Mr. Squidley is simply trying to bury the discussion under definitions and details - a standard lawyer trick when defending someone who's guilt is so obvious there's no other course of action.

Didn't we have a recent high profile political case where the definition of "is" was being debated?

The question here is Microsoft's intent, and the states want to find evidence of that intent. As any competent auditor can tell you, an inexplicable degree of sloppiness is often evidence for fraud. It prepares the ground for the "Jeez, obviously that was just a mistake, this whole thing is a mess, so it must have been just a mistake." defense.

We all know exactly what Microsoft's intent was, the difficulty is in assembling evidence against a company that knew full well it was engaging in illegal activity and covering its tracks.

If the states can show unreasonable sloppiness, they can make a point of evidence for "comingling". Of course, if Microsoft's code is as bad as it's reputed to be, it may be difficult to show deliberate sloppiness at any particular point.