Home > Articles

This chapter is from the book

Everyone Is Subject to Subpoena

In Western culture, when push comes to shove and we really need to figure out what happened, our legal system has decreed that we're all potential witnesses. On reflection, this should not seem all that unusual. We are, after all, members of an open society that has endorsed neither royalty nor a privileged aristocracy as immune from giving testimony in our courts. Most of the belief systems underlying the everyday conduct of the culture rely on testimony to convey key information to us on a daily basis. As in other life skills, your skills as a witness can vary based on personality, experience, training, and attitude. The ability to communicate, both verbally and nonverbally, and the ability to relate to those outside your inner circle of friends and associates are clearly skills that you can hone over time. What may not be as clear to those who are celebrated for their mastery of technology is the impact of neglecting the development of such skills.

An example of this point should be familiar to most readers since it was splashed in lurid detail across most of our television and computer screens in 1999 during U.S. v. Microsoft Corporation, the antitrust case against the Microsoft Corporation. In late April 1999, the U.S. government released the full transcripts of the deposition of Bill Gates, President and CEO of Microsoft. At the same time, the government released the video recordings of that deposition.

The negative reaction to the public display of the three-day deposition (which surfaced for the first time during the trial that took place several months after the deposition) was immediate and intense. Gates has been criticized as not having been at his best during the deposition, with a demeanor that has been characterized as swinging from agitated, bored, or just plain irritated to impatient and uncooperative. The legal experts retained by the media to comment on the trial were flabbergasted by Gates's performance in the deposition; they mused about and openly questioned the quality of the Microsoft legal strategy in not better preparing Gates for his testimony.

Consider this exchange between Gates and David Boies, lead counsel for the government. Some commentators have suggested that this deposition is a textbook example of how not to conduct oneself during testimony. The questions explore Gates's communications concerning the intentions of Microsoft to give away its browser.

(David Boies)

Q :

Were you in 1996 trying to get financial analysts to develop a more negative and more pessimistic view about Netscape's business prospects?

(Bill Gates)

A :

Except through the indirect effect of them seeing how customers received our products and our product strategies, that was not a goal.


If that was not a goal, sir, why did you say in substance that the Internet browser would be forever free?


That was a statement made so that customers could understand what our intent was in terms of that set of technologies and how it would be a part of Windows and not an extra cost item, and so people would have that information in making their decisions about working with us on Windows.


Now, is it your testimony that when Microsoft told the world that its browser would be forever free, that the desire to affect financial analysts' view of Netscape played no role in that decision?


I can be very clear with you. The reason we told people that it would be forever free was because that was the truth. That's why we told them that, because it was the truth.


Now, Mr. Gates, my question to you—


That's the sole reason we told them.


And my question to you is whether or not the truth was, in part, due to your desire to adversely affect financial analysts' view of Netscape. Did that play any role, sir?


You've been asking me a question several times about why did we say something. We said it because we thought our customers would want to know and because it was the truth. And that explains our saying it completely.


And what I'm asking you, sir—and it may be that the answer to my question is, "no, it played no role." But if that's your answer, I want to get it on the record. And my question—


Are you talking about saying it?




Or how we came up with our decision about how to price our products?


Let's take it each step at a time, one step at a time, so that your counsel doesn't say I'm asking you a compound question, okay? And first let's talk about saying it. I know you're telling me it was the truth. In addition to it being the truth, did the fact that this would, in your view, adversely affect the view of financial analysts of Netscape play any role at all in your decision to announce that your browser would be forever free?


I actually think that came up in response to some questions that people asked in an event we had on December 7, 1995. So it wasn't so much a question of our saying, okay, we're going to go make this a headline, but rather, that there were questions that came up during that, including our future pricing plans.


This was a meeting on December 7 of what year?




And was it attended by people outside Microsoft?


It was a press event.


And prior to attending that press event, had you made a decision that it would be forever free?


Well, if you really want to probe into that, you'll have to get into the different ways that we made Internet technology available. In terms of what we were doing with Windows 95 and its successors, yes. In terms of some of the other ways that we offered the Internet technologies, there was some—there hadn't been a clear decision about that.


When you refer to other ways that you offer Internet technologies, would you explain for the record what you mean?


Oh, we created an offering that ran on the Macintosh OS that offered some but not all of the capabilities that we put into Windows and used a common branding for that. And we came up with a package that ran on a previous version of Windows, Windows 3.1, and made an offering of that. Subsequently I mean, not on that day, but subsequently.


And those were charged for; is that what you're saying?


I'm saying that before the December 7th event, it was clear to everyone that in the Windows 95 and its successors, that the browser technology would be free for those users. But it was unclear to people what we were going to do with the other ways that we packaged up the technologies.


