10126 1 IN THE IOWA DISTRICT COURT FOR POLK COUNTY ----------------------------------------------- 2 JOE COMES; RILEY PAINT, ) 3 INC., an Iowa Corporation;) SKEFFINGTON'S FORMAL ) 4 WEAR OF IOWA, INC., an ) NO. CL82311 Iowa Corporation; and ) 5 PATRICIA ANNE LARSEN; ) ) TRANSCRIPT OF 6 Plaintiffs, ) PROCEEDINGS ) VOLUME XXXVII 7 vs. ) ) 8 MICROSOFT CORPORATION, ) a Washington Corporation, ) 9 ) Defendant. ) 10 ----------------------------------------------- 11 The above-entitled matter came on for 12 trial before the Honorable Scott D. Rosenberg 13 and a jury commencing at 8:15 a.m., January 24, 14 2007, in Room 302 of the Polk County 15 Courthouse, Des Moines, Iowa. 16 17 18 19 20 HUNEY-VAUGHN COURT REPORTERS, LTD. 21 Suite 307, 604 Locust Street 22 Des Moines, Iowa 50309 23 (515)288-4910 24 25 10127 1 A P P E A R A N C E S 2 Plaintiffs by: ROXANNE BARTON CONLIN 3 Attorney at Law Roxanne Conlin & Associates, PC 4 Suite 600 319 Seventh Street 5 Des Moines, IA 50309 (515) 283-1111 6 RICHARD M. HAGSTROM 7 MICHAEL R. CASHMAN Attorneys at Law 8 Zelle, Hofmann, Voelbel, Mason & Gette, LLP 9 500 Washington Avenue South Suite 4000 10 Minneapolis, MN 55415 (612) 339-2020 11 ROBERT J. GRALEWSKI, JR. 12 Attorney at Law Gergosian & Gralewski 13 550 West C Street Suite 1600 14 San Diego, CA 92101 (619) 230-0104 15 16 17 18 19 20 21 22 23 24 25 10128 1 Defendant by: DAVID B. TULCHIN 2 SHARON L. NELLES JEFFREY C. CHAPMAN 3 Attorneys at Law Sullivan & Cromwell, LLP 4 125 Broad Street New York, NY 10004-2498 5 (212) 558-3749 6 ROBERT A. ROSENFELD KIT A. PIERSON 7 Attorneys at Law Heller Ehrman, LLP 8 333 Bush Street San Francisco, CA 94104 9 (415) 772-6000 10 STEPHEN A. TUGGY HEIDI B. BRADLEY 11 Attorneys at Law Heller Ehrman, LLP 12 333 South Hope Street Suite 3900 13 Los Angeles, CA 90071-3043 (213) 689-0200 14 BRENT B. GREEN 15 Attorney at Law Duncan, Green, Brown & 16 Langeness, PC Suite 380 17 400 Locust Street Des Moines, IA 50309 18 (515) 288-6440 19 20 21 22 23 24 25 10129 1 RICHARD J. WALLIS Attorney at Law 2 Microsoft Corporation One Microsoft Way 3 Redmond, WA 98052 (425) 882-8080 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10130 1 (The following record was made out of 2 the presence of the jury at 8:18 a.m.) 3 THE COURT: Mr. Cashman, you had 4 something you wanted to talk about? 5 MR. CASHMAN: Yes, I do, Your Honor. 6 These would fall in the category of scheduling 7 or housekeeping. 8 And since we don't have court on 9 Friday before the Jury, my understanding 10 there's been nothing discussed about other 11 matters that we may be able to handle on that 12 day. 13 And if the Court is available, there's 14 some things that the Plaintiffs would like to 15 schedule for that day. 16 THE COURT: My understanding is Mr. 17 Tulchin and some of the counsel for defense are 18 going to use that day to travel. 19 MR. CASHMAN: Well, I don't think that 20 these motions require Mr. Tulchin. I mean, 21 these would be other various people. 22 THE COURT: Oh, what are they? 23 MR. CASHMAN: And so here is what the 24 Plaintiffs -- at least we want to advise the 25 Court this is what Plaintiffs would like to do, 10131 1 is there will be arguments this afternoon and 2 tomorrow afternoon after court on some of the 3 prior testimony designations, and some of that 4 may carry over on to Friday for some witnesses, 5 such as Joachim Kempin and potentially others. 6 So that would be the first item on the agenda. 7 The second item would be one of the 8 motions that's fully briefed and has been ready 9 for a while, but which has not been heard yet 10 is Plaintiffs' motion to preclude Charles 11 Laurence from testifying. So we'd like to get 12 that argued on Friday. 13 The third motion which we would like 14 to argue on Friday is Microsoft's motion for 15 the protective order on those 55 exhibits that 16 they contend are confidential. 17 Yesterday we received an order from 18 the Court, which I believe was intended to 19 schedule a hearing on this specific motion for 20 February 9th, which would have been if the full 21 briefing schedule had been implemented, but the 22 Plaintiffs are prepared to go ahead and argue 23 that motion on Friday and would like to do that 24 because we would like to get those exhibits 25 cleared and the status clarified as soon as 10132 1 possible. 2 So we'd like to do that on Friday. 3 And to the extent we have to go through those 4 on an exhibit-by-exhibit basis, that could take 5 a little bit of time. 6 Fourth, we would like to address our 7 motion, Plaintiffs' motion for -- to prevent 8 Microsoft from introducing those 2,860 9 exhibits, Defendant exhibits in the Plaintiffs' 10 case. 11 The Court may or may not be aware that 12 we filed a motion to prevent Microsoft from 13 doing that. We filed it on Monday after Ms. 14 Nelles' proffer last week of those exhibits. 15 So if Microsoft is willing to proceed 16 with that argument on Friday, we would like to 17 do that. 18 Or, in the alternative, if Microsoft 19 opposes arguing that motion on Friday, we'd 20 like a stay from the Court so that we don't 21 have to go through the process that we talked 22 about before where we have to identify all our 23 objections to those exhibits by the 15th of 24 February, I believe it was. We don't want to 25 have to do that until this motion is resolved. 10133 1 And then last, Your Honor, is we'd 2 like to schedule time to have argument on 3 Microsoft's motion to preclude Stephen McGeady 4 from offering testimony in Plaintiffs' case 5 regarding what Microsoft claims are facts 6 subject to collateral estoppel. 7 And that would be the last item on the 8 list. 9 MR. TULCHIN: Your Honor, I'm taking 10 them sort of in reverse order if I may. 11 The motion on Stephen McGeady has not 12 been fully briefed yet. We just received the 13 Plaintiffs' response, I believe, yesterday. 14 And we will, of course, prepare a reply. 15 We're not against having it heard, of 16 course. We'd like to have it heard, but Friday 17 would not be convenient for us. 18 With respect to the motion concerning 19 the exhibits that we offered, as to which there 20 have been no objections, I think the Court very 21 generously gave the Plaintiffs until February 22 15th to lodge any objections so that we could 23 proceed with that. 24 And I don't know what the urgency is 25 to have this heard on Friday or why it is that 10134 1 the Plaintiffs now when they had over a month, 2 I think, from the time the Court ruled on this, 3 why the Plaintiffs don't want to proceed in the 4 fashion that the Court instructed. 5 With respect to the motion for Charlie 6 Laurence, I'd have to check and see whether the 7 person involved is taking advantage of this 8 long weekend to travel. I don't know. 9 With respect to the prior testimony 10 issues, again, I'd like to check. That's 11 Mr. Tuggy. He'll be here at 3 o'clock today. 12 I don't know his schedule for the rest of the 13 week. If he's available, I'm sure that would 14 be fine. 15 Did I miss one? 16 MS. NELLES: Motion for protective 17 order on particular confidential documents, 18 which would also be Mr. Tuggy. 19 MR. TULCHIN: Right. 20 MR. CASHMAN: I'm sorry, what was 21 that? 22 THE COURT: The last one. The one on 23 the protective order. 24 MR. CASHMAN: The confidentiality 25 order, Your Honor, as I -- 10135 1 THE COURT: It was already set. 2 MS. NELLES: And it was set by Your 3 Honor already. 4 MR. TULCHIN: Yes, that one, Your 5 Honor, I think you issued an order saying it 6 would be argued on February 6th, if my memory 7 is correct, and that seems to make perfect 8 sense to us. 9 MR. CASHMAN: Well, Your Honor, the 10 motion for Charles Laurence, I guess Microsoft 11 is saying there's no objection as long as their 12 particular lawyer is here and available on 13 Friday. We think that should happen. That 14 motion has been ready for a long time. 15 The prior testimony, that's critically 16 important to the Plaintiffs to make sure that 17 we have these things resolved to the extent 18 possible in advance, so I think that Microsoft 19 should be required to be available for any 20 arguments that are necessary to implement that 21 process on Friday. 22 The issue regarding the confidential 23 documents, Your Honor, the important factor 24 here is that, as I explained to the Court 25 before, Microsoft failed to give any reasons at 10136 1 all about why these documents were confidential 2 in the first instance. And that was one of the 3 reasons why I asked the Court to deny their 4 motion summarily on its face. 5 There really is no basis upon which 6 Plaintiffs can even file a resistance given 7 Microsoft's failure to meet its initial burden, 8 and that's why Plaintiffs are ready to go 9 forward on Friday. And we think that we should 10 go forward on Friday and resolve that issue. 11 In that connection, I want to clarify 12 what appears to be an apparent misunderstanding 13 that some of these exhibits -- I'm not sure if 14 this includes any of those 55 specifically, but 15 the exhibits that Plaintiffs moved in that had 16 no objections, the 3,160 exhibits, those 17 exhibits, many of those exhibits are discussed 18 in the testimony, for example, the prior 19 testimony designations. 20 Some of those exhibits do come up. 21 They are not just can exhibits that are being 22 offered in the record just so they are in the 23 record. And so that is an additional reason 24 why we wanted to get those exhibits cleared up 25 as soon as we can. 10137 1 This issue about confidentiality we 2 think is ripe for hearing and argument right 3 now, and we'd like to take care of that on 4 Friday. 5 THE COURT: Very well. 6 Mr. Tulchin will check with his people 7 and see what availability they have, and then 8 I'll make the decision on how we are going to 9 handle the motion. 10 MR. CASHMAN: Thank you, Your Honor. 11 THE COURT: You're welcome. 12 Could I see counsel back in chambers 13 or back in the Jury -- whatever we call that 14 room. 15 (The following record was made out of 16 the presence of the jury at 8:27 a.m.) 17 (At this time, a sealed-by-the-Court 18 record was made by Janis Lavorato.) 