10 user to enter information in a tabular form. 11 Q. Mr. Alepin, I'm not sure the whole 12 jury can see that. 13 MR. LAMB: Can we pull it forward a 14 little bit, Your Honor? 15 THE COURT: Sure. 16 A. So it's the idea of each one of these 17 separate pieces of software being identified as 18 objects and being made available to other 19 applications that these applications can refer 20 to and orchestrate together to perform 21 functions that allow the application to deliver 22 whatever functionality it wants to. 23 So it's -- the initial example that I 24 used for one document, a spreadsheet inside a 25 Word document, imagine that being carried to a 8042 1 lower level where you're dealing with elements, 2 for example, of the user -- of the user 3 interface of your application. The grid 4 example being able to reuse some software in 5 your application that draws a grid and 6 interacts with the user as the user is filling 7 data in in the grid for you. 8 Q. You can take your seat now, sir. 9 Thanks. 10 MR. LAMB: If you could call up the 11 next half a paragraph, Darin. The highlighted 12 portion. It starts, Microsoft is publicly 13 committed. 14 Thank you. 15 Q. Mr. Mendelsohn of Lotus goes on to 16 say, Microsoft has publicly committed on 17 numerous occasions to ensuring a fair 18 separation between the application and system 19 groups at Microsoft. 20 Do you see that, sir? 21 A. I do. 22 MR. LAMB: Thank you. 23 Q. Now, this fair separation between the 24 application and system groups at Microsoft, is 25 this the church and state example that you were 8043 1 giving earlier in your testimony? 2 A. This relates to the issue of church 3 and state very much, yes. 4 Q. And how important is that separation 5 to church and state in this technological 6 concept to ISVs? 7 A. Well, it's important on two levels, 8 one of which is that you need to -- the 9 applications developers, the independent 10 software vendors needed to know the extent to 11 which the playing field, if you will, the 12 operating systems platform was a -- was level 13 so that their chances to develop application 14 software that would work with Microsoft's 15 operating system were good enough when compared 16 to the -- those available to Microsoft's own 17 applications developers. 18 So the expectation on the part of the 19 independent software development community was 20 that the playing field would be level, and they 21 would have opportunities to develop software 22 that matched those that Microsoft's 23 applications developers had, certainly in terms 24 of the information available and necessary to 25 build their applications. 8044 1 Q. Okay. Mr. Mendelsohn goes on to say, 2 specifically they have promised to provide 3 equivalent operating system API support and 4 documentation to application developers working 5 inside and outside Microsoft. 6 Do you see that, sir? 7 A. I do. 8 Q. And is it your understanding that 9 Mendelsohn is saying that Microsoft has 10 promised that they are going to have separation 11 between church and state? 12 A. On several occasions, they had done 13 so. 14 Q. And is that, in fact, true that 15 Microsoft had promised to have that separation 16 between church and state? 17 A. Several times. 18 Q. Mr. Mendelsohn goes on to say, I am 19 concerned that these commitments are not being 20 met in the case of OCX and that Lotus and other 21 ISVs are being put at an unfair competitive 22 disadvantage. 23 Do you see that, sir? 24 A. I do. 25 Q. And that feeling of being put at an 8045 1 unfair competitive advantage, is that 2 consistent with you and your understanding in 3 relation to how ISVs were reacting if they were 4 not getting APIs disclosed to them? 5 A. That's my exact understanding, yes. 6 Q. Okay. 7 MR. LAMB: Can we go to the bottom 8 call-out, Darin? 9 Q. Okay. And then finally Mr. Mendelsohn 10 says, recently a number of concerns have arisen 11 regarding Microsoft's willingness and ability 12 to extend such support to the new OLE controls 13 technology. 14 For the reasons listed below, I 15 believe that Microsoft application developers 16 have been given earlier and more detailed 17 access to OCX specifications than we have had 18 here at Lotus. These are serious concerns, and 19 I hope that we can address them with Microsoft 20 promptly. 21 Do you see that, sir? 22 A. I do. 23 Q. So Mr. Holley's reference to 24 Mr. Kliger was suggesting that Lotus didn't 25 have any problems with undisclosed APIs; right? 8046 1 A. As far as it went, yes. 2 Q. Right. As far as it went, okay. 3 But the rest of the story in relation 4 to Mr. Mendelsohn, who was there at Lotus, is 5 he's saying he's having significant problems 6 with undisclosed APIs; right? 7 A. That's correct. That's correct. 8 Q. And he's complaining that he's not 9 getting that information and that there's not a 10 separation of church and state? 11 A. That's correct. 12 Q. Now, Mr. Holley said to you yesterday 13 morning at 7792, line 16 through 18, he said: 14 Sir, you agree, do you not, sir, that a company 15 is entitled to tell the truth about defects in 16 its competitive products? 17 A. In its competitor's products, I think. 18 Q. Competitor's products, you're right. 19 A. Yes. 20 Q. And also at 7793, lines 23 through 25, 21 he referred to truthful information and 22 distributing truthful information. 23 A. Yes. 24 Q. Do you think it's important in your 25 industry to deal in truthful information and to 8047 1 distribute truthful information? 2 A. I think so, yes. 3 Q. Okay. Now, sir, if you have a 4 documented API, you have it because it's 5 documented; right? 6 A. If -- yes. I guess that's -- 7 Q. Even I can grasp that, okay. 8 If it's undocumented, how do you know 9 you don't have it? 10 A. Well, you don't know what you don't 11 know. So there's a problem there that we 12 identify quite often. 13 It's not just -- sometimes you know 14 that you don't know something, but other times 15 you don't know that you don't know. 16 Q. Okay. So ISVs can be having this 17 problem with undocumented APIs and they don't 18 know what the undocumented APIs are; right? 19 A. And that, in fact, was a common 20 problem over this period, yes. 21 Q. I'm going to go back briefly to 22 Exhibit 2456. This was used before. 23 If you'll give them an additional 24 copy. 25 What I want to do with 2456 -- this is 8048 1 the DRG summit talk by James Plamondon 2 regarding power evangelism and relationship 3 evangelism. 4 Do you recall that? We went over that 5 a few days back. 6 A. I do. 7 Q. And, again, DRG, what's that, sir? 8 A. Developer relations group. 