Caldera unlocks Microsoft evidence

For years, Caldera Inc. has boasted of its rich store of 1.
Written by Mary Jo Foley, Senior Contributing Editor

For years, Caldera Inc. has boasted of its rich store of 1.5 million pages of documents that it has collected in its information-gathering process for its antitrust trial against Microsoft Corp. But because Microsoft has succeeding in getting nearly every document in the Caldera vs. Microsoft case sealed under protective order, only bits and pieces have been made public to date.

With Wednesday's publication of its consolidated statement of facts, though, the company has lifted the lid on some of the evidence it plans to use against Microsoft when its case goes to trial next January.

The consolidated statement of facts is a document that Caldera plans to use as its foundation for its evidence and claims, as it releases its responses to the nine motions for partial summary judgment filed by Microsoft in the case. Hearings on these nine motions are scheduled throughout May and June.

As is the case in the U.S. Department of Justice antitrust trial, Microsoft's own internal e-mail messages are likely to be used against it in the Caldera case. In the DOJ case, Microsoft executives were quoted threatening to choke off Netscape Communications Corp.'s air supply. In the Caldera case, Microsoft used a different metaphor to express its intentions to eliminate Novell Inc.'s DR-DOS (a product now owned by Caldera) as a competitive threat to Microsoft's own MS-DOS.

"This really isn't that hard. If you're going to kill someone there isn't much reason to get all worked up about it and angry -- you just pull the trigger. Angry discussions before hand are a waste of time. We need to smile at Novell while we pull the trigger," read a Sept. 1993 message from Microsoft senior vice president Jim Allchin, designated Caldera exhibit 383. Caldera first sued Microsoft for alleged anticompetitive behaviour in 1996, claiming that Microsoft had unfairly monopolized the DOS market. The case was expanded to include the alleged tying of DOS and Windows 95 in February 1998.

As was noted in a number of DOJ exhibits, Microsoft had no qualms about using its market power to hurt the competition. Various Caldera exhibits purport to show how Microsoft excluded Novell from beta versions of Chicago, a.k.a. Windows 95, resulting in Novell's being unable to test for DR-DOS compatibility. Further, Microsoft "extorted onerous NDAs [nondisclosure agreements] that would block independent developers from providing development feedback to Novell for three years if they agreed to be a [Windows 95] beta site," according to another Caldera exhibit.

Microsoft used the threat of DR-DOS/MS-DOS incompatibility as a tactic to spread fear, uncertainty and doubt regarding DR-DOS' future, claims Caldera in its statement of facts. Besides including in early Windows 3.1 releases rogue error messages that suggested incompatibilities, Microsoft went so far as to distribute beta copies of Windows that actually were incompatible to selected testers in the press, Caldera claims.

Public relations tactics were brought to bear, as well. As noted in another Caldera exhibit, Microsoft executive Mike Murray suggested that Microsoft attempt to "lock up" the LDS Church and Brigham Young University as 100 percent Microsoft accounts. "While this [LDS Church] may not be Novell's or WP's [WordPerfect's] largest account, it is certainly an emotionally and psychologically important account. Were we to own this account, we would inflict an incredible amount of FUD on the new Novell/WP," noted a Microsoft email message cited in the Caldera statement of facts document.

In recent months, Caldera's attorneys have intensified their campaign to be allowed to make public exhibits and other case information. Caldera filed its consolidated facts document under seal, but requested that it be opened up -- a battle it won as of today. Caldera also has requested that each of its summary judgment statements be made public, as well. "None of this stuff is the Coke formula," says Ralph Palumbo, an attorney with one of Caldera's legal firms, Summit Law Group PLLC, based in Seattle.

Microsoft, for its part, is calling Caldera's consolidated facts document "188 pages of fiction," in the words of corporate spokesman Jim Cullinan. "This is Caldera's attempt to rewrite the whole history of the software industry. It's one man -- [Novell founder] Ray Noorda -- trying to blame Microsoft for his company's business decisions. It's a blatant use of out of context snippets and excerpts trying to piece together a really feeble case at this point."

"I guess we are trying to rewrite history," responds Caldera CEO Bryan Sparks. "Microsoft wanted to give its spin of how it got so successful. Now we want to give our version."

Take me to the DoJ/Microsoft page.

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