MS on Trial In its early filing in response to Microsoft's proposed timetable for the appeal, the DoJ has exposed some of the ways in which Microsoft is trying to cause delays.
The DoJ argues that Microsoft's proposals for "massive pleadings" and an "extended briefing schedule" will not allow the appeal to be resolved quickly. But the DoJ has also made some telling finer points that will not help Microsoft's efforts to delay the appeal.
The 19 "principal legal issues" Microsoft noted on 2 October were unchanged from its 26 July filing. It is also nearly eleven months since the findings of fact, six months since the conclusions of law, and nearly four months since the final judgement. The DoJ also points out that the case that would have been argued before the supreme court and the one to be argued before court of appeals would differ "only in marginal respects", so that Microsoft has already had plenty of time to prepare itself.
The key point that the DoJ has at last made clear is that "This is an appeal, not a retrial". Jabbing again, the DoJ observes that "many of Microsoft's ‘legal' issues are largely disputes with the district court's findings". As for Microsoft's claim that it intended to challenge a number of the factual findings, it was the responsibility of Microsoft's counsel to identify "the most significant factual issues - those that it contends constitute ‘clear error' and on which the determinative legal conclusions depend".
The DoJ goes along with allowing 10,000 words more than normal for the main brief, making it 24,000 words, with a 7,000 word reply brief - with all the briefings finished before Christmas. The DoJ's proposed schedule would make possible oral hearings in January, and it dismisses Microsoft's suggestion of court-invited additional briefs as "premature".
Microsoft has been put in a tricky position in that the DoJ has challenged it to file its reply to the DoJ proposal several days earlier than the court's deadline of 10 October, in view of its own reply being filed two days earlier than required. Since there is not much new that could be said, it will be hard for Microsoft to justify taking extra time - and the court has made it clear that it wants to crack on with the appeal. ®