● 10.14.20
●● Transcripts of Bill Gates’ Lies: Part IV (Last)
Posted in Antitrust, Bill Gates, Cablegate, Microsoft at 12:42 am by Guest Editorial Team
Part 4 (of a total of 4)
Summary: Techrights is curating and maintaining plain text versions of the Gates deposition of 1998, in which years if not decades of the company’s abuses were scrutinised in a face-to-face fashion
Previous parts: Part I, Part II, Part III
Videos of the deposition: First part, second part, third part, fourth part, fifth part, sixth part, seventh part, eighth part, ninth part, tenth part, eleventh part, and last part
Selected transcripts of the deposition: Few annotated transcripts and longer transcripts
The final part of this exchange shows Mr. Gates writing a malicious E-mail (Joachim Kempin, Steve Ballmer), then pretending that he cannot recall it. We’re going to tackle the relevant contents properly in the next phase of this series (in light of present events).
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1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE DISTRICT OF COLUMBIA
3
4
5 UNITED STATES OF AMERICA, )
)
6 Plaintiff, )
)
7 vs. ) No. CIV 98-1232(TPJ)
)
8 MICROSOFT CORPORATION, ) VOLUME III
)
9 Defendant. ) CONFIDENTIAL
)
10 ______________________________ )
11
12
13 DEPOSITION OF BILL GATES, a witness
14 herein, taken on behalf of the plaintiffs at
15 9:11 a.m., Wednesday, September 2, 1998, at One
16 Microsoft Way, Redmond, Washington, before Kathleen
17 E. Barney, CSR, pursuant to Subpoena.
18
19
20
21
22
23 REPORTED BY:
Kathleen E. Barney,
24 CSR No. 5698
Our File No. 1-49196
25
1 APPEARANCES OF COUNSEL:
2
3 FOR THE UNITED STATES OF AMERICA:
4 UNITED STATES DEPARTMENT OF JUSTICE
BY KARMA M. GIULIANELLI
5 450 Golden Gate Avenue
Box 36046
6 San Francisco, California 94102
(415) 436-6660
7
BOIES & SCHILLER LLP
8 BY DAVID BOIES
80 Business Park Drive
9 Armonk, New York 10504-1710
(914) 273-9800
10
11 FOR MICROSOFT CORPORATION:
12 MICROSOFT CORPORATION
LAW AND CORPORATE AFFAIRS
13 BY DAVID A. HEINER
WILLIAM H. NEUKOM
14 One Microsoft Way
Redmond, Washington 98052
15 (425) 936-3103
16 SULLIVAN & CROMWELL
BY RICHARD J. UROWSKY
17 125 Broad Street
New York, New York 10004
18 (212) 558-3546
19
FOR THE PLAINTIFF STATES:
20
STATE OF NEW YORK
21 OFFICE OF ATTORNEY GENERAL
BY GAIL P. CLEARY
22 120 Broadway
New York, New York 10271-0332
23 (212) 416-8275
24 ALSO PRESENT: PRISCILLA ALVAREZ, Paralegal
25 MICHEL CARTER, Video Operator
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 I N D E X
2 WITNESS EXAMINATION BY PAGE
3 Bill Gates Mr. Boies 510
4
5 GOVERNMENT EXHIBITS
6 380 E-mail dated 12/1/96 549
7 381 E-mail dated 1/16/96 565
8 382 Executive summary 594
9 383 E-mail dated 1/5/97 600
10 384 E-mail dated 6/10/94 608
11 385 Computer World article 617
12 386 E-mail dated 4/6/95 618
13 387 E-mail dated 4/12/95 623
14 388 E-mail dated 4/12/95 625
15 390 E-mail dated 2/24/97 628
16 391 E-mail dated 4/18/95 633
17 392 E-mail dated 1/28/97 635
18 393 E-mail dated 2/15/98 583
19 394 E-mail dated 2/4/95 652
20 395 E-mail dated 2/19/97 652
21 396 "The Use and Misuse of Technology" 655
22 397 E-mail dated 3/13/97 605
23 398 E-mail dated 10/3/94 658
24 399 E-mail dated 1/8/96 663
25 400 E-mail dated 11/6/97 666
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 401 E-mail dated 8/15/97 674
2 402 E-mail dated 8/5/97 676
3 403 E-mail dated 2/16/98 677
4 404 E-mail dated 3/23/94 678
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BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 BILL GATES,
2 a witness herein, having been duly sworn, was deposed
3 and testified further as follows:
4
5 EXAMINATION
6 BY MR. BOIES:
7 Q. Good morning, Mr. Gates. Do you
8 understand that you are still under oath?
9 A. Yes.
10 Q. Since the deposition session last
11 Friday, have you talked to anyone, other than your
12 counsel, about your deposition or about this case?
13 A. There were people who knew I'd been
14 deposed who said, "Were you deposed?" and "Are you
15 done being deposed?" And I simply told them I had
16 been deposed and I thought I had one more day of
17 being deposed.
18 Q. Other than simply telling them that you
19 had been deposed and you had one more day to be
20 deposed, did you have any discussions at all with
21 anyone, other than your counsel, either about your
22 deposition or any matters relating to your deposition
23 or about this case since last Friday?
24 A. Oh, I think someone mentioned they'd
25 read in the paper various things about the
510
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 deposition.
2 Q. Who was that?
3 A. I don't remember who. I was at an
4 event where there were like 500 people, some of whom
5 I wasn't introduced to, but I think some people came
6 up and said they read about it in the newspaper.
7 Q. And one of the people that said that
8 was somebody who you didn't know; is that your
9 testimony?
10 A. I remember some people saying that. I
11 don't recall exactly who said it.
12 Q. What is this event that you're talking
13 about?
14 A. Oh, it's a get-together that Paul Allen
15 had of a number of people.
16 Q. You attended this get-together?
17 A. Yes.
18 Q. When did this get-together take place?
19 A. Friday night through Monday morning,
20 although I only -- actually, it started Friday
21 morning, but I was there from Friday night until
22 Sunday night.
23 Q. I'd like you to tell me everything that
24 you can recall that you said to anyone since last
25 Friday afternoon about the deposition or this case or
511
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 anything relating to this deposition or this case.
2 A. Other than my lawyers?
3 Q. Other than your lawyers, yes.
4 A. Do you include my wife in that?
5 Q. Did you talk to your wife about this
6 deposition?
7 A. Yes.
8 Q. Did you talk to your wife about this
9 case?
10 A. Well, I talked to her about the
11 deposition, which relates to the case. I didn't talk
12 to her about the case in any sense beyond talking
13 about the deposition.
14 Q. Was anyone else present when you did
15 this?
16 A. No.
17 Q. Let's leave your wife aside, too.
18 A. I can recall some people saying, "Must
19 have been rough," and my saying, "Well, it's like
20 depositions I've been in before." I think a lot of
21 people came up and said they were rooting for us. A
22 number of people asked if I was done with my
23 deposition.
24 Some people suggested that they were
25 surprised I'd been able to make it given that I'd
512
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1 been in a deposition. I explained that I had to come
2 late because of the deposition. But that's all I can
3 remember about anything about the deposition.
4 Q. Or about the case or anything related
5 to the deposition or the case?
6 A. Other than my wife and my lawyers, yes.
7 Q. Yes.
8 I asked you last week whether you were
9 going to be a witness at the trial of this case and
10 you said you didn't know. Do you know now whether
11 you're going to be a witness at the trial of this
12 case?
13 A. I don't know -- no, I don't. I don't
14 know whether our side will make me a witness or
15 whether your side will make me a witness.
16 Q. Do you intend to be a witness at the
17 trial of this case if we do not call you?
18 A. I don't know.
19 Q. Have you spoken to anyone, other than
20 your counsel, about whether or not you intend to be a
21 witness at trial in this case?
22 A. I haven't spoken to anyone else about
23 an intention to be a witness. I have told my wife
24 that there's a time we're on vacation that may
25 overlap this trial and if either side does choose to
513
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1 call me, looking at what kind every disruption in our
2 schedule that might cause.
3 Q. Other than conversations which you have
4 had with your wife or your counsel, have you had any
5 conversations with anyone about the possibility of
6 your being a witness at the trial of this case?
7 A. No.
8 Q. Other than conversations that you have
9 had with your counsel, have you had any conversations
10 with anyone about the possibility of someone other
11 than yourself being a witness at the trial of this
12 case?
13 A. Yes.
14 Q. With whom have you had those
15 conversations?
16 A. I spoke to an MIT professor, Professor
17 Dertouzos, about his possibly being a witness in the
18 case, an expert witness.
19 Q. When did you do that?
20 A. A few weeks ago. I -- I don't remember
21 the date. I can go back and try to establish it, but
22 it's more than two weeks ago.
23 Q. Was that a conversation that you had in
24 person or by telephone?
25 A. By telephone.
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1 Q. Were you asking him if he would be a
2 witness; is that what you were doing?
3 A. I was inquiring whether he would be
4 willing to be a witness, yes.
5 Q. What did he say?
6 A. He wasn't sure when I talked to him and
7 he said he would think about it.
8 Q. Other than that one telephone
9 conversation, have you had any conversations with
10 anyone concerning the possibility that someone other
11 than yourself might be a witness at the trial of this
12 case?
13 A. Other than with my lawyers, no.
14 Q. Other than with your lawyers.
15 Have you made any efforts or to your
16 knowledge has anyone at Microsoft, other than
17 counsel, made any efforts to determine whether people
18 would be willing to be trial witnesses in this case?
19 A. The only thing I know about along those
20 lines is there was an economist who came out and met
21 with me and some other Microsoft people, and that may
22 have been in connection with whether or not that
23 economist would be an expert witness in this trial.
24 Q. When did that happen?
25 A. A few weeks ago.
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1 Q. Do you know the economist's name?
2 A. Yes, Dick Schmalansee. I don't know
3 how to spell it.
4 Q. I don't either, but I know who you
5 mean.
6 Other than Professor Schmalansee and
7 that meeting you had with him, and of course the
8 telephone conversation with the MIT professor, have
9 there been any other people that you're aware of that
10 either you or other people at Microsoft have talked
11 to about the possibility of being a witness?
12 A. No.
13 Q. Insofar as you are aware, has anyone at
14 Microsoft, other than your counsel, called up any
15 companies with whom Microsoft does business to
16 discuss the possibility of a representative of those
17 companies being a witness in this case?
18 A. If so, I'm not aware of it.
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3 Q. Well, sir, the term browser is a term
4 that is widely used within Microsoft, or at least was
5 until this year; correct, sir?
6 MR. HEINER: Objection.
7 THE WITNESS: We use the term browser,
8 yes.
9 Q. BY MR. BOIES: And you personally used
10 the term browser, did you not, sir?
11 A. Yes, that term is used in quite a
12 variety of ways.
13 Q. Including by you; correct, sir?
14 A. Yes.
15 Q. You've written e-mails about browsers;
16 correct, sir?
17 A. I've written e-mails where the term
18 browser was used. I wouldn't say it was necessarily
19 an e-mail about browsers.
20 Q. Have you ever written an e-mail that
21 you considered to be about browsers, sir?
22 A. I'll bet there's e-mail where the
23 primary subject relates to browsers. I don't
24 remember a specific piece of e-mail.
25 Q. And when you wrote e-mails using the
520
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1 term browsers, you believed that people would
2 understand what you meant by browsers; correct, sir?
3 A. I'm sure there was enough context in
4 the e-mail that I felt I could communicate something
5 of meaning.
6 Q. And you've used the term browser in
7 dealing with people outside of Microsoft, have you
8 not, sir?
9 A. Yes. It's a term that I've used both
10 internally and externally.
11 Q. And there are a lot of people outside
12 Microsoft that have written articles about browsers;
13 correct, sir?
14 A. There's been articles about browsing
15 and the technology people use for browsing and
16 comparing the different -- how different companies do
17 that, and they used the term browser.
18 Q. Yes. The industry and Microsoft tracks
19 what is referred to as browser market share; correct,
20 sir?
21 A. No.
22 Q. No? Does Microsoft track browser
23 market share?
24 A. I've seen usage share.
25 Q. You've seen usage share?
521
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. Uh-huh. But not -- market share
2 usually refers to something related to -- not to
3 usage. And with browsers, I've seen mostly usage.
4 Now, some people might refer to that as a market
5 share, but it's not a market share.
6 Q. What is a market share?
7 A. Well, when I think of a market share, I
8 think of where you're comparing the revenue of one
9 company to the revenue of another company.
10 Q. The total revenue of a company?
11 A. No, the revenue related to one
12 company's product to the revenue of another company's
13 product.
14 Q. And that's what you think of when you
15 use the term market share; is that your testimony?
16 A. Usually.
17 Q. Are you aware of documents within
18 Microsoft that describe browser share as the
19 company's number one goal?
20 A. No. I'm aware of documents within Paul
21 Maritz's group that may have stated that.
22 Q. Is Paul Maritz's group within
23 Microsoft?
24 A. Yes, but his -- he doesn't set the
25 company-wide goals.
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1 Q. Mr. Maritz you identified last week as
2 being a group vice-president; is that correct?
3 A. Uh-huh. Several times.
4 Q. And he is the group vice-president with
5 responsibility for Windows; is that correct?
6 A. That's among his responsibilities.
7 Q. And included in his responsibilities
8 was Internet Explorer; is that correct?
9 A. Our browsing technology was part of
10 that group.
11 Q. Was Internet Explorer part of that
12 group?
13 A. Yes.
14 Q. Now, did you ever tell Mr. Maritz that
15 browser share was not the company's number one goal?
16 A. No.
17 Q. You knew Mr. Maritz was telling people
18 that browser share was the company's number one goal,
19 did you not, sir?
20 A. I knew that Mr. Maritz was saying to
21 people that the -- that a top goal and perhaps number
22 one goal for his group was browser usage share.
23 Q. Now, you've put in the words "usage
24 share" there. When Mr. Maritz was telling people
25 that browser share was the number one goal, was
523
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1 Mr. Maritz saying browser usage share or just browser
2 share, sir?
3 A. You'd have to ask him. I think he
4 meant usage share.
5 Q. I'm not asking what he meant. And
6 perhaps my question was unclear. I'm asking what he
7 said or wrote.
8 MR. HEINER: Object to the question.
9 Q. BY MR. BOIES: Do you understand the
10 question?
11 A. What writings are we talking about?
12 Q. Let me ask you the question, Mr. Gates,
13 since you're the witness. Are you aware of any time
14 that Mr. Maritz wrote in an e-mail or said or
15 otherwise communicated to people that browser share
16 was the number one goal?
17 A. The number one goal for what?
18 Q. Just the number one goal for the
19 company, let's start with that. Are you aware of any
20 time when Mr. Maritz said that?
21 A. Where he said it was the number one
22 goal for the whole company?
23 Q. I didn't say the whole company. I
24 didn't put in the word "whole," Mr. Gates. And I
25 know you're very precise with words, so I want to
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1 make sure the questions and answers meet.
2 The question is, are you aware of any
3 instance in which Mr. Maritz, in words or in
4 substance, communicated that browser share was the
5 number one goal for the company? And by "the
6 company," I mean Microsoft.
7 A. I don't remember any such case.
8 Q. Are you aware of any instance in which
9 Mr. Maritz communicated in words or in substance that
10 browser share was the number one goal for his group?
11 A. I think there was a point where he did
12 that. I don't remember the document, but I think
13 there was a point.
14 Q. Do you know why Mr. Maritz came to the
15 view that browser share was the number one goal?
16 A. For his group?
17 Q. Did he say for his group in the
18 communications --
19 A. Well --
20 Q. -- that you're talking about?
21 A. It's not his position to set goals for
22 the entire company, so when he says something that's
23 a goal, it's certainly implied it's a goal for his
24 group.
25 Q. Interpreting what Mr. Maritz has
525
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1 communicated in light of that, do you know how
2 Mr. Maritz came to the view that browser share was
3 the number one goal?
4 A. Well, I think he was aware of the
5 increasing popularity of the Internet and the growing
6 usage of the Internet and felt that all the many many
7 innovations we were doing in Windows, that a
8 particular focus had to be doing the best job on the
9 Internet and Internet browsing features of the
10 operating system and seeing if we could innovate
11 enough to make people prefer to use that technology
12 from us.
13 Q. Mr. Gates, isn't it the case that you
14 told Mr. Maritz that browser share was a very very
15 important goal and that's why he believed it?
16 A. I guess now we're delving into the
17 inner workings of Paul Maritz's mind and how he comes
18 to conclusions?
19 Q. Well, let me try to ask you a question
20 that won't require you to delve into anybody else's
21 mind.
22 Did you tell Mr. Maritz that browser
23 share was a very very important goal?
24 A. I know we talked about browser share
25 being important.
526
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Q. I'm not asking you what he said to you.
2 I'm not asking what topic you talked about. I'm
3 asking you whether you told Mr. Maritz that browser
4 share was a very very important goal?
5 A. I remember that we agreed that it was
6 an important goal. I'm not sure which one of us
7 reached that feeling before the other.
8 Q. Have you communicated to people other
9 than Mr. Maritz within Microsoft that browser share
10 was a very very important goal?
11 A. Well, you've used several times the
12 "very very" and I don't know if you're asking me
13 specifically about sometime where I used the words
14 "very very," is that the question?
15 Q. Let me begin with that question. Have
16 you communicated to people within Microsoft, other
17 than Mr. Maritz, that browser share was a very very
18 important goal, using those words?
19 A. I don't remember using those words.
20 Q. Have you communicated the substance of
21 that to people within Microsoft?
22 A. Help me understand. If you communicate
23 to people that something is important, is the
24 substance of that identical to communicating to them
25 it's very very important?
527
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1 Q. Would it be, in your view, Mr. Gates,
2 if you were using those terms, would important be the
3 same as very very important?
4 A. Not identical.
5 Q. What would be the difference?
6 A. The two very's.
7 Q. And what significance in terms of
8 substance would those two very's have?
9 A. A speaker's tendency towards hyperbole.
10 Q. Other than your tendency, if you have
11 one, to hyperbole, would there be anything different
12 that you would be communicating to people if you were
13 to say browser share is an important goal or browser
14 share is a very very important goal?
15 A. You'd have to look at the context to
16 see.
17 Q. As you sit here now, what you've told
18 me is that you recall communicating that browser
19 share was an important goal, but not a very very
20 important goal, and all I'm trying to do is find out
21 whether you draw a distinction in terms of the
22 substance of those communications?
23 A. And I said, it would depend on the
24 context.
25 Q. Let me ask you to look at at least one
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1 context and that would be Exhibit 358 that we marked
2 during your deposition last week. And it is in the
3 stack of exhibits that you have in front of you.
4 Did you write Exhibit 358, Mr. Gates,
5 on or about January 5, 1996?
6 A. I don't remember doing so specifically,
7 but it appears that I did.
8 Q. And the first line of this is, "Winning
9 Internet browser share is a very very important goal
10 for us."
11 Do you see that?
12 A. I do.
13 Q. Do you remember writing that, sir?
14 A. Not specifically.
15 Q. Now, when you were referring there to
16 Internet browser share, what were the companies who
17 were included in that?
18 A. There's no companies included in that.
19 Q. Well, if you're winning browser share,
20 that must mean that some other company is producing
21 browsers and you're comparing your share of browsers
22 with somebody else's share of browsers; is that not
23 so, sir?
24 A. You asked me if there are any companies
25 included in that and now -- I'm very confused about
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1 what you're asking.
2 Q. All right, sir, let me see if I can try
3 to clarify. You say here "Winning Internet browser
4 share is a very very important goal for us." What
5 companies were supplying browsers whose share you
6 were talking about?
7 A. It doesn't appear I'm talking about any
8 other companies in that sentence.
9 Q. Well, sir, is a market share something
10 that is compiled only for one company? I understand
11 if a company has a monopoly, that may be so, but in a
12 usual situation where a company does not have a
13 monopoly, share ordinarily implies comparing how much
14 of a product one company has with how much of a
15 product another company has; correct?
16 A. Yes.
17 Q. Now, when you were talking about
18 Internet browser share here, what companies were you
19 talking about?
20 A. You're trying -- you seem to be
21 suggesting that just because share involves comparing
22 multiple companies, that when I wrote that sentence,
23 I was talking about other companies. It doesn't
24 appear that I'm talking about other companies in that
25 sentence. I've really read it very carefully and I
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BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 don't notice any other companies in there.
2 Q. Oh, you mean you don't see any other
3 company mentioned in that sentence; is that what
4 you're saying?
5 A. The sentence doesn't appear to directly
6 or indirectly refer to any other companies.
7 Q. When you refer to an Internet browser
8 share here, sir, what is the share of?
9 A. Browser usage.
10 Q. Of course, you don't say "browser
11 usage" here, do you, sir?
12 A. No, it says "share."
13 Q. Now, let's say that you meant browser
14 usage because that's what your testimony is. What
15 browser usage were you talking about in terms of what
16 your share of browser usage was? What browsers?
