Rosen takes lead as least credible MS witness

Could this be the end of a glittering career?


MS on Trial Dan Rosen, previously senior director, strategic relationships in Microsoft's so-called advanced technology group, and now general manager for new technology, has taken over the yellow jersey as Microsoft's least credible witness. His testimony may be his epilogue so far as his future career a Microsoft is concerned. His manner in the witness box was, shall we say, unfortunate. His sworn deposition and testimony were frequently out of synchronisation. He claimed to have spent "20 to 30 days minimum" preparing for his day and a half of infamy. Why therefore did this former vp of AT&T claim that AT&T did not own Unix in 1995? (Novell did the deal to acquire it in December 1992, and completed it on 14 June 1993, when Rosen was still at AT&T.) Another example of Rosen's knowledge: "I don't know that I understand what browser market share particularly means." He told the court what he was told to say at witness training school, that he was just "trying to be very precise in [his] answer". When he was floored by a question, he asked David Boies to repeat it, so consequently his cross-examination was very drawn out. While showing off in court and claiming a new meaning for "browser" in an attempt to steer through a minefield of damning Microsoft documents, he slipped up several times by being inconsistent in his own terminology -- running into one of his own mines you might say. Overall his manner was of one of loquacious insolence, and Judge Jackson's body language showed that he found it rather unconvincing. Some Rosenisms are so awful that they should be recorded as a warning for others who may have the same affliction. "In the spring" meaning during what date, sir?" Even worse was the episode with his email to 12 Microsoft apostles on 15 May 1995 that he claimed was not sent. It is worth citing Rosen on Rosen, as it gives a good example of his, er, style: Boies: And is this what it appears to be, sir -- an email that was actually sent on May 15, 1995 at 12:48 am? Rosen: Oh, no. Oh, no, not at all, Mr Boies. When you prepare -- let me start with what I do. When I prepare any document, the first thing I try to think about is my audience. Who am I sending it to? At what level do I want to write it? What kinds of thoughts would I have? So the first thing I would do typically in doing something like this is put together a thinking -- a thought list of who the distribution should be. The second thing I would do is type the memo, which is what's contained. And what you see with all these funny little characters on them says that it is just what was, at that point in the mail system, allowed to be embedded rather than attached at the beginning. But I recall that I prepared this as a discussion to have with my boss at the time, and had the discussion with him, and decided that it really wasn't necessary to send it. Secondly -- I mean, my pride in authorship wouldn't allow me to send something with this many errors in it, and without ever having even completed the end of it, to senior executives at Microsoft. [sic throughout]" He had to retract this when David Boies proved it had been sent (and the DoJ is doing a very good job organising its documents, it should be noted). It is indeed a rough draft, as Rosen claimed in the witness box, and shows what a rough state Microsoft was in at the time, before the dear leader had invented the Internet. "Microsoft's efforts are currently fragmented, specific offerings designed and run by different groups, with limited ability to create end-to-end offers or decided appropriate product tradeoffs [sic - it is a draft, after all]. This allows our competition to gain footholds in the areas where we are weak and to recruit the best Internet talent to implement a focussed effort. There are also gaps in our products ..." Just two months later, who would pitch up at Netscape to "evangelise" but Rosen, offering Microsoft's great expertise (<gr>) in Microsoft's well known Internet technologies, such as TCP/IP, http, and html. Unfortunately Boies did not take issue with him on these claims. No wonder Rosen was interested in, to use his phrasing, "sucking most of the functionality out of the current Netscape browser". Another comment made Rosen the subject of some laughs and headlines, and it seemed that Rosen was ridiculed for being wrong and occasionally right. Gates wrote in his 26 May 1995 "Internet Tidal Wave" document that "a new competitor born on the Internet is Netscape. Their browser is dominant, with 70 per cent usage share, allowing them to determine which network extensions will catch on. They are pursuing a multi-platform strategy where they move the key API into the client to commoditise the underlying operating system." Rosen