9 That's the group inside Microsoft 10 responsible for managing the relationship 11 between Microsoft and the developer community. 12 Q. Okay. And this is the particular 13 document where Mr. Plamondon talked about the 14 tactics of evangelism, and he talked about ISVs 15 being pawns in the struggle between platform 16 vendors. 17 Do you recall that, sir? 18 A. Yes. 19 MR. LAMB: Now, if you could just 20 highlight the last paragraph of the first page, 21 sir. Thank you. 22 Q. And who's Mr. Plamondon talking to? 23 A. He's talking to, as I understand it, 24 the other members of the developer relations 25 group within Microsoft. 8049 1 Q. Okay. So he's conveying the party 2 line? 3 A. He's extolling the party line. 4 Q. And Mr. Plamondon goes on to say, they 5 are very valuable pawns in the struggle, 6 however. We cannot succeed without them. 7 If you've ever tried to play chess 8 with only the pieces in the back row, you've 9 experienced losing, okay, because you've got to 10 have those pawns. They're essential? 11 So you can't win without them, and you 12 have to take good care of them. You can't let 13 them feel like they're pawns in the struggle. 14 Now, just so we're clear, 15 Mr. Mendelsohn at Lotus would be one of those 16 pawns; right? 17 A. That's correct. 18 Q. Okay. He goes on to say, I mean, all 19 through this presentation previously, I talked 20 to you about how you're using the pawns and 21 you're going to screw them if they don't do 22 what they want, and dah-dah-dah. You can't let 23 them feel like that. If they feel like that, 24 you've lost from the beginning. 25 It's like you're going out with a 8050 1 girl; forgive me, it goes the other way also. 2 You're going out with a girl, what you really 3 want to do is have a deep, close and intimate 4 relationship, at least for one night. 5 And, you know, you just can't let her 6 feel like that, because if you do, it ain't 7 going to happen, right. So you have to talk 8 long term and white picket fence and all these 9 other wonderful things, or else you're never 10 going to get what you're really looking for. 11 So you can't let them feel like pawns, 12 no matter how much they really are. 13 Sir, in your opinion, if Microsoft 14 follows the party line as put forth by 15 Mr. Plamondon, is that a dissemination, a 16 distribution of truthful information? 17 A. No, not -- 18 MR. LAMB: Can you give them Exhibit 19 1032 and 1031. I think we've already seen 20 1031, but give them 1032 also. 21 Q. Now, the Plamondon talk was done in 22 '96. I want to go back in time a little bit to 23 '91, okay, and I want to reference, tie back to 24 Lotus. 25 A. Okay. 8051 1 MR. LAMB: If you can put 1032 up, 2 Darin, and if you could highlight the bottom 3 below. 4 Thanks for your help. Just the whole 5 thing down there, that message. The whole 6 thing all the way down. There we go. 7 Q. All right. This is an E-mail from 8 Mike Maples of October 18, 1991. 9 Do you see that, sir? 10 A. I do. 11 Q. And, again, can you tell the jury who 12 Mike Maples is? 13 A. He's senior executive in charge of 14 applications for Microsoft. 15 Q. Applications? 16 A. Yeah. 17 Q. And then it's to Brad Silverberg and 18 some other folks. Who is Brad Silverberg? 19 A. Head of the desktop operating systems 20 group inside Microsoft. 21 Q. Okay. From -- 22 A. In the platforms group. 23 Q. Okay. From church to state? 24 A. Yes. 25 Q. Okay. From church to state. 8052 1 And the subject is Excel brainstorm 2 group. Do you see that, sir? 3 A. I do. 4 Q. And according to Mr. Maples, he says, 5 I would like to ask you to invest a half day 6 with me following COMDEX. 7 Can you tell the jury what COMDEX is? 8 A. Back in the 1980s and through the 9 early 1990s, the most popular North American 10 trade show for our business was -- for our 11 business, for personal computer business, 12 certainly was the -- was this show in Las Vegas 13 called COMDEX. 14 And there companies would lease charge 15 blocks of space on the exhibition floors and 16 have lots of bright lights and displays and 17 trying to introduce their new products and 18 technologies and meet with their customers and 19 -- it was a trade show, very popular, very 20 important trade shows in those days. 21 Q. A lot of times product rollouts were 22 announced at these; right? 23 A. Certainly, yeah. 24 Q. Okay. Mr. Maples goes on to say, what 25 I would like to brainstorm is how to push Excel 8053 1 over the top and Lotus out of business. 2 Excel is Microsoft's product; right? 3 A. Microsoft's spreadsheet application. 4 Q. And Lotus is a competing Microsoft 5 spreadsheet? 6 A. Lotus is the -- yes, the competing 7 spreadsheet application from Lotus. 8 Q. At this time it was the leading 9 competing spreadsheet application, '91? 10 A. In '91, it was the most widely used 11 spreadsheet application. 12 Q. Mr. Maples goes on to say, I know a 13 half day is valuable. We also have a very good 14 marketing plan. What I was hoping to do is tap 15 the creativity of a group of people who are not 16 involved and see if we can scare out some new 17 ideas, concepts, et cetera. 18 I was thinking about half a day Friday 19 or Saturday of next week. Can I count you in? 20 MR. LAMB: If you could put up 1031, 21 please. 22 Q. And later that same day from Brad 23 Silverberg back to Mike Maples and others. So 24 from state back to church. Again same subject, 25 Re: Excel brainstorm group. 8054 1 Mr. Silverberg says to Mr. Maples, I'd 2 be glad to help tilt Lotus into the death 3 spiral. I could do it Friday afternoon, but 4 not Saturday. I could do it pretty much any 5 time the following week. 6 Do you see that, sir? 7 A. I do. 8 Q. And during Mr. Holley's 9 cross-examination, he suggested to you that 10 that might just be a joke. Do you remember 11 that? 12 A. Yes. 13 Q. Do you think that's a joke? 14 A. No. 15 MR. LAMB: If you could go to exhibit 16 -- I don't know if we've shown them 2151. 17 Sorry. 18 Yes, we have. I'm sorry. 19 Can you put 2151 up? 20 All right. If you could go to the 21 from line and the to line and just the first 22 couple paragraphs below that, Darin. 23 There you go. Thanks. 24 Q. Okay. And this is a document that was 25 seen before, and this is a different time frame 8055 1 and it's relating to a different product? 2 A. Yes. 3 Q. Okay. But this is from Bill Gates? 4 A. Yes. 5 Q. Okay. And it's to a number of senior 6 executives, and this relates to the 7 Ishellbrowser. 8 Do you remember when we talked about 9 the Ishellbrowser a few days ago? 10 A. I do. 11 Q. And Mr. Gates says, it's time for a 12 decision on Ishellbrowser. This is a tough 13 decision. Okay. 14 MR. LAMB: And then if you can go down 15 to the call-out where it says I have decided. 