19 (The following record was made in the 20 presence of the jury at 8:45 a.m.) 21 THE CLERK: Everybody can have a seat. 22 It will be just a few minutes. 23 THE COURT: Is our witness here? 24 MS. CONLIN: Yes, Your Honor. 25 THE COURT: There he is. 10138 1 You are still under oath, sir. 2 Juror Number 8 has been excused. 3 DAVID BRADFORD, 4 called as a witness, having been previously 5 duly sworn, testified as follows: 6 CROSS-EXAMINATION (CONT'D) 7 BY MR. TULCHIN: 8 Q. Mr. Bradford, good morning. 9 A. Hello. 10 THE COURT: Excuse me. Mr. [redacted], if 11 you are more comfortable moving over if you can 12 see better, you can. 13 JUROR [redacted]: Oh, I'm fine. I can 14 see. 15 Q. I know we said hello in the hall, 16 Mr. Bradford, but good morning again. 17 A. Yes. 18 Q. Mr. Bradford, directing your attention 19 to operating systems and your testimony about 20 per processor licenses, do you know how many 21 per processor licenses Microsoft had with OEMs, 22 makers of computers? 23 A. I do not. 24 Q. And we're going back, I'm asking you 25 with respect to the time period, let's say, 10139 1 1990 through '94 or '- 5. 2 A. No. 3 Q. Do you have any estimate as to how 4 many per processor licenses Microsoft had with 5 OEMs, again in the same period, around 1990 to 6 '95, and we're talking about operating systems? 7 A. No, I don't. 8 Q. Okay. Are you aware that at the time, 9 let's say, 1990 up until July 15th, '94, 10 Microsoft offered OEMs three different types of 11 license agreements, three different types of 12 contracts? 13 A. No, I'm not aware of that. 14 Q. You weren't aware of that. 15 Were you aware at the time that 16 Microsoft offered a per copy license agreement, 17 a per system license agreement, and a per 18 processor license agreement? 19 A. No. 20 Q. Are you aware now -- were you aware in 21 the same time period, let's say about 1990 to 22 July 15th, 1994, as to what percentage of the 23 OEMs chose per processor -- and I'm talking 24 about the OEMs who had contracts with Microsoft 25 -- chose per processor agreements as compared 10140 1 to the other two kinds? 2 A. No, I wouldn't have any idea. 3 Q. Did you have any idea as to the 4 relative price for MS-DOS or for Windows 5 depending which type of contract the OEMs 6 chose? 7 A. No. 8 Q. Were you aware that the OEMs who had 9 contracts with Microsoft, in fact, had a choice 10 of which of the three types of contracts to 11 enter into? 12 A. No. 13 Q. Do you recall, going way back to that 14 period, 1990 to July 15th, '94, do you recall 15 trying to find out how many OEMs had per 16 processor contracts or what percentage of the 17 overall OEM Microsoft contracts were per 18 processor? 19 A. I don't recall that specifically, no. 20 Q. Were you aware at the time that the 21 per processor contracts and the per system 22 contracts and the per copy contracts that 23 Microsoft had with OEMs would from time to time 24 expire? 25 A. No, not particularly. 10141 1 Q. So you weren't aware of the fact that, 2 for instance, let's just say, we'll call it OEM 3 Number 1, without specifying which company it 4 is, were you aware that that OEM, if it had a 5 per processor contract, that that contract 6 would at some point expire? 7 A. Oh, very typically contracts do have a 8 termination date, be it one year, five years, 9 ten years, whatever it might be, but I was not 10 aware of, you know, Microsoft's practices in 11 that regard, other than longer term contracts 12 that they had. 13 Q. I see. And were you aware that people 14 at Digital Research, both before Novell bought 15 it in '91 and afterwards, were soliciting OEMs 16 to try to get their business at the time that 17 their contracts with Microsoft were expiring? 18 A. I'm sure they were trying to solicit 19 business from OEMs during the time the 20 contracts were expiring, after they expired, 21 before they were expiring. 22 Q. Okay. Now, during the same period 23 that we've been talking about, 1990 until July 24 15th, '94 -- and let me just stop there. 25 It's your understanding, is it not, 10142 1 sir, that as of July 15th, '94, Microsoft 2 agreed with the government in that consent 3 stipulation not to use per processor contracts 4 anymore? 5 A. Yes, that's my understanding. 6 Q. And as far as you know, Microsoft 7 complied with that agreement; correct? 8 A. I wouldn't have the information to be 9 able to say that yes or no. 10 Q. Okay. You don't contend that 11 Microsoft failed to comply? 12 A. I would contend they failed to comply 13 with the consent decree in ways, but whether 14 it's on specifically the per processor issue or 15 not, I wouldn't contend that. 16 Q. All right. And during your 17 preparation over the weekend on Saturday and 18 Sunday, did you ask to see any of the Microsoft 19 contracts with OEMs? 20 A. No. 21 Q. Were you aware that among the 25 22 million pages of documents that Ms. Conlin has 23 in this case there are Microsoft contracts, 24 thousands, I think, Microsoft contracts with 25 OEMs for operating systems? 10143 1 A. All right. 2 Q. Were you aware of that? 3 A. Not thousands, no. 4 Q. Were you aware there were a good 5 number of them? 6 A. I hadn't really thought about it, but 7 I suppose in thinking about it, yeah, there 8 were probably lots of contracts in the records. 9 Q. Over a period of years? 10 A. Right, sure. 11 Q. And my question then is, have you made 12 any efforts to try to find out the extent to 13 which these per processor contracts were used 14 as compared to whether OEMs selected a per 15 system contract or a per copy contract? 16 A. No. 17 Q. Now, Digital Research, of course, had 18 its own license agreements, contracts, with 19 OEMs for DR-DOS; correct? 20 A. Can you restate the question? 21 Q. Sure. 22 During the period that Novell owned 23 Digital Research and prior to that, Digital 24 Research had its own license agreements, 25 contracts, with OEMs for DR-DOS? 10144 1 A. Sure. Of course, they would. 2 Q. Because, typically, you don't sell or 3 license an operating system like DR-DOS without 4 a formal written contract? 5 A. That's correct. 6 Q. And those are called license 7 agreements in the industry; right? 8 A. Sure, uh-huh. 9 Q. Okay. Do you recall in your 10 communications with the federal government in 11 connection with your complaints about 12 Microsoft, do you recall having one of your 13 lawyers inform the federal government about the 14 contracts that Novell had, Digital Research had 15 with OEMs itself? 16 A. I suppose that could have been 17 possible, but sitting here today, I don't 18 recall that. 19 MR. TULCHIN: May I approach the 20 witness, Your Honor? 21 THE COURT: You may. 22 Q. Mr. Bradford, let me hand you 23 Defendant's Exhibit 6770, DX 6770. 24 Now, the law firm of Arnold & Porter 25 in Washington, D.C., was a law firm that you 10145 1 had hired to represent Novell in connection 2 with your discussions with the Department of 3 Justice; correct? 4 A. That's correct. 5 Q. And the author of this letter is 6 someone named Randall Shaheen; correct? 7 A. That's right. 8 Q. And he was one of your lawyers? 9 A. I don't remember Randall's name 10 specifically. I remember Sturge Sobin and some 11 other folks from Arnold & Porter. 12 Let's see, this is Arnold & Porter. 13 Okay. There was a Ablondi & Foster that was a 14 law firm that did some work for us, and here 15 this is Arnold & Porter. Okay. 16 Q. Right. Mr. Sobin was one of your 17 lawyers, and he was with the firm that you 18 mentioned, Ablondi & Foster, was it? 19 A. That's correct. 20 Q. And then you also had this law firm in 21 Washington named Arnold & Porter; correct? 22 A. That's correct. 23 Q. And this letter, Defendant's Exhibit 24 6770, was a letter that was sent on Novell's 25 behalf to the Department of Justice by this law 10146 1 firm; correct? 2 A. If I could look it over. 3 Q. Certainly, sir. 4 A. Okay. Thanks. 5 Yes, it appears to be. 6 MR. TULCHIN: Your Honor, we offer 7 Exhibit 6770. 8 MS. CONLIN: Plaintiffs have no 9 objection. 10 THE COURT: It's admitted. 11 Q. Now, if we could just take a look at 12 the screen at the first page of this letter, 13 you'll see, Mr. Bradford, that right in the 14 first paragraph, first two sentences, your 15 lawyer at this law firm in Washington -- oh, 16 and I should say this letter is dated December 17 8, 1993. Correct, sir? 18 A. That's right. 19 Q. And your lawyer directs a letter to 20 the Department of Justice. 21 MR. TULCHIN: Maybe we can see that, 22 Chris. 23 Thank you. 24 Q. And he says, attached please find the 25 following. First, I have attached a list of 10147 1 OEMs who have licensed DR-DOS from Novell. 2 Do you see that, sir? 3 A. Yes, I do. 4 Q. And attached to this exhibit, 6770, is 5 that list; correct, sir? 6 A. I assume that's so, yes. 7 Q. Well, is it the case, Mr. Bradford, 8 that your lawyer in Washington would not have 9 sent a list to the Department of Justice 10 without checking with Novell and Digital 11 Research to make sure that the list was 12 accurate? 13 A. That's correct. In fact, I see Linnet 14 Harlan's name referenced on the second page of 15 the letter, so I'm sure Linnet, who was general 16 counsel of Digital Research, collaborated with 17 Randall in submitting this to the DOJ. 18 Q. And Linnet Harlan worked for you at 19 the time; right? 20 A. Yes, that's right. 21 Q. Okay. Now, if we could look at the 22 third page of Defendant's Exhibit 6770. 23 This is the first page of the list of 24 OEMs that have contracts for DR-DOS; correct? 25 A. I suppose this is a set of OEMs over a 10148 1 period of time. In other words, at the time 2 this was submitted to the Department of 3 Justice, this wouldn't have been all the OEMs 4 currently licensing DR-DOS. I assume that this 5 is over a period of time, maybe from 1990 to 6 1993. 7 Q. Okay. 8 MR. TULCHIN: And can we just show a 9 portion of this so we make it a little easier 10 to read? 11 Q. And this is set up alphabetically, 12 correct, Mr. Bradford? 