DOJ: Microsoft Wants to Change Ground Rules It Helped to Lay

The U.S. Department of Justice yesterday told the court hearing its antitrust case against Microsoft Corp. that a motion filed July 31 by the software giant unfairly seeks to change the pretrial ground rules to which it had already agreed.

The U.S. Department of Justice yesterday told the court hearing its antitrust case against Microsoft Corp. that a motion filed July 31 by the software giant unfairly seeks to change the pretrial ground rules to which it had already agreed.

"Microsoft's motion would dramatically change -- not just in the middle of the game but quite near the end of it -- the rules upon which dozens of third parties have relied in producing some of their most sensitive business information to Microsoft," reads the document filed yesterday with the U.S. District Court by the DOJ and the group of 20 U.S. states pressing the case against Microsoft.

Attorneys for the government and the software company will face off in court today over disagreements about how they should proceed in the evidence-gathering stage prior to trial.

In late May, both sides agreed to a protective order which governs how company confidential information will be handled. Under the terms of the order, third-party companies can designate certain information as highly confidential, so that only Microsoft's outside law firm, not its internal counsel, can view the information. On July 31, Microsoft filed a motion asking that its internal legal staff be allowed to look at some of this information, according to a representative of Microsoft's public relations agency.

In yesterday's filing, the government claims that more than 50 third-party companies have, under the terms of the protective order, produced confidential information at its request. Now, Microsoft is asking the court to "essentially strip away the protection upon which third parties relied in producing their most sensitive, 'highly confidential' documents," the government's filing said.

None of the third parties that have already provided confidential information have found it necessary to apply to the court for special or additional protection beyond the various levels already provided by the order, the government said, in requesting that Microsoft's motion be denied.

"Having by its express promises lulled third parties into producing their most sensitive documents, Microsoft should not now be permitted, under the guise of litigation conveniences that were foreseeable at the time of those promises, to rewrite the rules governing confidentiality," the filing said.

Yesterday's government filing can be found on the Web at http://www.usdoj.gov/atr/cases/f1800/1846.htm/.

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