17 A. I'm not getting your question. Are you
18 trying to ask what I was thinking when I wrote this
19 sentence?
20 Q. Let me begin with that. What were you
21 thinking when you --
22 A. I don't remember specifically writing
23 this sentence.
24 Q. Does that mean you can't answer what
25 you were thinking when you wrote the sentence?
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BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. That's correct.
2 Q. So since you don't have an answer to
3 that question, let me put a different question.
4 A. I have an answer. The answer is I
5 don't remember.
6 Q. You don't remember what you meant. Let
7 me try to ask you --
8 A. I don't remember what I was thinking.
9 Q. Is there a difference between
10 remembering what you were thinking and remembering
11 what you meant?
12 A. If the question is what I meant when I
13 wrote it, no.
14 Q. So you don't remember what you were
15 thinking when you wrote it and you don't remember
16 what you meant when you wrote it; is that fair?
17 A. As well as not remember writing it.
18 Q. Okay. Now, let me go on to another
19 paragraph and see whether you remember writing that
20 or not. And that is the second paragraph, which
21 reads, "Apparently a lot of OEMs are bundling
22 non-Microsoft browsers and coming up with offerings
23 together with Internet Service providers that get
24 displayed on their machines in a FAR" -- and you've
25 capitalized each of the letters in far -- "more
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1 prominent way than MSN or our Internet browser."
2 Do you see that?
3 A. Uh-huh.
4 Q. Did you write that sentence, Mr. Gates?
5 A. I don't remember, but I have no reason
6 to doubt that I did.
7 Q. Do you remember what you were thinking
8 when you wrote that sentence or what you meant when
9 you wrote that sentence?
10 A. No.
11 Q. Do you remember that in January, 1996,
12 a lot of OEMs were bundling non-Microsoft browsers?
13 A. I'm not sure.
14 Q. What were the non-Microsoft browsers
15 that you were concerned about in January of 1996?
16 A. What's the question? You're trying to
17 get me to recall what other browsers I was thinking
18 about when I wrote that sentence?
19 Q. No, because you've told me that you
20 don't know what you were thinking about when you
21 wrote that sentence.
22 A. Right.
23 Q. What I'm trying to do is get you to
24 tell me what non-Microsoft browsers you were
25 concerned about in January of 1996.
533
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1 A. If it had been only one, I probably
2 would have used the name of it. Instead I seem to be
3 using the term non-Microsoft browsers.
4 Q. My question is what non-Microsoft
5 browsers were you concerned about in January of 1996?
6 A. I'm sure -- what's the question? Is
7 it -- are you asking me about when I wrote this
8 e-mail or what are you asking me about?
9 Q. I'm asking you about January of 1996.
10 A. That month?
11 Q. Yes, sir.
12 A. And what about it?
13 Q. What non-Microsoft browsers were you
14 concerned about in January of 1996?
15 A. I don't know what you mean "concerned."
16 Q. What is it about the word "concerned"
17 that you don't understand?
18 A. I'm not sure what you mean by it.
19 Q. Is --
20 A. Is there a document where I use that
21 term?
22 Q. Is the term "concerned" a term that
23 you're familiar with in the English language?
24 A. Yes.
25 Q. Does it have a meaning that you're
534
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1 familiar with?
2 A. Yes.
3 Q. Using the word "concerned" consistent
4 with the normal meaning that it has in the English
5 language, what Microsoft -- or what non-Microsoft
6 browsers were you concerned about in January of 1996?
7 A. Well, I think I would have been
8 concerned about Internet Explorer, what was going on
9 with it. We would have been looking at other
10 browsers that were in use at the time. Certainly
11 Navigator was one of those. And I don't know which
12 browser AOL was using at the time, but it was another
13 browser.
14 Q. What I'm asking, Mr. Gates, is what
15 other browsers or what non-Microsoft browsers were
16 you concerned about in January of 1996? I'm not
17 asking what you were looking at, although that may be
18 part of the answer, and I don't mean to exclude it,
19 but what non-Microsoft browsers were you concerned
20 about in January of 1996?
21 A. Well, our concern was to provide the
22 best Internet support, among other things, in
23 Windows. And in dealing with that concern, I'm sure
24 we looked at competitive products, including the ones
25 I mentioned.
535
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1 Q. Let me try to use your words and see if
2 we can move this along. What competitive products
3 did you look at in January of 1996 in terms of
4 browsers?
5 A. I don't remember looking at any
6 specific products during that month.
7 Q. Were there specific competitive
8 products that in January of 1996 you wanted to
9 increase Microsoft's share with respect to those
10 products?
11 MR. HEINER: Objection.
12 Q. BY MR. BOIES: Do you understand the
13 question, Mr. Gates?
14 A. I'm pausing to see if I can understand
15 it.
16 Q. If you don't understand it, I'd be
17 happy to rephrase it.
18 A. Go ahead and rephrase it. I probably
19 could have understood it if I thought about it, but
20 go ahead.
21 Q. In January, 1996, you were aware that
22 there were non-Microsoft browsers that were being
23 marketed; is that correct?
24 A. I can't really confine it to that
25 month, but I'm sure in that time period I was aware
536
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1 of other browsers being out.
2 Q. And were those non-Microsoft browsers,
3 or at least some of them, being marketed in
4 competition with Microsoft's browser?
5 A. Users were making choices about which
6 browser to select.
7 Q. Is the term "competition" a term that
8 you're familiar with, Mr. Gates?
9 A. Yes.
10 Q. And does it have a meaning in the
11 English language that you're familiar with?
12 A. Any lack of understanding of the
13 question doesn't stem from the use of that word.
14 Q. And you understand what is meant by
15 non-Microsoft browsers, do you not, sir?
16 A. No.
17 Q. You don't? Is that what you're telling
18 me? You don't understand what that means?
19 A. You'll have to be more specific.
20 What --
21 Q. Do you understand what is meant by
22 non-Microsoft browsers?
23 A. In the right context, I'd understand
24 that.
25 Q. Is the term non-Microsoft browser a
537
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 term that you think has a reasonably common and
2 understandable meaning in the industry?
3 A. Yes. It's only the scope of what you'd
4 include in it that would vary according to the
5 context.
6 Q. Okay. That is, in some contexts you'd
7 include more and in some contexts you'd include less?
8 A. That's right.
9 Q. When you refer to non-Microsoft
10 browsers generally, are there particular browsers
11 that you have in mind?
12 A. There are many that I would include in
13 that. And as I said, it would be broader depending
14 on the context.
15 Q. Do all of the non-Microsoft browsers
16 that you're aware of compete with Internet Explorer?
17 A. In the sense that users select which
18 browsers they want to use, yes.
19 Q. Let's focus on January of 1996. What
20 were the non-Microsoft browsers that, in your view,
21 were competing with Internet Explorer in January of
22 1996?
23 A. Well, users could choose from a number
24 of browsers, including the original Mosaic browser,
25 the Netscape Navigator, and I don't know what version
538
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 they had out at the time. The AOL browser. And some
2 others that were in the market.
3 Q. And using the term as you used the
4 term, were all of those three browsers competing with
5 Internet Explorer in January of 1996?
6 A. In the sense that users could choose to
7 use them or use Internet Explorer, yes.
8 Q. I want to use it the way you use it,
9 not the way somebody else might use it, Mr. Gates.
10 What I want to know is in January, 1996, did you
11 consider Mosaic, Navigator and AOL's browser as all
12 competing with Internet Explorer?
13 A. In the sense that users could select
14 one of those others to choose, yes.
15 Q. Is that the only sense that you use the
16 term competition?
17 A. No.
18 Q. What I want to do is I want to focus on
19 competition the way you use it in the ordinary
20 operation of your business.
21 A. And one of the senses is whether people
22 choose to use our way of providing a feature or if
23 they choose to get additional software to provide
24 them with that feature.
25 Q. And was that the choice that users were
539
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 making between Internet Explorer and the AOL browser
2 in January of 1996, Mr. Gates?
3 A. Users can choose between those two.
4 Q. Were they making that choice,
5 Mr. Gates, so far as you're aware?
6 A. Some were, yes.
7 Q. And some were choosing the AOL browser
8 instead of Internet Explorer, that's your testimony?
9 A. Well, people can switch at any time and
10 they can intermix their usage. Some people choose to
11 primarily use the AOL browser.
12 Q. Instead of Internet Explorer is your
13 testimony?
14 A. When I say primarily, that means it got
15 most of their usage share and it means nothing else
16 does. Let's take somebody who exclusively would have
17 used the AOL browser. I can't name anybody like
18 that, but I'm sure there were people like that. That
19 would mean they weren't using the Internet Explorer
20 technologies in Windows.
21 Q. And because of that, as you use the
22 term competition, you would consider that a
23 competitive alternative? That's what you said; is
24 that correct?
25 A. In terms of competing for usage share,
540
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 yes.
2 Q. And what you've testified is that when
3 you use browser share, you meant usage share;
4 correct?
5 A. That's right.
6 Q. So that as you use the term browser
7 share, it is your testimony that in January of 1996
8 Microsoft was competing for browser share with
9 Mosaic, Navigator and AOL's browser; correct?
10 A. In the sense that users would choose to
11 use one of those in varying degrees, yes.
12 Q. But in terms of what you meant by
13 browser share, that was what you considered to be
14 competition in January of 1996; correct?
15 A. That we were competing to see who could
16 make the better browser that users would choose to
17 take advantage of, yes.
18 Q. And you were competing with the
19 supplier of Mosaic and the supplier of Navigator and
20 the supplier of AOL's browser to do that; is that
21 your testimony?
22 A. I know we were interested in making our
23 browser attractive so that we'd gain higher usage
24 share.
25 Q. Higher usage share compared to --
541
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. All the other browsers, including
2 particularly those browsers.
3 Q. Okay. Now, in January of 1996, did you
4 consider any one of those three browsers to be a
5 stronger or more important competitor than any of the
6 others?
7 A. It's hard for me to pin it down to
8 January, 1996. At some point we definitely thought
9 of the Netscape browser as the number one in terms of
10 how our Windows browsing would be compared by users
11 and which they would select.
12 Q. Have you finished your answer?
13 A. Uh-huh.
14 Q. When did you first consider Netscape's
15 browser to be your primary or most important
16 non-Microsoft browser with which Internet Explorer
17 was competing?
18 A. I think by late 1995 we thought of
19 Navigator as competing both with -- well, competing
20 with Windows broadly, including the Internet
21 capabilities of Windows.
22 Q. Prior to late 1995, did you think of
23 the Netscape browser as competing either broadly with
24 Windows or with Internet Explorer?
25 A. No. I think prior to that we were
542
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1 unclear about whether that was the case.
2 Q. Let me try to go back now to the first
3 sentence in your memo of January 5, 1996 that has
4 been marked as Exhibit 358 where it says, "Winning
5 Internet browser share is a very very important goal
6 for us." Does the prior discussion that we've just
7 had refresh your recollection that you would have
8 been referring primarily there to the goal of gaining
9 market share versus Netscape?
10 A. You keep trying to read Netscape into
11 that sentence and I don't see how you can do that.
12 Q. I just really want to get your
13 testimony, Mr. Gates.
14 A. Okay.
15 Q. And that is, when you wrote, "Winning
16 Internet browser share is a very very important goal
17 for us," in January, 1996, were you referring
18 primarily to gaining market share compared to
19 Netscape?
20 A. I've testified I don't remember what I
21 was thinking when I wrote that sentence.
22 Q. If you can't remember what you meant
23 when you wrote that sentence, do you at least
24 remember that in January, 1996, winning Internet
25 browser share was an important goal for Microsoft?
543
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1 A. Yes.
2 Q. And with respect to the goal of winning
3 Internet browser share in 1996, was that goal
4 primarily to gain share compared to Netscape?
5 A. Not necessarily.
6 Q. When you talk about winning browser
7 share, not necessarily just in this document but
8 generally, you're referring to gaining market share
9 compared to other competitors; correct?
10 A. Or any new products that come along.
11 Q. That are competitive; correct?
12 A. That people use for that function.
13 Q. In January of 1996, was it the case
14 that the most important competitive product to
15 Internet Explorer was Netscape's browser?
16 A. I think by this time the browser that
17 had the highest usage share was Netscape's Navigator.
18 MR. BOIES: Would you read the question
19 back, please.
20 (Record read.)
21 Q. BY MR. BOIES: Can you answer that
22 question, sir?
23 A. In terms of users picking browsers, the
24 product that was on the market that competed for
25 usage the most in this time period was probably
544
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1 Netscape's Navigator.
2 Q. Okay. Was the fact that you've just
3 described a fact that caused you and Microsoft to
4 want to study Netscape and determine how you could
5 reduce Netscape's ability to compete?
6 MR. HEINER: Objection.
7 THE WITNESS: I don't know what you
8 mean by that.
9 Q. BY MR. BOIES: In or about January of
10 1996 or thereafter, did Microsoft try to study
11 Netscape to determine how you could reduce Netscape's
12 ability to compete?
13 MR. HEINER: Objection.
14 THE WITNESS: I don't know what you
15 mean by that.
16 Q. BY MR. BOIES: Let me try to break it
17 up into as small a pieces as I can.
18 In or about January, 1996 or
19 thereafter, did Microsoft, to your knowledge,
20 undertake to try to study Netscape as a company,
21 including where its revenues came from, what its
22 dependencies were, what it needed to remain viable?
23 A. I'm sure we looked at their revenue.
24 And I'm sure we looked at their products and their
25 organizational structure.
545
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Q. Was that in whole or in part a result
2 of an attempt to find out what their vulnerabilities
3 were, Mr. Gates?
4 MR. HEINER: Objection.
5 THE WITNESS: Did you end the question?
6 Q. BY MR. BOIES: Both your counsel and I
7 thought so.
8 A. Okay.
9 Q. But if you don't understand it, I'll
10 rephrase it.
11 A. We were interested in learning what
12 users liked about their products and what kind of
13 response customers had.
14 Q. For my present question I'm not asking
15 about learning about their products just for the sake
16 of learning about their products. What I'm asking
17 about is whether you were trying to figure out where
18 Netscape's dependencies were so that you could attack
19 Netscape and render Netscape a less effective
20 competitor?
21 MR. HEINER: Objection.
22 THE WITNESS: We were interested in
23 building a product that users would prefer over them.
24 Q. BY MR. BOIES: My question, sir, is
25 whether in addition to whatever you did to improve
546
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 your product, were you also attempting to ascertain
2 what Netscape's dependencies were so that you could
3 attempt to render Netscape less viable, less able to
4 compete with Microsoft?
5 MR. HEINER: Objection.
6 THE WITNESS: We gathered information
7 about Netscape like we do a number of companies we
8 compete with, including IBM, Sun, Novell and many
9 others.
10 Q. BY MR. BOIES: Have you finished your
11 answer?
12 A. I have.
13 Q. I'm now asking you about Netscape in
14 particular and I'm asking you whether you gathered
15 information about Netscape for the purpose, in whole
16 or in part, to determine what Netscape's dependencies
17 were so that you could then try to attack those
18 dependencies and render Netscape a less viable
19 competitor?
20 MR. HEINER: Objection.
21 THE WITNESS: It's the compoundness of
22 the question that makes it so confusing.
23 Q. BY MR. BOIES: Is the question so
24 confusing that you really think you can't answer it?
25 A. It's the compoundness that makes it so
547
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 confusing that I don't think I can give you a good
2 answer.
3 Q. You gathered information about
4 Netscape; correct?
5 A. People in the company did. I didn't
6 personally.
7 Q. Well, you asked them to gather
8 information about Netscape; correct, sir?
9 A. I didn't initiate any particular
10 gathering of information. I may have asked questions
11 once I was presented some information.
12 Q. You told people that you wanted them to
13 gather information concerning such things as
14 Netscape's revenues and head count and how much
15 revenues they got from various sources, things like
16 that, did you not, sir?
17 A. No. I already -- we already talked
18 about the fact that there was a normal competitive
19 review done of a number of companies, and I didn't
20 initiate that particular review.
21 MR. BOIES: Let me mark as the next
22 exhibit, which will be Government Exhibit 380, a
23 document that I will give you a copy of and give your
24 counsel copies of.
25 The first page of Exhibit 380 contains
548
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 what purports to be a message from you dated
2 December 1, 1996. Do you see that, sir?
3 A. Yes.
4 (The document referred to was marked
5 by the court reporter as Government Exhibit 380 for
6 identification and is attached hereto.)
7 Q. BY MR. BOIES: Did you write that
8 message?
9 A. We've already discussed this particular
10 message. As I said when we discussed it before, I
11 don't remember specifically sending that message, but
12 I don't have any reason to doubt that I did.
13 Q. Do you see the first paragraph of this
14 message that says, "What kind of data do we have
15 about how much software companies pay Netscape?"
16 A. It's weird that you're repeating this
17 exhibit without the enclosures to the e-mail. I
18 think it's very misleading to have the version of the
19 document -- you had the real exhibit earlier. Did
20 you lose it?
21 Q. Mr. Gates, I am prepared to sit here
22 just as long as you want to have whatever debate you
23 want to have. I think you understand that I put
24 questions and you give answers and if your counsel
25 has an objection, he makes an objection. And that's
549
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 the way the deposition will get over with. If we
2 proceed this way, the deposition is never going to
3 get over with. If you need to see something else,
4 we'll take whatever time you need to try to put it in
5 front of you.
6 What I'm asking you about is a document
7 that bears Microsoft's document production numbers
8 MS6 6013069 with two additional pages, MS6 6013070
9 and 3071. The last two pages of this have stamps
10 that say "Privileged Material Redacted," which I will
11 represent to you means that your counsel has whited
12 out what was there. Now, I don't have any objection
13 to being given that privileged material that has been
14 redacted and I can ask you about that, too, but what
15 I'm asking you about right now is this document that
16 was produced to us by your counsel.
17 A. And I've told you it appears to be
18 incomplete.
19 MR. HEINER: If I can cut through this
20 a little bit, Mr. Gates is simply referring to the
21 fact that there was another version of this produced
22 where the material was not redacted because the
23 redaction in this case was in error. It's a simple
24 matter.
25 MR. BOIES: But I also think that the
550
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 previous exhibit, if I'm thinking about the one that
2 you have, has a different document production number,
3 it has a different number of pages. It was something
4 marked by the states.
5 MR. HEINER: I think all of that is
6 probably true.
7 MR. BOIES: And I'm happy to have that
8 other document in front of the witness if he thinks
9 he needs it. What I want to do, though, is just talk
10 about his e-mail. And I don't think his e-mail is in
11 any way incomplete.
12 THE WITNESS: Yes, sir, it is certainly
13 incomplete.
14 Q. BY MR. BOIES: Okay, sir. Then tell me
15 how it is incomplete.
16 A. Do you see where it says "RE:"?
17 Q. Yes.
18 A. That means there is an enclosure.
19 Q. You mean your e-mail is missing the
20 enclosure, is that what you're saying?
21 A. Right. So the thing I'm referring to
22 in my e-mail is completely missing here, which it
23 wasn't earlier in this deposition.
24 Q. It was not missing earlier in the
25 deposition?
551
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. That's right.
2 Q. All right, sir. Let's see if we can
3 find the earlier exhibit that you're referring to.
4 Let me see if what you mean to be referring to is
5 Government Exhibit 353.
6 A. I didn't see it when I flipped through
7 these. Do you have 353 in this pile (indicating)?
8 Q. If the reporter did her job, which she
9 almost always has, when you started the deposition
10 today you would have had all of the exhibits in
11 numerical order.
12 A. Okay, great. Here is 353.
13 Q. Now, first of all, let's see if we can
14 reach some agreement. Is Exhibit 353 the other
15 exhibit that you were referring to?
16 A. Yes.
17 Q. All right. And Exhibit 353, the e-mail
18 from you, is the same as the e-mail on Exhibit 380,
19 but Exhibit 353 has an additional e-mail; is that
20 correct?
21 A. No.
22 Q. Okay. Let me try to go through
23 Exhibit 353. The first e-mail on Exhibit 353 is an
24 e-mail from Mr. Ballmer to you and others; correct?
25 A. Right.
552
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Q. The second e-mail is an e-mail from you
2 dated December 1, 1996 at 9:24 p.m.; correct?
3 A. Yes.
4 Q. And there is a third e-mail from
5 Mr. Nehru dated November 27, 1996, at 11:54 a.m.;
6 correct?
7 A. Well, it's not a separate e-mail. It's
8 part of my e-mail.
9 Q. Well, sir, let me try to see if we can
10 get this straight. And we'll read this whole thing
11 into the record if we have to.
12 A. I can explain what you're confused
13 about.
14 Q. I'm not confused, Mr. --
15 MR. HEINER: Gates.
16 Q. BY MR. BOIES: -- Gates. Indeed I
17 think I stated it accurately, if you want to start
18 talking about what I think. But my function is to
19 ask you questions and your function is to give me
20 answers to the questions and neither of our functions
21 are to debate the other at this point.