Would you read the question back, please?

(The following question was read:


And those were charged for; is that what you're saying?")

The Witness: Well, they weren't available. So if we're talking about December 7, 1995, it's not a meaningful question. Subsequently those products were made available to the customers without charge. But I'm saying that there was some lack of clarity inside Microsoft even up to the event itself about what we were going to do with those other ways we were providing Internet Explorer technology.


(Mr. Boies): Uncertainty as to whether you would charge for them; is that what you're saying?


That's right.


Okay. Prior to the December 7, 1995 meeting, had a decision been made to advise the world that not only would the browser be free, but it would be forever free?


Well, it's always been the case that when we put a feature into Windows, that it remains part of Windows and doesn't become an extra cost item. So it would have been kind of a silly thing for anyone to ask, including about that particular feature. And by this time, of course, browsing is shipping with Windows 95.


Exactly sort of the point I wanted to come to, Mr. Gates. When you put things into the operating system generally, you don't announce that they're going to be forever free, do you?


Yes, we do. If anybody—


You do?


If anybody asks, that's obviously the answer we give.


Have you finished your answer?




Okay. Could you identify for me the products other than browsers that Microsoft has announced that they would be forever free, expressly said, "These are going to be forever free"?


As I said to you, I think that actually came up only in response to some questions. So it's not proper to ask me and suggest that we announced it like it was some, you know, press release announcement or something of that nature.


Well, let me come back to that aspect of it and just ask you for the present. What products has Microsoft said publicly, whether in response to a question or otherwise, that these would explicitly be forever free?


I've said that about the broad feature set that's in Windows.


When did you say that, sir?


I remember an analyst talking to me about that once at an analyst meeting.


When was that?


It would have been one of our annual analysts meetings.




Not this year. Either last year or the year before.


Is there a transcript of that analyst meeting?


Not with the conversation with that analyst, no.


There are transcripts of analysts meetings, aren't there, Mr. Gates?


Only of the formal Q and A, not of the—most of the Q and A, which is where people are mixing around with the press and analysts who come to the event.


And this question that you say happened happened after the transcript stopped being taken; is that what you're saying?


That's my recollection, yes.1

InformIT Promotional Mailings & Special Offers

I would like to receive exclusive offers and hear about products from InformIT and its family of brands. I can unsubscribe at any time.


Pearson Education, Inc., 221 River Street, Hoboken, New Jersey 07030, (Pearson) presents this site to provide information about products and services that can be purchased through this site.

This privacy notice provides an overview of our commitment to privacy and describes how we collect, protect, use and share personal information collected through this site. Please note that other Pearson websites and online products and services have their own separate privacy policies.

Collection and Use of Information

To conduct business and deliver products and services, Pearson collects and uses personal information in several ways in connection with this site, including:

Questions and Inquiries

For inquiries and questions, we collect the inquiry or question, together with name, contact details (email address, phone number and mailing address) and any other additional information voluntarily submitted to us through a Contact Us form or an email. We use this information to address the inquiry and respond to the question.

Online Store

For orders and purchases placed through our online store on this site, we collect order details, name, institution name and address (if applicable), email address, phone number, shipping and billing addresses, credit/debit card information, shipping options and any instructions. We use this information to complete transactions, fulfill orders, communicate with individuals placing orders or visiting the online store, and for related purposes.


Pearson may offer opportunities to provide feedback or participate in surveys, including surveys evaluating Pearson products, services or sites. Participation is voluntary. Pearson collects information requested in the survey questions and uses the information to evaluate, support, maintain and improve products, services or sites, develop new products and services, conduct educational research and for other purposes specified in the survey.

Contests and Drawings

Occasionally, we may sponsor a contest or drawing. Participation is optional. Pearson collects name, contact information and other information specified on the entry form for the contest or drawing to conduct the contest or drawing. Pearson may collect additional personal information from the winners of a contest or drawing in order to award the prize and for tax reporting purposes, as required by law.


If you have elected to receive email newsletters or promotional mailings and special offers but want to unsubscribe, simply email information@informit.com.

Service Announcements

On rare occasions it is necessary to send out a strictly service related announcement. For instance, if our service is temporarily suspended for maintenance we might send users an email. Generally, users may not opt-out of these communications, though they can deactivate their account information. However, these communications are not promotional in nature.

Customer Service

We communicate with users on a regular basis to provide requested services and in regard to issues relating to their account we reply via email or phone in accordance with the users' wishes when a user submits their information through our Contact Us form.