13 A. Yes. 14 Q. So the first OEM is ABC Computer 15 Company, and this list of OEMs who have 16 licensed DR-DOS goes on for about seven pages? 17 A. Yes. 18 Q. Now, I'm not asking you to take the 19 time to do so, but feel free if you need. 20 I tried to count up the number of OEMs 21 that were on the seven-page list that your 22 lawyer sent to the Department of Justice, and I 23 came up with the number of 247 OEMs. 24 A. All right. 25 Q. Does that seem about right to you? 10149 1 A. Seven times 40 or thereabouts? 2 Q. Well, it's a little less than 40, but, 3 you know. 4 A. Okay. It's fair enough. 5 Q. But you can see that there are quite a 6 few listed on each page, correct? 7 A. Let's agree that it's between 200 and 8 250. 9 Q. Okay. I counted 247, but I could be 10 wrong. Whatever. I think we get the range. 11 A. Right. 12 Q. And this list of OEMs, again, are 13 computer manufacturers who have licensed DR-DOS 14 from Novell. That's what the letter says; 15 correct? 16 A. That's correct. 17 Q. All right, sir. 18 Now, do you have any recollection as 19 to what, let's say, the high-water mark in 20 terms of OEMs was for Novell for its product 21 DR-DOS? How many OEMs did you have at any one 22 time? What was the maximum number? 23 A. I wouldn't hazard to guess at this. 24 There's 247 here. Maybe a high-water mark was 25 100. I don't know. 10150 1 I see the dates in the far right-hand 2 column. Some are 1990. Some are 1991. Some 3 are 1992. There aren't any that I can see that 4 are in 1993. 5 Q. Right. And the date is the date -- 6 MR. TULCHIN: Maybe we can show the 7 dates, Chris. 8 Q. The date all the way in the right-hand 9 column is the date on which the OEM entered 10 into the contract at issue; correct? 11 A. I assume that's correct, yes. 12 Q. And those contracts typically lasted 13 for some period of time? 14 A. Yes. Typically one, two years. 15 Q. Yeah. They could have been one year 16 or two years, and sometimes more; correct? 17 A. Could have been, sure. 18 Q. So these contracts, although some of 19 them go back to '91 and some of them are dated 20 other years, and you can look through all seven 21 pages -- 22 A. I see some that go back to 1989 right 23 there. 24 Q. Yes, I see one that does in that group 25 too. 10151 1 But these contracts typically last for 2 a period of years; correct? 3 A. Typically a minimum of one year. 4 Q. And I don't want to go through all 247 5 OEMs on this list in the interest of time -- 6 A. Right. 7 Q. -- but is it fair to say that if a 8 consumer, someone who is interested in buying a 9 personal computer, if a consumer in the United 10 States wanted to find a computer that had 11 DR-DOS bundled with it preloaded, that you 12 could find it? 13 A. Well, you'd have to study the names of 14 the hardware manufacturers here to see if any 15 of them were commonly selling products in the 16 United States. 17 I see some from Germany. I see some 18 from France. I see some from England. I 19 suspect there were some from the United States 20 as well. But we have to look in more detail at 21 the list to determine if any of them were 22 quote-unquote popular hardware manufacturers 23 that you would find typical at the time, 24 Computerland or Businessland store. 25 Q. Right. Well, certainly, Mr. Bradford, 10152 1 it's true, is it not, that some OEMs located in 2 Europe and some located in Asia, maybe in 3 Japan, for example, would ship their computers 4 into the United States? 5 A. Yes, that would be true. 6 Q. So just because an OEM is in France or 7 England or Japan doesn't mean the consumers in 8 the United States couldn't get one? 9 A. I'll concede that. That's fine. 10 Q. Okay. So during this period, 11 certainly -- and the letter, again, is dated in 12 December 1993 -- there were lots and lots of 13 OEMs around the world who had agreed in license 14 agreements to bundle DR-DOS on their computers? 15 A. Can you repeat the question? 16 Q. Sure. Let me -- 17 A. Yeah. I want to make sure of the 18 date. 19 Q. Okay. December 1993 is the date of 20 the letter. 21 A. Correct. 22 Q. And as of that date, and prior to 23 then, all right -- and let's just talk about 24 the period that Novell owned Digital Research. 25 So we're talking about November 1st, 10153 1 '91, until December '93. About two years. 2 A. Okay. 3 Q. And during that two-year period there 4 were many, many OEMs who had agreed to bundle 5 DR-DOS on their computers? 6 A. I wouldn't describe it as many, many. 7 Q. All right. Certainly whatever the 8 number is, that's what it is. 9 A. Right. 10 Q. Okay. And if DR-DOS turned out to be 11 a very, very popular operating system that end 12 users were clamoring for, there was a way to 13 get DR-DOS by going to one of these OEMs; 14 correct? 15 A. Well, the average consumer couldn't go 16 directly to the original equipment 17 manufacturer. He typically would walk into a 18 Computerland store or Businessland store or the 19 popular retailers at the time in order to 20 access a personal computer. 21 If one, for example, from -- I don't 22 know, these are hard to read -- Cody Automation 23 Systems. If Cody Automation Systems wasn't 24 sitting in that Computerland store, then the 25 end user customer couldn't get access to that 10154 1 operating system. 2 Q. Unless he went to another store that 3 had that computer. 4 A. Yes. 5 Q. And, of course, these retail stores 6 compete among one another; correct? 7 A. Sure. 8 Q. So let's say there's Best Buy and 9 there's -- as one store and there's another 10 chain that sells computers. They're competing. 11 And if the executives of one computer 12 store chain believed that consumers are looking 13 for DR-DOS, well, they're going to stock 14 computers that have DR-DOS bundled; correct? 15 A. Right. If they have access to that, 16 right. 17 Q. Sure. So, in the end, wouldn't you 18 say that consumer demand is what drives the 19 OEMs' decisions about which operating system to 20 put on their computer? 21 A. Well, that's certainly the way it 22 ought to be, but it's not the way it was. 23 Q. Well, you say it wasn't the way it 24 was. 25 Did you ever gain any information as 10155 1 to what Mr. Frankenberg thought about that 2 subject matter? He was your boss when he took 3 over from Noorda; right? 4 A. Yes. That would have been 19- -- 5 spring of 1994. 6 Q. Did you ever gain any information as 7 to what Mr. Frankenberg thought about that? 8 A. I'm not -- I don't know -- I don't 9 recall specifically to what you're referring. 10 Q. Well, I wonder maybe if we can ask you 11 to look at his testimony which was taken by 12 deposition. This deposition was in August of 13 1998. 14 (Whereupon, the following video was 15 played to the jury.) 16 Question: Can you describe for me the 17 steps that an OEM takes in evaluating an 18 operating system to determine whether or not it 19 ought to be included in its product offerings? 20 Answer: Well, the very first question 21 is what -- what level of demand is there in the 22 marketplace for that operating system. 23 And the elements of that include 24 direct demand, what kinds of inputs are you 25 hearing from the channel and from customers 10156 1 requesting a particular operating environment; 2 implied demand, which is how many applications 3 have been written by independent software 4 vendors and others that run on that 5 environment. 6 The third is cost, reliability, and 7 the amount of investment that's required to put 8 it in place and maintain it and properly 9 support customers. It's pretty much in that 10 order. 11 Question: Okay. And that actually 12 was my next question. 13 And that would be the order that you 14 would evaluate whether to support or not 15 support an operating system? 16 Answer: Yes. 17 (Whereupon playing of video 18 concluded.) 19 BY MR. TULCHIN: 20 Q. So, Mr. Bradford, you recognize 21 Mr. Frankenberg; correct? 22 A. Yes, sure. 23 Q. He was the CEO of Novell. And before 24 that he actually worked for an OEM; correct? 25 A. That's right. Hewlett Packard. 10157 1 Q. Hewlett Packard. And his 2 responsibilities included responsibilities for 3 Hewlett Packard's OEM business? 4 A. That's right. 5 Q. And what Mr. Frankenberg said was that 6 the first thing when OEMs are deciding what 7 operating system to put on their computers, the 8 first thing they consider is customer demand, 9 the demand among their customers; correct? 10 A. That's very important, right. 11 Q. And you wouldn't disagree with that? 12 A. I wouldn't disagree with that. 13 Q. All right. And how about Tony 14 Speakman? You know Mr. Speakman; correct? 15 A. Refresh my recollection on who Tony 16 is. 17 Q. Well, Mr. Speakman was a witness by 18 videotape deposition in this case, and I wonder 19 if you are familiar with what Mr. Speakman says 20 on the subject. 21 He was in England with DRI. 22 A. Okay. 23 Q. Do you remember Anthony Speakman? 24 A. I remember the name generally. 25 Q. Okay. 10158 1 MR. TULCHIN: May I help, Your Honor, 2 here? 3 MS. CONLIN: I don't think I got it on 4 myself. Usually I spill a glass of water. 5 This is pretty dramatic. 6 MR. TULCHIN: Here. Sorry for the 7 interruption, Your Honor. 8 THE COURT: That's okay. 9 THE WITNESS: I think we would 10 acknowledge it wasn't your fault. 11 MR. TULCHIN: We'll stipulate. 12 THE WITNESS: Okay. 13 MS. CONLIN: Thank you. I think you 14 can go ahead. 15 MR. TULCHIN: Tell me when you are 16 ready. 17 MS. CONLIN: I do apologize. 18 MR. TULCHIN: No problem. 19 Shall I proceed, Your Honor? 20 THE COURT: Sure. 21 Q. Let me show you just a little bit of 22 Mr. Speakman's testimony on the same general 23 subject. 24 (Whereupon, the following video was 25 played to the jury.) 10159 1 Question: Turning to the next page, 2 the first half of the page, there's a 3 discussion of issues in choosing an operating 4 system. 5 In your experience, what factors did 6 OEMs consider in selecting an operating system? 7 Answer: What factors did who 8 consider? 9 Question: OEMs consider, in deciding 10 which operating system to license. 