22 Exhibit 353 starts with an e-mail dated
23 December 1, 1996 from Mr. Ballmer to you; correct?
24 A. There's only one e-mail in here, which
25 is the one from Steve, which has two e-mails enclosed
553
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 in it.
2 Q. Well, what is enclosed here are two
3 additional e-mails; correct, sir?
4 A. They're part of Steve's e-mail.
5 Q. That is, Steve -- and by Steve you mean
6 Mr. Ballmer; correct?
7 A. Yes.
8 Q. -- is sending around with his e-mail
9 two earlier e-mails; correct?
10 A. They're part of his e-mail.
11 Q. When you say they're part of his
12 e-mail, he didn't write them, did he, sir?
13 A. No, but they're part of his e-mail.
14 Q. That is, he is sending them around?
15 That's what I said three times. He is sending them
16 around with his e-mail. He wrote something and in
17 addition to what he wrote, he is sending around what
18 two other people wrote earlier; correct, sir?
19 A. It's part of his communication. It's
20 not separate.
21 Q. I don't know what you mean by part or
22 separate and neither one of those were in my
23 question, Mr. Gates. My question is, Mr. Ballmer
24 wrote an e-mail that he sent around and with that
25 e-mail he sent around two earlier e-mails; that's
554
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 clearly what's going on here; right, sir?
2 A. He only sent one thing.
3 Q. All right, sir. The first line on
4 Exhibit 353 says "Leslie Halverson (LCA)"; correct,
5 Mr. Gates?
6 A. Yes.
7 Q. Okay. The next line says "From: Steve
8 Ballmer." The next line says, "Sent: Sunday,
9 December 1, 1996, 9:25 p.m." and then "To: Bill
10 Gates, Amar Nehru."
11 A. Does yours say 9:25?
12 Q. Well, on 353 it looks like 9:26.
13 A. Right. And you said 9:25.
14 Q. Okay, then I misspoke. With that
15 amendment, it is correct, though; correct?
16 A. That's right.
17 Q. And it then goes down six more lines
18 and then there is a line that says "Original
19 Message;" correct?
20 A. Right.
21 Q. And that says "From: Bill Gates,"
22 correct?
23 A. That's right.
24 Q. And it says you sent it Sunday,
25 December 1, 1996 at 9:24 p.m.; correct?
555
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. That's right.
2 Q. And then it goes down one, two, three,
3 four, five, six, seven, eight, nine, ten lines and
4 then there is another line that says "Original
5 Message;" correct, sir?
6 A. That's right.
7 Q. And that says it is from Mr. Nehru;
8 correct?
9 A. Yes.
10 Q. And it says it was sent on Wednesday,
11 November 27, 1996 at 11:54 a.m.; correct, sir?
12 A. Right.
13 Q. Now, the portion that follows your line
14 that says, "I don't think this analysis needed to be
15 sent to so many people," that's the last line before
16 the line that says "Original Message" from Mr. Nehru;
17 correct?
18 A. That's right.
19 Q. Everything after your line saying
20 "I don't think this analysis needed to be sent to so
21 many people" has been blocked out on Exhibit 380,
22 correct, and replaced with a stamp that says
23 "Privileged Material Redacted"?
24 A. Do I still have 380?
25 Q. Unless you have eaten it. It was the
556
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 one we just marked a few moments ago, a few minutes
2 ago.
3 MR. HEINER: It's gone.
4 Q. BY MR. BOIES: In any event, your
5 counsel has in front of him another copy of it.
6 A. Yes.
7 Q. And we'll use that copy.
8 A. Yeah, it looks like they're the same
9 except that they deleted the part of my message where
10 I enclosed the information from Amar.
11 Q. When you say you enclosed the
12 information from Amar, you mean where you enclosed
13 Mr. Amar's e-mail?
14 A. As part of my e-mail.
15 Q. In haec verba?
16 MR. HEINER: Don't use that.
17 Q. BY MR. BOIES: Word for word?
18 A. Yes, it appears to be his e-mail word
19 for word.
20 Q. Okay. I was just trying to make sure
21 the record is clear.
22 MR. HEINER: I'm ready for a break if
23 you're about to get into the more interesting part.
24 MR. BOIES: We can take a break.
25 VIDEOTAPE OPERATOR: The time is 10:38.
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1 We're going off the record.
2 (Recess.)
3 VIDEOTAPE OPERATOR: The time is 10:59.
4 We're going back on the record.
5 Q. BY MR. BOIES: The November 27, 1996
6 Nehru e-mail that you sent around is headed "Netscape
7 Revenues;" correct, sir? And it is a discussion of
8 an analysis of Netscape's revenues?
9 A. I didn't send it around. Amar sent it
10 around. I enclosed it.
11 Q. I thought we established that you then
12 sent it around.
13 A. I enclosed it, yes.
14 Q. When you say you enclosed it, that
15 means it's enclosed with what you have written so
16 that it goes around to everybody that your e-mail is
17 directed to; correct?
18 A. Well, Amar had already sent it to quite
19 a large superset of the people I copied on my e-mail,
20 so he sent it to them.
21 Q. He sent it to them and then you sent it
22 to everybody that is on the addressee or copy list of
23 your e-mail; correct?
24 A. I enclosed it to those people who had
25 already all gotten it from Amar.
558
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Q. And by enclosing it means you sent it
2 around?
3 A. That's not the word I would use, but it
4 was enclosed in the e-mail I sent to those people who
5 had already received it directly from Amar.
6 Q. So when people got your e-mail -- all
7 I'm trying to do is -- I don't think this is obscure.
8 All I'm trying to do is establish that when you sent
9 your e-mail to the five people that you sent it to,
10 with your e-mail they got Mr. Nehru's e-mail?
11 A. Which they had already gotten.
12 Q. And they got it again?
13 A. As an enclosure, yes.
14 Q. As an enclosure to your e-mail?
15 A. Right.
16 Q. And that e-mail from Mr. Nehru that you
17 enclosed with your e-mail is a discussion of
18 Netscape's revenues; correct, sir?
19 A. That's the subject line of his e-mail.
20 Q. Not only is it the subject line, that's
21 what the substance of the e-mail is?
22 A. Do you want me to look at it?
23 Q. If you need to to answer the question.
24 A. It appears to be a discussion of
25 Netscape's revenue, or what he was able to find out
559
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 about it at a 70 percent confidence.
2 Q. And the first line of your memo that
3 you send to the five people indicated here, including
4 Mr. Maritz and Mr. Ballmer, is "What kind of data do
5 we have on how much software companies pay Netscape?"
6 correct, sir?
7 A. Yes.
8 Q. And did they furnish you with that
9 information?
10 A. I don't think so.
11 Q. You say in the next line, "In
12 particular I am curious about their deals with Corel,
13 Lotus and Intuit." Do you see that?
14 A. Uh-huh.
15 Q. You've got to say yes or no for the --
16 A. Yes.
17 Q. Did you ever receive information about
18 what revenues Netscape was getting from any of those
19 companies?
20 A. I'm quite sure I didn't.
21 Q. Netscape was getting revenues from
22 Intuit. You knew that in December of '96; correct,
23 sir?
24 A. I still don't know that.
25 Q. You still don't know that? You tried
560
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 to find that out in December of 1996; correct?
2 A. I did not myself try and find that out.
3 Q. You tried to find it out by raising it
4 with people who worked for Microsoft, didn't you?
5 That's what this message is?
6 A. It says I'm curious about it.
7 Q. Well, the first line says, "What kind
8 of data do we have about how much software companies
9 pay Netscape? In particular I am curious about their
10 deals with Corel, Lotus and Intuit." That's what you
11 wrote to Mr. Nehru, Mr. Silverberg, Mr. Chase,
12 Mr. Ballmer and Mr. Maritz; correct, sir?
13 A. Right, because Amar's mail didn't seem
14 to have any data about that.
15 Q. And is it your testimony that you never
16 got any data about that?
17 A. That's right. I don't remember getting
18 any data. I'm quite sure that I didn't.
19 Q. Did you follow up to try to get an
20 answer to those questions?
21 A. No.
22 Q. After December of 1996, Microsoft
23 entered into an agreement with Intuit that would
24 limit how much money Intuit paid Netscape; correct,
25 sir?
561
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. I'm not aware of that.
2 Q. Are you aware of an agreement that
3 Intuit entered into with Microsoft?
4 A. I know there was some kind of an
5 agreement. I wasn't part of negotiating it, nor do I
6 know what was in it.
7 Q. Do you know anything that was in the
8 Intuit agreement?
9 A. I'm quite sure that Intuit had a plan
10 to use our componentized browser. And I think in the
11 agreement they agreed to make that their default
12 browser.
13 Q. Do you know anything else about the
14 Intuit agreement?
15 A. Well, Mr. Houck, when he --
16 Q. Do you know anything else about the
17 Intuit agreement?
18 A. I was going to answer.
19 Q. Well, okay. I just want to be clear
20 that what I'm asking about has nothing to do with
21 what Mr. Houck knows or what Mr. Houck suggested.
22 It's what you know. Now, if Mr. Houck refreshed your
23 recollection about it, that's fine.
24 A. Let me say the sentence and then we'll
25 see what you say.
562
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1 Q. Okay.
2 A. Mr. Houck showed me an e-mail which
3 appeared to be written by Will Poole talking about
4 his discussions with Intuit, and I could tell you
5 what I remember from that e-mail that Mr. Houck
6 showed me.
7 Q. No, because that's in the record
8 already. What I need to know is whether, based on
9 anything that Mr. Houck did or that I did -- I think
10 I actually may have showed you the e-mail you're
11 talking about, but whether it was Mr. Houck or me,
12 based on whatever happened before, do you now have a
13 recollection of the Intuit agreement other than about
14 the default browser?
15 MR. HEINER: Objection.
16 THE WITNESS: I'm confused.
17 Q. BY MR. BOIES: Okay. Let me
18 distinguish two things. I'm not asking you to try to
19 remember the e-mail that you were shown before. What
20 I'm asking is whether, as you sit here now, you have
21 a memory or recollection of the Intuit deal other
22 than that it made IE the default browser?
23 A. No.
24 Q. Now, let me go back to where I was
25 before we entered into our discussion of Mr. Nehru's
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BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 e-mail.
2 Other than the e-mail that you sent on
3 December 1, 1996, do you recall any other instances
4 in which you were personally asking for data about
5 Netscape?
6 A. I think I was in a meeting, a normal
7 review-type meeting, where some data on Netscape was
8 presented by Amar, and it's likely that I asked at
9 least one question during the meeting.
10 Q. Any other instances?
11 A. I think there was e-mail about a
12 specific deal that Netscape did with Citicorp in the
13 last couple months where I was curious about how much
14 Citicorp had paid. Either that or the mail just
15 included that information.
16 Q. Any other instance in which you
17 personally asked for information concerning
18 Netscape's revenues, head count, business, plans or
19 dependencies?
20 A. I remember once saying to Brad
21 Silverberg how many developers does Netscape have,
22 and being curious about that.
23 Q. Any other instances?
24 A. I think when we did geographic reviews
25 one time, I asked someone if Netscape had an office
564
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 in their country.
2 I think once when I was in Japan --
3 this is another instance -- I asked what the browser
4 usage share was in Japan, in particular what
5 Netscape's usage share was.
6 Q. Have you completed your answer?
7 A. Yes.
8 Q. Have you now given me all of the
9 instances that you can recall in which you have
10 personally asked for information concerning
11 Netscape's revenues or head count or dependencies?
12 A. Yes.
13 Q. Let me ask you to look at a document
14 that we will mark as Exhibit 381. The third item on
15 the first page is an e-mail from Paul Maritz to you
16 dated January 16, 1996. It is to you and a number of
17 other people, but you are the first there. Do you
18 see that?
19 A. Yes.
20 (The document referred to was marked
21 by the court reporter as Government Exhibit 381 for
22 identification and is attached hereto.)
23 Q. BY MR. BOIES: Did you receive this
24 e-mail in January, 1996?
25 A. I don't remember receiving it, but I
565
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 have no reason to doubt that I did.
2 Q. The second sentence of Mr. Maritz's
3 e-mail to you says, "We need to look carefully at any
4 significant opportunity to gain share versus
5 Netscape." Do you see that?
6 A. That's part of the sentence that I see.
7 Q. The rest of the sentence says, "and
8 think carefully before AOL goes off and partners with
9 Netscape." Do you see that?
10 A. Yes.
11 Q. That's the rest of the sentence; right?
12 A. Right.
13 Q. Even though you don't recall receiving
14 this particular e-mail, do you recall Mr. Maritz
15 telling you in or about January of 1996 that he
16 believed that Microsoft had to look carefully at any
17 significant opportunity to gain share versus
18 Netscape?
19 A. No.
20 Q. Do you recall Mr. Maritz telling you in
21 or about January of 1996 that there was a possibility
22 that AOL was going to go off and partner with
23 Netscape?
24 A. I don't know the time frame, but I know
25 there was -- there came a time where AOL was
566
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 considering whether to keep doing their own browser
2 technology or work with someone else on that.
3 Q. And is that your understanding of what
4 Mr. Maritz was referring to when he talks about AOL
5 going off and partnering with Netscape?
6 A. It appears to be a mail about -- let me
7 take a look at it.
8 It appears to be a mail about OEMs
9 prominently featuring the AOL client in such a strong
10 way that anything we would do for AOL in that regard
11 would be of no impact and, therefore, that maybe we
12 should work with AOL on the browser.
13 MR. BOIES: Could I have that answer
14 read back.
15 (Record read.)
16 MR. BOIES: And would you read my
17 question back, please.
18 (Record read.)
19 THE WITNESS: Well, having read the
20 mail, my best guess is that he is talking about the
21 browser, but it's just a guess reading the e-mail.
22 Q. BY MR. BOIES: Well, when you say that
23 your best guess is he is talking about the browser,
24 you mean in his e-mail that this is about a browser?
25 A. About working with AOL on browsing
567
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 technology.
2 Q. Well, do you have any doubt that this
3 is related to browsers, sir?
4 A. It's certainly part of what it's about.
5 Q. When Mr. Maritz says, "We need to look
6 carefully at any significant opportunity to gain
7 share versus Netscape," he is talking about browser
8 share, is he not?
9 A. Almost certainly.
10 Q. And as you've previously pointed out,
11 part of the same sentence is that he says that it's
12 important to "think carefully before AOL goes off and
13 partners with Netscape." Do you see that?
14 A. I see it.
15 Q. And when he is talking about going off
16 and partnering with Netscape, he is talking about AOL
17 partnering with Netscape relating to browsers;
18 correct?
19 A. As I said, I'm not certain what he
20 means, but from reading the e-mail, certainly
21 browsers is part of what he is talking about, it
22 appears.
23 Q. And in response to this issue, did
24 Microsoft go off and partner with AOL with respect to
25 browsers?
568
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. In response to what?
2 Q. In response to the thing that
3 Mr. Maritz writes to you in January of 1996, that he
4 wants to look carefully at any significant
5 opportunity to gain share versus Netscape and AOL is
6 thinking about going off and partnering with
7 Netscape.
8 MR. HEINER: Objection.
9 THE WITNESS: The reason we did enter
10 into some partnership activities with AOL is in order
11 to let them take advantage of some of the innovations
12 we'd done in browsers and get broader exposure of the
13 work that we'd done there.
14 Q. BY MR. BOIES: And did you enter into
15 partnership relationships with AOL concerning
16 browsers?
17 A. We entered into a partnership, a
18 primary element of which was working together to make
19 the Windows browsing technology meet AOL's needs.
20 Q. And was one of the reasons that you did
21 that to try to gain share versus Netscape?
22 A. Our goal was certainly to improve the
23 exposure of our innovation and therefore the usage
24 share of IE.
25 Q. Now, when Mr. Maritz writes to you, he
569
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 is not writing about gaining exposure for your
2 innovations, he is writing about gaining share versus
3 Netscape; correct, sir?
4 A. Are we back to focusing on this piece
5 of e-mail here?
6 Q. I don't know what you mean by "back
7 to," but in January of 1996, Mr. Maritz writes to you
8 about pursuing any significant opportunity "to gain
9 share versus Netscape." Do you see that sir?
10 You said you didn't have any doubt that
11 you'd read this; correct?
12 A. I have no reason to doubt that I
13 received it.
14 Q. Do you doubt that you received it?
15 A. No.
16 Q. Okay. So you accept you received this
17 e-mail?
18 A. I said I had no reason to doubt that I
19 received it.
20 Q. And you also said you don't doubt it?
21 A. I don't know for sure that I received
22 it because I don't remember specifically receiving
23 it.
24 Q. Let me put it this way. As you sit
25 here now, you believe you received it, don't you,
570
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Mr. Gates?
2 A. I believe it's more likely than not
3 that I received this e-mail.
4 Q. As you've described previously in the
5 deposition, can you give me any probability greater
6 than that?
7 A. I think it's very likely.
8 Q. Okay. Now, in this e-mail that it is
9 very likely that you received in January of 1996,
10 Mr. Maritz writes that you need to look carefully at
11 any significant opportunity to gain share versus
12 Netscape and you need to think carefully before AOL
13 goes off and partners with Netscape.
14 Was the desire to gain share versus
15 Netscape part of what led Microsoft to itself partner
16 with AOL with respect to browsers?
17 MR. HEINER: Objection. Asked and
18 answered.
19 THE WITNESS: Our goal was to raise the
20 usage share of our Internet Explorer technologies in
21 Windows and that's the reason we did the agreement
22 with AOL.
23 Q. BY MR. BOIES: Now, when you refer to
24 gaining things in Windows, the documents that talk
25 about browser share don't talk about gaining share
571
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 for Windows, do they, sir?
2 A. They talk about gaining share for the
3 IE part of Windows.
4 Q. Well, they don't even talk about
5 gaining share for the IE part of Windows. Have you
6 seen any documents that talk about gaining share for
7 the IE part of Windows?
8 A. Well, certainly if you're talking about
9 e-mail within Microsoft, we all know that IE is a
10 part of Windows and so we don't bother, for any
11 feature that we're studying usage of, to restate "and
12 that feature is a part of Windows." We simply refer
13 to the feature.
14 Q. IE is distributed other than as part of
15 Windows, is it not, sir? It's distributed
16 separately?
17 A. It's a different thing we do, which is
18 we create an IE for Macintosh that shares some of the
19 same code as the IE capabilities that are in Windows.
20 MR. BOIES: Would you read back the
21 question, please.
22 (Record read.)
23 Q. BY MR. BOIES: Can you answer that
24 question, sir?
25 A. We take a subset of the IE technologies
572
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 that are in Windows and create something independent,
2 which is the IE for Macintosh, although there is a
3 lot of unique code that is written for that work.
4 And we also create it for Unix as well.
5 Q. When you look at your browser share, do
6 you include in your browser share the usage of IE
7 browsers that are used on Macintosh?
8 A. Sometimes yes and sometimes no. You
9 can add those numbers together and sometimes we do
10 that. You can track the numbers separately and we've
11 certainly done that as well.
12 Q. When you talk about your IE browser
13 share without further elaboration, is that including
14 your IE usage on Macintosh or not?
15 A. Highly ambiguous.
16 Q. When you receive discussion of
17 Microsoft's browser share without further
18 elaboration, how do you understand those references?
19 Do you understand those references to include your
20 usage on Macintosh or not to include IE's Macintosh
21 usage?
22 A. I'd have to look at the reference. If
23 they say Windows, then they don't include Macintosh.
24 If they just say it without mentioning Windows, it's
25 not clear whether they're including the Macintosh
573
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 usage or not.
2 Q. Have you ever asked someone who wrote
3 you just talking about browser share whether they
4 were talking about browser share including Macintosh
5 or not?
6 A. Yes, I believe I have.
7 Q. Who did you ask that of?
8 A. I'm sure I sent mail and probably
9 included Brad Chase as one of the people I would
10 have, in responding to something like that, included.
11 Q. What was the response?
12 A. I'm sure they clarified which numbers
13 referred to the IE usage from within Windows 95 and
14 which referred to the IE offering we make on the
15 Macintosh.
16 Q. And with respect to Exhibit 381, the
17 January, 1996 message from Mr. Maritz to you where he
18 is talking about gaining share versus Netscape, does
19 that include usage share on Macintosh or not?
20 A. It's not clear at all.
21 Q. Do you have any understanding as to
22 what he meant by that?
23 A. Whether he included the Macintosh share
24 or not, is that the question?
25 Q. Yes.
574
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. No, I don't know.
2 Q. When IE share is discussed within
3 Microsoft, that share is discussed as a share of
4 browsers, is it not, sir? Those are the words that
5 are used? Whatever they may mean, whatever you say
6 they may mean, that's the words that are used; is
7 that correct, sir?
