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Gates deposition to be open
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August 11, 1998: 6:28 p.m. ET
Microsoft's chief appearance delayed while parties work out details
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WASHINGTON (CNNfn) -- Depositions in the Microsoft Corp. anti-trust case have been delayed while the parties work out a way to comply with a federal judge's order to allow reporters to witness the questioning of Microsoft Chairman Bill Gates.
U.S. District Judge Thomas Penfield Jackson made the ruling Tuesday opening up the depositions to the media, but issued a stay on all depositions so the parties can work out a format to allow media access while protecting confidential information that may come up during the questioning.
The decision could be appealed by Microsoft. A company spokesman would give no immediate comment because they had not received Jackson's ruling.
Earlier in the day, however, a Microsoft lawyer said he would advise some sort of appeal.
Gates' deposition had been scheduled to begin Wednesday, but a Justice Department source said it would be delayed by the potential appeal and the logistical problems involved.
The ruling applies to all of the depositions in the case, not just Gates, although the Microsoft (MSFT) chairman's deposition is the one journalists are most interested in attending.
The lawyer representing several media organizations said that he expected normal federal rules to apply in this case, meaning reporters could not have cameras or tape recorders in the deposition.
In arguments Tuesday morning, attorney Lee Levine -- arguing for The New York Times, The Seattle Times, Reuters and technology publisher Ziff-Davis -- cited an 83-year-old law that requires public access to court proceedings. Other news organizations have said they may join in the request.
The Publicity in Taking Evidence Act of 1913 applies only to antitrust cases in which the government is the plaintiff and states that depositions in antitrust cases "shall be open to the public as freely as are trials in open court."
However, legal scholars note that ever since that law was enacted, courts have maintained some level of confidentiality for some information. The law has rarely been invoked.
Microsoft attorney John Warden argued the law didn't intend public access to contemporary depositions, noting that it was written long before modern pre-trial proceedings, which can include the collection and exchange of volumes of material that may never be allowed in the actual trial.
All parties in court agreed there would be some questions and answers containing confidential information, such as trade secrets, that media representatives would not have access to.
The Justice Department agreed with the media motion and said restrictions concerning confidential information are contained in the existing protective order. Justice Department attorney Mark Popofsky said he expected little disruption if the judge rules for the media, and that the trial could still go ahead as scheduled on Sept. 8.
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