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Caldera/Microsoft case gets ugly
--------------------------------------------------------- By Mary Jo Foley, Sm@rtReseller
September 29, 1998 12:24 pm ET

Microsoft seeks to delay Caldera case

The Caldera Inc. vs. Microsoft Corp. antitrust case heated up Monday when Microsoft requested that Caldera be slapped with a contempt order, claiming it is illegally sharing confidential information safeguarded by protective order.

But the request for a contempt citation didn't stop Caldera from pursuing its strategy of seeking to use the deposition of a former Microsoft official as fodder for its case. Caldera officials said that Salt Lake City federal court magistrate Judge Ronald Boyce granted Caldera the right to attempt to substantiate the testimony of former Microsoft Germany account manager Stefanie Reichel. According to sources, Reichel's deposition touched on the destruction and withholding of evidence that could be used to prove Caldera's allegations of anticompetitive behavior in the DOS marketplace.

"Reichel's deposition alleges some pretty serious things," said Caldera CEO Bryan Sparks, who attended yesterday's case-management hearing in the case. "Our lawyers said in court yesterday that in her deposition Stefanie acknowledges the destruction of evidence that could have been used in the original [U.S. Department of Justice] vs. Microsoft case. They also said she didn't produce all the documents requested. She alluded to documents we've never even seen.

"If Microsoft did destroy documents that would have further proven the original U.S. case against Microsoft, this could mean the government entered into the original [1995] consent decree under false pretenses," Sparks continued.

But Microsoft officials offered a different take on yesterday's hearing.

"The judge denied Caldera's motion to reclassify the deposition, and it's still a question how their legal team can use that deposition," said corporate spokesman Jim Cullinan, who also attended yesterday's hearing. "For 30 days, these depositions are considered highly confidential and the 30 days [since Reichel's deposition was taken by Caldera's lawyers] still isn't up yet."

Cullinan declined to comment on the particulars addressed in Reichel's deposition. But sources close to the case said Reichel acknowledges deleting e-mail in her deposition, which was taken by Caldera's lawyers in late August. Some sources say the e-mail messages in question addressed per-processor licensing arrangements, an area Caldera is investigating as part of the antitrust suit it leveled against Microsoft in 1996. But other sources say the deleted e-mails were simply "aggressive" comments on Microsoft's plans to thwart its competitors.

Separately, Judge Boyce ruled during yesterday's hearing against Microsoft's request to extend the trial date by 120 days, retaining the current June 1999 start date. The judge did, however, grant Microsoft an additional 30 days to depose remaining witnesses.

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