Microsoft Opposes Media Circus

(August 18, 1998)  Microsoft lawyers wrote in a memorandum filed with the Court of Appeals that opening the depositions of Bill Gates and about 25 others would create a "media circus" with a "carnival atmosphere."

The court filing was the Reply of Microsoft in further support of its motion for a stay pending appeal of Judge Jackson's August 11 Order that depositions be opened to the press and public.  The U.S. Court of Appeals for the District of Columbia could rule on the stay as early as today.

On August 10 the New York Times, ZDTV, ZDNET, Seattle Times, Reuters America, and Bloomberg, asked Judge Jackson to order the parties to allow them access to the deposition of Bill Gates and about 25 other not yet deposed witnesses.  Jackson ruled that a seldomly cited 1913 statute which applies only to certain antitrust proceeding (15 U.S.C. § 30) required public access to the depositions.

Microsoft's memorandum argued that:

"Absent a stay, however, the more than 25 remaining depositions in this case will become a media circus, with scores of members of the public and press potentially in attendance at each one. In addition to the carnival atmosphere that such media attendance will create, the parties may be required to make frequent trips to the district court to resolve subtle and difficult issues of confidentiality--in many instances pertaining to matters that neither side ultimately will choose to make subjects of proof at trial. These disruptions, which are inevitable notwithstanding the parties’ good-faith efforts to develop the "protocol" required by the Order, will seriously interfere with Microsoft’s ability to prepare for trial in the short time remaining."  (at page 2)

Much of  Microsoft's memorandum restated arguments contained in its original Motion for Stay filed with the Court of Appeals on August 12.  Microsoft again argued that "[t]he history of 15 U.S.C. § 30 confirms that Congress never intended the statute to apply to modern discovery depositions now being taken at a breakneck pace in this case."

Microsoft argued that it is enough that the trial, now scheduled to begin next month, will be open to the public and the press, and deposition testimony read back at trial will be heard by the public.

Microsoft then argued that admitting the press and public to the depositions would interfere with the discovery process.

"Leaving aside the substantial logistical difficulty of accommodating so many people, concerns about confidentiality will invariably necessitate frequent off-the-record consultations between witnesses and their counsel, thus interrupting the examinations and inevitably prolonging the depositions. The parties also may have to resort frequently to the district court to resolve disputed questions of confidentiality, which will inevitably arise given the nature of the claims asserted in the case."

Microsoft also brought to the attention of the Court Assistant Attorney General Joel Klein's written testimony to the House Judiciary Committee in March of 1998.  Klein, who is the DOJ's lead attorney in the antitrust suits against Microsoft, stated that 15 U.S.C. § 30 should be repealed and that making depositions open to the public "could raise unnecessary complications," especially in "high profile civil litigation."  The DOJ is now arguing that the depositions of Bill Gates and others should be open to the public.

Last March, Klein wrote:

"The Antitrust Division believes that both 15 U.S.C. § 30 and 15 U.S.C. § 31 should be eliminated from the statute books.  ..  We do not believe that different procedures should apply regarding the openness of depositions in antitrust cases from any other civil cases.  Indeed, such a requirement could raise unnecessary complications in certain instances.  For example, in a high profile civil litigation, it is possible that a large number of people may desire to be present at a given deposition.   ... If the matter goes to trial, the trial will be public."