remarked: "Bill was probably wrong, because Jim Barksdale [CEO, Netscape] was telling me -- and I was the one talking to them -- that Netscape didn't intend to compete in this way. That they saw their core competence as being in the servers and value-added functionality, not in the platform arena." Rosen was inclined to exaggerate his closeness to Gates. He told Barksdale: "I've been thinking about strategic linkages and have discussed my ideas with Bill ..." He was forced to admit to Boies: "Perhaps I've overstated it a little bit because my discussion with Bill was sort of in the hallway next to his office when I passed him and said, 'Bill, if I can reach a win-win deal with Netscape, would that be okay with you,' and he said 'Yes.' " [Laughter in court] Rosen wasn't alone in exaggerating his success and importance. The transcript shows that a Ms Fox of Microsoft had emailed Rosen that she had "closed the Visa deal for a per-transaction revenue deal" and wanted to bring in MasterCard, but MasterCard had an existing deal with Netscape. It turned out that Fox did not have a deal, and it now seems probable that both plastic companies were interested in a joint agreement on standards, and Netscape was not going to have the same standards as Microsoft so the deal collapsed after the unsuccessful attempt by Microsoft to "wrest" the browser from Netscape, although Rosen would not confirm this. Rosen made some interesting claims for his acquaintanceship with Jim Clark, Netscape's chairman. He'd introduced himself at an Internet trade show, and seen him again at Comdex. In his deposition, Rosen said he had no other contacts with Clark, but in his written testimony he remembered a more substantial conversation. Rosen admitted: "I believe I saw him in the hall and said 'hi' ". At this rate, Rosen will be writing biographies of the pioneers of the business if he ever gets the key to the executive washroom. Rosen's account of the 21 June meeting at Netscape provided more material for whoever is going to write the definitive novel. Rosen said in his deposition that there was no pre-meeting at the hotel in San Jose where the Microsoft team was staying. Suddenly, in his direct testimony, there was a pre-meeting, and lo and behold, when Boies asked Rosen: "In your direct testimony you have several paragraphs in which you purport to set forth in some detail not only that there was a meeting but who attended it and what people said at the meeting; right?" Rosen replied: "Correct." This suggests that Rosen's account of the key 21 June Netscape meeting is unreliable, as his memory was clearly faulty at the time, and Rosen failed to provide any convincing responses to Boies' searching questions. Soon afterwards Boies abruptly terminated his cross-examination when Rosen was playing his new trick of getting the question repeated, and playing semantic games about the meaning of 'browser' and 'client'. For once it is possible to sympathise with Microsoft's legal team, but there was no way to rescue the situation in redirect examination. Boies had another go in what should have been a recross examination, but in fact it was a continuation of his cross-examination. Discussing an email exchange on 22 June, Boies summarised the position to Rosen: "So your testimony is that when Mr Wolf at 2:13 wrote about the client involved, he was talking about a browser, but when you at 4:29 wrote about the client, you were talking about something else? Is that your testimony?" Rosen echoed back: "That is my testimony." Boies accused Rosen of making up a story about whether he had a beta copy of IE before the 21 June 1995 Netscape meeting. It turned out that Rosen had been given a copy of the code at a Netscape meeting on 27 April. "I stand corrected," Rosen said when Boies produced the inevitable proof. He also produced Andreessen's account of the meeting that was typed on a laptop during the meeting (Netscape co-founder Andreessen's greatest skill may well be as a very fast typist) and Rosen was unable to provide any evidence that the account was incorrect. Microsoft's failure to release any key exhibits on its web site add to the extreme doubt about Microsoft's claims as to what happened at the 21 June 1995 meeting. The only exhibit that Microsoft did release was an email from which it can be seen that in October 1995 David Kaiser of AOL was trying to recruit Rosen to be CEO of a small company of which he was a director. Who had proposed him? Step forward Marc Andreessen. At the end of the day, only Rosen might have thought he had won in court. For everybody else, including no doubt the Microsoft legal team, there must have been a feeling of profound relief at his departure back to the other Washington. ® Complete Register trial coverage


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