The Department of Justice's Antitrust Division late Monday responded to Microsoft Corp.'s legal motion to stop a hearing on its antitrust case before an independent third party "special master," saying the case should proceed because the company had failed to prove any bias on the man's part.
The so-called special master, Harvard University professor Lawrence Lessig, was appointed to perform a fact-finding role in the government's legal action against the software behemoth. The DOJ claims Microsoft is guilty of anticompetitive practices by bundling its Web browser with its computer operating systems, but Microsoft has argued that doing so simply makes it easier for customers to get onto the Internet.
While Microsoft objected to Lessig's appointment on the grounds that he was put on the case without the company's first having an opportunity "to make an informed decision as to whether Professor Lessig is a suitable candidate," the government responded in a court filing that the company had no right to choose the special master.
"Just as a judge should not be recused on the basis of innuendo or the preferences of a particular party, a special master should not be disqualified on such grounds," DOJ officials said in Monday's brief. However, the company "remains free to file a motion to disqualify [Lessig] on the basis of bias," the brief states.
Microsoft did claim in its earlier filing that Lessig had "preconceived notions" about the company and about "the government's proper role in the development of software products," based upon an E-mail exchange between Lessig; Eric Bradley, a senior systems administrator at Netscape Communications Corp.; and Peter Harter, Netscape's public policy counsel.
In the exchange, released by the DOJ as part of the brief, Lessig writes:
"OK, now this is making me really angry ... please tell me whether this is true. When I installed Internet Explorer 3.0 on my Mac system ... the next time I went into Netscape, all my bookmarks screwed up. Did IE do this?"
The issue will be decided by an appeals court.