16 It's one, two, three, four paragraphs down. 17 Thanks, Darin. 18 Q. I have decided that we should not 19 publish these extensions. Okay. 20 So did you understand that Mr. Gates 21 was telling the people in his company not to 22 publish the API extensions regarding 23 Ishellbrowser? 24 A. That's correct. 25 MR. LAMB: If we could go to 8056 1 Defendant's Exhibit 1029. 2 Q. Now, remember when we talked about 3 namespace extension decisions? 4 A. Yes. 5 Q. Mr. Holley asked you some questions 6 about that? 7 A. Yes. 8 Q. And he read you some documents and he 9 showed you some documents, and one of the 10 documents that he showed you was from Scott 11 Henson, an E-mail from Scott Henson. 12 A. Yes. 13 MR. LAMB: Go all the way down. 14 There you go. Thanks, Darin. 15 Q. What he did was he read you the next 16 page. 17 This is basically what Microsoft is 18 going to explain to the ISVs about these 19 disclosures that weren't made previously. 20 Do you recall that? 21 A. That's correct. 22 Q. Okay. And do you see where it says 23 there, let's try not to use the word, quote, 24 undocumented, unquote, or private APIs? Do you 25 see that? 8057 1 A. I do. 2 Q. And then in the back, what he talked 3 about a lot was the Q and A about the party 4 line of what they're going to explain about why 5 they didn't give it previously. 6 Do you remember that? 7 A. I do. 8 MR. LAMB: If you could go to the next 9 Exhibit 3066, Darin. 10 It's a big one. Okay. And if you 11 would go down to the bottom where it -- there 12 you go. 13 Q. And this is a document -- it's a very 14 thick document, and Mr. Holley showed you 15 portions of it in the back, and we'll talk 16 about those in a second, but in the very first 17 page and when he was talking about whether or 18 not there were -- I think he referred to them 19 as bulletin board entries. This is prior to 20 blogs, there were bulletin boards. 21 It says right there, it looks like 22 there are a large number of undocumented 23 interfaces in the shell? 24 Do you see that? 25 A. Yes. 8058 1 Q. And this is from -- if you'd go up to 2 the top -- Curt Hagenlocher from EarthLink.net. 3 Do you have any idea who that is? 4 A. I think he's -- no, I'm sorry. He's 5 at -- he's using Earthlink.net. I don't know 6 that he's an employee. 7 Q. Right. This is just somebody -- 8 A. Somebody who thinks -- 9 Q. Somebody who's complaining; right? 10 A. Someone who's spreading, yes. 11 MR. LAMB: Okay. Then if you go back 12 to what -- it's on page -- starts on 93, Darin. 13 Q. What Mr. Holley referred you to, and 14 he referred you to a few pages from Joe 15 Belfiore and Andrew Schulman. 16 And again, who is Joe Belfiore? 17 A. He was the senior person in the 18 Windows group. 19 Q. And Andrew Schulman is the gentleman 20 you testified about yesterday, the book; right? 21 A. That's correct. 22 MR. LAMB: Where is the book? Thanks. 23 A. The same one. 24 Q. The one that you didn't read line for 25 line; right, sir? 8059 1 A. That's right. 2 Q. Unauthorized Windows 95? 3 A. And other books. 4 Q. And other books, okay. 5 As I look at this response from Joe 6 Belfiore, and it says -- if you go to the PS, 7 the letter of explanation below, has been going 8 out with the doc. This gives the background as 9 to why these have been B-list in the past. 10 MR. LAMB: And then if you go over to 11 the next page. Go ahead and highlight 12 limitations. 13 Q. Limitations with current 14 implementation, and then it goes on. 15 Where are the API extensions? 16 A. I'm sorry, I didn't get your -- where 17 are the API -- 18 Q. Well, is this just Mr. Belfiore 19 saying, you know, I'm sorry we didn't give you 20 the API extensions, or is he actually giving 21 them to Mr. Schulman? 22 A. Well, he's describing the limitations 23 of the -- of that particular support. 24 Q. Okay. But does he give Mr. Schulman 25 the API extensions? 8060 1 A. It doesn't look like it from here. 2 Q. Doesn't look like it, does it? 3 A. No. 4 MR. LAMB: Let's go to page 95. And 5 highlight that. 6 Q. And this is from Mr. Schulman to 7 Mr. Belfiore; right? 8 A. Uh-huh. 9 Q. And you see where it says, Brad 10 insisted to me that these have been documented, 11 but I and others haven't been able to find any 12 doc? 13 Now, Brad Silverberg is the same 14 gentleman we've been talking about for several 15 days; right? 16 A. That's correct. 17 Q. So Mr. Schulman is complaining that he 18 doesn't have them? 19 A. That's correct. Can't find them. 20 Q. Can't find them. 21 MR. LAMB: Can you give them 2383? 22 If you could put 2383 up, and it 23 starts at the bottom -- if you could just 24 highlight the bottom is the way they added this 25 in. 8061 1 Q. This is from Scott Henson to Cameron 2 Myhrvold, then Doug, it looks like Hench, 3 Hendrich? 4 A. Henderson. 5 Q. Henderson. I'm sorry. 6 Now, Scott Henson, that's the same 7 gentleman that you were shown the Defense 8 Exhibit 1029 about. Do you remember that? 9 A. Yes. 10 MR. LAMB: Could you go to the next 11 page, please? And if you could highlight the 12 first paragraphs. 13 Q. And it was suggested to you that 14 Mr. Henson didn't have a problem with these 15 undisclosed APIs before. 16 Do you remember that? 17 A. That's correct. 18 Q. Okay. And he's writing to Mr. 19 Myhrvold -- again, who is Mr. Myhrvold? 20 A. There are two Myhrvolds in Microsoft 21 at this time. 22 Nathan we had E-mails earlier, and 23 Cameron. Cameron was in the developer tools 24 group. He was a -- an executive inside the 25 Microsoft developer tools group, I believe, at 8062 1 this time. 2 Q. Okay. And Mr. Henson is saying this 3 mail is intended to summarize what I am seeing 4 internally on this subject and to voice an, all 5 caps, strong concern for our ISVs. 6 Do you see that, sir? 7 A. Yes. 8 Q. So Mr. Henson within Microsoft is 9 concerned about ISVs outside of Microsoft; 10 right? 11 A. They would be independent software 12 vendors, yes. 13 Q. He goes on to say, the problem is that 14 approximately a year ago, we told ISVs that a 15 set of interfaces, known as namespace 16 extensions, were no longer going to be a part 17 of the standard Win 32 API set -- they were 18 moved to an unsupported status or B list. 19 The rationale at the time was that the 20 interfaces were difficult to support, 21 especially on NT. The specific reason is that 22 when an ISV implements a namespace extension, 23 they live in the process space of the operating 24 system. Thus, if an ISV writes their namespace 25 extension poorly, they can bring down the 8063 1 entire shell. This is still the case today. 