Murky record of MS ‘character’ witness

And how the attorneys tried to suppress those embarrassing clippings

MS on Trial Microsoft made a bad choice in the trial when Bill Gates phoned Gordon Eubanks, former Symantec CEO, and asked him to be a rebuttal witness. It is axiomatic in these matters that a corporate character witness should have a whiter-than-white record, but Eubanks failed miserably to meet any such criterion. His testimony has helped the DoJ case more than it has helped Microsoft. Throughout his career, Eubanks has acted as Microsoft's lapdog, as one reporter shouted at him (these brash American reporters - Ed), there to be stroked when Microsoft had the whim to do so, but otherwise ignored. His memory was so poor that he could not even remember what he was asked in the morning session by Microsoft's counsel, Steve jack-in-the-box Holley. His was not a Gatesian memory of convenience: Eubanks could no longer chew the leather, and may well have been eased out of Symantec on to the ice as a result. Eubanks apparently used to drive nuclear submarines in the 1970s, but when asked by Judge Jackson, he could not remember the name of his commanding officer. He said: "These are hard questions. I'm drawing a blank and I am not even taking medication. It was captain - I can't - I'm blanking out." Perhaps Eubanks was none too keen on discussing his navy career, since he once told an associate that he resigned from the navy because "he couldn't stand the bullshit, the way the navy treated people". The judge's reason for asking was that he possibly knew the skipper, and might have privately obtained another view about Eubanks' character. Eubanks did a master's under Gary Kildall, founder of Digital Research and inventor of the bios and CP/M, and worked with him for two years. He then went to Symantec, and the company produced Q&A. Subsequently, the company grew by acquisition, rather like Microsoft, and bought Peter Norton's utilities in 1990 - and therein lies a tale that jack-in-the-box managed to get supressed in court. But let's open the box for a moment. Down memory lane In 1992, Eugene Wang had been lured from being marketing vp at Borland to the same job at Symantec. Borland boss Philippe Kahn was furious, with the result that the FBI and Santa Cruz County Police undertook raids and found that Wang had evidently been sending Symantec electronic copies of product marketing plans, various confidential Borland documents - and a copy of Borland's highly confidential deposition to the FTC in the first Microsoft trial. There can be little doubt that this quickly found its way to Microsoft via Eubanks. There was much speculation at the time that it was Microsoft that had approached Symantec to help it get the deposition, and that the other documents were just a cover. During the five months of investigation, what do you think was used to look at seized hard disks and floppy discs where in some cases the files having been deleted? Right, Norton Utilities, since only the file header is flagged when the file is "deleted", to indicate that the area could be overwritten. The data remains readable until overwritten. The result was that in March 1993, a grand jury indicted Eubanks and others for conspiring to steal trade secrets from deadly rival Borland. Eubanks faced eleven charges of conspiracy and receiving stolen property, with a possible six year prison sentence and fines in the offing. Eubanks maintained that the documents were not of a scientific or technical nature (it was key corporate data of course). He might have been more convincing in his protests of innocence if he had not refused to answer questions during a deposition by citing the Fifth Amendment, lest he incriminate himself. Because of a legal technicality - the District Attorney had asked Borland to provide $13,000 to help pay prosecution expenses for technical investigation of the data - the California Supreme Court ruled that the DA should be disqualified from handling the case. The result was that the charges were dropped, and in February 1997 it was jointly announced that Borland and Symantec had settled the case. Only part of this grubby tale emerged in Judge Jackson's court, when jack-in-the-box Holley jumped up an approached the bench in an attempt to stop an article from the New York Times being introduced in evidence: "I think that this is nothing but an effort to embarrass this witness," he said. Boies responded: "I think that Mr Holley does not accurately or fully state the circumstances." Judge Jackson admitted the item, and not just a redacted version requested by Holley that excluded the bones of the story about Borland. Boies played a clever game by using the exhibit to show that Eubanks had contradicted himself on another matter, so giving the judge access to an account that undermined the credibility of the witness. Holley succeeded in keeping the story out of the readily-accessible public record as the exhibit on the DoJ website gives only a reference to the 1993 NYT article. ® Complete Register Trial coverage

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