Numerous unsealed e-mails, however, attest to the seriousness Ballmer gave Hurd's query.

"What is up who is fixing," Ballmer asked in a follow-up message the next day to some of his subordinates, including Mike Sievert and Scott Di Valerio, two one-time Microsoft vice presidents who were then in charge of Windows marketing and the company's OEM group, respectively. "I replied with apologies to todd [bradley] and mark [hurd] but should send them a sense of the fix asap."

The plaintiffs' lawyers said they would accommodate Ballmer's schedule if granted the deposition, promised to limit it to three hours and suggested that it start early in the day. "Or we can do it at the end of the day if he prefers. Or on the weekend," they said in their motion.

In an earlier filing with the federal court, Microsoft had said that Ballmer's schedule didn't have a day free for a deposition prior to a Nov. 14 cut-off. Then, Microsoft's attorneys said, their counterparts had asked that Ballmer set aside a full day for the testimony.

"Microsoft wrongly views Mr. Ballmer's 'know nothing' declaration as a 'get out of deposition free card,'" the plaintiffs' lawyers said, as they wrapped up their argument. "Putting aside issues of credibility (Mr. Ballmer's declaration versus the documents), his desire to avoid taking responsibility in and itself is telling."