Court Caves in on Idea of Tutor for Microsoft Case

Gives up on plan to hire computer expert after government, Microsoft air concerns


The U.S Court of Appeals last week dropped the idea of hiring a computer expert to provide basic computer instruction to the court in preparation for hearing an appeal of the Microsoft Corp. antitrust case. The decision came after the federal government and Microsoft warned that it might be almost impossible for the expert to maintain neutrality in a minefield of disputed technical issues.

The court evidently agreed with some of the concerns. In a one-sentence statement posted on its Web site late last week, it said that "upon consideration of the parties' responses . . . the court has decided not to proceed with the review session."

Issues Raised

The appeals court earlier this month said it wanted to use Michael H. Hites, chief technology officer at the Illinois Institute of Technology in Chicago, as a tutor on basic computing principles as it sifts through the technical issues raised by the case against Microsoft. Legal experts said the move was well-intentioned and made sense. But in papers filed last week with the court, Microsoft and the government each raised concerns.

Microsoft said Hites could have easily crossed into contentious legal areas with seemingly simple explanations. The parties have "fundamental disagreements over issues that might appear to an uninitiated observer to be uncontroversial, such as the proper definition of a personal computer operating system, creating a risk that the review session will inadvertently stray into disputed topics," the company said in its brief.

Similarly, Hites would have had to avoid explicit discussion of issues raised in Microsoft's appeal of U.S. District Court Judge Thomas Penfield Jackson's ruling that the company broke antitrust law. He also would have had to steer away from background material "that bears closely on disputed issues," according to the U.S. Department of Justice (DOJ) and 19 states in their joint brief.

Microsoft, however, went a step further and questioned Hites' neutrality. His resume, provided by the court, cites "a June 2000 project for Sun Microsystems entitled 'Unix Training in Community Development.' The nature and extent of financial support provided by Sun Microsystems for this project aren't disclosed," Microsoft said in its brief. James Gosling, a Sun executive, testified for the government during the trial.

But even strong supporters of the government's case said they were uncertain about the use of any expert witness.

"I'm concerned that the judge will rely too heavily on him; he is not a substitution for 77 days of testimony," said Ken Wasch, president of the Software & Information Industry Association, a Washington-based trade group that's backing the DOJ in its effort to break up Microsoft. Hites' influence on technology matters could have been such that he might have become, in effect, "an eighth judge," Wasch said.

But legal experts say a tutor could help the court. "This is an area where there are a lot of concepts for which there is no definitive text," said Joe Sims, a former DOJ antitrust official and lawyer at Cleveland-based Jones, Day, Reavis & Pogue. "Within the bounds of getting the thing done, the more input [the appeals judges] get, maybe the better."

The biggest challenge that court advisers and the judges face "is to keep these technology definitions objective and benign," said Hillard Sterling, an antitrust expert at Gordon & Glickson LLC in Chicago. "This gives the appellate judges a critical opportunity to have give-and-take on clarifying the technology products and the way they work together."

Copyright © 2000 IDG Communications, Inc.

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