8 A. We're talking about --
9 MR. HEINER: Objection. Sorry. Go
10 ahead.
11 THE WITNESS: We have data about the
12 usage levels of various browsers and we look at
13 those.
14 MR. BOIES: Could I have the question
15 read back, please.
16 (Record read.)
17 THE WITNESS: I've never heard anyone
18 say it's discussed as a share of browsers. What the
19 heck would that mean?
20 Q. BY MR. BOIES: Well, if your answer is
21 that you have never heard of that, that's your
22 answer, Mr. Gates.
23 A. I don't know what you mean "as a share
24 of browsers." I've never heard of anybody use the
25 phrase "as a share of browsers." I don't know what
575
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 it would mean.
2 Q. So it's your testimony as you sit here
3 under oath that if somebody asked you that question
4 or said something like that within the course of your
5 business, you just wouldn't have any idea what it
6 meant? That's your testimony?
7 A. I would certainly seek clarification of
8 what they were trying to say. I'd have an idea they
9 were referring to something to do with the Internet,
10 something to do with browsers, so I'd certainly have
11 some idea, but I'd seek clarification before I could
12 communicate effectively with them.
13 Q. Have you ever sought clarification from
14 anyone on that?
15 A. I told you I've never heard that term
16 used in my recollection.
17 Q. When you said in the exhibit we were
18 talking about that browser share was a very very
19 important goal -- do you remember that document?
20 A. Which exhibit are you referring to? Is
21 there a number?
22 Q. I'm sure we can find the number, but
23 since I know you have very good memory about these
24 exhibits since you remembered Exhibit 353 from
25 several days ago, do you remember the document we
576
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 were talking about this morning?
2 A. I remember many documents that we were
3 talking about this morning.
4 Q. Do you remember a particular document
5 in which you were writing that browser share is a
6 very very important goal for Microsoft?
7 A. Yes.
8 Q. Let me see if I can get you to look at
9 Exhibit 358. Now, when you personally were talking
10 about winning Internet browser share, Mr. Gates, what
11 were you talking about there?
12 A. I'm not sure. If I had to guess, I'd
13 say this e-mail appears to be in the context of
14 Windows.
15 Q. So what you're saying is that in this
16 context you were including only usage share on
17 Windows; is that what you're saying?
18 A. Well, it's interesting because I say
19 here, "I would like to understand what we need to do
20 to convince OEMs to focus on our browser. Is our
21 problem proving our technology and its capability?
22 Is our problem that they are getting bounty fees by
23 having Internet Service providers pay them a sum or a
24 royalty on the business they get? Is a 3.1 browser a
25 key issue for them?" So except for that sentence, I
577
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 would have thought it was mainly Windows 95 share of
2 browser usage, but when I say "Is a 3.1 browser a key
3 issue for them," I'm talking about something else.
4 Q. So is it your testimony you're just, as
5 you sit here now, confused as to what you were
6 talking about?
7 A. I think it's likely I was referring to
8 usage on Windows 95, but that one sentence throws me
9 off.
10 Q. Prior to the time that Windows 98 --
11 not Windows 95 -- Windows 98 came out, what was it
12 called internally within Microsoft?
13 A. Most commonly it was called Memphis.
14 Q. Was there also a period of time where
15 it was referred to as Win 97?
16 A. It's possible. It's also possible it
17 would have been called Win 96 at some point, but the
18 primary term, the one I remember being used, was
19 Memphis.
20 Q. When you talked about in January of
21 1996 that "Winning Internet browser share is a very
22 very important goal for us," are you saying it was
23 limited to Windows 95 and perhaps earlier Windows
24 operating systems, that it did not include Memphis or
25 Windows 98?
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BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. Now you're trying to get me to indicate
2 whether I was talking about future products in this
3 mail?
4 Q. Well, what you talk about is winning
5 Internet browser share, and as I understood what you
6 said was that you thought that you were probably
7 talking about share of usage on Windows 95. Did I
8 understand you correctly?
9 A. I think you're making a good point that
10 the future products that -- innovations that we were
11 doing in the IE thing, depending on the time frame
12 you look at, are key in -- I don't think I'm
13 referring to future products here. Do you think I
14 am?
15 Q. I don't have a view on that, Mr. Gates.
16 A. Okay.
17 Q. I'm not entitled to at this stage.
18 MR. HEINER: You certainly expressed a
19 lot of views in the papers yesterday.
20 MR. BOIES: That is where we are
21 entitled to express views, in the papers we file.
22 Q. Let me approach it a little more
23 generally. In a number of questions I've asked you
24 about whether Microsoft wanted to gain browser share,
25 and you have said, well, we want to have more
579
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 exposure for our innovations. Are you aware of any
2 effort within Microsoft, for purposes of this
3 litigation, to sort of change the way you and others
4 use terms?
5 A. No.
6 Q. None at all, sir?
7 A. Changing the way I use terms? No.
8 Q. How about changing the way others in
9 Microsoft use terms?
10 A. I'm not aware of that, no.
11 Q. Are you aware of any discussions within
12 Microsoft about changing the way terms are used in
13 order to advance your interests in the litigation?
14 A. No.
15 Q. In your answers you refer often to
16 browser technologies or browsing technologies as
17 opposed to answering a question simply about
18 browsers. Is that related at all to avoid using a
19 term that you think connotes a separate product?
20 A. It's all done with the goal of making
21 sure you're not confused about what I'm referring to.
22 Q. Well, is it part of the goal to try to
23 advance a particular point of view in this
24 litigation, is that part of why you don't want to use
25 in this deposition words like browser that are
580
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 throughout the documents of the Microsoft
2 Corporation?
3 A. I'm glad to use the term browser and
4 I've used the term many times in this deposition and
5 in many other cases.
6 Q. And when you use the term browser, you
7 know what it means, do you not, sir?
8 A. When I use terms in general, I do it in
9 a context where it's clear what they mean. In the
10 case of browser, as we've discussed, sometimes it
11 might include what we're doing on Macintosh,
12 sometimes it might include one version of Windows,
13 sometimes it might include other people's products
14 that include those capabilities. Isolated by itself
15 are you saying does the word browser without any
16 context mean something that is evident to me? No,
17 but in a specific context, I freely use the word
18 without any difficulty.
19 Q. And, for example, in writing to your
20 top officers in January of 1996, you talk about
21 winning Internet browser share and you believed you
22 were being understood; correct, sir?
23 A. Are you referring to an e-mail to a
24 single person, to Joachim Kempin?
25 Q. The one I have in front of me is
581
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 addressed to Mr. Kempin with copies to
2 Mr. Silverberg, Mr. Chase, Mr. Ludwig, Mr. Ballmer,
3 and a number of other people.
4 A. But I think in terms of understanding
5 the context of the message, the fact that it is
6 directed to Joachim Kempin and talks about OEMs helps
7 establish what I probably meant when I talked about
8 browser share here and browsers.
9 Q. Let me just be clear. When you sent a
10 copy -- I don't want to go through all the names
11 here, but two of the people you sent copies to were
12 Mr. Ballmer and Mr. Maritz; is that fair?
13 A. Yes.
14 Q. And they were two of the very top
15 officers of Microsoft; correct?
16 A. Yes.
17 Q. Now, let me go back to what I was
18 pursuing before. Is there an effort at all on your
19 part or insofar as you are aware on other people's
20 parts, to change the way words are used so as to,
21 from your standpoint, clarify what is meant for
22 purposes of this litigation?
23 A. I've told you I'm not aware of an
24 effort to change the use of terminology related to
25 the purposes of this litigation.
582
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1 Q. Let me ask you to look at a document
2 that has been marked as Government Exhibit 393. The
3 first e-mail here -- and there's an e-mail from you
4 later on, but the first e-mail here is an e-mail to
5 you and others dated February 15, 1998; is that
6 correct?
7 A. To me?
8 Q. Yes.
9 A. Yes.
10 (The document referred to was marked
11 by the court reporter as Government Exhibit 393 for
12 identification and is attached hereto.)
13 Q. BY MR. BOIES: And the subject is
14 "Re: Browser in the OS." Do you see that subject of
15 the February 15, 1998 e-mail to you?
16 A. Yes.
17 Q. And is it fair to say that that e-mail
18 is a response to an e-mail from you dated
19 February 14, 1998 at 10:42 a.m.?
20 A. It appears to be.
21 Q. And the subject of your e-mail was
22 "Browser in the OS;" is that correct?
23 A. Yes.
24 Q. Now, the next to last paragraph on the
25 first page of the memo to you -- and this memo goes
583
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 to you and to a large number of other people; is that
2 correct?
3 A. I'm sorry? I just wasn't listening
4 carefully.
5 Q. Sure. The February 15th, 1998 memo
6 that is addressed to you also goes to four other
7 addressees and a large number of additional copies;
8 correct?
9 A. 13, yes.
10 Q. And this includes, together with
11 yourself, the top executives of the company; correct?
12 A. Not all the top executives, no.
13 Q. Well, it includes Mr. Ballmer?
14 A. It includes some of the top executives.
15 Q. And it includes Mr. Maritz; correct?
16 A. Yes.
17 Q. And it includes yourself; correct?
18 A. Yes, in the "To" line.
19 Q. And it says in the next to last
20 paragraph "Saying 'put the browser in the OS' is
21 already a statement that is prejudicial to us."
22 A. Where are you looking? I thought you
23 said the next to last paragraph.
24 Q. Next to last paragraph on the first
25 page.
584
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1 A. Oh, okay.
2 Q. It says -- and this is a quotation from
3 the memo to you and the others, "Saying 'put the
4 browser in the OS' is already a statement that is
5 prejudicial to us. The name 'browser' suggests a
6 separate thing."
7 Do you remember being told that in or
8 about February of 1998?
9 A. No.
10 Q. Do you remember receiving this e-mail?
11 A. I don't remember receiving it, but I
12 have no reason to doubt that it was a piece of e-mail
13 that was sent.
14 Q. Does this in any way refresh your
15 recollection that within Microsoft there were
16 discussions as to what words should or should not be
17 used?
18 A. I don't know what you mean refresh my
19 recollection.
20 Q. That is, having seen this, does this
21 make you remember something that you didn't remember
22 before?
23 A. No.
24 Q. Are you aware, Mr. Gates, of any
25 documents that were destroyed or disposed of relating
585
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1 to the subject matter of this litigation?
2 MR. HEINER: Objection. Vague and
3 ambiguous in view of the Antitrust Division's view of
4 the subject matter of the litigation, apparent view.
5 THE WITNESS: Yeah, help me out with
6 that.
7 Q. BY MR. BOIES: Okay. In the last three
8 years, are you aware of any documents that have been
9 destroyed or disposed of that relate to the issue of
10 Microsoft's conduct with respect to competitors or
11 agreements that Microsoft has entered into with
12 customers or others that restrict the ability of
13 those customers or others to deal with competitors of
14 Microsoft?
15 MR. HEINER: I'd like that pretty long
16 question read back.
17 MR. BOIES: Sure, absolutely.
18 (Record read.)
19 THE WITNESS: No.
20 Q. BY MR. BOIES: Microsoft has a public
21 relations firm; correct? Maybe more than one?
22 A. Yes.
23 Q. Does it have a main public relations
24 firm?
25 A. Yes.
586
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Q. What is that firm?
2 A. Waggoner Edstrom is the name they go
3 by, I think.
4 Q. Are you aware of any document
5 destruction by or involving Waggoner Edstrom in the
6 last three years?
7 A. No.
8 Q. Are you aware of any destruction or
9 disposal of documents relating to DR DOS?
10 MR. HEINER: Objection. Vague and
11 ambiguous.
12 THE WITNESS: It's possible somebody
13 once upon a time sent an e-mail message to somebody
14 else that DR DOS was part of the subject of that
15 e-mail and then the person deleted that message.
16 Q. BY MR. BOIES: When you say it's
17 possible that someone did that, were you involved in
18 that, Mr. Gates?
19 A. I doubt that every e-mail message I
20 ever received that had the word DR DOS in it, that I
21 choose to preserve forever after.
22 Q. I'm not really asking that question.
23 I'm asking whether there was ever an instance
24 involving you that met the description that you put
25 in your answer about how it may have been possible
587
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 that someone who sent a message that somehow related
2 to DR DOS thereafter deleted a portion of the
3 message? Do you remember saying that just a minute
4 ago?
5 A. I said nothing about a portion of the
6 message. That's a completely false thing.
7 Q. Let's read back your answer so that we
8 don't get distracted about what the words are.
9 (The record was read as follows:
10 "Q. Are you aware of any destruction
11 or disposal of documents relating to DR DOS?
12 MR. HEINER: Objection. Vague and
13 ambiguous.
14 THE WITNESS: It's possible somebody
15 once upon a time sent an e-mail message to
16 somebody else that DR DOS was part of the
17 subject of that e-mail and then the person
18 deleted that message.")
19 Q. BY MR. BOIES: So rather than deleting
20 a portion of the e-mail, you're talking about the
21 whole message being deleted; is that the point you're
22 making?
23 A. That is the words I used and that's my
24 objection to your mischaracterization of what I said.
25 Q. You said it's possible that once upon a
588
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 time somebody sent an e-mail, part of the subject of
2 which was DR DOS, and then this someone unidentified
3 deleted the e-mail. Was that you, sir? Was this
4 someone that you're referring to you?
5 A. I think it's true in general that not
6 every message that everyone here ever received about
7 DR DOS would have necessarily been preserved by them
8 because most people here delete most of the e-mail
9 they receive every day.
10 In terms of me in particular, it's
11 possible that sometime in history -- I'd say it's
12 even likely -- I received a message about DR DOS that
13 I didn't choose to keep. I don't keep most e-mail I
14 receive.
15 Q. Is there a message relating to DR DOS
16 that not only did you choose to delete, but did you
17 ask somebody else to delete?
18 A. No.
19 Q. Is there any message relating to DR DOS
20 that you recall deleting?
21 A. Well, since I delete 98 percent of my
22 e-mails, I think it's likely that once there was a
23 message about DR DOS that I deleted, but I don't
24 recall any specific message.
25 Q. That's what I'm asking. I'm not asking
589
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 what was likely. I'm asking whether there was any
2 message, in whole or in part, relating to DR DOS that
3 as you sit here now under oath you can tell me that
4 you remember deleting or causing to be deleted?
5 A. No.
6 Q. When was the last time you think it is
7 likely that you deleted a message relating to DR DOS?
8 A. Well, I don't think I've gotten a
9 message that related to DR DOS in the last five
10 years.
11 Q. Have you deleted messages not only that
12 you have received with respect to DR DOS but also
13 messages that you have sent?
14 A. I don't preserve messages that I send,
15 so there's no --
16 Q. You never preserve messages that you
17 send?
18 A. I don't preserve them. There is the
19 extremely rare case, which I've done almost never,
20 where you copy yourself on the e-mail.
21 Q. And you don't either copy yourself or
22 copy some file or something like that?
23 A. No.
24 Q. I just want to be sure of your
25 testimony. Your testimony is you have never asked
590
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 somebody to delete a message that you have sent them
2 relating to DR DOS?
3 A. That's right.
4 Q. And that although you believe that you
5 have deleted messages related to DR DOS that you have
6 received, you can't remember actually having done
7 that and you don't remember any specific message or
8 type of message; is that correct?
9 A. That's right.
10 Q. When was the last time that you deleted
11 e-mail messages concerning Netscape?
12 A. I'm not sure.
13 Q. Approximately.
14 A. I think there was a press article about
15 Netscape that I got a message on recently that I
16 deleted.
17 Q. How recently?
18 A. In the last few months.
19 Q. Who was the message from?
20 A. The New York Times syndicate.
21 Q. Other than that instance, can you
22 recall any instance in which you deleted e-mail
23 messages relating to Netscape in the last year?
24 A. No.
25 Q. Do you believe that there have been
591
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 such instances or there have not been such instances
2 or you simply don't know?
3 A. Are you including the attorney-client
4 privileged e-mail?
5 Q. I will for purposes of this question,
6 yes.
7 A. I don't think I've deleted, other than
8 press articles, e-mail messages related to Netscape
9 during the last year.
10 Q. Are you aware of anyone else within
11 Microsoft who has deleted e-mail messages relating to
12 Netscape in the last year?
13 A. No.
14 Q. Have you ever had any discussions with
15 anyone concerning whether or not any e-mail messages
16 relating in any way to Netscape have been deleted in
17 the last year?
18 A. No.
19 Q. Did Microsoft, insofar as you are
20 aware, make an effort to go back and research its
21 e-mails in order to find particular e-mails that
22 might be useful to it in this litigation?
23 A. I'm not aware of what might or might
24 not have been done in that connection. I know people
25 have come in and looked at my e-mail and whether
592
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 that's just for a request from the governments or
2 also things that they're looking for, I'm not sure.
3 Q. Would it be fair to say that no one has
4 ever communicated with you about any effort to go
5 back and research particular kinds of e-mails or
6 e-mails related to a particular subject?
7 A. You're including attorney-client
8 discussions in that?
9 Q. I am just for purposes of a yes or no
10 answer.
11 MR. HEINER: Objection.
12 MR. BOIES: All I want is yes or no.
13 Last time I asked him I said include attorney-client
14 and the answer was still no.
15 MR. HEINER: But it's a different
16 question.
17 Can I have the question read back.
18 (Record read.)
19 MR. HEINER: I don't think you should
20 include the substance of attorney-client in that
21 question.
22 MR. BOIES: I'll take the attorneys
23 out. I think -- I'll take the attorneys out.
24 Q. Other than conversations that you've
25 had solely with your attorneys, have you ever had any
593
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 discussions with anyone or have you ever received any
2 communications that indicated that there had been any
3 effort to go back and search e-mail messages or files
4 for purposes of this litigation?
5 A. No.
6 What time is it?
7 MR. HEINER: It's noon. Do you want to
8 take a break?
9 THE WITNESS: Probably.
10 MR. HEINER: Okay.
11 MR. BOIES: Absolutely.
12 VIDEOTAPE OPERATOR: The time is 12:00
13 noon. We're going off the record.
14 (Lunch recess.)
15 VIDEOTAPE OPERATOR: The time is 12:38.
16 We are going back on the record.
17 Q. BY MR. BOIES: Good afternoon,
18 Mr. Gates. Let me show you Government Exhibit 382
19 and I would ask you if that is a document that you've
20 ever seen before?
21 A. No.
22 (The document referred to was marked
23 by the court reporter as Government Exhibit 382 for
24 identification and is attached hereto.)
25 Q. BY MR. BOIES: There is a reference in
594
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 this document to "Fiscal Year 1998 WWSMM Attendees."
2 Do you see that?
3 A. Yes.
4 Q. Do you know what that is?
5 A. Yes.
6 Q. What is it?
7 A. World-wide sales and marketing meeting,
8 otherwise known as the WWSMM.
9 Q. Did you attend the fiscal year 1998
10 WWSMM?
11 A. No, I don't attend that. I come in and
12 speak usually at the end of it, but I don't attend
13 it.
14 Q. The subject matter of this is the
15 "Fiscal Year 1998 Planning Memo 'Preserving the
16 desktop paradise.'"
17 Are you familiar with that?
18 A. I don't know what you mean am I
19 familiar with that. I know fiscal year '98.
20 Q. Have you ever seen the Fiscal Year 1998
21 Planning Memo?
22 A. The one from Brad Chase? No.
23 Q. Have you seen a Fiscal Year 1998
24 Planning Memo from somebody else?
25 A. There's a lot of these. Each group
595
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 writes planning memos. I'm not copied on most of
2 them.
3 Q. Are there planning memos from some of
4 the groups that you recall receiving for fiscal year
5 1998?
6 A. I think there's a memo Steve wrote that
7 was probably sent to me.
8 Q. And by Steve you're referring to
9 Mr. Ballmer?
10 A. Yes.
11 Q. In the third paragraph of this memo on
12 the first page it says "Our competitors are still
13 hard at work trying to obsolete Windows. More people
14 than ever now believe they will. Netscape and Sun
15 endeavor to commoditize the OS."
16 Do you know what is meant by
17 "commoditize the OS" in this context?
18 A. In the context of this memo?
19 Q. Yes.
20 A. I'd need to read the memo.
21 Q. Have you ever heard anybody say that
22 Netscape or Sun threatened to commoditize the
23 operating system?
24 A. Yes.
25 Q. Have you ever said that?
596
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. Those words?
2 Q. Yes.
3 A. I don't think so.
4 Q. When other people have said those
5 words, what have you understood them to mean?
6 A. I think the first time I heard that was
7 from Marc Andreessen. And I never had a chance to
8 ask him what he meant.
9 Q. Have you heard those words from people
10 within Microsoft?
11 A. Subsequently to Andreessen using those
12 words, I know they were repeated inside the company
13 quite a bit.
14 Q. Did you understand that some people
15 within Microsoft were saying that they believed that
16 Netscape or Sun were threatening to commoditize the
17 operating system?