11 Answer: I think the biggest single 12 factor that an OEM would consider would be what 13 its customers would perceive as the most 14 attractive solution. 15 Question: The customer preference? 16 Answer: Their customer, yes. 17 Basically, it was a very competitive market for 18 the PC assemblers. As I say, there were two or 19 300 of these guys, smaller guys in the UK. And 20 there's obviously a worldwide market of the 21 bigger players as well, and they're all 22 competing for the same sets of customers. 23 So they would be trying to offer the 24 customer a system that was most attractive. 25 (Whereupon playing of video 10160 1 concluded.) 2 BY MR. TULCHIN: 3 Q. So, Mr. Bradford, again, I mean, you 4 have no reason to disagree with Mr. Speakman or 5 Mr. Frankenberg that when OEMs were deciding 6 what operating system to put on their PCs, the 7 number one consideration was what their 8 customers wanted? 9 A. I think they were very interested in 10 their customer preferences. 11 Q. Okay. And you have no reason to 12 disagree with your boss, Mr. Frankenberg, or 13 Mr. Speakman, who was on the ground in the UK? 14 A. I think taken out of context and 15 looking at their narrow testimony there, I 16 wouldn't disagree with that as just a pure 17 contention. 18 Q. I wonder if we could look at -- well, 19 before we look at the next document, 20 Mr. Bradford, I want to ask you a little bit 21 about due diligence. 22 You testified on direct examination in 23 response to some questions from Ms. Conlin that 24 Novell, and I think you personally, conducted 25 due diligence on Digital Research at the time 10161 1 in 1991 when you were considering acquiring the 2 company? 3 A. That's right. 4 Q. And due diligence involves, among 5 other things, going into the files of a company 6 like Digital Research that you were considering 7 acquiring and making sure that you understood 8 what the key documents were at the company; 9 correct? 10 A. Yes, that's correct. 11 Q. And Linnet Harlan, who was the general 12 counsel of Digital Research, supplied you and 13 other people at Novell with a great many 14 documents at the time in 1991 when you were 15 considering buying Digital Research? 16 A. That's my recollection. It's 15 years 17 ago, 16 years ago -- 18 Q. Right. 19 A. -- but I'm sure we looked at 20 documents. 21 Q. Right. And I think you testified on 22 direct examination that you looked at many 23 documents and thereafter you were satisfied and 24 proceeded to buy the company, you, Novell? 25 A. That's right. 10162 1 Q. Okay. Well, let's look at Defendant's 2 Exhibit 117 if we might. 3 MR. TULCHIN: Your Honor, I wonder if 4 I -- 5 MS. CONLIN: Wait a minute. May I see 6 it first? 7 MR. TULCHIN: Sure. I wonder if I may 8 go to counsel table for just a moment? 9 THE COURT: Sure. 10 MR. TULCHIN: I believe this has no 11 objection, Your Honor. 12 May I proceed? 13 MS. CONLIN: Yes, Your Honor. 14 THE COURT: What was the exhibit 15 number again? 16 MR. TULCHIN: It's Defendant's Exhibit 17 117, Your Honor. 18 THE COURT: Thank you. 19 MR. TULCHIN: Would you like a copy? 20 THE COURT: No. I'm okay. 21 MR. TULCHIN: Thank you. 22 Q. And if we could just look at the top. 23 This is dated in October 1990, so it's prior to 24 the time that Novell entered into its agreement 25 to buy Digital Research. 10163 1 And Frank Bailinson was someone you 2 knew at DRI or came to know later; correct? 3 A. I certainly knew John Bromhead and 4 Steve Tucker. I don't recall Frank. 5 Q. All right. You don't recall 6 Mr. Bailinson at all? 7 A. Not offhand. 8 Q. Do you remember whether or not he 9 continued at DRI after Novell bought the 10 company? 11 A. I don't know that. 12 Q. All right. In the course of your due 13 diligence, did you have occasion to look at 14 documents such as this? 15 And let's look at the first paragraph. 16 This is from Mr. Bailinson to 17 Mr. Bromhead and Mr. Tucker, or maybe I should 18 stop. 19 Can you identify Mr. Bromhead for the 20 Jury, please, tell us who he was? 21 A. John was an employee at Digital 22 Research, and I think he had responsibility, 23 kind of a technical marketing responsibility 24 for the company. 25 Q. And how about Steve Tucker? 10164 1 A. Steve Tucker, I think, was John's 2 boss, had broader responsibility. I think he 3 was the VP of marketing for Digital Research. 4 Q. So Mr. Tucker is the VP of marketing, 5 you referred to as an executive of the company? 6 A. Yes. It's safe to say that Steve was 7 an executive with the company. I'm not 100 8 percent sure on his title. 9 Q. Okay. And what Mr. Bailinson, the 10 author of this memo, says to Mr. Bromhead, with 11 a copy to Mr. Tucker, he starts out by saying, 12 John, what follows are the criteria that I used 13 in my rankings and the rankings themselves. 14 And the subject matter, as you see, is 15 DR-DOS feature rankings/selection criteria; 16 right? 17 A. Yes, that's right. 18 Q. And in the very next paragraph where 19 he says ranked selection criteria, in the 20 second sentence, Mr. Bailinson says, I've done 21 this because our primary OEM sales obstacle is 22 lack of perceived end-user appeal, awareness 23 and pull. 24 Do you see that? 25 A. Yes, I do. 10165 1 Q. And he's underlined the word end-user; 2 correct? 3 A. Yes. 4 Q. Now, do you recall in the course of 5 due diligence having seen this document? 6 A. No, I don't. 7 Q. Do you know whether others at Novell 8 who were conducting due diligence saw it? 9 A. No. 10 Q. But certainly this is an indication 11 from DRI before the purchase of DRI by Novell 12 that its primary sales obstacle with OEMs is 13 lack of perceived end-user appeal; correct? 14 A. All right, yes. 15 Q. And, in fact, that's consistent, is it 16 not, Mr. Bradford, with what you understood in 17 1991 when you were buying DRI that the biggest 18 obstacle that DRI had in selling DR-DOS, the 19 operating system, to OEMs was that there was a 20 lack of perceived end-user appeal for DR-DOS in 21 the marketplace? 22 A. No, I wouldn't agree with that. 23 Q. But you certainly understood, as 24 Mr. Frankenberg testified, that for OEMs, that 25 was the number one issue, is this operating 10166 1 system going to appeal to our customers? 2 A. Yes. Okay. 3 Q. And here are the people at DRI, 4 including a memo to the top marketing guy, 5 right, Mr. Tucker? 6 A. Certainly an executive, right. 7 Q. That say that was the number one 8 obstacle. It doesn't say number one and I 9 shouldn't say that. 10 It says, it's our primary OEM sales 11 obstacle; correct? 12 A. Yeah. I think we can all agree that 13 end-user appeal is a very important factor in 14 whether or not an OEM selects an operating 15 system. 16 Q. Well, certainly beyond very important, 17 according to Mr. Bailinson of DRI, it was the 18 primary obstacle? That's what he says; 19 correct? 20 A. Well, he lists a lack of perceived 21 end-user appeal, awareness and pull. So he 22 lists three primary obstacles the way I read 23 that. I don't think he, you know -- right? 24 Q. Well, let's just take this one at a 25 time. Sure. 10167 1 End-user appeal, awareness and pull. 2 They're all very closely related, are they not? 3 They're talking about end-user appeal, 4 awareness and pull. 5 A. No. I think they're separate and 6 distinct issues. End-user appeal, awareness 7 and pull. They're three different obstacles. 8 Q. Okay. If that's how you read it, 9 that's fine. That's your testimony. But 10 that's certainly what the marketing people at 11 Digital Research were saying in 1990? 12 A. I agree with that. 13 Q. Now, I want to go back to the subject 14 of per processor licenses. 15 Normally when two companies are 16 competing, let's say Digital Research or Novell 17 when it owned Digital Research is competing 18 with Microsoft in selling operating systems. 19 If one company is using a particular 20 kind of sales tactic, ordinarily the other 21 company will find some tactic or strategy to 22 try to counter it; correct? 23 A. To some extent, you're absolutely 24 right. 25 Q. Sure. 10168 1 A. To some extent. 2 Q. And customers very often tell the 3 salesmen what's going on in the market; 4 correct? 5 A. That's right. 6 Q. So an OEM is telling people at Novell 7 about what they're doing with Microsoft when 8 they talk to Novell. And when they talk to 9 Microsoft, they're telling them what they're 10 doing with Novell? 11 A. Sure. 12 Q. Okay. And the salesmen in the field 13 get a pretty good feel of what's happening in 14 the marketplace? 15 A. That's right. 16 Q. All right. Now, my question to you at 17 this point, Mr. Bradford, is whether or not 18 Novell and DRI use contracts with OEMs that 19 were the equivalent of the per processor 20 contracts that Microsoft entered into with some 21 of its OEMs. 22 MS. CONLIN: Objection, Your Honor. 23 THE COURT: It's overruled. 24 A. I'm not sure. 25 Q. All right. 10169 1 A. I'm sure we had contracts that we, you 2 know, were creating that were attempting to be 3 competitive in the marketplace. 4 But we did not have the market power 5 that Microsoft had to impose certain terms on 6 the original equipment manufacturers. 7 Q. Well, you say impose, Mr. Bradford, 8 but I think we've already agreed that you're 9 not aware of the three types of contracts that 10 Microsoft actually offered OEMs; correct? 11 A. I'm certainly aware of the per 12 processor license. 13 Q. But you weren't aware of the other 14 two? 15 A. I was aware in general that there 16 would have been other contracts, but I had no 17 idea in specificity what those would have been. 18 Q. And the choice of which kind of 19 contract to enter into was the choice that the 20 OEM made; right? 21 A. Yes. That was their decision. 22 Q. Okay. 23 MR. TULCHIN: I wonder if we could 24 look at Defendant's Exhibit 108. 25 MS. CONLIN: Just a moment, please. 10170 1 THE COURT: Do Plaintiffs have a copy? 2 MS. CONLIN: I'm going to take this 3 opportunity to try to open my pop again. 4 THE WITNESS: Careful. 5 MR. TULCHIN: Don't shake it first. 