Microsoft CEO Steve Ballmer has been ordered to give a deposition in the "Windows Vista Capable" lawsuit after U.S. District Court Judge Marsha Pechman denied a motion to exclude Ballmer. The plaintiffs contend that Ballmer knew Microsoft authorized "Windows Vista Capable" labels for PCs not powerful enough to run all Vista's features.

The advertising and marketing company hired to create Apple's commercials poking fun at Microsoft's Vista operating system might get new material to work with. After Microsoft tried to protect its top brass from testifying in a case involving "Windows Vista Capable" PCs, a judge has ordered CEO Steve Ballmer to give a deposition.

In September, Ballmer tried to avoid being pulled into the suit and having to go through the discovery process, but U.S. District Court Judge Marsha Pechman has denied a motion to exclude Ballmer, according to the judge's order posted on SeattlePI.com's blog.

Microsoft Responds

The plaintiffs showed evidence that Ballmer had personal knowledge of the situation, according to court documents.

"We will, of course, comply with the court's order," said David Bowermaster, a Microsoft spokesperson, in an e-mail. "Mr. Ballmer's knowledge about the Windows Vista Capable program comes from the executives he empowered to run the program and make decisions, and two of those executives already testified in this case."

Bowermaster is referring to two former Microsoft executives, Jim Allchin and Will Poole. Allchin retired in Jan. 2007 on the same day Microsoft officially released Windows Vista to consumers while Poole left Microsoft last month "to pursue other interests."

Microsoft thought the former executives' testimonies would take the pressure off Ballmer. Instead, Pechman ruled that Ballmer would have to testify based on several pages of e-mail correspondence in which he was included.

Ballmer will have to testify about his knowledge of Microsoft releasing "Windows Vista Capable"-labeled PCs that weren't powerful enough to run all Vista's features and could only run a stripped-down version.

"Plaintiffs believe that Judge Pechman correctly denied Microsoft's motion to preclude us from taking Mr. Ballmer's deposition," said Jeff Thomas of Gordon Tilden Thomas & Cordell, the law firm representing the plantiffs, in an e-mail. "We look forward to obtaining his testimony, under oath, regarding his knowledge and involvement in the events and issues relevant to this case."

Leading up to Ballmer

In 2006 Microsoft, a year before the company released the Vista operating system, authorized original equipment manufacturers such as Dell and Sony to place a sticker on PCs indicating that the PC was certified as Windows Vista capable, according to court documents.

In February, Microsoft was hit with news that a group of PC owners had filed a class-action suit. Microsoft argued that the PC owners had different information about the PCs at the time of purchase, but attorneys argued that the PC owners did not receive what they paid for.

The judge at the time said the plaintiffs could not pursue a class-action lawsuit because the consumers' behavior at the time of purchase would have to be analyzed. But the judge also said it was okay for the plaintiffs to argue as a class that Microsoft caused artificial inflated demand and prices for computers only capable of running Vista Home Basic by marketing them as "Windows Vista Capable," according to the Web site of Gordon Tilden Thomas and Cordell LLP, the Seattle law firm representing the consumers.

Ballmer has 30 days from the Nov. 21 order to pick a date for an up to three-hour deposition.