‘Vista Capable’ lawyers want Microsoft CEO to give deposition

Lawyers for the plaintiffs in the Vista Capable class-action lawsuit want to grill Microsoft CEO Steve Ballmer for three hours to find out what he said to top executives at Intel Corp., Hewlett-Packard Co. and Best Buy Co. Inc. when they complained about the marketing program and its after effects, court documents unsealed Wednesday show.

According to documents the plaintiffs obtained from Microsoft, Ballmer talked with Paul Otellini, the CEO of Intel, and presumably with Mark Hurd, the chief executive of HP, about Vista Capable concerns.

Hurd had e-mailed Ballmer on Feb. 6, 2007, just days after Vista launched, to tell him, “Our call lines are being overrun” with customers complaining about troubles upgrading to Vista. “I’m sure you’re aware of this,” Hurd added in the e-mail, which was quoted in a motion by the plaintiffs.

But much of the motion – which opposed Microsoft’s request last month to block the plaintiffs from deposing Ballmer – was given over to discussion of the telephone conversation Ballmer had with Otellini in late January 2006, during the time that Intel was up in arms over the Vista Capable campaign and a requirement that would have excluded PCs using the company’s 915 integrated graphics chipset.

“Despite the near panic atmosphere within Intel at the time, Microsoft would have the court believe that the telephone call between CEO Paul Otellini and CEO Steve Ballmer amounted to nothing more than a ‘courtesy call,'” the motion said. “But this was not a spur-of-the-moment interaction between the two CEOs. Mr. Otellini had been planning the call for a week or more and insisted on making it happen to ‘close the deal.'”

The plaintiffs’ lawyers argued that Ballmer’s testimony was crucial to their clients’ case.

“What did Mr. Otellini say? Why had the issues escalated so far? How did Mr. Ballmer react?” the motion asked. “The only way for plaintiffs to know the answers to these and other questions is to ask the participants on the call.”

Microsoft has asked U.S. District Court Judge Marsha Pechman to block the plaintiffs’ attempt to take Ballmer’s testimony. In an October filing, Ballmer claimed, “I do not have any unique knowledge of, nor did I have any unique involvement in any decisions regarding the Windows Vista Capable program.”

The plaintiffs’ lawyers feel otherwise. “Mr. Ballmer’s connection to the Vista Capable program is not limited to a single — albeit significant — telephone call with Intel’s CEO,” their motion read. “Mr. Ballmer was an active participant before, during and after the program.”

According to the motion, other meetings were scheduled between Ballmer and major Microsoft partners. Executives at the Best Buy retail chain, for example, asked that their concerns over the Express Upgrade program — an offer that gave PC buyers free or discounted upgrades to Vista — be bumped up “to a senior level.” A meeting was later scheduled between Best Buy’s vice president Ron Boire and Ballmer.

The plaintiffs’ lawyers said that they had found no record in the documents Microsoft provided of Ballmer’s response, if any, to the complaint e-mailed by HP’s CEO. “Presumably the two CEOs had a telephone conversation,” the motion speculated.

Numerous unsealed e-mails, however, attest to the seriousness Ballmer gave Hurd’s query.

“What is up who is fixing,” Ballmer asked in a follow-up message the next day to some of his subordinates, including Mike Sievert and Scott Di Valerio, two one-time Microsoft vice presidents who were then in charge of Windows marketing and the company’s OEM group, respectively. “I replied with apologies to todd [bradley] and mark [hurd] but should send them a sense of the fix asap.”

The plaintiffs’ lawyers said they would accommodate Ballmer’s schedule if granted the deposition, promised to limit it to three hours and suggested that it start early in the day. “Or we can do it at the end of the day if he prefers. Or on the weekend,” they said in their motion.
In an earlier filing with the federal court, Microsoft had said that Ballmer’s schedule didn’t have a day free for a deposition prior to a Nov. 14 cut-off. Then, Microsoft’s attorneys said, their counterparts had asked that Ballmer set aside a full day for the testimony.

“Microsoft wrongly views Mr. Ballmer’s ‘know nothing’ declaration as a ‘get out of deposition free card,'” the plaintiffs’ lawyers said, as they wrapped up their argument. “Putting aside issues of credibility (Mr. Ballmer’s declaration versus the documents), his desire to avoid taking responsibility in and itself is telling.”

The lawsuit, which began in April 2007 and was granted class-action status in February 2008, claims that Microsoft ran a “bait-and-switch” by touting slower, less-expensive PCs as able to run Vista when the company allegedly knew the machines would handle only Vista Home Basic, the least-expensive version of the operating system. The suit argues that Home Basic is not representative of the Vista that was heavily marketed to consumers.

Microsoft has denied the charges.

Earlier disclosures of the company’s communications during the lawsuit have showed that Microsoft’s move to relax the graphics hardware requirements for Vista Capable PCs infuriated HP, and that managers had blasted Intel internally for the 915 chipset’s poor performance.

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