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Microsoft's Ballmer ordered to testify in 'Vista Capable' suit

Judge gives CEO 30 days to answer lawyers' questions

November 22, 2008 12:00 PM ET

Computerworld - A federal judge on Friday ordered Microsoft CEO Steve Ballmer to testify in the "Vista Capable" class-action lawsuit, rejecting the company's contention that Ballmer knew nothing about loosening hardware requirements for the marketing program.

U.S. District Court Judge Marsha Pechman said that Ballmer must meet with the plaintiffs' lawyers within 30 days, and limited the deposition to three hours.

"We will, of course, comply with the court's order," company spokesman David Bowermaster said in an e-mail Friday night.

Last month, Microsoft Corp. tried to block Ballmer's deposition by arguing that he had no unique knowledge of the Vista Capable program, which the company ran in 2006 to tout then-current PCs as being able to run the operating system when it was later released.

In a declaration, Ballmer echoed that stance. "I was not involved in any of the operational decisions about the Windows Vista Capable program," he said. "I was not involved in establishing the requirements computers must satisfy to qualify for the Windows Vista Capable program. I was not involved in formulating any marketing strategy or any public messaging surrounding the Windows Vista Capable program."

Instead, Microsoft said that former executives Jim Allchin and Will Poole, who left the company in January 2007 and September 2008, respectively, were the most involved in the decisions about Vista Capable. Microsoft's spokesman repeated that assertion Friday. "Mr. Ballmer's knowledge about the Windows Vista Capable program comes from the executives he empowered to run the program and make decisions, and two of those executives already testified in this case," said Bowermaster.

For his part, Ballmer said in his October declaration that all he knew about Vista Capable was what Allchin and Poole had told him, and admitted only to "brief discussions about technical requirements and timing" for the marketing effort with high-level executives at partners such as Intel Corp.

It was the conversation with Intel that the plaintiffs' lawyers were most interested in. Their October filing noted that Ballmer had spoken to Paul Otellini, Intel's CEO, in late January 2006, at about the same time that Microsoft relaxed the rules to allow PCs equipped with Intel's older, less powerful 915 integrated chip set to qualify for the program. They asked Pechman to force Ballmer's testimony so that they could get him on the record about his conversation with Otellini and executives at other companies, including Hewlett-Packard Co. CEO Mark Hurd, regarding Vista Capable.

"Plaintiffs have met their burden in demonstrating Mr. Ballmer may have relevant, unique personal knowledge of relevant facts," Pechman wrote in her order.

In particular, she continued, Ballmer had acknowledged that he was unsure whether Poole, who admitted in his own deposition that he made the decision to change Vista Capable's requirements, had resolved the problem with Intel. "In the court's view, this is sufficient basis to justify the deposition," Pechman said.

According to Microsoft, Ballmer has been deposed on "a few prior occasions" in other lawsuits.

The case, which started in April 2007, has become best known for the disclosure of insider e-mails that have showed how Microsoft executives argued over accommodating Intel and worried how Vista would stack up against Apple's Mac OS X.

On Thursday, Microsoft asked Pechman to dismiss the charges. Currently, the case is slated to go to trial next April.

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