18 A. I don't know of anybody using that
19 terminology before Andreessen did. I don't think it
20 was used before he used it.
21 Q. My question is not whether it was used
22 before or after Mr. Andreessen's statement. My
23 question is whether people within Microsoft
24 communicated with you that they believed that
25 Netscape or Sun threatened to commoditize the
597
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 operating system?
2 A. It says "endeavor" here and you're
3 switching?
4 Q. I was asking a question that was not
5 necessarily tied to the document. My question is
6 whether anyone within Microsoft told you that they
7 believed that Netscape or Sun threatened to
8 commoditize the operating system?
9 A. Those specific words?
10 Q. Yes, the same words we've been using in
11 the last previous series of questions, Mr. Gates,
12 those words.
13 A. I think that most of the time when
14 people use those words, they were repeating what
15 Andreessen had said.
16 Q. My question is not what they meant most
17 of the time or what they were doing most of the time.
18 My question is whether people within Microsoft ever
19 communicated to you that they believed that Netscape
20 or Sun were threatening to commoditize the operating
21 system?
22 A. Well, they certainly communicated to me
23 that Netscape was communicating that they were on a
24 path to, in Netscape's words, commoditize the
25 operating system.
598
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Q. Have you finished your answer?
2 A. Yes.
3 Q. Now, my question is whether anyone
4 within Microsoft ever communicated to you that they
5 believed that either Netscape or Sun were threatening
6 to commoditize the operating system?
7 A. I think after Andreessen said it, some
8 people suggested they agreed with Andreessen's
9 sentiment that Netscape was trying to reduce Windows
10 sales.
11 Q. When people used the word with you
12 "commoditize" as in the statement that Netscape was
13 threatening or endeavoring to commoditize the
14 operating system, what did you understand commoditize
15 to mean?
16 A. That they were creating a product that
17 would either reduce the value or eliminate demand for
18 the Windows operating system if they continued to
19 improve it and we didn't keep improving our product.
20 Q. Did you have any other understanding of
21 the term "commoditize" in that context?
22 A. Well, it was a word that was used to
23 refer to Andreessen's comment.
24 Q. Other than that, did you have any
25 understanding of the meaning of the term
599
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 "commoditize" in that context?
2 A. Other than those two things?
3 Q. Yes.
4 A. No.
5 Q. Let me show you next a document that
6 has been marked as Exhibit 383. This purports to be
7 an e-mail from Mr. Maritz to you and others with
8 charts attached to it.
9 (The document referred to was marked
10 by the court reporter as Government Exhibit 383 for
11 identification and is attached hereto.)
12 Q. BY MR. BOIES: First, have you seen
13 this e-mail before?
14 A. I think Mr. Houck showed it to me.
15 Q. You may be right in a sense, Mr. Gates,
16 in the sense that I think that your counsel has
17 produced to us various versions of documents. I do
18 not believe that this particular version, which was
19 produced to us stapled this way, was shown to you by
20 Mr. Houck.
21 A. When you ask me whether I'd ever seen
22 the e-mail before, I wasn't referring to the way it
23 was stapled.
24 Q. This happens to have various charts
25 attached to it. Have you ever seen this e-mail with
600
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 these charts attached to it?
2 A. Can I look back through the old
3 exhibits?
4 Q. What I'd -- yes, you can. You can do
5 whatever you want to answer the question, but what
6 I'd like you to do is I'd like to get an answer to
7 this question with respect to Exhibit 383. If you
8 need to look back at the other exhibits to answer
9 this question, then you can do whatever you need to.
10 A. You've asked me if I've ever seen
11 something before and I'm thinking maybe a previous
12 exhibit had some or part of this. And therefore, to
13 answer your answer question, I need to look at the
14 exhibits to see if that's the case or not.
15 Q. Let me see if I can move things along.
16 Did you receive this e-mail in or about January,
17 1997, this e-mail being a message from Paul Maritz to
18 you and others dated January 5, 1997?
19 A. I don't remember receiving it, but I
20 don't have any reason to doubt that it was sent.
21 Q. Did you see this e-mail at any time
22 prior to the commencement of your deposition last
23 week?
24 A. I don't remember seeing it.
25 Q. The subject of this e-mail is "Overview
601
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 slides for Billg/NC & Java session with 14+'s on
2 Monday." Do you see that?
3 A. Yes.
4 Q. And I think you identified the 14+'s
5 as the -- some group of executives; is that correct?
6 A. No.
7 Q. What is the 14+'s?
8 A. It's people above a certain level,
9 primarily engineers. Also executives, but mostly
10 engineers.
11 Q. It's all the people in the company
12 above a certain level, the 14 level?
13 A. Which are mostly engineers and not
14 executives.
15 Q. How many people are there in the 14+'s
16 group?
17 A. It's a good question. I think around
18 200 to 300.
19 Q. And these would be the people in the
20 200 or 300 top rated jobs in the company; is that
21 correct?
22 A. If top means the best compensation,
23 yes.
24 Q. Now, do you recall the slides that are
25 attached to this e-mail?
602
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. I remember when I testified earlier
2 seeing these and saying that I was pretty sure that I
3 never presented these slides.
4 Q. Do you recall whether someone else
5 presented these slides in January of 1997?
6 A. I'm not sure. I remember looking at
7 the slides and thinking probably not.
8 Q. Let me ask you to look at the third
9 page of the exhibit, which is headed "Key Platform
10 Challenge." It is page 2 of the charts and page 3 of
11 Exhibit 383, in which it says "NC & Java are platform
12 challenges." Do you see that?
13 A. Uh-huh.
14 Q. Did you believe in January of 1997 that
15 Java was a platform challenge?
16 A. Not Java the language, but some of the
17 Java runtime APIs that were being promoted to ISPs in
18 the way that Sun and others were talking about
19 enhancing them were platform challenges.
20 Q. When reference is made here to Java, do
21 you understand that to refer to what you refer to as
22 Java runtime APIs?
23 A. I'm not sure.
24 Q. Are you aware of people asserting that
25 Java runtime APIs were a platform challenge in or
603
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 about January of 1997?
2 A. I just told you that we looked at what
3 was going on in terms of the plans of Sun and other
4 people with Java runtime APIs as being a platform
5 challenge.
6 Q. Are you aware of any other platform
7 challenge represented by Java other than Java runtime
8 APIs?
9 A. No.
10 Q. So would it be fair to say that you
11 believe that when reference is made here to Java, the
12 reference means Java runtime APIs since it asserts
13 here that Java is a platform challenge?
14 A. It's the best way to make sense of a
15 document that I haven't seen until my deposition, as
16 far as I know.
17 Q. Let me show you a document that has
18 been marked as Exhibit 397. This purports to be a
19 message to you and others from Brad Chase dated
20 March 13, 1997.
21 Did you receive this message in or
22 about March of 1997?
23 A. I don't remember receiving it. In
24 fact, it's very strange that the e-mail names aren't
25 expanded. But I probably received it.
604
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 (The document referred to was marked
2 by the court reporter as Government Exhibit 397 for
3 identification and is attached hereto.)
4 Q. BY MR. BOIES: Let me go down to the
5 third paragraph of the document and the fifth
6 sentence that says "Browser share needs to remain a
7 key priority for our field and marketing efforts."
8 Do you see that?
9 A. In the third paragraph?
10 Q. Yes.
11 A. Okay, the third sentence, the third
12 paragraph. Yeah.
13 Q. Were you told in or about March of 1997
14 that people within Microsoft believed that browser
15 share needed to remain a key priority for your field
16 and marketing efforts?
17 A. I don't remember being told that, but I
18 wouldn't be surprised to hear that people were saying
19 that.
20 Q. Immediately before that sentence there
21 is a statement that Microsoft needs to continue its
22 jihad next year. Do you see that?
23 A. No.
24 Q. The sentence that says "Browser share
25 needs to remain a key priority for our field and
605
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 marketing efforts," the sentence right before that
2 says "we need to continue our jihad next year."
3 That's the way it ends. Do you see that?
4 A. Now I see -- it doesn't say Microsoft.
5 Q. Well, when it says "we" there, do you
6 understand that means something other than Microsoft,
7 sir?
8 A. It could mean Brad Chase's group.
9 Q. Well, this is a message from Brad Chase
10 to you, Brad Silverberg, Paul Maritz and Steve
11 Ballmer; correct?
12 A. As I say, it's strange that this -- if
13 this was a normal piece of e-mail, it wouldn't print
14 like that. I'm not aware of any way -- maybe there
15 is some way -- that e-mail ends up looking like this
16 when you print it out.
17 Q. I wasn't the one that was asserting it
18 was an e-mail. I don't know whether it is an e-mail
19 or memo or what it is. All I know is it was produced
20 to us by Microsoft. And the first line of it says
21 "To" and the first name there is "Bradsi." Do you
22 see that?
23 A. Uh-huh.
24 Q. Does that refer to Brad Silverberg?
25 A. Usually you can use that shorthand in
606
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 typing in someone's name, but when you print out
2 e-mail, it doesn't come out that way.
3 Q. Do you believe that the reference here
4 to "Bradsi" is a reference to Brad Silverberg, sir?
5 A. Yes.
6 Q. The next addressee is "Paulma." Do you
7 believe that that is Paul Maritz?
8 A. Yes.
9 Q. And the next addressee is "Steveb". Do
10 you believe that that is Steve Ballmer?
11 A. Yes.
12 Q. The next addressee is "Billg" and do
13 you believe that that is yourself?
14 A. Yes.
15 Q. And it says it's from "Bradc" and do
16 you believe that is Brad Chase?
17 A. Yes.
18 Q. Now, when Brad Chase writes to you and
19 the others "we need to continue our jihad next year,"
20 do you understand that he is referring to Microsoft
21 when he uses the word "we"?
22 A. No.
23 Q. What do you think he means when he uses
24 the word "we"?
25 A. I'm not sure.
607
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Q. Do you know what he means by jihad?
2 A. I think he is referring to our vigorous
3 efforts to make a superior product and to market that
4 product.
5 Q. Now, what he says in the next sentence
6 is, "Browser share needs to remain a key priority for
7 our field and marketing efforts;" is that correct?
8 A. Yes.
9 Q. The field and marketing efforts were
10 not involved in product design or making an improved
11 browser, were they, sir?
12 A. No.
13 Q. Let me show you next a document that
14 has been marked as Exhibit 384.
15 MR. HEINER: Which number is this now?
16 MR. BOIES: 384.
17 (The document referred to was marked
18 by the court reporter as Government Exhibit 384 for
19 identification and is attached hereto.)
20 Q. BY MR. BOIES: I want you to look at
21 the second message that is on this exhibit. In the
22 middle of the first page is a message from Steven
23 Sinofsky. Do you see that?
24 A. Uh-huh.
25 Q. And it is dated June 10, 1994. There
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1 is one name that it's hard to read on the copy that
2 we were produced, but I don't believe that you were
3 shown as receiving a copy of this exhibit, at least
4 back in 1994.
5 Have you seen this message before, sir?
6 A. Not before this lawsuit.
7 Q. When did you first see it?
8 A. I think sometime during the course of
9 the lawsuit.
10 Q. That is, sometime in the last six
11 months?
12 A. That's right.
13 Q. Have you discussed this with anyone in
14 Microsoft, other than your counsel?
15 A. Yeah, I think I had a short
16 conversation with Mitch Matthews on the general
17 topic, not on this specific message.
18 Q. What was the general topic that you
19 refer to?
20 A. The history of our decision to put
21 browsing functionality into Windows.
22 Q. There is a reference here to Chicago.
23 Is that a reference to Windows?
24 A. It's a code name that was used for what
25 became Windows 95.
609
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1 Q. The third paragraph of this e-mail says
2 "We do not currently plan on any other client
3 software, especially something like Mosaic or Cello."
4 Do you see that?
5 A. I see it.
6 Q. You've identified Mosaic as a browser;
7 correct, sir?
8 A. Yes.
9 Q. Do you know what Cello is?
10 A. No.
11 Q. Were you informed in or about June of
12 1994 that people within Microsoft did not currently
13 plan on including something like Mosaic or Cello in
14 Windows 95?
15 A. Quite the opposite.
16 Q. So it's your testimony that this is
17 just not accurate, is that what you're saying?
18 MR. HEINER: Objection.
19 THE WITNESS: What are you referring
20 to?
21 Q. BY MR. BOIES: Well, I'm referring to
22 this document. And what this document says is, "We
23 do not currently plan on any other client software,
24 especially something like Mosaic or Cello." And you
25 understand this to mean that you're not currently
610
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1 planning on including something like Mosaic or Cello
2 in Chicago; correct, sir?
3 A. I guess I'd read the whole e-mail
4 message if I was really interested. And I've gone
5 ahead and done that. So you're trying to take that
6 sentence just out by itself or you're trying to get
7 me to talk about what the e-mail itself is saying?
8 Q. What I'm trying to do is get you to
9 tell me whether, as you understand it, Mr. Sinofsky
10 is writing here on June 10, 1994, that at least
11 insofar as he is concerned, there is not a plan to
12 include something like Mosaic or Cello in Chicago?
13 Is that what he is saying here?
14 A. No.
15 Q. That's not what he is saying.
16 Let's go to the previous paragraph.
17 He says, "I think it is really important that we
18 stick to the basic facts of the situation and not
19 over commit Chicago or Microsoft in any way. The
20 Chicago message is 'all the plumbing you need to
21 connect to the Internet,' which translates to TCP/IP
22 stacks, SLIP and PPP, and the basic FTP and TELNET
23 clients. Our built-in client (and our NT server)
24 will also support Internet protocols such as SMTP and
25 MIME."
611
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1 He then continues in the very next
2 sentence "We do not currently plan on any other
3 client software, especially something like Mosaic or
4 Cello."
5 Are any of the things that Mr. Sinofsky
6 indicates here are going to be included in Chicago
7 software that you would consider to be browser
8 software?
9 A. The e-mail I'm looking at talks about
10 the Chicago message and this is -- he seems to be
11 talking about what we're saying externally about the
12 Chicago project. This e-mail doesn't include anyone
13 who is involved in deciding what's in Chicago, and so
14 he is talking about the Chicago message here.
15 Q. Mr. Gates, my question is whether any
16 of the software that Mr. Sinofsky identifies here as
17 being included in Chicago is software that you
18 considered to be browser software?
19 A. Where do you see the phrase "included
20 in Chicago"?
21 Q. Well, sir, when he says "The Chicago
22 message is 'all the plumbing you need to connect to
23 the Internet,' which translates to TCP/IP stacks,
24 SLIP and PPP and the basic FTP and TELNET clients.
25 Our built-in mail client (and our NT server) will
612
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1 also support Internet protocols such as SMTP and
2 MIME," when he says those things, do you believe he
3 is saying that those are going to be included in
4 Chicago?
5 A. No. He is saying the Chicago message
6 is...
7 Q. So what you're saying is that when he
8 says the Chicago message is that, he doesn't mean
9 that you're going to include in Chicago what he then
10 lists; is that what you're saying?
11 A. He is saying that the Chicago message
12 may imply that.
13 Q. But that's what I'm asking you. What
14 I'm asking you is whether you read this document as
15 saying that TCP/IP stacks, SLIP and PPP and the basic
16 FTP and TELNET clients are going to be included in
17 Chicago? Do you read it that way?
18 A. No.
19 Q. Okay. And when he says "Our built-in
20 mail client and our NT server will also support
21 Internet protocols such as SMPT and MIME," do you
22 believe that he is saying that your built-in mail
23 client and your NT server are going to come out with
24 Chicago?
25 A. Certainly not.
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1 Q. And when he says, "We do not currently
2 plan on any other client software, especially
3 something like Mosaic or Cello," and then in the next
4 sentence says "Chicago is investigating
5 possibilities, but nothing at all is public and DRG
6 should not be talking to anyone with the thought of
7 including them in the box or resource kit -- that is
8 purely for Chicago/NT to deal with -- though any
9 interesting packages should, of course, be brought to
10 everyone's attention. Our plans for offering any
11 sort of connection to the Internet are highly
12 confidential and merely speculative."
13 Do you think when he talks about Mosaic
14 and Cello he is talking about something for Chicago?
15 A. He is talking about the Chicago
16 message. The definition of what would and wouldn't
17 be in Chicago wasn't finally known until Chicago
18 shipped. Certainly at this time we had made the
19 decision to do our best to include the browsing
20 functionality if we could. We weren't saying that as
21 part of the Chicago message.
22 Q. Mr. Gates, you've testified that you
23 never saw this until the last six months; correct?
24 A. That's right.
25 Q. Who showed you this?
614
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1 A. I'm not sure. I think maybe the
2 government cited it. I'm not sure.
3 Q. Well, who showed it to you?
4 A. I'm not sure anyone showed it to me. I
5 think the government cited it in something.
6 Q. Well, the government cited it. Do you
7 read through the government's papers and pick out
8 cites and go find them for yourself?
9 A. No.
10 Q. Didn't think so. So somebody had to go
11 pick this out and show it to you; correct, sir?
12 A. I'm not sure, other than
13 attorney-client meetings, when I've seen the entire
14 mail message.
15 Q. Have you -- and this only calls for a
16 yes or no answer -- seen this in attorney-client
17 discussions, the whole message just like we have
18 here?
19 MR. HEINER: Objection. I think it
20 intrudes on the privilege and work product. I think
21 that's a common objection to assert as well.
22 MR. BOIES: It is a common objection to
23 assert. Ordinarily I, you know, I don't press the
24 question. Here, this is something that he is now
25 testifying as to what it means and I think the only
615
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 way that he has any knowledge about this, he says, is
2 something that has happened in the last six months.
3 And so I think at least in terms of knowing where
4 that information comes from, I'm entitled to know on
5 a yes or no basis, even if I may not be entitled to
6 find out what he was told.
7 MR. HEINER: Yeah, I don't think that's
8 right. I don't think you should ask that precise
9 question.
10 MR. BOIES: I'll press the question.
11 Are you going to instruct him not to answer? This
12 time I'm going to press the question.
13 MR. HEINER: I'd like to have it read
14 back then.
15 (The record was read as follows:
16 "Q. Have you -- and this only calls
17 for a yes or no answer -- seen this in
18 attorney-client discussions, the whole message
19 just like we have here?")
20 MR. HEINER: Just a minute.
21 We're going to stand on the instruction
22 not to answer that question.
23 MR. BOIES: Okay.
24 Q. Have you ever seen this document, the
25 whole message, other than in an attorney-client
616
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1 conversation, prior to your deposition?
2 A. I'm not sure.
3 Q. Let me show you a document marked as
4 Exhibit 385, which is a copy of an article from
5 Computer World dated January 16, 1995. And under the
6 column "News Shorts" there is a heading that says
7 "Microsoft licenses Mosaic Internet browser" and it
8 says "Microsoft Corp. chairman Bill Gates said last
9 week that his company has licensed Mosaic software
10 for browsing the World-Wide Web."
11 Did you so state in or about January of
12 1995, Mr. Gates?
13 A. I don't know.
14 (The document referred to was marked
15 by the court reporter as Government Exhibit 385 for
16 identification and is attached hereto.)
17 Q. BY MR. BOIES: Later on it says that
18 Microsoft will "incorporate the technology into The
19 Microsoft Network. Mosaic support will arrive in the
20 fourth quarter, a few months after The Microsoft
21 Network debuts, Gates said." Do you see that?
22 A. Yes.
23 Q. Did you say that, Mr. Gates, in or
24 about January of 1995?
25 A. It doesn't make sense to say
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1 "incorporate the technology into The Microsoft
2 Network," so I'm pretty sure I didn't say that.
3 Q. Let me show you a document that has
4 been marked as Exhibit 386. The second item here
5 purports to be a message from you to a number of
6 people dated April 6, 1995. Do you see that?
7 A. Yes.
8 (The document referred to was marked
9 by the court reporter as Government Exhibit 386 for
10 identification and is attached hereto.)
11 Q. BY MR. BOIES: Did you send this
12 message on or about April 6, 1995?
13 A. I don't remember sending it, but I
14 don't have any reason to doubt that I did.
15 Q. Now, attached to this message, as it
16 was produced to us, I believe, by Microsoft, is a
17 two-page document headed "Netscape as Netware." Do
18 you see that?
19 A. I see a three-page document, yes.
20 Q. Yes, three pages. Pages 3558 through
21 3560.
22 Have you seen this before?
23 A. I don't remember seeing it before.
24 Q. Now, the title of this three-page
25 attachment is "Netscape as Netware" and there is a
618
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 footnote that says, "The analogy here is that the
2 major sin that Microsoft made with Netware was to let
3 Novell offer a better (actually smaller and faster
4 with simpler protocol) client for networking. They
5 got to critical mass and can now evolve both client
6 and server together."
7 Do you see that?
8 A. Uh-huh. Yes.
9 Q. In or about April of 1995, was
10 Microsoft concerned with Netscape getting to what is
11 referred to here as critical mass?