6 MS. CONLIN: No, I didn't shake it. 7 THE WITNESS: It was Angela's fault. 8 MR. TULCHIN: 108. No, don't put it 9 up on the screen. We need the hard copies. 10 MS. NELLES: My box isn't even 11 perfect. 12 MR. TULCHIN: Well, at this time, Your 13 Honor, I guess the delay is my fault, and I 14 apologize. There's so many pieces of paper 15 floating around. 16 MS. NELLES: Are you sure you want 108 17 or 180? 18 MR. TULCHIN: 180. 1-8-0. 19 THE COURT: Oh, I thought you said 20 108. 21 MR. TULCHIN: Maybe I misspoke. It's 22 probably my fault. 23 MR. HAGSTROM: Yes, you said 108. 24 MR. GREEN: It was your fault. 25 MR. TULCHIN: I apologize to everyone. 10171 1 Until today, I didn't think I was 2 dyslexic, but maybe I'm switching the numbers. 3 180. 4 THE COURT: All right. 5 MR. TULCHIN: No wonder. 6 THE COURT: All right. 7 MS. CONLIN: Okay. Your Honor, we do 8 have a relevance objection to this exhibit, and 9 we object to it also on the grounds that we 10 have previously urged. 11 THE COURT: May I see it? 12 MR. TULCHIN: Certainly, Your Honor. 13 THE COURT: Okay. Overruled. 14 Continue. 15 MR. TULCHIN: Defendants offer Exhibit 16 180, Your Honor. 17 MS. CONLIN: We already made our 18 objections, Your Honor. 19 THE COURT: It's admitted. 20 Q. Do you have a copy, Mr. Bradford? I'm 21 sorry. 22 MR. TULCHIN: May I approach, Your 23 Honor? 24 THE COURT: You may. 25 Q. Here we go. And I'll try to get the 10172 1 number right. 180. 2 A. All right. 3 Q. 1-8-0. 4 Now, Mr. Bradford, looking at the 5 first page, and maybe we can just bring the top 6 up to make it more visible. 7 This is an OEM software license 8 agreement between Digital Research and a 9 company called D. Top Europe in Italy; correct? 10 A. Okay. Yes. 11 Q. Do you see that, sir? 12 A. Yes. 13 Q. And looking at Exhibit 180, a little 14 bit further down the page, you can see that 15 it's signed on the first page by someone from 16 Digital Research. That's Robert Gunn; is that 17 right? 18 A. Yes. 19 Q. Do you recognize that name? 20 A. I do. 21 Q. And Mr. Gunn in April of 1992 was a 22 managing director for Digital Research UK; 23 correct? 24 A. That sounds right, uh-huh. 25 Q. And then the OEM in Italy also signed 10173 1 the contract in 1992, correct? 2 A. That's right. 3 Q. So this was after the time that Novell 4 had bought Digital Research? 5 A. That's right. 6 Q. At the time you were making complaints 7 to the Department of Justice about the nature 8 of Microsoft's license agreements with OEMs, 9 did you do any investigation to see what type 10 of license agreements Digital Research was 11 entering into with its own OEMs? 12 A. I don't recall that specifically, no. 13 Q. All right. Would you look, sir, on 14 what is the third to the last page of the 15 document. It has at the bottom the number 16 C0508793. 17 And you'll see at the very bottom of 18 that page, the last paragraph, which is 19 paragraph D, it says, the per copy price stated 20 in Schedule B hereto is granted solely on the 21 fact that licensee -- and that's the OEM, 22 right, licensee? 23 A. That's right. 24 Q. Licensee hereby agrees to bundle the 25 license program with each and every defined 10174 1 hardware unit shipped by licensee as it leaves 2 licensee's premises. 3 Bundle shall be defined as including 4 one copy of the licensed program in the box 5 containing a defined hardware unit. 6 Do you see that, sir? 7 A. Yes. 8 Q. And if you look on the prior page 9 which ends with the Number 792, you'll see that 10 defined hardware is a term which is defined as, 11 D. Top-branded personal computers. And then 12 motherboards included for DR-DOS release, and, 13 finally, motherboards not included for DR-DOS 14 release 6. Do you see that, sir? 15 A. Yes. 16 Q. So -- and if you need time to look 17 further at this, Mr. Bradford, please do, but 18 would you agree with me that this contract that 19 Digital Research had in 1992 was the equivalent 20 of a per processor contract? It required the 21 OEM to pay for Digital Research DR-DOS with 22 every copy of its computers that it shipped? 23 A. Yes, it appears to be that. 24 Q. All right. And do you know that Mr. 25 Gunn, the person who signed this contract, gave 10175 1 a deposition on this question? 2 A. I'm not aware of that. 3 MR. TULCHIN: I wonder if we could 4 show his deposition. It's from the Caldera 5 case in 1998. October 29th, 1998. 6 MS. CONLIN: Is this for the purpose 7 of impeachment? 8 MR. TULCHIN: No, no. Just I want to 9 refresh his recollection as to what this person 10 in Europe was saying. 11 MS. CONLIN: I think that's improper 12 in cross-examination, Your Honor. There is no 13 impeachment issue. 14 THE COURT: Show it to the witness. 15 MR. TULCHIN: Thank you. May I 16 approach, Your Honor? 17 THE COURT: Yes. 18 Q. Here, Mr. Bradford, are some of the 19 pages from Mr. Gunn's deposition in the Caldera 20 case. 21 And if you look starting at pages 160 22 and then running through 164, you'll see that 23 Mr. Gunn testifies about the contract that 24 we've been looking at, Exhibit 180; correct? 25 A. I don't see a page 160. I see it goes 10176 1 page 7, then to 161. 2 Q. Right. 3 A. I want to make sure I have the same 4 document you have. 5 Q. I think we do. 6 A. Okay. 7 Q. I think we do. Page 7 was just the 8 first -- 9 A. Introductory page. 10 Q. Yes, introductory page. 11 A. Okay. 12 Q. But if you see, and if you look at 13 164, you'll see Mr. Gunn testifying that this 14 contract that we just looked at, Exhibit 180, 15 is essentially a per processor contract; 16 correct? 17 A. I didn't contest that. 18 Q. And you agree with that? 19 A. Yes. 20 Q. All right. Well, let's look at 21 Defendant's Exhibit 34. 22 MR. TULCHIN: May I approach, Your 23 Honor? 24 THE COURT: You may. 25 Q. Mr. Bradford, I'm handing you 10177 1 Defendant's Exhibit 34. 2 This is a license agreement that DRI 3 entered into in 1991; correct? 4 A. I see a 1989 date on this. Let's see. 5 Q. Well, let me show you -- if you look, 6 sir, at the signature pages, the production 7 number of the page that has the signatures, 8 Mr. Bradford, is 825776. 9 Do you see that? 10 A. Yes, I do. 11 Q. And you see that this contract has 12 been signed by Peter DiCorti of Digital 13 Research; correct? 14 A. Yes. 15 Q. And Peter DiCorti was working for 16 Digital Research in California? 17 A. Yes, that's my recollection. 18 Q. Did you know Mr. DiCorti? 19 A. Yes. 20 Q. In 1991, was he the vice president and 21 CFO, chief financial officer of Digital 22 Research? 23 A. I don't recall specifically. I don't 24 think he stayed on board, but that sounds 25 right, yeah. 10178 1 Q. All right. And this is a contract 2 that was signed in June of 1991; correct? 3 A. Yes, I see those signature dates, but 4 I'm also confused by dates of 1989 and 1990. 5 I see -- it well could have been that 6 when this contract was originally signed, it 7 was maybe originally signed in '89 and maybe 8 they did an addendum to it in '91, but -- 9 Q. Well, there are some pages that 10 contain dates in 1989 which might indicate, 11 Mr. Bradford, might it not, that this was a 12 form contract that was originally prepared in 13 1989? 14 A. That could have been. I'm also seeing 15 dates in 1990 toward the end. So it's a little 16 confusing. But it appears to have been signed 17 in 1991. 18 Q. Okay. And this was in June of '91, 19 the signature. That's what it says; correct? 20 A. That's correct. 21 Q. And this is a contract between Digital 22 Research and an OEM called I.F.C. Computer 23 Company; correct? 24 A. Yes. Again, one I've never heard of, 25 but -- 10179 1 Q. Well, I.F.C. Computer Company was 2 located in the United States; is that right? 3 A. It says Taiwan. 4 Q. I beg your pardon. You're right. It 5 was located in Taiwan, but shipped computers 6 into the United States? 7 A. I don't know that. 8 Q. And I.F.C. is on that list that we 9 looked at from December 1993 that was sent to 10 the Justice Department. Do you remember that? 11 A. Well, I don't remember -- 12 Q. I don't know if you want to look at it 13 -- 14 A. -- one of 247, but I -- yeah, the 15 document will speak for itself. I assume you 16 are right. 17 MR. TULCHIN: Microsoft offers Exhibit 18 34, Your Honor. 19 MS. CONLIN: We object on the basis of 20 relevance, Your Honor. 21 THE COURT: Overruled. 22 It's admitted. 23 Q. Now, if you look, Mr. Bradford, let's 24 put this on the screen -- if you look at 25 Exhibit 34, the license agreement between 10180 1 Digital Research and I.F.C., and you look first 2 at the page that has the production number that 3 ends with 777. Let's just look at the top 4 first. 5 This is a license agreement with an 6 OEM for DR-DOS 5.0; correct? 7 A. Yes. 8 Q. And it talks about 25,000 copies; 9 right? 10 A. Yes. 11 Q. It's a license to distribute that many 12 for I.F.C.; is that right? 13 A. Yes. I assume so. 14 Q. And then a little bit further down the 15 page, next to number 5, special terms, the 16 contract says, in consideration of the special 17 pricing discount, licensee -- and, again, 18 that's the OEM, right, I.F.C.? 19 A. That's right. 20 Q. -- agrees to, 5.1.1, distribute one 21 copy of the DR-DOS licensed program with each 22 and every unit of the defined hardware 23 distributed by licensee during the term of this 24 agreement. 25 Do you see that? 10181 1 A. Yes. 2 Q. And if you want to look at the 3 definition of defined hardware, it's on the 4 very -- it's on the second page of Exhibit 34. 5 Let's go to that. 6 And you'll see, Mr. Bradford, that 7 defined hardware is the third definition from 8 the bottom. 9 Defined hardware means those computer 10 hardware products manufactured by or for 11 licensee. 12 That's the OEM; correct? 13 A. Yes. 14 Q. So let's go back to the page we were 15 looking at. 16 A. I think it adds and identified in the 17 applicable supplements. So I think you'd have 18 to go back to the supplement to find out what 19 the defined hardware is, and I've done that. 20 And it looks like it just says I.F.C. systems 21 in general. 