2 Another reason was that the REN team, 3 Office 96 PIM, was going to hold the key for 4 all future shell innovation, thus the split of 5 the Cairo shell team. 6 Given this, we went and told the ISVs 7 that there was a lot that they could do in the 8 system with respect to extensibility, all caps, 9 but they, all caps, could not integrate into 10 the explorer, like the control panel and 11 briefcase, as we had previously mentioned was 12 possible. 13 What's he saying? What's the problem? 14 A. Well, this is picking up from, I 15 think, the E-mail earlier that I talked about 16 with Mr. Holley. 17 The Chicago platform contains these 18 APIs that are intended to allow independent 19 software vendors to do some new stuff with the 20 Windows user interface and the shell, the 21 graphical user interface on top of the 22 computer. 23 Mr. Gates makes a decision about 24 whether those APIs are going to be released or 25 not. His decision is they're not going to be 8064 1 released. 2 The -- and there was an explanation 3 that was provided as to why they were not going 4 to be released. And bringing this forward 5 here, this is describing sort of -- the first 6 part of this E-mail talks about that 7 chronology, that history. 8 And here you have a description -- 9 another reason was that the Microsoft Office 10 application, the personal information manager, 11 REN, was going to be the -- was going to hold 12 the key -- as Mr. Gates points out in his 13 E-mail -- that there was going to be a link for 14 future innovations and enhancements that will 15 be available on the desktop, but the Microsoft 16 Office applications group is going to be the 17 one that's going to be leading that and doing 18 that. 19 And the final part is that the 20 independent software vendors were told that 21 they could not use those APIs to develop their 22 extensions the way some of Microsoft's software 23 did. 24 Q. So Microsoft is doing it internally, 25 but externally the ISVs are told they can't do 8065 1 anything? 2 A. That's the -- that's what the message 3 is, yes. That's what they're told. 4 Q. And is that a church and state issue? 5 A. Well, it's certainly a church and 6 state issue. 7 MR. LAMB: Could you go to the next 8 block or the next two paragraphs under however? 9 Q. Mr. Henson goes on to say, however, 10 this is not the limit of what is going on 11 internally. 12 As I mentioned, there is a lot of 13 internal development going on where various 14 groups are implementing these interfaces to 15 varying degrees. Again, I don't mind if these 16 various groups are doing this development work, 17 as long as it is in the way that MSN is doing 18 it, coming up in their own view, separate from 19 the system. 20 We can then move the interfaces back 21 to the standard Win 32 set and with a little 22 ISV reeducation on our part, all is well. 23 Today, my perception changed 24 drastically. I have just installed Athena, the 25 lightweight PIM from the PSD group, onto my 8066 1 system, and to my dismay, they are not only 2 using the namespace extensions, but they are 3 also displaying themselves in the scope, left, 4 pane and view, right, pane. 5 This is the exact thing we told ISVs 6 they could and should not do. 7 So Mr. Henson is essentially saying 8 that we told ISVs they couldn't do it, but our 9 internal applications group is doing it? 10 A. That's correct. 11 Q. He goes on to say, in short, we have a 12 product that will be sold in the very near 13 future that will implement interfaces that we 14 told ISVs they should not use because we would 15 not be able to support them moving forward. 16 In the meantime, we were developing a 17 product that did exactly that. I can't even 18 express how, all caps, bad this is. We loose 19 everything when we do this. Credibility, 20 trust, leverage, the works. 21 What's strange about all of this is 22 that it looks like this product works fine on 23 NT as well. 24 Sir, is this an instance in your 25 opinion of distributing truthful information? 8067 1 A. You're referring to the Q and A 2 disclosure? 3 Q. This whole thing. 4 A. It turns out that that's not what 5 happened. 6 Microsoft's public disclosures to 7 independent software vendors were not, in fact, 8 what it did internally and what it had its own 9 developer, applications developers do. 10 WordPerfect, for example, relied on 11 the statements that namespaces -- namespace 12 extensions were not going to be available and 13 threw their development away, considerable cost 14 to them. 15 There's testimony from I think it's 16 Mr. Harral from WordPerfect describing the fact 17 that they had done all of this stuff, using 18 these interfaces, and when they got the message 19 that that's not where we're going, Microsoft 20 says that's not where we're going, they 21 followed Microsoft's statements, even though 22 certainly WordPerfect believed that its 23 implementations were very innovative and very 24 attractive; in fact, that they provided 25 WordPerfect product potentially with some very 8068 1 good advantages in the market. 2 They threw that away. Meanwhile, 3 Microsoft's own team, applications team was 4 working on that using those interfaces and 5 developing software that used those interfaces, 6 contrary to the statements to ISVs. And, in 7 fact, they worked. They worked both with the 8 Windows NT software and the Windows 32 Chicago 9 Windows 95 software, contrary to the 10 suggestions in the Q and A that, in fact, it 11 wouldn't work, wouldn't be able to work with 12 Windows NT and Windows 95, so -- 13 Q. One of the lines of questioning -- we 14 talked about it briefly already -- that 15 Mr. Holley had to you was this concept that 16 very few people complained, very few people 17 posted on the bulletin boards. 18 Assuming that that's true, does that 19 matter in this instance or is this another 20 instance of we don't know what we don't know? 21 A. Well, certainly it's my experience 22 through the record that it has been developers 23 not knowing all of the details of why an 24 interface is pulled back, why interfaces are 25 not disclosed, whether interfaces that are 8069 1 present are being used by Microsoft's 2 applications. 3 So that is -- that's really the case. 4 It is the circumstance; that it is 5 they don't know what they don't know. 6 Certainly some developers have discovered 7 pieces of stuff that they don't know, but they 8 don't have the benefit of being able to see 9 both sides here. 10 Q. And all of this impacts time to 11 market? 12 A. Time to market, quality, capability. 13 The core attributes of the software are 14 affected. 