Microsoft Antitrust Trial Delayed Until September 23

(August 20, 1998)  Judge Thomas Jackson postponed the trial date in the government's antitrust case against Microsoft until September 23.  The trial, which had previously been set to begin on September 8, was delayed by proceedings over whether the press and public would be admitted to the depositions of Bill Gates and others.   Gates will likely be deposed in Seattle next Thursday or Friday, without the press present.

Several news media filed an eleventh hour motion on August 10 to gain access to Gates' deposition.  Judge Jackson granted that motion on August 11.  Microsoft immediately filed an interlocutory appeal with the Court of Appeals.  Late yesterday the Court of Appeals ordered that Jackson's August 11 order be stayed pending the appeal.   It also set a schedule for briefing and oral argument which will not run its course until after the trial was over.  Hence, the underlying appeal issue appears moot.

Judge Jackson held a hearing in his Washington DC courtroom this morning to address various pretrial scheduling issues.  He stated at the outset, "As I read the Order from the Court of Appeals, the depositions may go forward as they have in the past."  He also acknowledged that the issue of press access to depositions "by trial may be moot."

The Department of Justice, represented by David Boies, and Microsoft, represented by John Warder, concurred that depositions could proceed.  Lee Levine, the attorney for the intervening news media, concurred, but stated that his clients may still try to litigate the depositions issue.  He stated that they may try to do this.  They might try to get the Court of Appeals to accelerate its review of the appeal.   Alternatively, they may "seek relief above the Court of Appeals."   The chances that the Appeals Court would shorten its already expedited schedule, or that the Supreme Court would take the case, are very slim.

Levine asked Judge Jackson to order a stay, just as to Bill Gates' deposition, pending further appeals.  "You don't have standing,"  Judge Jackson bluntly interrupted.  "It is solely for the accommodation of the principal parties that I would delay anything."  Last week Judge Jackson granted the media entities' motion to intervene in issues pertaining to access to depositions, but that issue is now pending in the Appeals Court, not Jackson's court.

Warden stated that Gates was ready to be deposed as early as tomorrow, in Seattle.   Boies responded that the DOJ was ready to depose Gates as early as tomorrow, in Washington DC.

Boies joked after the hearing that "I can guarantee you he is not going to catch the red eye."  As a practical matter, he said, next Thursday or Friday is the earliest that the DOJ legal team could travel to Seattle for the deposition, and that that is when Gates will will be deposed.

Judge Jackson postponed the start of the trial from September 8 until September 23.   He also revised his previous pretrial orders, and set a schedule for briefing and argument of Microsoft's Motion for Summary Judgment.

The parties also proposed the following schedule for briefing and argument of the Defendant Microsoft Corporation's Motion for Summary Judgment filed Monday, August 10, 1998.  Judge Jackson so ordered the following: