Microsoft has submitted a list of more than 30 possible witnesses, including 13 from the company. In addition to Gates and Microsoft CEO Steve Ballmer, the most notable company witness on the list is Jim Allchin, group vice-president of the platforms division, and a key witness in the antitrust trial.
The two sides in the case have exchanged early versions of their witness lists with Microsoft including Gates as "a possible" witness, a company spokesman said today.
Gates has not previously testified in the antitrust trial. But the government played videotaped portions of Gates' deposition, taken over three days out of court with government attorneys. The video, played in the opening days of the trial that began in October 1998, showed the Microsoft chairman defensive, evasive and conceding little to government attorneys. Legal experts uniformly panned his performance.
Trial judge Thomas Penfield Jackson laughed during portions of the videotape testimony and openly questioned Gate's credibility.
Microsoft, however, may have realised that it needs Gates to testify, said Hillard Sterling, an antitrust lawyer at Gordon and Glickson LLC in Chicago.
"Bill Gates remains the heart and soul of Microsoft," he said, and "this case goes to the core of Microsoft's business conduct. Microsoft simply needs Gates to maintain its credibility and explain its business conduct."
But Gates as a witness is "high risk" for both sides of the case, said Sterling. "The state's counsel will need to score big points with Bill Gates," he said. "If Gates survives and even prevails in cross-examination, the states will have a black eye that will be difficult to heal."
If Gates is called to testify, it will be during the remedy phase sought by the nine states that have refused to accept the government settlement agreed to by nine other states and the Department of Justice (DOJ) last November. The dissenting states - California, Connecticut, Florida, Kansas, Iowa, Massachusetts, Minnesota, Utah and West Virginia as well as the District of Columbia - are seeking tougher remedies than called for in the DOJ deal, including a requirement that Microsoft create a thin client version of Windows, stripped of most of its applications, as well as the porting of Office to alternate operating systems, such as Linux.
The remedy phase of the case is scheduled to begin on 11 March.
While there is a risk that Gates won't fare well under cross-examination, Andy Gavil, an antitrust professor at Howard University School of Law, said it's less of a risk than Microsoft would have faced in the initial trial.
The remedy phase is "going to be focusing on remedial questions, so there is less of a danger that he will be embarrassed by inconsistent e-mails," said Gavil.
But Gavil also said it may be critical for Gates to appear. Microsoft "needs to pull all the stops out, and offering [Gates] live ... is critical perhaps to them succeeding in this portion of the case."
The states plan to call Jim Barksdale, the former CEO of Netscape Communications and the government's first witness in the antitrust trial. They also plan to call Andrew Appel, professor of computer science at Princeton University, and Carl Shapiro, a professor at the Haas School of Business at the University of California at Berkeley.