15 Q. So, Mr. Alepin, in your professional 16 opinion, after Microsoft had promised to ISVs 17 that it would maintain this separation of 18 church and state and then failed to keep this 19 separation of church and state and failed to 20 disclose APIs, is that the kiss of death? 21 A. It's -- it leads to incompatibilities, 22 and incompatibilities are the kiss of death. 23 MR. LAMB: Would this be a good time 24 for a break, Your Honor? 25 THE COURT: Take a ten-minute recess. 8070 1 Remember the admonition previously 2 given. Leave your notebooks here. 3 Ten minutes. 4 (A recess was taken from 9:50 a.m. 5 to 10:08 a.m.) 6 THE COURT: Please be seated. 7 Mr. Alepin, you're still under oath. 8 Mr. Lamb, you may continue. 9 MR. LAMB: Thank you, Your Honor. 10 Can you put 9923 up? Can you 11 highlight the kiss of death comment? Just the 12 first paragraph. 13 Q. And again, sir, this is the exhibit 14 that was the letter from Jeremy Butler, a 15 senior vice president of Microsoft, to Leonard 16 Liu of Acer, and I want to relate this and go 17 back to the questions that you had yesterday 18 where Mr. Holley suggested that a couple of 19 reports of noncompatibility are not significant 20 and read to you what Mr. Butler says. 21 It only takes a couple of reports 22 about noncompatibility to give the kiss of 23 death to a PC. We've seen that on the hardware 24 side as well as in the operating system area. 25 Do you see that, sir? 8071 1 A. I do. 2 Q. And do you agree with that statement 3 from Mr. Butler? 4 A. Oh, yes. 5 Q. Also, sir, when you were testifying 6 earlier today, I asked you a series of 7 questions about the documents and the reports, 8 and I want it to be clear. 9 You didn't review every exhibit and 10 every report; right? 11 A. No. 12 Q. But you reviewed that which you felt 13 was sufficient for you to render your opinions; 14 right? 15 A. That's correct. 16 Q. And a number of the reports had 17 exhibits attached, but some of the reports have 18 exhibits referenced in the reports; right? 19 A. That's correct. 20 Q. Okay. And you were capable and could 21 look at them either whether they were 22 referenced or whether they were attached; 23 right? 24 A. Technologically, as I think you've 25 said, I have the capability to do that. 8072 1 Q. And as you sit here today, you don't 2 necessarily recall every document you have 3 reviewed; right? 4 A. Not possible to do that. 5 Q. Okay. Thank you, sir. 6 Now, I want to look at a time frame 7 around 2002, 2003 regarding undisclosed APIs. 8 Was there a point in time where 9 Microsoft disclosed a large group of previously 10 undisclosed APIs? 11 A. There have been a couple of those. In 12 2002 there was another one of those episodes. 13 Q. Do you recall how many were disclosed 14 in 2002? 15 A. Hundreds, I believe. 16 Q. Hundreds, okay. 17 MR. LAMB: Can you show them Exhibit 18 1440? 19 Can we put 1440 on the board, please? 20 I want to go back in time. If you could start 21 on the second page first, Darin, because these 22 read chronologically going forward. 23 The bottom message, if you could 24 highlight that and blow that up or blow that up 25 for us. 8073 1 Thanks. 2 Q. This is from Cameron Myhrvold, and we 3 had just seen a message from Cameron Myhrvold 4 to Brian V., Doug H-e, Jon Lu, R Segal. Do you 5 know who any of those people are? 6 A. Brian V. I believe is Brian Valentine. 7 R. Segal is Rick Segal. Jon Lu, Jon Ludwig. 8 And, of course, Cameron Myhrvold. 9 Q. And according to Mr. Myhrvold, he 10 says, Paul Ma -- that's Paul Maritz; right? 11 A. That's Paul Maritz. 12 Q. Maritz, I'm sorry. 13 -- thinks we have to document the 14 bullet and bandit stuff and Daniel P. has 15 committed. 16 I do not know time frames, but clearly 17 there is a big exposure with guys like -- it 18 says Andrew Sculman. You understand that to be 19 Andrew Schulman; right? 20 A. Yes. 21 Q. Again, the book, right? Among many 22 others? 23 A. Among others, yes. 24 Q. Okay. There is big exposure with guys 25 like Andrew Schulman running around. If we do 8074 1 not do this expeditiously, we lose the value of 2 doing it at all. Brian, Rick, when do we think 3 this will be completed? Cam. 4 Now, do you understand that he's 5 talking about whether or not they're going to 6 disclose previously undisclosed APIs? 7 A. That's correct. 8 MR. LAMB: If you can go to the 9 message above that. 10 Q. And this is the response from Brian 11 Valentine. 12 And according to Mr. Valentine, he 13 says, I want us to be very, very clear here on 14 what is going on, else we are going to dig 15 ourselves a hole and be screwed for the future. 16 What I understand as to what you are 17 doing as far as the white paper is docing 18 undocumented APIs that apps may be using. 19 Well, since mail and -- that's 20 Schedule+, right, SC+? 21 A. That's Schedule+, right. 22 Q. Since mail and Schedule+ are in the 23 OS, they are not apps. So I don't see any 24 reason to doc anything. 25 Now, let's stop there. 8075 1 At some point in time Microsoft was 2 taking the position that if an application was 3 in the operating system, then, they didn't have 4 to disclose APIs; right? 5 A. They have taken that position several 6 times, yes. 7 Q. Okay. He goes on to say, Word, Excel, 8 PPT -- PowerPoint; right? 9 A. Right. 10 Q. -- project, et al., just use simple 11 MAPI, MAPI, to add the send on their menu. 12 They don't use anything else. 13 I can see a nice, well-organized white 14 paper that talks about using simple MAPI and 15 how to mail enable apps, et cetera, et cetera, 16 but I don't see it docing any store, address 17 book, et cetera, APIs. 18 Granted, there are literally thousands 19 of APIs that deal with the MMF file, that deal 20 with address book, et cetera, et cetera, but, 21 all caps, we should not, end caps, publish 22 these. 23 Nobody is using them except for mail 24 and Schedule+. We don't publish all the 25 internal Windows APIs or data file formats, 8076 1 just the ones that apps have used. So we need 2 to make sure that we are in line on exactly 3 what Rick's paper is going to be. 4 He says in there, we publish internal 5 Windows APIs or data file formats if apps have 6 used them. 7 Do you see that? 8 A. I do. 9 Q. And is that because that application 10 is then out there for the public, and in order 11 for another ISV to deal with that, it has to 12 know what those APIs are? 13 A. I think I understand your meaning, but 14 -- and that is that it's because Microsoft 15 application is using Windows operating system 16 APIs. 17 Q. Right. 18 A. And then Microsoft has to disclose 19 them to other independent software vendors? 20 That's the idea, that's correct. 21 Q. Or they won't be able to operate with 22 that Windows application; right? 