22 Q. Right. And thank you for jumping 23 ahead. I was going to try to take you through 24 that, but we saved a little bit of time. 25 A. Sure. 10182 1 Q. Thank you. 2 So let's go back to the page with the 3 Number 777. And what this says is that -- 4 MR. TULCHIN: Let's put that back up. 5 Thank you. 6 Q. -- in consideration of the special 7 pricing discount, I.F.C., the OEM, agrees that 8 it's going to bundle on each and every PC that 9 it sells one copy of DR-DOS; correct? 10 A. That's right. 11 Q. So in order to get a lower price than 12 it would otherwise get, this OEM has agreed to 13 enter into what is the equivalent of a per 14 processor contract; right? 15 A. Yes, that's right. 16 Q. All right. So it's correct, is it 17 not, then, Mr. Bradford, having looked at 18 Defendant's Exhibits 34 and 180, that Digital 19 Research, both before the time that Novell 20 bought it and after the time that Novell bought 21 it, was itself entering into the kind of per 22 processor contract that you say Microsoft had 23 with its OEMs? 24 A. Yes. In Taiwan and Italy I've seen. 25 Q. Okay. You don't deny that there were 10183 1 others, do you, Mr. Bradford? 2 A. I have no way of knowing that. 3 Q. All right. I want to move to a 4 different subject, Mr. Bradford. 5 During your direct examination, you 6 provided to the Jury some testimony about a 7 contract that Novell and Digital Research had 8 entered into with Sears. 9 Do you remember that? 10 A. Yes. 11 Q. And Sears, in turn, had a contract 12 with the U.S. Navy; is that right? 13 A. Yes. 14 Q. So in this case would it be fair to 15 say that Sears was, in essence, the OEM? 16 A. Or distributor. 17 Q. Distributor, is that a better way to 18 put it? 19 A. I think so. 20 Q. We don't know whether Sears was 21 putting together the PC itself or it was just 22 reselling it? 23 A. Right. I don't know the Sears 24 structure. 25 Q. Okay. And during your examination, 10184 1 you were shown by Ms. Conlin a document that is 2 Plaintiffs' Exhibit 5466. 3 MR. TULCHIN: And I wonder if we could 4 look at that again. This is in evidence. 5 Let's look at the second -- well, 6 let's start with the first page. My apologies, 7 Chris. 8 Q. The first page of Plaintiffs' Exhibit 9 5466 is a fax cover sheet in April of 1992 from 10 Mark Zelinger. He was working for Sears; 11 right? 12 A. From -- yes, it appears to be, yes. 13 Q. And Mr. Zelinger was with something 14 called Sears Federal Systems in Washington, 15 D.C.; right? 16 A. Yes. 17 Q. And his customer was the U.S. Navy? 18 A. Yes. 19 Q. And he sends a fax to Mr. Singh, who 20 you identified in direct as a Digital Research, 21 Novell OEM person; correct? 22 A. I'm not sure if I said OEM, but he 23 certainly worked for Novell, Digital Research. 24 Q. Okay. And you remember Mr. Singh from 25 1992; correct? 10185 1 A. Right. 2 Q. Okay. So let's look at the second 3 page of Exhibit 5466. 4 And Mr. Zelinger is writing a 5 memorandum to Mr. Singh of Digital Research, 6 and he's sending a copy to various people, 7 including Jonathan Price who works for Novell; 8 right? 9 A. Yes. 10 Q. Okay. And then let's look at the 11 first -- well, it's the second paragraph, which 12 starts per your April 10th memo. 13 And towards the end of the paragraph, 14 Mr. Zelinger of Sears says -- there's a lone 15 sentence. It starts, when we discussed this by 16 telephone the other day, I indicated that Sears 17 would have to review its position on paying for 18 a patch to the DR-DOS product to bring it into 19 compliance with the specifications of the 20 contract. 21 Do you see that? 22 A. I do. 23 Q. And the contract to which Mr. Zelinger 24 is referring is the contract that Sears had 25 with the U.S. Navy; right? 10186 1 A. That's right. 2 Q. Now, during the course of your direct 3 examination, you were shown two Microsoft 4 documents. 5 Do you remember that? 6 A. Yes. 7 Q. I think it was an e-mail written by 8 Mr. -- and I don't know how to pronounce his 9 name either. Kechejian. 10 A. Sounds right. 11 Q. K-e-c-h-e-j-i-a-n. And then a May 12 1992 report I think was also written by 13 Mr. Kechejian. 14 Do you happen to remember the dates of 15 those two Microsoft documents? 16 A. I don't offhand. 17 Q. Well, one of them was Plaintiffs' 18 Exhibit 5305. That's the e-mail. And that was 19 actually dated June 1st, '92. 20 Does that accord with your memory? 21 And if you want me to, I'll find a 22 copy and show it to you. 23 A. I don't know. Yeah, it would be 24 helpful if I saw copies -- 25 MR. TULCHIN: Could I have a copy of 10187 1 Plaintiffs' Exhibit 5305 for Mr. Bradford? 2 A. -- to confirm that. 3 MR. TULCHIN: May I approach the 4 witness, Your Honor? 5 THE COURT: You may. 6 Q. This is 5305, Plaintiffs' 5305, and 7 the e-mail from Mr. Kechejian -- let's hope we 8 are not butchering his name -- was on the very 9 last page. 10 Do you remember that? And Ms. Conlin 11 showed you this at the time. 12 A. Yes. 13 Q. It's right at the top of the page. 14 It's dated June 1st, 1992; correct? 15 A. That's right. 16 Q. All right. And you were also shown by 17 Ms. Conlin Plaintiffs' Exhibit 3518, which was 18 that May 1992 monthly report. 19 Remember that? 20 A. Was it in a memorandum form? I don't 21 remember a formal report. 22 MR. TULCHIN: May I approach, Your 23 Honor? 24 THE COURT: Yes. 25 MR. TULCHIN: Thank you, sir. 10188 1 Q. John Kechejian and MS-DOS transition 2 team monthly report. 3 A. Oh, okay. That was the cover, yeah. 4 Q. And there was one page in there about 5 the Sears material; correct? 6 Do you remember Ms. Conlin showed you 7 one page? 8 A. Yes. 9 Q. And I think she said at the time that 10 this must necessarily have been written after 11 May of 1992; correct? 12 A. I don't remember our talking about 13 that, but it could have been. 14 Q. Well, it was a monthly report for the 15 month of May of 1992? 16 A. Right. So undoubtedly written about 17 the same time as his June e-mail or something 18 like that. 19 Q. Okay. And that's all I wanted to 20 establish when talking about Mr. Zelinger's 21 memo to Mr. Singh of Digital Research. 22 That was in April of '92. 23 A. That's right. 24 Q. And the only two Microsoft documents 25 that you were shown on this same subject were 10189 1 from June. 2 We agree? 3 A. The record would show that. I assume 4 that's right. But I don't know for certain. 5 Q. Okay. And that's two months later. 6 You certainly weren't implying in your 7 testimony, were you, Mr. Bradford, on direct 8 examination that Microsoft caused Sears to back 9 away with its contract -- back away from its 10 contract with Digital Research? 11 A. I think I was saying that. 12 Q. Is that what you were saying, that 13 Microsoft caused that to occur? 14 A. Right. I'm sure there could have been 15 other factors, but Microsoft's influence was 16 certainly a large one. 17 Q. Well, let's go back to Exhibit 5466, 18 which was written two months before the two 19 Microsoft documents you see. And let's look at 20 the fourth paragraph on the first page. 21 It says, the most important issue that 22 Sears has -- do you see that? That's how it 23 starts out. 24 A. I do. 25 Q. And that sentence continues, the most 10190 1 important issue that Sears has with Lapheld is 2 customer satisfaction. 3 A. Right. 4 Q. And Lapheld -- again, I think you saw 5 this on direct, Lapheld is what they were 6 calling the computers that Sears was going to 7 sell to the U.S. Navy? 8 A. That's right. 9 Q. And Sears is saying the same thing 10 that Mr. Frankenberg said and that we talked 11 about at some length earlier today, which is 12 the key thing for an OEM, or in this case 13 perhaps a distributor, the key thing is what 14 does their customer want; right? 15 A. Right. That's a driving factor, no 16 question. 17 Q. And here's Mr. Zelinger of Sears 18 saying the same thing. He says, Sears, as a 19 corporation, bases its business decisions 20 around the needs and solutions of our 21 customers. 22 And that makes perfect sense to you; 23 correct? 24 A. Yes. 25 Q. You have no reason to doubt that? 10191 1 A. Right. 2 Q. And then he says, based on this 3 practice, my team is having a very difficult 4 time satisfying the government's concerns 5 regarding DR-DOS. 6 A. Right. 7 Q. So the concerns that Sears was passing 8 along to Novell in 1992, April, were concerns 9 apparently that the government had been 10 expressing about the DR-DOS product; correct? 11 A. Yes. That was one of their concerns. 12 Q. All right. Well, let's go -- 13 A. Their specific concerns about DR-DOS 14 I'm not sure, but -- 15 Q. Well, let's look at the next 16 paragraph. I mean, this document was a 17 document that you looked at during your direct 18 examination with Ms. Conlin; correct? 19 A. Yes. 20 Q. And you testified about it? 21 A. Uh-huh. 22 Q. So I just want to make sure we look at 23 some of the important pieces of it. 24 In the very next paragraph after 25 saying that Sears was passing along the 10192 1 government's concerns, Mr. Zelinger says, the 2 government MIS players -- now MIS stands for -- 3 these are information -- 4 A. Management information systems. 5 Q. Thank you. So they are what we might 6 call today IT or information technology people? 7 A. Sure. Folks working for the 8 government specializing in information systems. 9 Q. Right. And it says they're familiar 10 with MS-DOS, know that it is compatible and 11 believe that DR-DOS has bugs and 12 incompatibility issues. 13 Correct? 14 A. Correct. 15 Q. That's what the government IT people 16 or MIS people believed? 17 A. That's right. 18 Q. And is there any evidence anywhere 19 that you know of, anywhere, that Microsoft had 20 done anything to lobby these government people 21 on the subject of DR-DOS's bugs? 22 A. I'm not sure. 23 Q. Well, you haven't seen any during 24 your -- 25 A. I haven't seen any direct information 10193 1 other than the e-mails that we reviewed 2 yesterday that were pretty clear that Microsoft 3 was apparently doing just that. 4 Q. Well, Microsoft was talking to Sears, 5 and that's what the e-mail indicates; correct? 6 A. Microsoft was talking to Sears, as 7 their prospective customer, that's right. 8 Q. Right. And I asked you whether you 9 knew of any evidence that Microsoft was talking 10 to the government MIS players, the people who 11 believe that DR-DOS has bugs and 12 incompatibility issues. 13 A. I don't know that, right. 14 Q. All right. And then Mr. Zelinger 15 tells Mr. Singh, the Sears Lapheld team is not 16 capable of satisfying the government concerns; 17 correct? 18 A. That's right. That's what it says. 19 Q. And then let's go to the next 20 paragraph on the first page. 21 Again, this is Plaintiffs' Exhibit 22 5466. 23 Mr. Zelinger appeals to Novell, to 24 Digital Research, to help him out. He says, 25 Digital Research must lead the way in 10194 1 satisfying our customer. I am thus requiring 2 immediate marketing and technical support to 3 work with my team in satisfying the government. 4 If we are unsuccessful in resolving 5 compatibility issues between DR-DOS and MS-DOS 6 and Windows, I believe that the government may 7 mandate the replacement of DR-DOS (with MS-DOS) 8 on the contract. 9 Do you see that? 10 A. I do. 11 Q. And then the very last paragraph on 12 the same page. This is a very serious issue 13 for Sears. We cannot afford to win the 14 contract but lose the business due to 15 government concerns about the operating system. 16 Now, what, if anything, do you know 17 about what efforts Mr. Singh of Novell or 18 anyone else at Novell or Digital Research made 19 after getting this memorandum to satisfy Sears 20 or the government concerning the bugs and 21 incompatibility issues that the technical 22 people who work for the government were 23 concerned about? 24 A. Oh, I'm sure they worked hard to 25 resolve them. 10195 1 Naturally, it was a very, very large 2 contract that they wanted to secure. 3 So, naturally, I'm sure they worked 4 hard. 5 Q. Well, you're say you're sure. I take 6 it what you're saying is you're assuming they 7 did so? 8 A. That's right. 9 Q. And where's the evidence that you know 10 about? Any documents or anything else on this 11 subject? 12 A. Well, we've seen a series of documents 13 expressing, you know, interest in this 14 government contract. 15 You know, these were Novell employees, 16 Digital Research employees excited about 17 securing a very large contract from Sears for 18 the U.S. government. And so, gosh, if they 19 weren't working hard to resolve the 20 incompatibility issues, I would be shocked, as 21 you would be. 22 Q. Okay. Well, let's look at Defendant's 23 Exhibit 170. 24 THE COURT: Before we do that, could 25 we take a recess? 10196 1 MR. TULCHIN: Oh, certainly, Your 2 Honor. I wasn't aware of the time. 3 THE COURT: We'll take a recess. 4 Remember the admonition previously 5 given. Leave your notebooks here. 6 We will recess for ten minutes. 7 (A recess was taken from 9:57 a.m. 8 to 10:15 a.m.) 9 THE COURT: Everyone else may be 10 seated. Let's wait a minute for Mr. Shiner to 11 move over. 12 MR. TULCHIN: Do you need help with 13 that, Mr. Bradford? 14 THE WITNESS: Got it. 15 THE COURT: All right. Mr. Bradford, 16 you are still under oath. 17 MR. TULCHIN: Shall I proceed, Your 18 Honor? 19 THE COURT: Yes. Please. 20 MR. TULCHIN: And may I approach the 21 witness? 22 THE COURT: You may. 23 BY MR. TULCHIN: 24 Q. We are still talking about Sears, 25 Mr. Bradford, and here is Defendant's Exhibit 10197 1 170. 2 MR. TULCHIN: And if we can show this. 3 I believe it's without objection. 4 Q. This is a memorandum later in the 5 month of April from Mr. Price to Mr. Singh of 6 Novell; correct? 7 A. Yes. 8 Q. And it's dated April 29th, so it's a 9 couple weeks after the document we just looked 10 at; correct? 11 A. Correct. 12 Q. And there's a copy to Mr. Zelinger and 13 other people. 14 And the subject says Novell DR-DOS 15 technical support and bug fixes. 16 And maybe we could just show on the 17 screen the rest of the document. 18 What's happening here, Mr. Bradford, 19 is it not, it's that Sears is making a proposal 20 to Novell about how to deal with the concerns 21 that the government has expressed about bugs 22 and incompatibilities in DR-DOS; correct? 23 A. That appears to be correct. 24 Q. And among the things that Sears is 25 saying is that -- if you look under the heading 10198 1 software error corrections, Sears is proposing 2 that one way for Novell to keep this contract 3 with the government, the contract that you say 4 was so important, was for Novell to agree to 5 fix errors and/or bugs in DR-DOS 6.0; correct? 6 A. That's what it says. 7 Q. And what it says is that Novell would 8 agree to fix errors or bugs that affect Sears' 9 performance of the Lapheld within 45 days of 10 written notification by Sears; correct? 11 A. That's correct. 12 Q. So the Sears proposal, at least as of 13 the end of April, was that if there was a bug 14 in DR-DOS 6, Sears would have to put it in 15 writing and Novell would get 45 days to fix 16 that; correct? 17 A. That's right. 18 Q. And then it goes on to say, this 19 includes, but is not limited, to the following 20 types of problems, and it lists four types of 21 problems, incompatibilities with software 22 currently offered by Sears, software already in 23 use by Sears' customers, Windows 3.0 and 3.1 as 24 well as future releases of Windows, and other 25 popular DOS applications. 10199 1 Do you see that? 2 A. Yes, I do. 3 Q. And then in the next paragraph -- 4 MR. TULCHIN: And maybe we can blow 5 that up a little bit, Chris. 6 Q. -- what Sears goes on to say is that 7 after Novell gets this written notification of 8 a problem, Novell has 10 days to respond in 9 writing describing the nature of the problem 10 and the process to resolve it. 11 And then it says, if Novell believes 12 the problem is related to hardware or software 13 other than the operating system. So that means 14 anything other than DR-DOS; right? Is that how 15 you understand this? 16 A. No, not necessarily. 17 Q. Well, okay. It goes on to say, Novell 18 will respond with evidence which satisfies 19 Sears' technical staff. 20 A. Okay. 21 Q. And Novell would be responsible for 22 indemnifying Sears if there were problems only 23 if the problems are with DR-DOS. Is that what 24 this amounts to? 25 A. Well, the problems with DR-DOS and its 10200 1 compatibility with the four items listed above, 2 which include significantly Microsoft Windows 3 3.0 and 3.1. 4 Q. Right. But Sears is proposing to 5 Novell that if the problem is with some other 6 software, not DR-DOS, that Novell won't be 7 financially responsible for that; correct? 8 A. I'm not sure what you mean. 9 Q. Well, I think you testified in direct 10 examination that you personally instructed 11 other people at Novell to turn down the Sears 12 contract because you were worried about 13 Novell's responsibility for reimbursing Sears 14 if there were incompatibilities; right? 15 A. I don't know if I testified that I 16 directed that activity. It was probably 17 someone in the legal department, and it could 18 have been me. 19 Q. Yeah, I thought you said it was you, 20 but maybe not. 21 A. Right. 22 Q. But someone in the legal department 23 certainly said, you know, don't enter into the 24 Sears contract, we're worried about Novell's 25 responsibility if it turns out there are 10201 1 incompatibilities with Windows? 2 A. That's right. 3 Q. And the Sears proposal to you in 4 April, April 29th, 1992 -- and when I say to 5 you, I don't mean you personally, you're not 6 copied on this memo, but to Mr. Singh who 7 worked at Novell -- was that Novell -- let's go 8 back to the very first part of this under 9 software error corrections. 10 Sears proposes Novell agrees to fix 11 errors or bugs in the DR-DOS 6 operating 12 system. 13 So the bugs have to be in DR-DOS, 14 right, for Novell to be responsible 15 financially? 16 Isn't that what that says? 17 A. Yes. But those bugs may be 18 specifically related to the fact that it's 19 incompatible with Windows and the government or 20 Sears could deem that to be a bug. 21 Q. Right. Let's assume -- 22 A. The fact that the two aren't operating 23 together. 24 Q. Let's assume that's so. What Sears is 25 proposing is that if that incompatibility is 10202 1 the fault of DR-DOS, that is of the software 2 engineers at Novell, then Novell should be 3 responsible, but if it's not the fault of 4 DR-DOS, you would have no responsibility; 5 correct? 6 A. I think the government would assume, 7 since they're utilizing our operating system, 8 that if it wasn't compatible with Windows, 9 wasn't operating effectively with Windows 3.0 10 and 3.1, that they would look to Novell for a 11 remedy. And that's what worried us, I'm sure. 12 Q. Well, regardless of your worry, if we 13 look at that next paragraph that starts upon 14 written notification, again, what Sears is 15 saying is that Novell will have the chance to 16 convince Sears that the problem is related to 17 something other than DR-DOS. 18 Do you see the second sentence there, 19 if Novell believes the problem is related to 20 hardware or software other than the operating 21 system, Novell will respond with evidence which 22 satisfies Sears' technical staff? 23 So, again, just to make sure we're 24 together on this, Defendant's Exhibit 170 is a 25 proposal by Sears of how to deal with the 10203 1 government's concerns about the quality of 2 DR-DOS; isn't that right? 3 A. No. I would not classify that as the 4 quality of DR-DOS. 5 Q. Well, we looked at Exhibit 5466, and I 6 don't want to go back to that. We spent a few 7 minutes on it, but, in 5466, Sears is reporting 8 on what the government technical people are 9 concerned about with DR-DOS. 10 A. Which is the incompatibility issues 11 and bugs that are associated with those 12 incompatibilities. 13 Q. And that are associated with DR-DOS? 14 A. Certainly. 