DOJ, MS Wary of Appeals Court Use of Tutor

The US government and Microsoft share reservations over the use of an independent computer expert by the U.S. Court of Appeals and warned that it might be almost impossible for him to maintain neutrality in a minefield of disputed technical issues.

The appeals court wants 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 sifts through the technical issues raised in the antitrust case. Legal experts say the move is well-intended and makes sense. But in papers filed yesterday with the court, Microsoft and the government each raised concerns.

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 government said Hites will 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, but also any background material "that bears closely on disputed issues," according to the U.S. Department of Justice and 19 states in their joint brief.

Microsoft, however, went a step further and questioned Hites' neutrality. Hites' resume, provided 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," said Microsoft. A Sun executive, James Gosling, testified for the government during the trial.

But even strong supporters of the government's case have concerns about the use of any expert witness.

"I'm concerned that the judge 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 becomes, in effect, "an eighth judge," he said.

But legal experts say a tutor could help 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 and lawyer at Jones Day Reavis & Pogue in Washington. "Within the bounds of getting the thing done, the more input [the appeals judges] get, maybe the better."

The biggest challenge Hites and the judges face "is to keep these technology definitions objective and benign," said Hillard Sterling, an antitrust expert at Gordon & Glickson PC in Chicago. "This gives the appellate judges a critical opportunity to have give-and-take on clarifying the technology products and the way they work together."

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