23 A. They won't -- they won't be able to do 24 the things the Windows application does. 25 Q. They won't be able to run it? 8077 1 A. No, they won't be able to be a word 2 processor, for example, or a mail program or in 3 the ways that Microsoft's application is being 4 a word processor or a mail program when used 5 with the operating system from Microsoft. 6 Q. Okay. 7 MR. LAMB: If you could go to the 8 front page, and if you could highlight the 9 message or blow up the message that's from 10 Cameron Myhrvold. The middle one right there, 11 yes. 12 Q. And Mr. Myhrvold says, to answer your, 13 quote, global question, unquote, we 14 unfortunately cannot hide behind the, quote, 15 it's not an app, it's part of the system, end 16 quote, defense for bullet and bandit. 17 Schulman -- again, Andrew Schulman; 18 right? 19 A. Right. 20 Q. -- took apart all of the Windows shell 21 apps in his book. We, all caps, will be 22 specifically tried for these interfaces. 23 Ideally, we should document everything 24 the bullet and bandit themselves use. 25 Now, this may sound horrible, but, 8078 1 one, we'll document, but we, all caps, will not 2 encourage, and, in fact, we'll aggressively 3 discourage any use of these interfaces by ISVs 4 and won't be talking about them. 5 And, two, remember we are not going to 6 stick this doc into a book or even an SDK box. 7 It will be written up as a white paper and, 8 quote, inserted, end quote, into the MSDN 9 CD-ROM containing hundreds of meg of other tech 10 notes. 11 It will be very, quote, low profile, 12 unquote, but it will provide enough, quote, air 13 cover, unquote, for us to say they are 14 documented. 15 It seems to me that Mr. Myhrvold is 16 suggesting that -- well, we have to document 17 it, but let's bury it in a bunch of other 18 documents so no one can find it. 19 MR. HOLLEY: Objection, Your Honor. 20 Leading. 21 THE COURT: Sustained. 22 Q. Can you explain to the jury what you 23 believe Mr. Myhrvold is suggesting that they do 24 from a technological perspective? 25 A. Well, I described the MSDN -- 8079 1 Microsoft developer network, which included a 2 website, but in addition, it also includes a 3 monthly subscription, if you want and pay money 4 for, that will give you tens, or in some cases 5 probably hundreds, of CDs that contain 6 information and programs from Microsoft. 7 What Mr. Myhrvold is suggesting is 8 that the documentation for these, for the large 9 number of APIs that are available in the 10 Windows operating system and used by Microsoft 11 applications, but are not disclosed to the 12 independent software vendor community, will be 13 written up in a document and buried in among 14 the hundreds of megabytes of other information 15 in the CDs that are sent out to the developer 16 community and the Microsoft user community, 17 allowing people to say that the specifications 18 or these interfaces are, in fact, documented. 19 Q. But they'd be hard to find; right? 20 A. I think that's the idea here, yes, 21 that they'd be hard to find. 22 Q. All right. 23 MR. LAMB: And then can you highlight 24 the top part of the message? 25 Q. This appears to be from Brian 8080 1 Valentine in response, and his response is, 2 all's I can say is holy API, Batman, I'm not 3 kidding. We are talking about literally 500 to 4 800 APIs here, no joke. 5 All of layers, all of MAPI, zero, 6 et cetera, and there's virtually no 7 documentation on these right now. It means it 8 will be literally many, many man months to get 9 this done, and all with no resources allocated 10 to do this. 11 Paul Ma. That's Paul Maritz? 12 A. Right. 13 Q. Is this what we really want to do? It 14 will not be a white paper, but a very large 15 white book. 16 Now, in relation to church and state, 17 Microsoft did not always take the position that 18 they were going to have a separation of church 19 and state; correct? 20 A. Well, I think the original church and 21 state comments go back to 1983. So if you're 22 talking about a period before 1983, I don't 23 think it would have been a concern or 24 significant. 25 But I think beginning in and around 8081 1 1983, that was Microsoft's executives' 2 communication to the industry. 3 Q. Okay. And you're aware that at least 4 recently Microsoft has taken a position on 5 whether or not it should disclose APIs; right? 6 A. I need a little more specific -- 7 Q. I'm referring to the 12 tenets that 8 promote competition, number six, regarding 9 APIS. 10 A. Yes. 11 MR. HOLLEY: Your Honor, leading. If 12 he wants to ask him questions, he can, but he 13 can't tell him the answers. 14 THE COURT: Sustained. 15 Q. Are you familiar with what Microsoft 16 publishes on its website entitled Windows 17 principles, 12 tenets to promote competition? 18 A. I am. 19 MR. HOLLEY: Your Honor, may we 20 approach before anybody looks at this 21 document? 22 (The following record was made out of 23 the presence of the jury at 10:22 a.m.) 24 THE COURT: Mr. Holley. 25 MR. HOLLEY: Your Honor, this 8082 1 document, which is on Microsoft's Web site, and 2 I accept that, but he talks about compliance 3 with the U.S. final judgment. 4 And it's my understanding that the 5 Court's ruling of the other day says Mr. Alepin 6 is not going to be testifying about compliance 7 or noncompliance with the U.S. final judgment. 8 And I don't know how he can insert about this 9 paragraph without getting precisely into that 10 subject. 11 If they open the door to this, we are 12 going to come in here and testify about 13 compliance with the final judgment, but it was 14 our understanding that the Court didn't want 15 that to happen. 16 MR. LAMB: Well, that's not what he's 17 going to testify to. And if it would make you 18 happier, is there a section that we can block 19 out that I could have him block out so it 20 doesn't refer to that? 21 MR. HOLLEY: But the whole point of 22 these 113 APIs that he's now eliciting 23 testimony about, Mr. Lamb, is they were 24 disclosed pursuant to the final judgment. 25 They were internal to Windows, and 8083 1 Microsoft agreed with the government to 2 disclose them. And, you know, you can make 3 whatever suggestion you want about whether they 4 should have been disclosed earlier, but this is 5 taking us squarely into the U.S. final judgment 6 and what we've done pursuant to the judgment. 7 MS. CONLIN: May I -- 8 MR. LAMB: This has nothing to do, 9 actually, with that. What I'm trying to do is 10 establish that at least as of this date, July 11 2006, this is Microsoft's policy. 