12 A. I don't know what Paul meant in using
13 that word.
14 Q. Do you have any understanding at all
15 about what Mr. Maritz meant when he referred to a
16 competitor getting "to critical mass"?
17 A. He seems to be using that phrase with
18 respect to Netware or Novell, but I'm not sure what
19 he means by it.
20 Q. He is also using it with respect to
21 Netscape in the analogy, is that not so?
22 A. It's not clear that the term "critical
23 mass" is part of the analogy, is it? It's not to me.
24 Q. Okay. This document is about Netscape,
25 it's not about Novell; correct, sir?
619
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. I didn't write the document. The
2 document appears to refer to "Netscape as Netware" as
3 its title, so Novell is talked about in this document
4 and a lot of things seem to be talked about here. Do
5 you want me to read it?
6 Q. If you have to to answer any of my
7 questions.
8 Netware is something from Novell;
9 correct, sir?
10 A. Fact.
11 Q. What?
12 A. Fact.
13 Q. Does that mean yes?
14 A. Yes.
15 Q. And what Mr. Maritz here is doing is
16 analogizing Netscape to Netware; correct?
17 A. It's kind of confusing because Netscape
18 is the name of a company and Netware is the name of a
19 product and so I'm not sure what he is doing.
20 Usually you think of analogizing two products to each
21 other or two companies to each other, but he appears
22 to be analogizing a company to a product, which is a
23 very strange thing.
24 Q. Well, sir, in April of 1995, insofar as
25 Microsoft was concerned, was Netscape primarily a
620
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 browser company?
2 A. No.
3 Q. It was not?
4 A. No.
5 Q. All right, sir.
6 In this document do you understand what
7 Mr. Maritz is saying is that Microsoft should not
8 make the same mistake with Netscape's browser as it
9 did with Novell's Netware?
10 A. I'd have to read the document. Do you
11 want me to?
12 Q. If you need to read the document to
13 answer that question, Mr. Gates, go ahead and do so.
14 And when you've finished, if you have the question in
15 mind, please answer it. If you don't have the
16 question in mind, we'll read it back.
17 And the question is, do you understand
18 that what this document is saying is that Microsoft
19 should not make the same mistake with Netscape's
20 browser as it did with Novell's Netware? And you can
21 read any portion that you want, but I am particularly
22 interested the heading which says "Netscape as
23 Netware" and the footnote right off that heading,
24 "The analogy here is that the major sin that
25 Microsoft made with Netware was to let Novell offer a
621
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 better (actually smaller and faster, with simpler
2 protocol) client for networking. They got to
3 critical mass and can now evolve both client and
4 server together."
5 A. Are you asking me a question about the
6 whole document?
7 Q. No, I didn't think I was. I thought it
8 was possible for you to answer the question by
9 looking at the title and first footnote.
10 A. I thought you were asking me what the
11 document is about.
12 Q. I think it's possible to answer the
13 question by looking at the heading and that footnote.
14 My question is whether, as you understand it, what
15 Mr. Maritz is saying here is that Microsoft should
16 not make the same mistake with Netscape's browser as
17 it did with Novell's Netware?
18 A. Does it say "mistake" somewhere?
19 Q. All I'm asking you is whether you
20 interpret this that way?
21 A. Does it say "mistake" somewhere?
22 Q. Mr. Gates, we have had a conversation
23 about how I ask the questions and you give the
24 answers. I think --
25 A. I don't see where it says "mistake."
622
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Q. It doesn't say "mistake." It says
2 "major sin." If you think major sin is something
3 different than mistake, you can answer the question
4 no, that's not what you think Mr. Maritz means. My
5 question is clear. You can answer it yes, no, or you
6 can't tell.
7 A. What is the question?
8 Q. My question is whether -- as you
9 understand what Mr. Maritz is saying here, is he
10 saying that Microsoft should not make the same
11 mistake with Netscape's browser as it did with
12 Novell's Netware?
13 A. No, I think he is saying something
14 else.
15 Q. Okay. Do you think that when
16 Mr. Maritz uses the term "major sin" that Microsoft
17 made, he is referring to what he thinks is a mistake?
18 A. Probably.
19 Q. Okay. Let me ask you to look next at a
20 document marked as Exhibit 387. This is an e-mail
21 from Brad Silverberg, or it's a message from Brad
22 Silverberg -- I don't know whether it's an e-mail or
23 not -- dated April 12, 1995 at 12:53 p.m.
24 (The document referred to was marked
25 by the court reporter as Government Exhibit 387 for
623
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 identification and is attached hereto.)
2 Q. BY MR. BOIES: Have you ever seen this
3 message before, sir?
4 A. No.
5 Q. The first paragraph says, "I have
6 spoken with Paul Maritz and he is in agreement that
7 we should get our Internet client distributed as
8 broadly as possible as soon as possible."
9 Did you understand that that was the
10 view of Mr. Maritz in April of 1995?
11 A. I think -- I think it probably was.
12 Q. And when reference is made here to
13 Microsoft's Internet client, do you understand that
14 to be Internet Explorer?
15 A. I think at the time of this document
16 it meant O'Hare.
17 Q. And what did O'Hare become?
18 A. It became Internet Explorer plus some
19 other things.
20 Q. Let me ask you to look next at a
21 document marked Exhibit 388. The second e-mail or
22 message here is a message dated April 12, 1995 at
23 12:54 p.m. from Paul Maritz to you and a number of
24 other people; correct, sir?
25 A. That's what it appears to be.
624
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 (The document referred to was marked
2 by the court reporter as Government Exhibit 388 for
3 identification and is attached hereto.)
4 Q. BY MR. BOIES: And the subject is the
5 "3 year plan thoughts - draft;" correct?
6 A. That's, yes, the subject.
7 Q. Did you receive this message on or
8 about April 12, 1995?
9 A. I don't remember receiving it, but I
10 have no reason to doubt that I did.
11 Q. Now, attached here is something that is
12 titled "3 year plan follow-up (draft)." Do you see
13 that?
14 A. Yes.
15 Q. Did you receive this at or about the
16 time indicated of April 12, 1995?
17 A. I'm not sure.
18 Q. Let me ask you to look at the page that
19 bears in the bottom right-hand corner the Microsoft
20 document production stamp ending 7193. And in
21 particular the portion that is under the heading
22 "Shell/Browser." Do you have that?
23 A. Yes.
24 Q. And it says here, "We should get a view
25 as to what will be handled by the 'Win97' Shell, and
625
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 what will not - and if not, how is the needed
2 extension integrated into the Win97 environment."
3 Do you see that?
4 A. Uh-huh.
5 Q. Were you told in or about April of 1995
6 that one of the issues in terms of planning that was
7 needed to be decided was what would be handled by the
8 Win97 shell and what would not be?
9 A. I'm not sure -- I'm not sure what is
10 meant by Win97 shell here. I don't remember seeing
11 that at the time.
12 Q. Well, you know what a shell is in this
13 context, do you not, sir?
14 A. Yes.
15 Q. And you recognize Win97 as a reference
16 to what ultimately became Windows 98, do you not,
17 sir?
18 A. No. The fact that we use a name like
19 that before we have decided what's in a product
20 doesn't mean that when we used that name back then
21 it references what eventually got into the product.
22 Q. Let me make sure I understand that last
23 answer.
24 Was Win97 a reference that was used
25 within Microsoft to refer to what ultimately became
626
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Windows 98?
2 A. It was a term that was used to refer to
3 a project. When it was used, none of us knew either
4 what would be in the project or what it would be
5 called. So any time you see that reference, you
6 can't assume it's a reference to the things that
7 eventually became Windows 98. All you know is
8 they're referring to the next project related to
9 enhancing Windows.
10 Q. Let me ask the question this way. Was
11 the project that was internally described within
12 Microsoft as Win97 the project that ultimately
13 resulted in Windows 98?
14 A. I believe so.
15 MR. HEINER: Would you like to take a
16 break now?
17 MR. BOIES: Sure.
18 VIDEOTAPE OPERATOR: The time is 1:33.
19 We are going off the record.
20 (Recess.)
21 VIDEOTAPE OPERATOR: The time is 1:48.
22 We're going back on the record.
23 Q. BY MR. BOIES: Mr. Gates, let me show
24 you a document marked as Government Exhibit 390. The
25 first message here purports to be a message to you
627
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 and Mr. Maritz and Mr. Allchin on February 24, 1997
2 at 11:07 p.m. Do you see that?
3 A. Yes.
4 (The document referred to was marked
5 by the court reporter as Government Exhibit 390 for
6 identification and is attached hereto.)
7 Q. BY MR. BOIES: And it talks about a
8 focus group report and it says that most of the
9 people in the focus group were Navigator users. And
10 then it goes on to say about those Navigator users,
11 "They said they would not switch, would not want to
12 download IE 4 to replace their Navigator browser.
13 However, once everything is in the OS and right
14 there, integrated into the OS, 'in their face' so to
15 speak, then they said they would use it because there
16 would be no more need to use something 'separate.'"
17 Do you see that?
18 A. Yes.
19 Q. Do you recall being told that in or
20 about February, 1997?
21 A. No.
22 Q. Let me ask you to turn to the fifth
23 page of this exhibit. And this is an original
24 message dated February 24, 1997 at 10:38 a.m. also
25 relayed into the Memphis focus group's report.
628
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. It's an enclosure to the message above.
2 Q. It's an enclosure to the message above.
3 That is what you have is first a message dated
4 February 24, 1997 at 11:07 p.m. that went to you and
5 Mr. Maritz and Mr. Allchin, and then you have another
6 message that was an enclosure that went to you and
7 others; correct?
8 A. Yes.
9 Q. So you would have received the second
10 message when you received the message that was
11 addressed to you; correct?
12 A. If I did, which I told you I don't
13 remember, but I have no reason to doubt that I did.
14 Q. Right. The next to last paragraph on
15 the fifth page of the exhibit, the one that ends with
16 the Microsoft document production stamp 8179, do you
17 have that page?
18 A. Yes.
19 Q. The next to last paragraph of this
20 material that was sent to you on February 24th, '97
21 if in fact it was, on page 5 says "It seems clear
22 that it will be very hard to increase browser market
23 share on the merits of IE 4 alone. It will be more
24 important to leverage the OS asset to make people use
25 IE instead of Navigator."
629
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Do you see that?
2 A. Yes.
3 Q. Were you told that in or about February
4 of 1997?
5 A. Out of the context of this memo?
6 Q. Well, first let's ask were you told
7 that in the context of this memo?
8 MR. HEINER: Objection. Is your
9 question if he received the memo?
10 Q. BY MR. BOIES: Well, I don't know what
11 he meant by his statement. He simply was asking me
12 whether I was asking him if he was told outside of
13 the context of the memo, and I want to know if he was
14 told that inside the context of this memo.
15 MR. HEINER: Objection.
16 THE WITNESS: Those sentences seem to
17 appear in this memo that's talking about some
18 features. It wasn't a product demo but some
19 features, including WebView, that they showed to some
20 end users.
21 Q. BY MR. BOIES: Let me try to break the
22 question down. First, do you recall being told in
23 any context in or about February of 1997, "It seems
24 clear that it will be very hard to increase browser
25 market share on the merits of IE 4 alone. It will be
630
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 more important to leverage the OS asset to make
2 people use IE instead of Navigator"?
3 A. Those words?
4 Q. Let me begin with that. Do you recall
5 being --
6 A. No.
7 Q. -- communicated those words in or about
8 February of 1997?
9 A. I said no.
10 Q. Do you recall being communicated those
11 words at any time, whether in or about February of
12 1997 or any other time?
13 A. Isn't that what I just answered?
14 Q. Perhaps you did. I thought the first
15 answer related to February, 1997, but if you're
16 telling me you don't recall ever being told that, I
17 just want that clarified for the record.
18 A. Those words, no.
19 Q. Do you recall being told in substance
20 what is stated here at any time in the language that
21 I've just quoted?
22 A. That's a self contradictory question.
23 You can't say you're asking me something in substance
24 and then say in the language you just quoted. That's
25 completely contradictory.
631
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Q. Sir, if you don't understand the
2 question and you can't answer it, all you have to do
3 is say so.
4 A. I understand that the question is
5 contradictory to itself.
6 Q. Well, Mr. Gates, the memo says --
7 MR. HEINER: There is no problem there.
8 You just made a mistake on that question. It's okay.
9 Why don't you just state a new question.
10 MR. BOIES: Well, Mr. Heiner, I frankly
11 think -- I won't debate with the witness, I will
12 debate with you.
13 MR. HEINER: Be my guest.
14 MR. BOIES: I think the question was
15 actually quite clear, but what I was about to do is
16 put a new question.
17 MR. HEINER: Okay.
18 Q. BY MR. BOIES: This document that
19 purports to have gone to you, sir, says "It seems
20 clear that it will be very hard to increase browser
21 market share on the merits of IE 4 alone. It will be
22 more important to leverage the OS asset to make
23 people use IE instead of Navigator."
24 Do you recall ever being told or ever
25 receiving a communication that said in substance what
632
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 is reflected there?
2 A. No.
3 Q. Let me show you Exhibit 591 -- or I
4 guess it's Exhibit 391. This purports to be a
5 message to you dated April 18, 1995, to you and other
6 people.
7 (The document referred to was marked
8 by the court reporter as Government Exhibit 391 for
9 identification and is attached hereto.)
10 Q. BY MR. BOIES: Did you receive this
11 message in or about April of 1995?
12 A. I don't remember receiving it, but I
13 have no reason to doubt that it was sent to me.
14 Q. Let me ask you to look at the bottom of
15 the first page, next to last paragraph, the sentence
16 that begins "This does not mean that Netscape needs
17 to be a direct competitor." Do you see that?
18 A. Yes.
19 Q. Do you recall discussions in or about
20 April of 1995 about whether or not Netscape would or
21 would not be a direct competitor of Microsoft?
22 A. I'm sure there was some discussion
23 about Netscape and the whole Internet phenomenon, and
24 particularly what that meant about the business
25 Nathan was in charge of, which was Marvel. I don't
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1 remember specifically if we figured out whether they
2 would or wouldn't be a competitor or what they were
3 doing.
4 Q. Do you recall communications within
5 Microsoft in or about April of 1995 about what might
6 be done to be sure that Netscape did not become a
7 direct competitor of Microsoft?
8 A. No.
9 Q. Do you recall any communications within
10 Microsoft in or about April of 1997 relating to what
11 Microsoft might do to influence whether or not
12 Netscape became a direct competitor of Microsoft?
13 A. No.
14 Q. Do you recall any discussions within
15 Microsoft at any time or any communications within
16 Microsoft at any time relating to what Microsoft
17 might do to influence whether Netscape became a
18 direct competitor of Microsoft?
19 A. No.
20 Q. Let me ask you to look next at an
21 exhibit marked Government Exhibit 392. The second
22 item here purports to be a message from you to Paul
23 Maritz and Brad Silverberg with copies to a number of
24 other people dated January 28, 1997, at 10:34 a.m.
25 Do you see that?
634
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1 A. Yes.
2 (The document referred to was marked
3 by the court reporter as Government Exhibit 392 for
4 identification and is attached hereto.)
5 Q. BY MR. BOIES: Did you send this
6 message to Mr. Maritz and Mr. Silverberg and others
7 on or about January 28, 1997?
8 A. I don't remember doing so, but I have
9 no reason to doubt that I did.
10 Q. You say that there has been -- the
11 beginning of the document, the very beginning of the
12 document you say, "There has recently been an
13 exchange on e-mail with people in the Office group
14 about Office and HTML. In one piece of mail people
15 were suggesting that Office had to work equally well
16 with all browsers and that we shouldn't force Office
17 users to use our browser. This is wrong and I wanted
18 to correct this."
19 Do you see that?
20 A. Yes.
21 Q. Did you send that message to Mr. Maritz
22 and Mr. Silverberg and others in or about January of
23 1997?
24 A. You already asked that and I told you I
25 don't remember sending it.
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1 Q. Did you convey the substance of what is
2 here to Mr. Maritz and Mr. Silverberg in or about
3 January of 1997?
4 A. I don't know the time frame, but there
5 was a question for very advanced features in Office
6 that had to do with the fact that older browsers,
7 including our own older browsers, couldn't display
8 the information and should we therefore display it to
9 no one or what should we do about advance display
10 semantics. And I know in that case the issue came up
11 about should we support the advanced display
12 semantics at all.
13 Q. Is it your testimony, Mr. Gates, that
14 that is what you were talking about here?
15 A. Absolutely. That's what this
16 message -- I mean if you read it, that's what it is
17 about.
18 Q. This is a message that you don't recall
19 sending; is that correct?
20 A. I've read it today, but I don't recall
21 sending it, that's right.
22 Q. But what you're doing is you're
23 testifying under oath that when you say that you
24 should force Office users to use Microsoft's browser,
25 you were talking about what you just described; is
636
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1 that your testimony?
2 A. I don't see that in the message.
3 Q. Well, you're saying here that Microsoft
4 should force Office users to use Microsoft's browser,
5 are you not, sir?
6 A. No.
7 Q. Well, sir, you say "In one piece of
8 mail people were suggesting that Office had to work
9 equally well with all browsers and that we shouldn't
10 force Office users to use our browser. This is wrong
11 and I wanted to correct this."
12 Is it your testimony under oath that
13 you are not saying that the assertion that you had
14 heard that Microsoft shouldn't force Office users to
15 use Microsoft's browser was wrong?
16 A. There's a sentence there that talks
17 about whether Office has to work equally well with
18 all browsers and because I'm talking about Trident
19 here, Trident was a set of technologies we were doing
20 to extend things so that you could work with Office
21 documents that are very rich documents in a new way
22 that no previous browser, including our own previous
23 browsers, was willing to display. And there was a
24 question of whether they should take advantage of
25 those Trident things or not. Some people were
637
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1 questioning whether we should take advantage of those
2 Trident things and here I'm making very clear, and
3 all you have to do is read the complete e-mail, I'm
4 saying we should go ahead and take advantage of those
5 Trident things. Now, that is very different than
6 saying people are forced to use any browser. It's
7 just if you want the best experience in terms of
8 seeing those rich documents, what we're doing in
9 Trident I thought we should take advantage of.
10 Q. Now, sir, is it your testimony sitting
11 here under oath that when in the language that I have
12 quoted you wrote "This is wrong and I wanted to
13 correct this" relating to the previous sentence,
14 which had said "In one piece of mail people were
15 suggesting that Office had to work equally well with
16 all browsers and we shouldn't force Office users to
17 use our browser," you were talking about Trident? Is
18 that your testimony?
19 A. Well, I think you've mischaracterized
20 my testimony.
21 Q. All I'm asking is whether that is your
22 testimony. If you tell me that's not your testimony,
23 we go on. Is that what you're telling me, sir?
24 A. Are you trying to characterize my
25 previous testimony?
638
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1 Q. I was trying to see whether we
2 understood your previous testimony.
3 A. Your characterization was wrong.
4 Q. Okay. In the second paragraph of this
5 exhibit you write "In one piece of mail people were
6 suggesting that Office had to work equally well with
7 all browsers and that we shouldn't force Office users
8 to use our browser. This is wrong and I wanted to
9 correct this." Does that statement relate to
10 Trident, sir?
11 A. I explained how it relates to Trident.
12 Q. So your answer is that that relates to
13 Trident; is that your testimony?
14 A. In order to know that, I read the
15 entire piece of e-mail and upon reading it, I know
16 that what that relates to is whether we should
17 exploit the advanced features of Trident so that
18 Office works particularly well with the new browser
19 from us with those Trident features.
20 Q. Mr. Gates, isn't it clear that the
21 discussion at the end of the memo about Trident is
22 about a different point than the point we've been
23 talking about?
24 A. Absolutely not.
25 Q. Well, sir, immediately after the
639
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 paragraph we've been talking about don't you write,
2 "Another suggestion in this mail was that we can't
3 make our own unilateral extensions to HTML. I was
4 going to say this was wrong and correct this also."
5 And then you go on to talk about Trident. Isn't that
6 what you wrote here?
7 A. I think you've correctly read some of
8 the words in the e-mail. We could go on and read
9 more of the words so you could understand why what
10 I've told you is correct.
11 Q. Is there anything in here that asserts
12 that forcing Office users to use Microsoft's browser
13 is limited to the Trident situation?
14 A. It's clearly about whether Office
15 should exploit HTML that takes advantage of Trident
16 and whether that's a good idea or not. That's what
17 this piece of e-mail is about.
18 Q. If that's all it's about, Mr. Gates,
19 why do you introduce the Trident discussion by saying
20 "Another suggestion in this mail is that we can't
21 make our own unilateral extensions to HTML. I was
22 going to say this was wrong and correct this also"?
23 Aren't you clearly saying this is an additional
24 point?
