One key mistake for Microsoft might have been using too many editions of Vista to mollify partners and segment the consumer market, Davis added.
"You could have seen the writing on the wall that there would be customer unhappiness based on the size of Microsoft's Vista portfolio," he said. "I don't know whether any of this rises to the level of legal malfeasance, though ... [that's] a question for the legal system.
Those decisions ultimately led to unhappiness even within Microsoft. According to the company's internal e-mails, several high-ranking employees expressed concern with the resulting sticker program during the run-up to Christmas 2006.
Until Pechman unsealed the e-mails last month, only small portions of them had been read aloud in court. Once the e-mails had been released, however, the full volume of discussion — both internally and with partners such as Dell (NASDAQ: DELL) — surprised many industry observers.
Vista "Incapable"?
For instance, one of the recently unsealed documents, a Dell slide presentation dated March 25, 2007 — two months after consumer editions of Vista shipped — provided a disheartening debriefing about the logo program.
"Customers did not understand what 'Capable' meant and expected more than could/would be delivered," Dell employees wrote in the presentation.
According to the e-mails, even before the Vista Capable program kicked into gear, Dell and others felt a two-tiered sticker program was bound to confuse consumers.
Confusion struck even at the highest levels of Microsoft, with the "Vista Capable" program drawing the ire of Steven Sinofsky, who is now the senior vice president for the Windows and Windows Live engineering group.
"I was in Best Buy listening to people and can tell you this one did not come clear to customers," wrote Sinofsky, who was then overseeing Microsoft Office. "We set ourselves up."
As it turns out, the plaintiffs' attorneys feel similarly.
"We feel like the [unsealed] documents that have been produced pretty much speak for themselves," Thomas said.
Next steps: "Express Upgrade" under the microscope?
While Microsoft is attempting to reverse the lawsuit's class-action status, the plaintiffs' attorneys are planning to file their responses next week — challenging both Microsoft's appeal and the company's request for a stay.
In addition, the plaintiffs will file an amended lawsuit next week that seeks to add consumers who had bought into Microsoft's "Express Upgrade" program to the mix.
Under that low- or no-cost option, when customers bought a "Windows Capable" PC before the Vista launch, they could get Vista Home Basic as an upgrade once it shipped.
The plaintiffs sought previously to have those customers included in the class action as well, but Pechman ruled that the lawyers first needed to find a representative user to join the suit who had bought into Express Upgrade.
Fortunately for their case, Thomas told InternetNews.com that the plaintiffs have received "hundreds" of e-mails from Express Upgrade customers interested in joining in the suit.
However, there is still a lot to do before the case goes to court in earnest in October — if it gets that far.
Barring Pechman granting a stay to Microsoft, more discovery and depositions are planned for coming weeks.