12 MR. HOLLEY: Okay. But -- 13 THE COURT: What are you going to show 14 the jury? 15 MR. LAMB: I was going to show them 16 this, but I'm willing to have certain words 17 excised if that's the problem with the final -- 18 THE COURT: Well, the Court had 19 previously ruled that -- I think in regard to 20 Microsoft, that they can show what they've done 21 since the ruling. They can't show that it was 22 done in compliance with any particular order. 23 MR. LAMB: I'm not saying that. 24 MS. CONLIN: If we just started here. 25 If we blocked all of this out -- 8084 1 THE COURT: But that portion that I 2 just read says they didn't comply. Why are you 3 going against my order? 4 MS. CONLIN: Your Honor, these were 5 not issued -- these 12 tenets were not issued 6 in compliance with the government case, but it 7 does refer to the government case and -- at 8 least that's what Mr. Smith said. 9 THE COURT: I don't want it referred 10 to the government case. 11 MS. CONLIN: But there's a part of it, 12 Your Honor, that if we blocked out the top 13 part -- if we started with the words "going 14 forward," then there's no referencing that to 15 the government case. 16 The 12 tenets, according to what I 17 read of Mr. Smith, who is now the general 18 counsel, these were sort of Microsoft's 19 voluntary effort to go even further than the 20 government case. 21 MR. LAMB: Can I make a suggestion, 22 sir? 23 THE COURT: Go ahead. 24 MR. LAMB: This was not an intention 25 to be a problem. 8085 1 Maybe what we can do is because 2 there's concern about posting it, maybe I can 3 read where it says "going forward" to him and 4 ask him if he thinks that's consistent with 5 Microsoft's policy. That's, really, the only 6 thing I'm trying to do. 7 THE COURT: Comment. 8 MR. TULCHIN: May I be heard, Your 9 Honor? 10 THE COURT: Yes. 11 MR. TULCHIN: I know Mr. Lamb had 12 delivered a rather stern lecture to me a couple 13 days ago about two lawyers being heard on the 14 same matter, but in light of the fact that 15 Ms. Conlin was just heard. 16 This has two problems, if I may. One 17 is it does go quite close to the line. I think 18 over the line concerning the Court's prior 19 order about the final judgment. And Ms. Conlin 20 said -- I think it was yesterday, but it might 21 have been Wednesday -- that whenever a party 22 was going to do something that came anywhere 23 close to the line, that party had an obligation 24 to come to the Court first and get it 25 precleared. That's what led to Mr. Holley's 8086 1 disclosure of his line of cross-examination, 2 the sort of almost "offer of proof" subject 3 that we had the other day. 4 And, secondly, Your Honor, even aside 5 from the final judgment, what Mr. Lamb is 6 trying to do, in effect, is comparable to a 7 subsequent remedial measure type piece of 8 evidence. The steps had crumbled and someone 9 fell. And subsequent to the accident, the 10 steps are repaired. 11 And the plaintiff seeks to put in 12 evidence that the steps were repaired to show 13 that somehow in the prior period there must 14 have been some negligence. 15 The disclosure in 2006 of these APIs 16 is meant, I think, to create the inference to 17 the jury that there was some obligation to have 18 disclosed APIs in 1991 or '2 or other periods. 19 So I think for both those reasons, 20 this ought not to come in. 21 THE COURT: All 12 tenets? 22 MR. HOLLEY: No, Your Honor. The one 23 relating to APIs. 24 MR. LAMB: I only want -- just to 25 be -- 8087 1 THE COURT: Go ahead. 2 MR. LAMB: -- just to be clear, I 3 mean, I won't even put the "going forward" if 4 that's an issue. 5 MR. TULCHIN: The whole thing is an 6 issue. 7 MR. LAMB: Well, all I want to 8 establish is Microsoft will ensure that all the 9 interfaces within Windows called by any other 10 Microsoft product such as a Microsoft Office 11 system or Windows Live will be disclosed per 12 use by the developer community general. 13 That means that anything that 14 Microsoft's products can do in terms of how 15 they plug into Windows competing products will 16 be able to do as well. That's it. And is that 17 your understanding of the current Microsoft 18 policy? And I will simply read it. That's all 19 I'm trying to establish, and I apologize if 20 there's any -- 21 THE COURT: No. I just want to hear 22 from Mr. Holley. 23 MR. HOLLEY: If that gets read, Your 24 Honor, I just want it to be very clear that 25 when it comes to be our turn, that we can put 8088 1 on a witness to testify what Microsoft has done 2 to comply with this tenet as stated on the Web 3 site because as Mr. Tulchin says, the inference 4 will be created that somehow somebody tripped 5 on the sidewalk and the crack was fixed. 6 And we're -- having opened the door to 7 that, then we need to come back in our case and 8 testify about what we've done both before and 9 after. And we will be conscious, Your Honor, 10 of not doing what you told us not to do, which 11 is talk about compliance. 12 THE COURT: Yeah. 13 MR. HOLLEY: But we will need to do 14 that if this is read. 15 THE COURT: I think what I said was I 16 wasn't concerned in my ruling -- I'll go back 17 and look at it -- was that you can say what 18 acts you've done. 19 MR. HOLLEY: We can't claim it's in 20 compliance. 21 THE COURT: You can't claim it is in 22 compliance. I think that was my ruling unless, 23 Ms. Conlin, do you have a different 24 recollection? 25 MS. CONLIN: I do not, Your Honor. I 8089 1 have exactly the same recollection. 2 THE COURT: That is fine. 3 MR. HOLLEY: So you just read -- 4 THE COURT: Just that part, that's 5 fine. 6 MR. HOLLEY: All right. 7 MR. TULCHIN: I still have an 8 objection to this, Your Honor, for the grounds 9 stated. This is equivalent to the subsequent 10 remedial measure type evidence. This, by the 11 way, comes outside the class period. 12 Mr. Alepin has already testified about 13 events outside the class period. Class period 14 ended June 30, 2006. He's testified about 15 Vista in October and November 2006. He's 16 testified about events that he says will take 17 place in January 2007, all of which has opened 18 the door to our evidence about the events 19 subsequent to the class period. 20 But what Mr. Lamb is trying to do not 21 only I think is improper for the reasons 22 stated, the two prior reasons, but again, we're 23 even outside this 12-year class period. The 12 24 years, you'd think, would be enough. 25 THE COURT: When did the tenets come 8090 1 out? It says July 19th. 2 MR. LAMB: Well, I think they were 3 posted before this. This is July 2006. 4 MR. HOLLEY: No. I had a hand in 5 writing these. They came out in July of '06. 6 THE COURT: That's past the period. 7 MR. TULCHIN: They've ignored that in 8 the past, which I find befuddling. 9 THE COURT: It wasn't objected to 10 until now. 11 MR. LAMB: Okay. 12 MS. CONLIN: And offered on intent and 13 on the issue of -- 14 THE COURT: That's something after the 15 class period. 