25 A. No. You're just trying to misread my
640
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 e-mail. It talks about Office.
2 Q. Yes, it certainly does talk about
3 Office. And it talks about forcing Office users to
4 use your browser; correct, sir?
5 A. No.
6 Q. It doesn't? When you say that somebody
7 is saying -- that you've seen an e-mail of people
8 saying "we shouldn't force Office users to use our
9 browser" and that this is wrong, you're not saying
10 that you should use Office to force users to use your
11 browser; is that what you're saying?
12 A. That was the most circular thing I've
13 ever heard.
14 Q. I think it was pretty circular
15 because --
16 A. You continue to not read the sentence
17 and look at the piece of e-mail. The question in
18 this e-mail is whether Office should work equally
19 well with all browsers. And it's talking about --
20 Q. Now, sir --
21 A. If you want to look further to
22 understand it --
23 Q. How about let me put a question.
24 MR. HEINER: Let me --
25 MR. BOIES: May I ask the witness what
641
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 question is he answering?
2 MR. HEINER: Whatever the last question
3 that was posed.
4 MR. BOIES: I want to know if he knows
5 what question he is answering.
6 THE WITNESS: Can you read back the
7 question?
8 Q. BY MR. BOIES: No. Can you tell me,
9 Mr. Gates, what question you're purporting to answer?
10 A. Your last question.
11 Q. Do you know what it is?
12 A. Could I make it as convoluted as you
13 did? No.
14 Q. Can you tell me what question you're
15 answering?
16 A. I can't repeat back that convoluted a
17 question. I could ask the reporter to.
18 Q. Can you tell me the substance of the
19 question you're answering?
20 MR. HEINER: Mr. Boies, pose the next
21 question.
22 MR. BOIES: Okay.
23 MR. HEINER: Let me suggest one. Ask
24 him about the first sentence, which is the subject
25 matter being introduced.
642
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Q. BY MR. BOIES: Okay. Actually, I've
2 read the first sentence, but I'll read it again. The
3 first sentence, which is one paragraph, says "There
4 has recently been an exchange on e-mail with people
5 in the Office group about Office and HTML."
6 Second paragraph says "In one piece of
7 mail people were suggesting that Office had to work
8 equally well with all browsers and that we shouldn't
9 force Office users to use our browser. This is wrong
10 and I wanted to correct this."
11 Third paragraph says "Another
12 suggestion in this mail was that we can't make our
13 own unilateral extensions to HTML. I was going to
14 say this was wrong and correct this also."
15 Now, have I read correctly the first
16 three paragraphs of this memo, Mr. Gates?
17 A. Yes.
18 Q. And is it your testimony that when you
19 said that the e-mail suggesting that Office had to
20 work equally well with all browsers and that
21 Microsoft shouldn't force Office users to use
22 Microsoft's browser was wrong, that all you were
23 talking about there was Trident; is that your
24 testimony?
25 A. I'm not sure what you mean all I was
643
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 talking about. This e-mail is about Office and HTML.
2 Q. Yes.
3 A. There is a new extension to HTML being
4 created in Trident. There was a question of whether
5 Office could take advantage of it, which meant that
6 it would take advantage of those new browsers in a
7 better way than it would take advantage of our old
8 browsers or other people's browsers without those
9 extensions. I was suggesting here, and it's totally
10 a mischaracterization to suggest that that third
11 paragraph isn't totally in line with it, that we
12 should take advantage of those Trident HTML
13 extensions and, therefore, Office documents would
14 look better, at least for those users.
15 Q. And is it your testimony -- and all I'm
16 trying to do is clarify your testimony, Mr. Gates,
17 because once the testimony is done, then the trier of
18 fact can decide what credibility to give it. All I'm
19 trying to do is identify it. And you have said that
20 the extensions to HTML relates to Trident; correct?
21 A. Yes.
22 Q. Now, what I'm trying to find out is
23 whether these extensions to HTML that relate to
24 Trident is also the only point of your statement that
25 you should force Office users to use your browser?
644
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. That's a sentence fragment here. What
2 people were saying was if we took unique advantage of
3 Trident, wouldn't people feel like they needed to
4 upgrade to Trident. And I said, hey, if that's the
5 only way they can see the advanced document
6 capability, then fine.
7 Q. Mr. Gates, I mean that's not what this
8 e-mail says.
9 A. We certainly know what the e-mail says.
10 Q. Yes, exactly. And I don't mean to be
11 disrespectful here, but aren't you doing what we
12 talked about before here, just trying to substitute
13 different words for the words that you actually wrote
14 that you think will sound better in the context of
15 this litigation?
16 A. I've explained to you what this e-mail
17 is about. You don't seem to like the facts.
18 Q. Mr. Gates, my question, and if the
19 answer is yes or no or I don't understand your
20 question, you can give me that testimony. But is the
21 explanation that you're giving me now of this
22 document an explanation where you're trying to use
23 words differently now because of the litigation than
24 you used them back in 1997?
25 A. No.
645
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Q. Not at all, sir?
2 A. No.
3 Q. Do you feel more uncomfortable
4 admitting in a deposition in this case that you were
5 trying to force Office users to use your browser than
6 you did back in January of 1997?
7 A. You're mischaracterizing the e-mail.
8 Q. Well, let me ask you a question
9 independent of the e-mail.
10 Do you feel more uncomfortable with the
11 characterization that Microsoft is forcing Office
12 users to use Microsoft's browser today than you did
13 back in January, 1997?
14 A. I've never been comfortable with
15 lawyers mischaracterizing the truth.
16 Q. Well, Mr. Gates, could I have my
17 question answered?
18 A. I answered it.
19 MR. BOIES: Would you read the question
20 back, please.
21 (Record read.)
22 Q. BY MR. BOIES: Could I have an answer
23 to that question, sir?
24 MR. HEINER: Objection.
25 THE WITNESS: My view of lawyers
646
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 mischaracterizing something has not changed.
2 Q. BY MR. BOIES: Mr. Gates, I'm not
3 talking about your view of lawyers mischaracterizing
4 things. I'm talking about your view of the use of
5 language. You've got a document in here in which you
6 talk about forcing Office users to use your browser.
7 You say "In one piece of mail people were suggesting
8 that Office had to work equally well with all
9 browsers and we shouldn't force Office users to use
10 our browser." You go on to say to the top executives
11 of your company, "This is wrong."
12 Now, my simple question is whether
13 you're more concerned about the use of those words
14 today than you were back in January of 1997, whether
15 this litigation is influencing the care and
16 precision, if you want to put it that way, with which
17 you are determined to use words?
18 A. I'm not sure what I'm comparing to
19 what.
20 Q. Okay, let me try to be clear. In
21 January of 1997 you wrote this e-mail --
22 A. In total.
23 Q. In total. And at the time you wrote
24 this e-mail, you didn't have any expectations it was
25 going to show up in this litigation, did you?
647
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1 A. I'm not sure what you mean by that.
2 Q. What I mean is you thought this was a
3 private e-mail. You thought you were writing to your
4 executives and you didn't think anybody outside the
5 company was going to review this and do what I'm
6 doing now, which is asking you questions about it,
7 right?
8 A. Oh, I think the general notion that any
9 e-mail I write might be reviewed at some point is one
10 that I've understood certainly since 1990.
11 Q. So it is your testimony that taking
12 this e-mail in its entirety, that you today are
13 entirely comfortable that the memo, the e-mail in its
14 entirety, is a fair and accurate statement of your
15 views; is that correct?
16 A. If somebody takes the trouble to
17 understand it, yes.
18 Q. That is, if somebody reads this
19 document all the way through, takes the trouble to
20 figure out what is here, you say that's a fair and
21 accurate statement of your views; correct?
22 A. Views on what?
23 Q. Views on the things that you're talking
24 about in the memo.
25 Let me try to approach it a different
648
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 way. Sometimes when people write things after the
2 fact, they say "I wish I hadn't written it that way,
3 that just isn't accurate." Or "I overstated it," or
4 "I got it wrong." Are you saying that about this
5 document?
6 A. I guess I can say that if I realized
7 how you might misinterpret the thing, I would have
8 put a little footnote in here for you to help make
9 sure you didn't misinterpret it.
10 Q. And that's because you think that what
11 I'm doing, as you've said before, is
12 mischaracterizing what's here; correct?
13 A. Several of your questions I believe
14 have mischaracterized it.
15 Q. Now, suppose, Mr. Gates, that you have
16 to worry not about what I think about this memo,
17 which is really irrelevant, but only about what the
18 trier of fact thinks about this memo. Assume that a
19 neutral trier of fact is going to look at this memo
20 in a fair and balanced way. Would you say to that
21 neutral trier of fact "I really shouldn't have
22 written this. This really doesn't reflect my views.
23 I made a mistake"? Or would you say "If you read the
24 whole thing and read it fairly, that's what I
25 believe"?
649
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. If they understood what it was about, I
2 wouldn't feel any need to amend or change it.
3 Q. Okay, sir, that's -- I mean on that
4 basis, I think we can leave it to the trier of fact
5 to determine what it means. Because I think the one
6 thing -- you believe this memo is clear, don't you?
7 A. I don't know what you mean by that.
8 You've made it clear that somebody can misinterpret
9 this memo. Whether that is being done maliciously or
10 not, I don't know. So now I understand that somebody
11 who doesn't understand the subject matter of the memo
12 can misinterpret it. In particular you can
13 misinterpret what is meant there.
14 Q. Well, you've told us that extensions to
15 HTML that you are referring to here were the Trident
16 extensions, haven't you, sir? That's what you've
17 said?
18 A. And general principals about HTML
19 extensions, yes.
20 MR. HEINER: Will the Antitrust
21 Division of the United States, when it tries this
22 case, present information to the trier of fact so
23 that the trier of fact understands what HTML is, what
24 Trident is and so forth, or will it present snippets
25 and fragments as it did in the fall in the consent
650
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 decree case?
2 MR. BOIES: I believe the trier of fact
3 will have this entire document and we will ask the
4 trier of fact to read this entire document and we
5 will present to the trier of fact -- and if we don't,
6 you will -- everything that either of us can think of
7 that relates to the subject matter of this.
8 One of the things about a trial is we
9 both get our shot and if you think there is anything
10 that you can say to the trier of fact that will get
11 the trier of fact to interpret this differently than
12 I have, take your best shot.
13 MR. HEINER: All I'm saying is that
14 even the plaintiff in an action has an obligation as
15 an officer of the court to present facts in a summary
16 judgment motion, in a complaint, in a motion for
17 preliminary injunction or at the trial so that the
18 court can understand the full set of facts.
19 MR. BOIES: We will continue to do
20 that.
21 Q. Let me show you a document marked as
22 Government Exhibit 394. This purports to be an
23 e-mail dated February 4, 1995, or at least a message
24 dated February 4, 1995 at 12:04 p.m. regarding
25 "Frosting and O'Hare."
651
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 (The document referred to was marked
2 by the court reporter as Government Exhibit 394 for
3 identification and is attached hereto.)
4 Q. BY MR. BOIES: Have you ever seen this
5 document before, sir?
6 A. I think Mr. Houck showed it to me.
7 Q. Other than whatever was shown at your
8 deposition, have you ever seen this document before?
9 A. No.
10 Q. All right. Let me ask you to look next
11 at Government Exhibit 395. This purports to be a
12 memo or message from you dated February 19, 1997, to
13 Mr. Allchin with copies to Mr. Maritz, among others.
14 (The document referred to was marked
15 by the court reporter as Government Exhibit 395 for
16 identification and is attached hereto.)
17 Q. BY MR. BOIES: Did you send this
18 message on or about February 19, 1997?
19 A. I don't remember sending the message.
20 Q. The second message here in this exhibit
21 is a message from Mr. Allchin to you dated
22 February 18, 1997, at 5:17 p.m. with a copy to
23 Mr. Maritz. Do you see that?
24 A. Yes.
25 Q. And am I correct that when you sent
652
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 your message, you enclosed this earlier message from
2 Mr. Allchin with your message?
3 A. That's right. The default reply
4 command does the enclosure.
5 Q. Let me ask you to look at the second
6 page, the first full paragraph in which Mr. Allchin
7 writes to you "I am convinced the path we're on is
8 the wrong one. We are playing into Netscape's
9 strengths and against our own. I hear lots of words
10 about how the software will of course be 'better' on
11 Windows because we have more people working on
12 Windows, but I can't sell abstract statements like
13 this."
14 Do you see that?
15 A. Uh-huh.
16 Q. He then goes on in the very next
17 sentence to say "We focus attention on the browser
18 battle where we have little marketshare instead of
19 focusing the battle at integrating things into
20 Windows where we have marketshare and a great
21 distribution channel."
22 Did Mr. Allchin write this to you on
23 February 18, 1997?
24 A. I'm not sure.
25 Q. Did Mr. Allchin communicate that to you
653
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1 at some point, whether in February, 1997 or some
2 other time?
3 A. I know Jim was a big advocate of
4 increasing the integration features to make them even
5 stronger.
6 MR. BOIES: May I have the question
7 read back, please.
8 (Record read.)
9 Q. BY MR. BOIES: May I have an answer to
10 that question, sir?
11 A. That's what I answered.
12 Q. I'm not asking you what Mr. Allchin
13 was a big advocate of. I'm asking whether he
14 communicated this to you at some point?
15 A. Those specific words?
16 Q. Or what you understand to be the
17 substance of those words.
18 A. In looking at the substance of those
19 words, I can say the one part I do remember him
20 communicating is that he was a big advocate of
21 strengthening even further the integration benefits
22 of the browser technology in Windows.
23 Q. Well, sir, when he talks about
24 integrating the browser technology into Windows,
25 which he does a little later, what he says is,
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1 "When IE 4 was first discussed, we were 'integrating
2 the browser into Windows.' That is what we told
3 everyone. That was a strong message for Windows.
4 That message is now gone since IE 4 is going onto all
5 platforms. It won't be as 'integrated' (whatever
6 they means technically) but all the words about
7 WebPC and the like convince me we are determined to
8 put a gun to our head and pull the trigger."
9 Now, did he tell you that, Mr. Gates,
10 in or about February of 1997?
11 A. I don't remember him using those words.
12 They're colorful enough. Sometimes I might remember
13 that, but I don't remember that.
14 Q. All right, sir. Let me ask you to look
15 at a document that has been marked as Government
16 Exhibit 396. And this purports to be some questions
17 and answers on "The Use and Misuse of Technology" by
18 Bill Gates dated October 24, 1995, copyrighted 1992
19 to 1995 by the Microsoft Corporation.
20 (The document referred to was marked
21 by the court reporter as Government Exhibit 396 for
22 identification and is attached hereto.)
23 Q. BY MR. BOIES: Do you recall preparing
24 these questions and answers, sir?
25 A. I know I was at a meeting where this
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BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 was worked on.
2 Q. And did the statements set forth here
3 reflect your views at the time?
4 A. I don't remember specifically these
5 sentences, but I have no reason to doubt this is what
6 was discussed and put into the column.
7 Q. And you understood that when this was
8 prepared and, as you put it, put into the column,
9 that it was going to be published, did you not, sir?
10 A. Yeah, the column is published.
11 Q. Where is the column published?
12 A. A number of newspapers.
13 Q. Now, when you refer here on the second
14 page, fourth line, to "winning for Microsoft a larger
15 share of the market for Internet browsers," do you
16 see that?
17 A. No.
18 Q. It's on the second page, fourth line --
19 A. Oh, you're on the second page. Let me
20 just read this.
21 Okay, go ahead.
22 Q. When you refer in here to "winning for
23 Microsoft a larger share of the market for Internet
24 browsers," do you see where you say that?
25 A. Yes, it's part of a sentence here.
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BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Q. What did you mean by "the market for
2 Internet browsers," sir?
3 A. I assume I meant usage share of
4 browsers on the World-Wide Web.
5 Q. You then go on in parens to say "An
6 Internet browser is software that lets an individual
7 roam the worlds of information available on the
8 Internet. Microsoft's browser is called the Internet
9 Explorer."
10 Do you see that?
11 A. Close paren. Yeah.
12 Q. Close paren and then close quote, since
13 I'm quoting it.
14 Did you believe that was an accurate
15 statement at the time that you made it and published
16 it?
17 A. In trying to give an explanation to the
18 broad audience that the column was aimed at, yes, I
19 thought it was a good way of describing it to that
20 audience.
21 Q. Let me ask you to look at a document
22 that's been previously marked as Government
23 Exhibit 398. The first message here is one from Brad
24 Silverberg to you and others including Mr. Maritz and
25 Mr. Allchin dated October 3, 1994 at 6:42 p.m.
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1 Do you see that?
2 A. Say again.
3 Q. The first message here is a message to
4 you and others, including Mr. Allchin and Mr. Maritz,
5 from Mr. Silverberg dated October 3, 1994, at
6 6:42 p.m., correct?
7 A. It appears to be.
8 (The document referred to was marked
9 by the court reporter as Government Exhibit 398 for
10 identification and is attached hereto.)
11 Q. BY MR. BOIES: And he references Marvel
12 and Capone. Do you see that?
13 A. Yes.
14 Q. Marvel is a code word for what became
15 MSN; is that correct?
16 A. Not the way he uses it here.
17 Q. Oh, what does Marvel refer to here?
18 A. Blackbird.
19 Q. So here Marvel refers to Blackbird.
20 And what does Capone refer to?
21 A. I think an e-mail client that was a
22 feature of Windows.
23 Q. And it also refers to Chicago.
24 A. In the next sentence.
25 Q. Next sentence of Mr. Silverberg's
658
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 message to you. What is Chicago, as you understand
2 it here?
3 A. The name for the project that resulted
4 eventually in the product Windows 95.
5 Q. And Mr. Silverberg writes you and
6 Mr. Maritz and others that "There is no one in the
7 world outside of Microsoft who will buy the argument
8 that Marvel and Capone are 'part of Chicago.'"
9 A. No, that's not --
10 Q. That's not so?
11 A. No.
12 Q. Well, let me see. He says "I will jump
13 in -- yes, we have to take them out of Marvel and
14 Capone too. There is no one in the world outside of
15 Microsoft who will buy the argument that they are
16 'part of Chicago' so get the interfaces while others
17 don't. This is an impossible sale."
18 As you read this -- do you recall
19 receiving this?
20 A. No.
21 Q. Did you ever discuss it with
22 Mr. Silverberg?
23 A. I'm not sure.
24 Q. Did you ever discuss with
25 Mr. Silverberg or anyone else what he meant by "part
659
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 of Chicago"?
2 A. I'm not sure. It's clear -- it's very
3 clear that they're not referring to what you asked
4 about.
5 Q. All right, sir. Let me ask you about
6 the third message down. That is a message from you
7 dated October 3, 1994 at 5:18 p.m. Do you see that?
8 A. Yes.
9 Q. You write in the first line "It's time
10 for a decision on ShellBrowser." Do you see --
11 A. "iShellBrowser."
12 Q. "iShellBrowser." And in the third
13 sentence you say "It's hard to know how much actual
14 market benefit iShellBrowser integration would
15 bring."
16 A. Third paragraph?
17 Q. Of your message.
18 A. Not sentence.
19 Q. Third paragraph of your message.
20 A. Right.
21 Q. First sentence.
22 A. Right.
23 Q. "It's hard to know how much actual
24 market benefit iShellBrowser integration would
25 bring." Do you see that?
660
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. I see it.
2 Q. Do you recall writing that in or about
3 October, 1994?
4 A. I don't recall the specific message. I
5 recall the general issue about the iShellBrowser
6 APIs.
7 Q. The next paragraph, the first line you
8 talk about how Microsoft is in "a real struggle
9 versus Notes." Do you see that?
10 A. Yes.
11 Q. What do you mean by "Notes" when you
12 say that Microsoft is in a real struggle against
13 notes?
14 A. I mean Notes.
15 Q. Can you explain what Notes is?
16 A. It's a product called Notes.
17 Q. Produced by whom, sir?
18 A. You can say Lotus or IBM or there's
19 actually the company who wrote it, I forget their
20 name.
21 Q. But in any event, not Microsoft;
22 correct, sir?
23 A. That's right, not Microsoft.
24 Q. And is it true that Microsoft in or
25 about October of 1994 was in a real struggle against
661
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Notes?
2 A. I think some people would say yes and
3 some people would say no.
4 Q. You said yes, though, right?
5 A. Apparently in an e-mail in 1994, I said
6 "we are in a real struggle versus Notes."
7 Q. And in the next paragraph, the fifth
8 paragraph of your message, you say "I have decided
9 that we should not publish these extensions. We
10 should wait until we have a way to do a high level of
11 integration that will be harder for the likes of
12 Notes, Wordperfect to achieve, and which will give
13 Office a real advantage."
14 Do you see that?
15 A. Yes.
16 Q. Did that reflect your views in October
17 of 1994?
18 A. That sentence taken out of context or
19 the whole e-mail?
