MS, DoJ lawyers out in force for IBM witness

Both sides are fielding big teams for the potential key trial witness


MS on Trial Detailed analysis of some 300 transcript pages and associated documents from the deposition of Garry Norris of IBM, one of the rebuttal witnesses for the DoJ, has provided a veritable cornucopia about negotiations between IBM and Microsoft from 1995 to 1997. The deposition disclosed many secrets, with some suspected ones being confirmed, but others were unexpected and had not previously been in the public domain at all. The size of the legal teams showed just how seriously his evidence was being taken: there were eight lawyers for the plaintiffs (the USA and the 19 states plus DC) and IBM, and three from Sullivan & Cromwell for Microsoft - but surprisingly, none from Microsoft itself. The deposition was taken by Richard Pepperman, for Microsoft, and was mostly free of legal histrionics. There was six hours of questioning over an eight hour period. Pepperman was probing to find out what Norris would say when he gives his evidence, but in the event, he disclosed much of the interesting new information in his unsuccessful effort to open up Norris. When Norris is examined, it is believed that he will produce a diary that he kept at the time of events, and that this will reinforce his evidence. The court rules for the deposition prevented Microsoft from gaining access to the documents that the DoJ will introduce when he is directly examined. As we suggested earlier, it looks as though Norris' evidence will indeed be the most interesting of the rebuttal witnesses, and highly damaging to Microsoft. Norris was only approached though an IBM counsel about the possibility of being a rebuttal witness in February. He was served with a subpoena to give evidence in a personal capacity, although he was legally supported by IBM through external counsel Howard Weber of Davis Weber & Edwards of New York. There is no evidence that he was been pressured by IBM to keep any matters confidential, although IBM lawyers were adamant that attorney-client discussions remained privileged. Around 1995, Norris was questioned by the DoJ about Microsoft's threats to PC makers who were loading OS/2 and PC-DOS, when he was OEM manager. He told them that on several occasions various PC manufacturers had wanted to license OS/2 but when Microsoft found out, they were threatened. Compaq was one of these OEMs, and Norris was informed of Microsoft's intimidation by Compaq VP Mike Clark. As a consequence, Compaq did not license OS/2, but did one-off deals when a Compaq customer specifically wanted OS/2. It is likely that Norris will find himself under personal attack from the Microsoft legal team during cross-examination. Although he departed to IBM's networking hardware division in 1997, there was no evidence in the deposition that he had been pushed there because of IBM's dissatisfaction. Pepperman established that Norris was regarded at IBM as a "hipo", meaning that he was attributed with having a high potential for promotion. It was revealed that in late 1996, Norris was interviewed for a job at Dell as a result of having been head-hunted, but did not get it. Norris is an old-IBM hand, having started in 1982 as a salesman. After graduation, he spent a year at law school, which appears to have done him no harm as it turns out, although his only previous court experience was defending himself in a traffic violation case. From 1982 to 1992, he held various sales and marketing positions. Norris was not always fully informed about the history of IBM-Microsoft relations: for example, he said in his deposition that he had not heard of the IBM-Microsoft divorce. In January 1993 he was appointed worldwide group OEM manager, selling OS/2 to major OEMs (and reporting to John Soyring, who gave rather low-key evidence earlier). Around this time, HP wanted to load OS/2 on half the PCs at a trade show, but when Microsoft found out, it threatened to "make things difficult" for HP, so in the face of the threats, HP did not load OS/2. This will be telling evidence in court. Then from 1994-1995, he marketed OS/2 internally to the IBM PC company, finding that in the case of each PC brand, there was fear of retaliation from Microsoft. In January 1995, Norris was director of Project Dual Boot to install OS/2 and Windows 3.1 on IBM PCs, so customers could have a choice of operating system. The first dual boot system was shipped around April/May 1995, but the project was curtailed before it was fully ramped. Then for two years, from March 1995, Norris was appointed Program Director, software strategy and strategic relations, IBM PC Company, with responsibility mainly for Microsoft and Lotus relations, and for the strategy for software and preloads for the PC Company. This was the period when he had maximum contact with Microsoft, which is the focus for the trial. In April 1997, Norris left the PC Company to go to the networking hardware division, where he is director of brand marketing for the access business segment, marketing routers and the remote access service. Norris uses a ThinkPad with Windows 98, and not OS/2. Complete Register trial coverage


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