16 MS. CONLIN: Your Honor, but if this 17 were a different kind of case where we were 18 talking about the situation that Mr. Tulchin 19 describes, we would still be able to offer 20 subsequent conduct on the issue of punitive 21 damages in such a case. 22 Now, this is a little closer in time 23 than we are generally dealing with, but I think 24 that subsequent conduct cannot be offered to 25 prove negligence. And, of course, that only 8091 1 applies -- I'll get my rule out -- because I 2 think that only applies in tort cases, but I 3 could be mistaken about that. 4 But setting that aside, Your Honor, 5 even in a tort case, subsequent conduct can be 6 offered for any reason except to prove 7 liability. 8 MR. HOLLEY: Your Honor, certainly it 9 can't be the plaintiffs' position that in 10 seeking exemplary damages under the Iowa 11 Competition Law they're entitled to talk about 12 things that happened, you know, after the class 13 period because the willfulness had to occur in 14 the 12 years covered by the lawsuit. How could 15 that be? 16 MS. CONLIN: Well, I believe that it 17 not only can be but that it is. 18 MR. GREEN: I think you're talking 19 about comparative trial statute. 20 MS. CONLIN: No, no. We're talking 21 about -- 22 MR. GREEN: Well, the prima facie case 23 of punitive damages in Iowa, if you're going to 24 get into that, then we will have a lot of 25 problems with what you're doing. I don't think 8092 1 it has anything to do with this. 2 MS. CONLIN: Maybe we should all look 3 at the rules and see if it applies here, but I 4 think it does not. But that would be -- I 5 think that would answer all these questions. 6 MR. LAMB: Maybe -- can I ask this? I 7 mean, if that's the concern, I would be happy 8 to talk about the time period. "And when I 9 refer you to the time period of, say, late 10 2005, early first quarter 2006, is it your 11 understanding whether or not Microsoft had a 12 stated policy regarding disclosing APIs?" And 13 I will ask him -- 14 MR. HOLLEY: Not that policy, 15 Mr. Lamb, because that policy did not come into 16 existence until after the end of the class 17 period. That is a new policy. It's a new 18 policy. 19 Ms. Conlin made this point with 20 Mr. Johnson at his deposition in August. Maybe 21 I have the date wrong, but her point was -- 22 MS. CONLIN: It went on forever. 23 MR. HOLLEY: Okay. Fine. But your 24 point was that it was a new policy. 25 You just can't resist sometimes. 8093 1 MS. CONLIN: Nor can you. 2 MR. LAMB: I mean, I think he's 3 already stated -- he's testified -- Alepin has 4 testified that the public policy of Microsoft 5 was that they were going to maintain church and 6 state and they were going to disclose APIs. 7 THE COURT: When is it your 8 understanding or the witness's understanding 9 that it changed? 10 MR. LAMB: There hasn't been a change. 11 That's -- so I don't think this is a subsequent 12 remedial -- I don't think their policy ever 13 changed. I think their actions changed, but I 14 don't think their policy ever changed. So 15 that's what I'm having difficulty with. He 16 just testified that this started in 1985 in 17 church and state. 18 MR. TULCHIN: I think we have to wait 19 for recross because he's wrong about it. The 20 witness was wrong about it. His testimony is 21 entirely false. But leaving that aside, what 22 Mr. Lamb is doing right now is trying to, with 23 all respect, confuse the issue. 24 The issue of a policy published in 25 2006 can't -- and I haven't heard any argument 8094 1 that it is admissible in this case because it's 2 after the class period and for the other 3 reasons I stated. 4 I also do think it's not violative of 5 the Court's order about compliance with the 6 final judgment. Close enough to the line where 7 by Ms. Conlin's rule we should have had a 8 conference on the subject. 9 But going to Mr. Lamb's comment for a 10 moment. The separation of church and state did 11 not pertain directly to whether APIs were 12 disclosed. And maybe there's some confusion 13 here, but for the Court's benefit, if I may, 14 the idea of separation of church and state -- 15 and we will see on recross evidence that 16 Microsoft disclaimed that that was the 17 company's policy publicly, the idea of the 18 separation of church and state is that 19 applications developers at Microsoft would 20 learn no more about the APIs of the operating 21 system than outside developers, ISVs. 22 It's entirely different to the 23 question of whether or not APIs had to be 24 disclosed. Mr. Alepin testified on direct 25 examination from Mr. Lamb several days ago that 8095 1 there are internal and external APIs, that 2 internal APIs should not, not only need not be 3 disclosed to the outside world, but should not 4 be for good technical and business reasons. 5 And what Mr. Lamb is now doing is 6 arguing to the jury, and it's entirely false, 7 that if you don't disclose APIs, all the APIs 8 to everyone, everyone in the outside world, 9 that somehow that violates the policy of church 10 and state. There wasn't such a policy, but if 11 there had been such a policy, that would only 12 mean that the internal APIs were kept internal, 13 not just for the outside world but for 14 Microsoft applications developers as well. 15 So this is just a massive confusion 16 here. Everyone has acknowledged, including 17 this witness, that internal APIs should be kept 18 internal. This policy, which comes after the 19 government case and was issued in July of 2006, 20 and these plaintiffs asked for a class period 21 that extended through June 30, 2006. They 22 asked for it. That's what the Court gave them. 23 And, knowingly, they're now getting into a 24 period after that, which I must say, after a 25 12-year clear period and their evidence going 8096 1 back to 1987 and '88 and other years, well, 2 prior to the class period, they now want to go 3 forward in time past the end of the class 4 period, which I guess requires us to do the 5 same thing and to talk about the Vista 6 operating system that has been shipped to OEMs 7 and will be available publicly within the next 8 week or two. There just doesn't seem to be any 9 limits to where this case begins or ends. 10 MS. CONLIN: Let me first address the 11 undocumented APIs, Your Honor, because there is 12 a misstatement going on in this room but it's 13 not ours. 14 What we contend, what the industry 15 accepts is that any API used by an application 16 of Microsoft's should be documented, and 17 whether it's in the operating system or outside 18 the operating system, if a Microsoft