Dahlia Lithwick worked for two years in a family law firm in Reno, Nev. She is writing a novel about how divorce affects children.
The Microsoft trial was in recess yesterday because, evidently, Judge Thomas Penfield Jackson was not sure by the end of Monday afternoon where Microsoft’s direct examination of its first rebuttal witness, AOL’s David Colburn, was going. He told the attorneys as much at sidebar. The Justice Department decided not to cross-examine Colburn, and everyone took Tuesday off. This gave a lot of folks from the press an opportunity to stroll over to Capitol Hill yesterday to watch Bill Gates testify at the Joint Economic Committee’s hearing on high technology, where he answered a question about the antitrust trial with the suggestion that the government do as little as possible to impede competition. In that same spirit, I used the day off to walk around Georgetown (the J. Crew Petting Zoo …) and play softball in the FTC’s game against the EPA (… only in D.C.).
Today, Microsoft puts its second rebuttal witness on the stand, and he is Gordon Eubanks, a former CEO of Symantec, a developer of software utilities, and the current CEO of Oblix, a computer automation company. Eubanks is so happy and grateful to have been a Microsoft partner/competitor for 15 years at Symantec that he testifies this morning that even when Microsoft included products in its operating system that might have rendered his own company’s products obsolete, it was a good thing. “Why,” the savvy among you might ask, “would a Microsoft competitor thrill to the news of its own obsolescence?” “Well,” Mr. Eubanks replies happily, because “the consumer is most important.” Also, “because no one wanted to get embroiled in petty arguments.” But mainly because Microsoft’s preclusion of his company’s products “kept us highly motivated to do better things.” Schwaaaa?
This morning, Eubanks is a Happy Guy, with sort of a Hobbitlike quality–all bristly beard and twinkly eyes–that suggests that he and the team at Symantec were cooking up batches of utilities in the cave at the bend in the river where the mushrooms grow tall. Eubanks chuckles at his own jokes, waves his Palm Pilot, and injects into an otherwise dry discussion of technology various folksy comparisons between Internet technologies and cars, refrigerators, and motors. For those keenly searching for metaphors, this appears quite promising. Except that Eubanks analogizes the personal computer to a puzzling home motor available from the Sears catalog in 1918 that the average housewife might have used to power everything from her “beater to her vibrator …” The search for a metaphor, sidetracked for an instant, trundles on.
With all his jollity and animation, Eubanks might be able to convince the judge that Microsoft’s competitors wouldn’t even mind if Microsoft were a monopoly (“the fact that there’s only one standard in the industry is an enormous benefit” and “we all secretly hoped for only one or two configurations”), except the judge simply doesn’t appear to care. He perks up a little in the beginning when Eubanks describes his Navy service on a Hunt for Red October submarine. But when the judge asks the name of his skipper and Eubanks can’t recall and asks the judge if he knows, the judge says, “let’s move on.”
On breaks and at lunch, the press shun the Microsoft spokespeople and the DOJ lawyers and elect to interview each other. The other “story” this morning comes in the form of a government motion to compel some Microsoft documents not produced as requested. The documents in question are a Microsoft memo leaked to an AP correspondent last winter and some e-mails from Gates to his staff about why the leak wasn’t bigger, so that the press might better cover the story. Brock Meeks, my soft-spoken colleague from MSNBC, says the lead on this story should be: “Now AP Is Gates’ Little Bitch.” I think it’s: “Why Is DOJ Still Bickering About Documents?”
After lunch, the Mother Ship transports down a very different Gordon Eubanks to be cross-examined by Justice outside counsel David Boies. Gone is Happy Eubanks. This one is cringing. About four minutes into the cross, one thing becomes plain: If last week’s Garry Norris told the story of how Microsoft’s Enemies were treated, this week’s Gordon Eubanks is the poster child for how Friends get treated. These two witnesses, like perfect bookends, tell quite a story.
Boies, who bears a tremendous resemblance to Bob Newhart from behind, wears his glasses waaay down on the end of his nose and peers over them at the witness.
“Did you know that Symantec had a first wave agreement [allowing it certain benefits unavailable to other competitors] with Microsoft?”
“No, not formally.”
Boies produces a signed letter of agreement.
“Did you know the first wave agreement required Symantec to set IE as the default browser if its user interface is HTML based?”
Boies produces the language from the document.
“Did you know Symantec considered Microsoft the most important company it dealt with?”
“Not true. Microsoft is one of our five most important companies but …”
Boies produces a Symantec SEC filing singling out its dependence on Microsoft products and not mentioning any others.
“Is it important at Oblix [Boies maddeningly calls it “obelisk” throughout his cross] to have a first wave agreement with Microsoft?”
“I don’t know if we have one.”
Boies produces an internal Oblix e-mail urging that they “wrap up the first wave agreement.” For good measure, he also trots out an Oblix e-mail stating, “We need to be totally in bed with them [Microsoft] as over the long run, people like Enteva (who are focused only on MSFT) may be our real competitors.”
Boies asks Eubanks if he knows of a Microsoft ranking of Independent Software Vendors (ISV’s) as “friends and enemies.” Eubanks doesn’t know of such a list. Boies puts into evidence (over Microsoft’s objection) an internal Microsoft list ranking all the ISV’s as “friend, enemy or neutral.” Like Jenny Brown’s list in fifth grade of lacy valentines, yucky valentines, and no valentines.
Boies asks if it isn’t true that “you made a conscious effort not to compete with Microsoft to avoid having them step on you?” Eubanks gets angry and almost shouts, “Not true at all,” adding that Symantec merely “looked for segments where we could be successful.” I start to get that awful pulling feeling in my stomach you always get at this point in a divorce trial when you know the nudie pictures are coming. Boies pulls out a New York Times interview with Eubanks from 1993 in which he is quoted as saying of Microsoft, “We certainly do compete but we don’t look to do that. We look for segments where we can be out from under their feet.”
The press is laughing loudly and scribbling furiously. Boies asks about Eubanks’ quid-pro-quo for writing a New York Times Op-Ed supporting Microsoft. The pro-quo is in an e-mail from Eubanks to Brad Chase at Microsoft saying he will consider writing the Op-Ed and (next paragraph) complaining about Microsoft’s “inclusion of a competitor’s anti-virus product in [its] Plus Pack.” Eubanks insists that the presence of the two distinct issues in the same e-mail is … well …
“A coincidence?” asks Boies.
“Excellent word choice!” enthuses Eubanks. The judge has been refusing to make eye contact with Eubanks all afternoon. At the 3:15 break, as Boies pushes through the little swingy doors separating the well of the courtroom from the spectators, he is greeted by 11-year-old Matt Nocera, whose dad covers the trial for Fortune and who has been listening raptly all day.
“Good job!” Matt cries. Boies shakes the boy’s hand and smiles. You can almost see them walking off into the sunset together, Boies’ arm around the kid, saying, “That’s how it’s done son. That’s how it’s done.”
Click here for dispatches from the last session of the Microsoft trial between October 1998 and February 1999.