15 Q. Okay. And here what Sears is 16 proposing is that if the problem is not a 17 problem in DR-DOS, if the incompatibility comes 18 about because of some other software, for 19 example, Windows, Sears is proposing that 20 Novell would have a chance to convince Sears' 21 technical staff that it's not your fault, and 22 in that case you wouldn't have to pay to 23 reimburse Sears? 24 A. That was not the way we read that. 25 Q. In any event, what occurred with the 10204 1 Sears contract is that the Novell legal 2 department instructed the Novell marketing 3 people not to make the deal; is that right? 4 A. Is that a statement or a question? 5 Q. No, it was a question. I'm sorry. I 6 left out the last three words. 7 A. I think that's my recollection. 8 Q. Okay. 9 A. Is that it imposed upon the company a 10 significant financial risk if we could not make 11 DR-DOS compatible with Windows. 12 Q. And that was a risk that the legal 13 department thought Novell shouldn't take? 14 A. That's correct. 15 Q. All right. Let's go to another 16 subject. 17 Yesterday in my cross-examination, we 18 were talking about suites. And I think you 19 will remember, Mr. Bradford, that you agreed 20 with me that in around 1994, 1995 Novell 21 recognized that end users, customers, people 22 who were buying PCs, preferred to get their 23 applications in the form of suites where the 24 products were bundled together; right? 25 A. In general, that's a correct 10205 1 statement. 2 Q. Okay. 3 A. I'm sure there were single individuals 4 that only wanted the word processing module or 5 only wanted the Excel spreadsheet or only 6 wanted, you know, separate and distinct things, 7 but, in general, you know, to have a suite 8 combined was of value to the stockholders -- or 9 to the end user, customers. 10 Q. To the end users? 11 A. Yes. 12 Q. And because it was of value to the end 13 users, OEMs wanted to give those customers what 14 those customers wanted; right? 15 A. Sure. 16 Q. And we talked yesterday about Office 17 Suites and I just want to see if this refreshes 18 your recollection as to when Microsoft released 19 Office. 20 So I have two questions for you. 21 Do you recall that Office for the Mac, 22 Office for the Macintosh graphical user 23 interface was released by Microsoft in the 24 1980s? 25 A. I don't recall that. 10206 1 Q. And how about Microsoft Office for 2 Windows? Do you recall that that was released 3 in October 1990? 4 A. No, I don't recall that. I think 5 specifically yesterday we were talking about a 6 new release of Windows in the '94, '95 time 7 frame. Windows 5 or something like that. And 8 then the Microsoft Office suite was shipping at 9 the same time. 10 Q. Yes, you did talk about that, but my 11 question was when Microsoft first released an 12 Office Suite for the Windows 5.0. And I'm just 13 asking, does October 1990 seem about right to 14 you? 15 A. No, I have no basis to know that 16 particular date when Microsoft issued, first 17 issued their Office Suite. 18 Q. And we talked yesterday about the fact 19 that for the engineers, software engineers at 20 Novell, it was going to take a period of some 21 months after Novell acquired WordPerfect and 22 the Quattro Pro spreadsheet to integrate them 23 and put them together in a suite that could be 24 offered to customers? 25 A. That's right. 10207 1 Q. I went back and looked. And according 2 to what I can find, the first time that Novell 3 introduced such a suite was in January of 1995. 4 Does that seem about right to you? 5 A. Yes. If Windows was released in 6 August of '94 -- 7 Q. No, August of '95. Windows -- sorry. 8 Maybe I'm -- I shouldn't have interrupted you. 9 A. Let's get our dates correct. 10 Q. Windows 95, of course, was released in 11 August of '95. 12 A. Okay. 13 Q. And, of course, to go back again, 14 Novell acquired WordPerfect in June of '94. 15 That's when the deal closed. 16 A. That's right. 17 Q. And acquired the Quattro Pro 18 spreadsheet from Borland at the same time, in 19 June of '94? 20 A. That's right. 21 Q. And we were talking about how many 22 months it took Novell to put them together, to 23 integrate them, to sort of sew them together 24 tightly and come out with an Office Suite that 25 customers might want? 10208 1 A. Right. 2 Q. And you said you thought it was a few 3 months, and I went back and looked. And 4 according to the records we have, it was 5 January 1995, which would be about seven 6 months. 7 A. Okay. 8 Q. And I'm just asking if that seems 9 about right to you. 10 A. Yes, that probably is correct. 11 Q. Okay. And that was a suite that 12 Novell came out with in early '95 that was 13 written to run on the Windows platform; 14 correct? 15 A. That's right. 16 Q. Now, I think you testified yesterday 17 on direct examination, but perhaps it was 18 Monday, that Novell bought WordPerfect, and, 19 again, the deal closed in June '94, Novell 20 decided to layoff -- to discharge a number of 21 salespeople who worked at WordPerfect; correct? 22 A. Yes. It was a consolidation of the 23 two companies. And, naturally, you would go in 24 and make selections as to who should move on 25 and, you know -- economies of scale we call it. 10209 1 Q. And Novell was in Provo and 2 WordPerfect was located, what did you say, 20 3 miles away? 4 A. Oh, no, four or five miles. 5 Q. Four or five miles. I knew it was 6 close by. 7 A. Yeah. 8 Q. And I think you said that -- and tell 9 me if I'm wrong -- that most of the salespeople 10 at WordPerfect were discharged, were fired when 11 this consolidation occurred in the middle of 12 '94? 13 A. No. I didn't say that most of them 14 were discharged. 15 Q. Well, was it most of them? 16 A. I don't think so, no. 17 Q. Do you remember there being some 18 significant criticism in the industry of Novell 19 for getting rid of the WordPerfect salespeople 20 who were most familiar with that product? 21 A. I assume there would be, sure. 22 Q. Well, I'm asking whether you remember 23 that criticism. 24 A. I don't remember specific criticism at 25 this point in time, no. 10210 1 Q. Okay. And certainly the Novell sales 2 force, as of the middle of 1994, had no 3 experience selling a word processing 4 application; correct? 5 A. That's right. 6 Q. And, in fact, the Novell sales force 7 to a large extent had concentrated on selling 8 operating systems, DR-DOS, to computer makers, 9 OEMs; correct? 10 A. That's right. Along with the NetWare 11 operating system. 12 Q. Which also was sold primarily to OEMs? 13 A. And distributors. 14 Q. Okay. But not retail? 15 A. That's right. 16 Q. Okay. So WordPerfect's business had 17 been concentrated to a large extent on selling 18 the WordPerfect word processing software to 19 retail outlets; correct? 20 A. Right. I think they sold both to 21 retail and through distribution and through 22 dealers. 23 Q. Right. A lot of the salespeople at 24 WordPerfect had lots of contacts in the retail 25 field, agreed? 10211 1 A. Certainly, yes. 2 Q. And the Novell people did not? 3 A. Yes. That would be accurate, in 4 general. 5 Q. All right. And despite that, what 6 happened in the middle of '94 is that Novell 7 decided that these salesmen at WordPerfect who 8 had this experience in selling to the retail 9 outlets would be laid off? 10 A. Not as a whole group, certainly not. 11 No, you go in and you take a look -- whenever 12 you do a merger, you take a look at who's 13 performing, who's successful, you know, how 14 much of their quotas they're achieving and you 15 go back and you look at and say, okay, does it 16 make sense to lay off this person? 17 No, he's doing really great. So let's 18 keep this person. This person's struggling. 19 They're not meeting quota, let's eliminate 20 them. 21 And I'm sure that there were people on 22 the Novell side, as well as the WordPerfect 23 side, that were eliminated in that 24 consolidation process. 25 Q. And do you recall -- well, let's back 10212 1 up just a moment. 2 You acquired WordPerfect in '94, and 3 then in '96 you sold it? 4 A. That's correct. 5 Q. And do you recall that being widely 6 viewed in the industry at the time as a bit of 7 a disaster for Novell? 8 A. There wasn't great enthusiasm out 9 there about the fact that it had been such a 10 short period of time that we had held the 11 product, WordPerfect specifically. There were 12 other products and technologies that we kept. 13 Q. Right. But with respect to 14 WordPerfect, I think you said on direct 15 examination that you actually only held that 16 for about 18 months before you decided to sell 17 it. 18 A. Yes, the specific word processing 19 package, that's right. 20 Q. And there was tremendous criticism 21 among investors as well as people in the 22 industry for what Novell had done to 23 WordPerfect; isn't that right? 24 A. I don't know if you would say 25 tremendous criticism. I'm sure there was some. 10213 1 Q. Well, do you remember, for example, 2 articles in the business where Mr. Frankenberg 3 was interviewed and quoted? 4 A. Not specifically. It wouldn't 5 surprise me if there were some, though. That 6 would be natural. 7 Q. Well, Mr. Bradford, let me ask you 8 this. 9 In the mid 1990s, did you read the 10 Wall Street Journal from time to time? 11 A. Occasionally. 12 Q. Did you read it in your office on a 13 regular basis? 14 A. No. 15 Q. Did people at Novell subscribe to it? 16 A. Yes. 17 Q. And certainly the Wall Street Journal 18 is a very prominent publication? 19 A. That's right. 20 Q. And perhaps has among the highest 21 circulations of any daily newspaper in the 22 country? 23 A. I assume that to be the case. 24 MR. TULCHIN: Could I have Exhibit 25 3148, please, Defendant's Exhibit 3148? 10214 1 Your Honor, I apologize for the delay. 2 This is probably my fault, as the other one 3 was, and let me move on and come back to that 4 if we need to. I don't want to keep anyone 5 waiting. 6 Oh, we have it. Thank you. 7 May I approach the witness, Your 8 Honor? 9 THE COURT: You may. 10 Q. Mr. Bradford, I've handed you 11 Defendant's Exhibit 3148, and this is an 12 article from the Wall Street Journal of January 13 12, 1996. 14 Do you see that, sir? 15 A. Yes, I do. 16 Q. And do you