20 Q. That sentence in the context of this
21 e-mail.
22 A. I don't think -- in the context of the
23 e-mail, I have no reason to think that it didn't.
24 Q. What I'm asking again is, fairly read
25 in its entirety, does this message from you reflect
662
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 your views at the time that you wrote it?
2 MR. HEINER: The question assumes --
3 MR. BOIES: That he wrote it.
4 MR. HEINER: Okay.
5 THE WITNESS: If you're asking about
6 the whole message, I have no reason to think I didn't
7 write that message or that it didn't reflect my
8 thinking at the time. I haven't actually read the
9 whole message, but I'll still say that.
10 Q. BY MR. BOIES: Okay. Let me ask you to
11 look at a document marked as Government Exhibit 399.
12 This purports to be a message from you to Brad
13 Silverberg with a copy to Paul Maritz and others
14 dated January 8, 1996.
15 (The document referred to was marked
16 by the court reporter as Government Exhibit 399 for
17 identification and is attached hereto.)
18 Q. BY MR. BOIES: Did you send this
19 message, sir?
20 A. I don't remember it specifically. Do
21 you want me to read it?
22 Q. If you need to to answer my questions.
23 This is on a subject of Steve Case of
24 America Online; is that correct?
25 A. Yes.
663
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Q. In the second paragraph you write that
2 Mr. Case said that he viewed Microsoft as
3 "technically behind Netscape but credible enough to
4 do a very good job." Do you see that?
5 A. Uh-huh.
6 Q. Did Mr. Case tell you that?
7 A. With respect to IE 2, the product we
8 were shipping. But later they had a chance to see
9 the work we were doing and changed that view.
10 Q. Is there a document that you're aware
11 of which reflects their changed view?
12 A. Almost certainly.
13 Q. Have you seen that document in the last
14 six months?
15 A. No.
16 Q. Do you know who that document was from?
17 A. Oh, I think -- I know there are
18 technical discussions subsequent to this where AOL
19 came away impressed with the componentization work we
20 were doing and how it was superior technically with
21 what they had seen anyplace else.
22 Q. My question right now is not what AOL's
23 view was. You told me that and I asked you if there
24 was a document that reflected that they changed their
25 position?
664
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1 A. Yes. So I should have gone on to say
2 that after they came out and saw that technology,
3 it's likely that somebody -- either in e-mail --
4 recorded their impressions at that time.
5 Q. Do you recall actually seeing such a
6 document, sir, ever?
7 A. I recall being told that they were
8 impressed that we had the best technology.
9 Q. Do you recall ever seeing a document
10 that reflected that?
11 A. I'm not sure if it was verbal or
12 e-mail, but I remember being told that after they had
13 come out and seen the componentization technology as
14 part of IE 3, they viewed it as the best technology.
15 Q. When you say verbal there, you mean
16 oral, not written down in e-mail or written memo
17 form; is that correct?
18 A. Yes.
19 Q. Let me ask you to look at a document
20 previously marked as Government Exhibit 400. The
21 second item here is a message from you to Steve
22 Ballmer, Paul Maritz, Jim Allchin, Christine Turner
23 on the subject of IBM dated October 30, 1997; is that
24 correct?
25 A. It appears to be.
665
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 (The document referred to was marked
2 by the court reporter as Government Exhibit 400 for
3 identification and is attached hereto.)
4 Q. BY MR. BOIES: Did you send this
5 message, sir?
6 A. Let me look at it.
7 I don't remember specifically, but this
8 kind of topic was being discussed, so I have no
9 reason to doubt this is a piece of e-mail I wrote.
10 Q. This relates to a conversation you had
11 with Gary Stimac, is that correct?
12 A. Not strictly.
13 Q. Does it relate in part to that?
14 A. Yes.
15 Q. And did Mr. Stimac tell you that he was
16 thinking about taking a job with IBM?
17 A. I think he did.
18 Q. And did he tell you that one of his
19 concerns was whether IBM's relationship with
20 Microsoft would be a problem?
21 A. I see that in the e-mail. I don't
22 remember it specifically.
23 Q. Do you remember people at IBM being
24 concerned about IBM's relationship with Microsoft
25 being a problem?
666
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. No.
2 Q. Do you remember Mr. Stimac telling you
3 that he was concerned about whether IBM's
4 relationship with Microsoft would be a problem either
5 here or -- or at any other time?
6 A. No, I don't remember that.
7 Q. In response to that you say that you
8 told him that "The Java religion coming out of the
9 software group is a big problem." Do you see that?
10 A. Uh-huh.
11 Q. Did you tell Mr. Stimac that?
12 A. I don't remember telling him that.
13 Q. Now, when you talk about the Java
14 religion coming out of the software group, you're
15 talking about IBM's software group; correct, sir?
16 A. I'm not sure.
17 Q. Well, this sentence immediately follows
18 Mr. Stimac purporting to be concerned about whether
19 IBM's relationship with Microsoft would be a problem
20 and immediately precedes a sentence in which you say
21 you told him that IBM refused to big anything related
22 to Backoffice.
23 A. Yeah. That doesn't relate to the IBM
24 software group.
25 Q. But it relates to IBM; correct, sir?
667
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. Yes.
2 Q. This whole paragraph relates to IBM;
3 correct, sir?
4 A. Primarily.
5 Q. So when you say that you told
6 Mr. Stimac that the Java religion coming out of the
7 software group is a big problem, do you really have
8 any doubt that you were talking about IBM's software
9 group?
10 A. Well, there was a lot of joint work
11 between IBM people and Sun's people and other
12 companies, and so it's very hard to draw a line
13 between the IBM software groups and other people's
14 software groups.
15 Q. Does that mean that it is your
16 testimony here under oath that when you refer to the
17 software group in this sentence, you don't know
18 whether you were talking about the IBM software
19 group?
20 A. I'm certainly talking about software
21 groups that IBM is at least a part of.
22 Q. You go on to say that "they continue to
23 use their PCs to distribute things against us."
24 Is the "they" that you are referring to
25 there IBM?
668
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. I think so.
2 Q. And is the "us" there Microsoft?
3 A. I think so.
4 Q. And next sentence says you told
5 Mr. Stimac that "they are dabbing in NCs in a way we
6 don't like."
7 Is the "they" there again IBM?
8 A. Apparently. I don't know what dabbing
9 is.
10 Q. I was going to ask you that.
11 The next paragraph you say, "Overall we
12 will never have the same relationship with IBM that
13 we have with Compaq, Dell and even HP because of
14 their software ambitions. I could deal with this
15 just fine if they weren't such rabid Java backers."
16 Now, when you refer in that sentence to
17 "they" as in "I could deal with this just fine if
18 they weren't such rabid Java backers," you're again
19 talking about IBM; correct?
20 A. Parts of IBM. It's important to
21 distinguish different groups in IBM.
22 Q. And the different groups in IBM would
23 include perhaps, among others, the software group as
24 one and the PC group as another; correct?
25 A. That's right.
669
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Q. At the end of that you say that you are
2 willing to take some risk in improving the
3 relationship and you think that steps ought to be
4 taken to approach them, and you end by saying "We
5 should position it as let's do some things that are
6 good for both of us but which require some of the
7 rhetoric to be lowered on both sides. On their side
8 I mean Java and NC."
9 And "their side" you're talking about
10 IBM's side?
11 A. I think so.
12 Q. And what you're saying is that you want
13 a message conveyed to IBM that in order to improve
14 the relationship, you want some of their rhetoric
15 lowered on Java and NC?
16 A. No.
17 Q. No? Did you want IBM to lower their
18 rhetoric on Java?
19 A. I actually explain in this message that
20 I thought the rhetoric was actually hurting IBM
21 itself, independent of Microsoft.
22 Q. Did you think it was hurting Microsoft?
23 A. I wasn't sure. In terms of specifics,
24 I wasn't sure.
25 Q. When you say that you could deal with
670
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 IBM's relationship just fine if IBM wasn't such rabid
2 Java backers, weren't you saying that you thought
3 that IBM's rabid backing of Java was bad for
4 Microsoft?
5 A. I know at this time we thought some of
6 the claims around Java were just plain false and
7 weren't doing customers any favors by leading them
8 down a belief that certain things were solved that
9 were not solved.
10 Q. My question, Mr. Gates, is in October
11 of 1997, did you believe that what you refer to here
12 as IBM's rabid backing of Java was something that was
13 hurting Microsoft?
14 A. I can't point to any particular hurting
15 that it was doing. We didn't think it was accurate
16 in terms of what technically could be achieved with
17 Java.
18 Q. Let me put the question this way. In
19 or about October of 1997, did you want to stop IBM
20 from being what you refer to here as a rabid Java
21 backer?
22 A. We thought some of the rabidness was
23 hurting IBM as well as the industry as a whole.
24 Q. Did you believe it was hurting
25 Microsoft, or were you just doing this as sort of a
671
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 public spirited company to try to help IBM from
2 hurting itself?
3 A. I can't point to any particular damage,
4 but we certainly would have preferred if the more
5 extreme statements we didn't think were true, if they
6 weren't pushing those forward.
7 Q. Mr. Gates, let me put it this way. In
8 October of 1997, were you trying to get IBM to reduce
9 its public support for Java?
10 A. I say in here that under some
11 circumstance the rhetoric should be lowered on both
12 sides and that I think that's -- you know, that makes
13 sense in certain circumstances.
14 Q. I don't think you actually say in
15 certain circumstances, do you, sir? You may have
16 meant that, I'm not saying you didn't mean it, I'm
17 just saying those words don't appear here, do they?
18 A. No. It's all about "I am willing to
19 take some risk in improving the relationship and
20 think you should approach them on steps for
21 improvement." It's in that vein that I talk about
22 rhetoric being lowered on both sides.
23 Q. And then you go on to say that you mean
24 on IBM's side they lower the rhetoric on Java and NC;
25 correct?
672
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. The rhetoric.
2 Q. And by rhetoric, you were talking about
3 public rhetoric?
4 A. Definitely public rhetoric.
5 Q. And is it fair to say in October of
6 1997 you were trying to get IBM to reduce its public
7 rhetoric in support of Java?
8 A. I don't know what you mean "trying." I
9 talk about a circumstance in which both sides would
10 lower their rhetoric.
11 Q. You were offering to lower your
12 rhetoric if they would lower their rhetoric; is that
13 fair? Isn't that what you say right here?
14 A. In the context -- this is about
15 improving the overall relationship, which is not
16 focused on the rhetoric. It says in the context of
17 that improved relationship, I think both of us should
18 lower our rhetoric.
19 Q. Indeed you say that the improved
20 relationship will "require some of the rhetoric to be
21 lowered on both sides."
22 A. That's a statement about human feelings
23 that if our rhetoric is so high, it will be hard for
24 them to do their side of improving the relationship
25 and vice-versa.
673
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Q. You then go on to say on their side,
2 IBM's side, you mean Java and NC.
3 A. That's part of the rhetoric I'm
4 referring to.
5 Q. Part of their rhetoric?
6 A. Yes.
7 Q. That you wanted them to lower; isn't
8 that true?
9 A. No.
10 Q. Okay. Let me ask you to look at
11 Exhibit 401. This is a message from you to
12 Mr. Ballmer and Mr. Chase with a copy to Mr. Maritz
13 and some other people also given copies dated
14 August 15, 1997 at 4:07 p.m. on the subject of IBM
15 and Netscape; correct?
16 A. Uh-huh
17 (The document referred to was marked
18 by the court reporter as Government Exhibit 401 for
19 identification and is attached hereto.)
20 Q. BY MR. BOIES: And you type in here
21 "Importance: High."
22 A. No.
23 Q. No?
24 A. No, I didn't type that.
25 Q. Who typed in "High"?
674
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. A computer.
2 Q. A computer. Why did the computer type
3 in "High"?
4 A. It's an attribute of the e-mail.
5 Q. And who set the attribute of the
6 e-mail?
7 A. Usually the sender sends that
8 attribute.
9 Q. Who is the sender here, Mr. Gates?
10 A. In this case it appears I'm the
11 sender.
12 Q. Yes. And so you're the one who set the
13 high designation of importance, right, sir?
14 A. It appears I did that. I don't
15 remember doing that specifically.
16 Q. Right. Now, did you send this message
17 on or about August 15, 1997?
18 A. I don't remember doing so.
19 Q. Now, you say that you had a meeting
20 with Jeff Papows; is that correct?
21 A. I did have a meeting with Jeff Papows,
22 yes.
23 Q. And the third paragraph from the bottom
24 you write "He doesn't want anything attributed to me
25 or he will get in trouble, but he says we can just
675
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 refer to all the rumors on the Web about what kind of
2 deal is being done between Netscape and IBM."
3 Do you see that?
4 A. I do.
5 Q. At this point, that is, in or about
6 August of 1997, were you aware prior to your
7 conversation with Mr. Papows, that there was a
8 prospect of a deal between Netscape and IBM?
9 A. There had been rumors of that, so yes.
10 In fact, there had been deals. There was rumors of a
11 new deal.
12 Q. Let me ask you to look next at a
13 document marked as Exhibit 402. The second message
14 on this exhibit is a message from you to Mr. Ballmer
15 and Mr. Maritz dated August 4, 1997 at 5:17 p.m.;
16 correct?
17 A. It appears to be, yes.
18 Q. Did you send this, Mr. Gates?
19 A. I don't remember sending it, but I have
20 no reason to think that I didn't.
21 (The document referred to was marked
22 by the court reporter as Government Exhibit 402 for
23 identification and is attached hereto.)
24 Q. BY MR. BOIES: Okay. Let me ask you to
25 look at Exhibit 403.
676
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 MR. HEINER: What was this last one?
2 MR. BOIES: 403. 402 was the one just
3 before this one. This one is 403.
4 MR. HEINER: Right, okay.
5 Q. BY MR. BOIES: This is a message dated
6 February 16, 1998, from Laura Jennings to you and a
7 number of other people, including Mr. Allchin,
8 Mr. Ballmer and Mr. Maritz.
9 Do you see that?
10 A. Yes.
11 (The document referred to was marked
12 by the court reporter as Government Exhibit 403 for
13 identification and is attached hereto.)
14 Q. BY MR. BOIES: Did you receive this
15 e-mail in or about February of 1998, sir?
16 A. I don't remember receiving it, but I
17 have no reason to think that I didn't.
18 Q. Let me take you down to the next to
19 last paragraph on the first page. The first sentence
20 says "One potential concern: Brad mentioned to me
21 late Friday that there may be new concerns about our
22 plan to make Start a requirement for being in the IE
23 referral server, or at least there may be timing
24 issues related to your appearance at Senator Hatch's
25 hearings."
677
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Do you see that?
2 A. Yes.
3 Q. Do you recall a discussion of this in
4 or about February of 1998?
5 A. Not with Laura. But on the general
6 subject, yes.
7 Q. Did Microsoft in fact make Start
8 "a requirement for being in the IE referral server"?
9 A. No, I don't think we did.
10 Q. Why not?
11 A. I think the PR group thought it would
12 be controversial and we didn't see the benefit as
13 being worth having that controversy.
14 Q. Let me ask you to look at a document
15 that has been marked as Exhibit 404. The first
16 message here is a message to you and Mr. Ballmer with
17 copies to other people dated March 23, 1994 at
18 9:13 a.m. on the subject of "IBM helps Lotus."
19 (The document referred to was marked
20 by the court reporter as Government Exhibit 404 for
21 identification and is attached hereto.)
22 Q. BY MR. BOIES: Did you receive this
23 message in or about March of 1994, sir?
24 A. I don't know.
25 Q. The message begins by describing how
678
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 IBM is helping in the selling of Notes. Do you see
2 that?
3 A. Yes.
4 Q. And at the end Mr. Kempin, who is the
5 author of this, says "I am unsure if we need to see
6 this as an organizational issue or an OEM issue."
7 Do you know what he means by that?
8 A. What's he talking about?
9 Q. Do you know what he is talking about?
10 A. No.
11 Q. He then says "I am willing to do
12 whatever it takes to kick them out, but strongly
13 believe we need a WW hit team to attack IBM as a
14 large account, whereby the OEM relationship should be
15 used to apply some pressure."
16 Do you see that?
17 A. Uh-huh.
18 Q. You have to say yes for the record.
19 A. I see it.
20 Q. Do you know what Mr. Kempin means when
21 he writes to you about a "WW hit team"?
22 A. He means a salesperson.
23 Q. If he means a salesperson, why doesn't
24 he say salesperson, sir?
25 A. It clearly means salesperson.
679
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 Q. Are salespeople within Microsoft
2 commonly referred to as WW hit teams?
3 A. If they're world-wide and if they're
4 trying to sell to somebody who is a large account,
5 you bet.
6 Q. And when your salespeople go out to
7 sell large accounts, are they commonly referred to as
8 needing a "WW hit team to attack IBM as a large
9 account, whereby the OEM relationship should be used
10 to apply some pressure"?
11 A. No.
12 Q. Did you say no?
13 A. I said no.
14 Q. Do you remember Mr. Kempin telling you
15 in March of 1994 that he was proposing that the OEM
16 relationship with IBM should be used to apply some
17 pressure to stop IBM from promoting the sale of
18 Notes?
19 A. No.
20 Q. Do you recall anyone ever telling you
21 that, sir?
22 A. No.
23 Q. Did you ever respond to Mr. Kempin and
24 tell him that no, you didn't think that Microsoft
25 ought to apply OEM pressure to IBM?
680
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 A. I don't understand your question.
2 Q. Do you understand that Mr. Kempin is
3 here proposing to you that Microsoft apply OEM
4 pressure to IBM?
5 A. It doesn't say OEM pressure.
6 Q. I didn't say it said it, sir. It says
7 he is proposing that the OEM relationship should be
8 used to apply some pressure on IBM; correct, sir?
9 A. You're asking me to read it?
10 Q. I'm asking you if that's what you
11 understand him to be saying.
12 A. What?
13 Q. That he is proposing that the OEM
14 relationship should be used by Microsoft to apply
15 some pressure on IBM.
16 A. No, I don't think he is proposing
17 anything.
18 Q. You don't think he is proposing
19 anything. When he says that he strongly believes
20 that there needs to be a "WW hit team to attack IBM
21 as a large account, whereby the OEM relationship
22 should be used to apply some pressure," you don't
23 think that he is suggesting that Microsoft apply
24 pressure on IBM?
25 A. I don't think he is making a proposal.
681
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 It is one of the things he mentions, but it's not a
2 proposal.
3 Q. Now, Mr. Kempin's message was a
4 response to a message from you to Mr. Kempin and
5 Mr. Ballmer dated March 20, 1994 at 11:29 p.m.,
6 correct?
7 A. It appears to be, yes.
8 Q. And you write him in the first
9 paragraph "This is one topic I really want to try to
10 get to the bottom of. Why does IBM help Lotus so
11 much? Is there anything we can do about this?
12 Should it become an issue in our global relationship
13 with IBM?"
14 Did you send this message to Mr. Kempin
15 and Mr. Ballmer in March, 1994?
16 A. It appears I did. I mean that's part
17 of the message I sent, it appears.
18 Q. Now, when Mr. Kempin replied saying
19 "We need a WW hit team to attack IBM as a large
20 account, whereby the OEM relationship should be used
21 to apply some pressure," did you understand him to be
22 responding to your questions?
23 A. I don't remember receiving his mail.
24 Q. All right.
25 I have no more questions at this time.
682
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 It's 3:15.
2 VIDEOTAPE OPERATOR: The time is
3 3:16 p.m. We're going off the record.
4 * * *
5
6
7
8
9 I hereby declare, under penalty of
10 perjury, that the foregoing answers are true
11 and correct to the best of my knowledge and
12 belief.
13 EXECUTED AT_____________, WASHINGTON,
14 this_________day of________________, 1998.
15
16 _______________________________
17 BILL GATES
18
19
20
21
22
23
24
25
683
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
1 STATE OF CALIFORNIA )
) ss.
2 COUNTY OF LOS ANGELES )
3
4 I, Kathleen E. Barney, CSR 5698, a
5 Certified Shorthand Reporter in and for the State of
6 California, do hereby certify:
7 That, prior to being examined, the
8 witness named in the foregoing deposition was by me
9 duly sworn to testify the truth, the whole truth, and
10 nothing but the truth;
11 That said deposition was taken down by
12 me in shorthand at the time and place named therein
13 and was thereafter reduced to typewriting under my
14 supervision; that this transcript is a true record of
15 the testimony given by the witness and contains a
16 full, true and correct record of the proceedings
17 which took place at the time and place set forth in
18 the caption hereto as shown by my original
19 stenographic notes.
20 I further certify that I have no
21 interest in the event of the action.
22
EXECUTED this_______day of____________,
23 1998.
24 ______________________________
25 Kathleen E. Barney, CSR #5698
684
BARNEY, UNGERMANN & ASSOCIATES 888-326-5900
Released Pursuant to 15 U.S.C. §30
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