Ballmer Faces Deposition in Vista Capable Trial

If Microsoft's controversial 'Vista Capable' lawsuit heads to trial, the company's CEO, Steve Ballmer, will be forced to appear in a court deposition to answer questions. That was the ruling this week of US District Judge Marsha Pechman, who denied a Microsoft request to block such access. Pechman said that Ballmer appears to have first-hand knowledge of facts relevant to the case and thus must submit to questioning.

"Plaintiffs point to a phone call between Intel CEO Paul Otellini and Mr. Ballmer where the executives supposedly discussed a change in the Vista Capable requirements," the judge ruled. Microsoft faces a class action lawsuit that charges it with deceiving consumers with its Windows Vista logo program, which labeled PCs as being either "Vista Capable" or "Vista Premium Ready." PCs that were labeled as "Vista Capable" were, in fact, not capable of running certain desirable and often-marketed OS features.

To be fair to Microsoft, the software giant has struggled to make the differences between the two logos clear to consumers. "Windows Vista Capable PCs will run the core experiences of Windows Vista," the software giant notes in a description of the program. "Some features available in premium editions of Windows Vista--like the new Windows Aero user interface--require advanced or additional hardware."

But plaintiffs in the class action suit argue that the phrase "Vista Capable" implies that the PC in question is capable of running Windows Vista, as in all of the features supplied by the OS. When Vista first appeared about two years ago, however, some PCs still shipped with incompatible graphics chipsets that could not display the glass-like Aero user interface, one of Vista's strongest selling points.

While the Vista Capable suit is embarrassing for Microsoft, it has been severely scaled back since it achieved class action status. Judge Pechman has previously ruled that plaintiffs cannot claim that they purchased PCs that they might have avoided if they understood the distinction between Vista Capable and Vista Premium Ready, which one might argue was the core reason for the suit to begin with. Instead, plaintiffs can only claim that they paid more for Vista Capable PCs than they might have otherwise because the demand for those PCs was higher than usual in the months leading up to Vista's consumer launch.

Microsoft asked the judge to simply throw the case out last week. "We believe the motions are without merit," a Microsoft lawyer said. If this case does proceed, however, Ballmer faces a three hour recorded deposition within 30 days. The trial is tentatively set for April 13, 2009.

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