Other Collection and Use of Information

Application and System Logs

Pearson automatically collects log data to help ensure the delivery, availability and security of this site. Log data may include technical information about how a user or visitor connected to this site, such as browser type, type of computer/device, operating system, internet service provider and IP address. We use this information for support purposes and to monitor the health of the site, identify problems, improve service, detect unauthorized access and fraudulent activity, prevent and respond to security incidents and appropriately scale computing resources.

Web Analytics

Pearson may use third party web trend analytical services, including Google Analytics, to collect visitor information, such as IP addresses, browser types, referring pages, pages visited and time spent on a particular site. While these analytical services collect and report information on an anonymous basis, they may use cookies to gather web trend information. The information gathered may enable Pearson (but not the third party web trend services) to link information with application and system log data. Pearson uses this information for system administration and to identify problems, improve service, detect unauthorized access and fraudulent activity, prevent and respond to security incidents, appropriately scale computing resources and otherwise support and deliver this site and its services.

Cookies and Related Technologies

This site uses cookies and similar technologies to personalize content, measure traffic patterns, control security, track use and access of information on this site, and provide interest-based messages and advertising. Users can manage and block the use of cookies through their browser. Disabling or blocking certain cookies may limit the functionality of this site.

Do Not Track

This site currently does not respond to Do Not Track signals.


Pearson uses appropriate physical, administrative and technical security measures to protect personal information from unauthorized access, use and disclosure.


This site is not directed to children under the age of 13.


Pearson may send or direct marketing communications to users, provided that

  • Pearson will not use personal information collected or processed as a K-12 school service provider for the purpose of directed or targeted advertising.
  • Such marketing is consistent with applicable law and Pearson's legal obligations.
  • Pearson will not knowingly direct or send marketing communications to an individual who has expressed a preference not to receive marketing.
  • Where required by applicable law, express or implied consent to marketing exists and has not been withdrawn.

Pearson may provide personal information to a third party service provider on a restricted basis to provide marketing solely on behalf of Pearson or an affiliate or customer for whom Pearson is a service provider. Marketing preferences may be changed at any time.

Correcting/Updating Personal Information

If a user's personally identifiable information changes (such as your postal address or email address), we provide a way to correct or update that user's personal data provided to us. This can be done on the Account page. If a user no longer desires our service and desires to delete his or her account, please contact us at customer-service@informit.com and we will process the deletion of a user's account.


Users can always make an informed choice as to whether they should proceed with certain services offered by InformIT. If you choose to remove yourself from our mailing list(s) simply visit the following page and uncheck any communication you no longer want to receive: www.informit.com/u.aspx.

Sale of Personal Information

Pearson does not rent or sell personal information in exchange for any payment of money.

While Pearson does not sell personal information, as defined in Nevada law, Nevada residents may email a request for no sale of their personal information to NevadaDesignatedRequest@pearson.com.

Supplemental Privacy Statement for California Residents

California residents should read our Supplemental privacy statement for California residents in conjunction with this Privacy Notice. The Supplemental privacy statement for California residents explains Pearson's commitment to comply with California law and applies to personal information of California residents collected in connection with this site and the Services.

Sharing and Disclosure

Pearson may disclose personal information, as follows:

  • As required by law.
  • With the consent of the individual (or their parent, if the individual is a minor)
  • In response to a subpoena, court order or legal process, to the extent permitted or required by law
  • To protect the security and safety of individuals, data, assets and systems, consistent with applicable law
  • In connection the sale, joint venture or other transfer of some or all of its company or assets, subject to the provisions of this Privacy Notice
  • To investigate or address actual or suspected fraud or other illegal activities
  • To exercise its legal rights, including enforcement of the Terms of Use for this site or another contract
  • To affiliated Pearson companies and other companies and organizations who perform work for Pearson and are obligated to protect the privacy of personal information consistent with this Privacy Notice
  • To a school, organization, company or government agency, where Pearson collects or processes the personal information in a school setting or on behalf of such organization, company or government agency.


This web site contains links to other sites. Please be aware that we are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of each and every web site that collects Personal Information. This privacy statement applies solely to information collected by this web site.

Requests and Contact

Please contact us about this Privacy Notice or if you have any requests or questions relating to the privacy of your personal information.

Changes to this Privacy Notice

We may revise this Privacy Notice through an updated posting. We will identify the effective date of the revision in the posting. Often, updates are made to provide greater clarity or to comply with changes in regulatory requirements. If the updates involve material changes to the collection, protection, use or disclosure of Personal Information, Pearson will provide notice of the change through a conspicuous notice on this site or other appropriate way. Continued use of the site after the effective date of a posted revision evidences acceptance. Please contact us if you have questions or concerns about the Privacy Notice or any objection to any revisions.

Last Update: November 17, 2020