According to sources close to the company, Microsoft Corporation may ask a federal judge to throw out Department of Justice (DOJ) plan to breakup the company because it was improperly based on evidence that wasn't presented at the trial. Specifically, the company points to statements made in the proposal by five industry experts who mention issued that were never addressed during the trial, such as Microsoft's plans to fight the PalmOS. Microsoft says that the DOJ is attempting to introduce new evidence in the proposal, which postdates the end of the actual trial by some months. And this new evidence, the company believes, is wide-ranging enough to justify an extension so that Microsoft could discover how the DOJ came to its conclusions.
Microsoft has until May 10th to deliver its own remedy proposal, a deadline the company plans to meet. But the scheduled hearing on May 24th, where representatives of Microsoft and the DOJ will meet before Judge Thomas Penfield Jackson to give arguments for the final remedy, is now in doubt. Microsoft has already hinted that it will ask for a delay of these hearings so that it can study the government's remedy documents. And though this idea was previously scoffed at openly by the DOJ, news that the company might attempt to get the remedy proposal thrown out may carry some weight with the judge. Jackson has come down hard on Microsoft at virtually ever step of this trial, but this could work in Microsoft's favor if a future appellate judge feels that he treated the company unfairly.
Legal experts are divided over the argument. While the introduction of evidence in a remedy proposal isn't common, it can be allowed if there's a valid reason for doing so. And it's likely that the DOJ will argue that this evidence simply points to Microsoft's continued abuse, even during the antitrust trial, a time during which one would expect to the company to be at its best behavior. However, Judge Jackson will likely give Microsoft an adequate opportunity to rebut the new evidence and cross-examine the experts quoted in the proposal. Microsoft might also be allowed to present expert testimony of its own that contradicts the points made in the DOJ proposal