Update: Court drops plan for computer expert in Microsoft case

The U.S. Court of Appeals today said it was dropping the idea of hiring a computer expert to provide a basic education on technology as part of its review of the antitrust case against Microsoft Corp.

The court's decision came just one day after the government and Microsoft both raised concerns about the proposal to hold a special hearing in the case on Nov. 14 (see story). In briefs filed late yesterday, both sides said they shared reservations about the planned use of an independent computer expert by the court, warning that it might be almost impossible for him to maintain neutrality in a minefield of disputed technical issues related to the antitrust case against the software vendor.

The appeals-court judges evidently agreed with some of the concerns. In a one-sentence statement posted on its Web site this afternoon, the court said, "Upon consideration of the parties' responses, the Court has decided not to proceed with the review session."

The appeals court last week 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 sifted through the technical issues raised by the case against Microsoft (see story). Legal experts said the move was well-intended and made sense. But Microsoft and the U.S. Department of Justice saw things differently.

Microsoft, for instance, said Hites could easily cross 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, the DOJ said in a joint brief with the 19 states involved in the case that Hites would have to avoid not only explicit discussion of the issues being raised in Microsoft's appeal of U.S. District Court Judge Thomas Penfield Jackson's ruling that the company broke antitrust law and should be broken up, but also any background material "that bears closely on disputed issues."

Microsoft went a step further and questioned Hites' neutrality. Its brief noted that Hites' resume, which was posted 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." A Sun executive, James Gosling, testified for the government during the trial before Judge Jackson.

Even strong supporters of the government's case said they weren't sold on the idea of using an expert witness such as Hites.

"I'm concerned that the judges 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 be such that he would have become, in effect, "an eighth judge," Wasch said.

But some legal experts said a technology tutor could have helped the court. "This is an area where there are lot of concepts for which there is no definitive text," said Joe Sims, a former DOJ antitrust official who's now a lawyer at Jones Day Reavis & Pogue in Washington. "Within the bounds of getting the thing done, the more input [the appeals-court judges] get, maybe the better."

The biggest challenge Hites and the judges would have faced was trying "to keep these technology definitions objective and benign," said Hillard Sterling, an antitrust expert at Gordon & Glickson PC in Chicago. But, he added, the review session would have given the appeals panel "a critical opportunity to have give-and-take on clarifying" the technology issues raised by the case.

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