Microsoft Moves To Gag Depositions

By Peter Galli  |  Posted 2002-01-09 Print this article Print

Microsoft on Wednesday moved to have any depositions taken in the antitrust action between it and nine dissenting states and the District of Columbia closed to the public.

Microsoft Corp. on Wednesday moved to have any depositions taken in the antitrust action between it and nine states and the District of Columbia closed to the public. Microsoft called for the depositions to be closed in a motion filed with Judge Colleen Kollar-Kotelly of the Federal District Court for the District of Columbia.
The Redmond, Wash., software maker also said it had discussed the motion with the states, all of which had dissented from the U.S. Department of Justices proposed settlement of the landmark anti-trust case last fall. The dissenting states indicated "that they do not oppose the motion and thus do not intend to file any memorandum in opposition," Microsoft said.
The legal issue harkens back to August 1998, when The New York Times and other press organizations filed an emergency motion to attend certain depositions in the antitrust case pursuant to the Publicity in Taking Evidence Act of 1913. That law provides that "depositions of witnesses for use in any suit in equity brought by the United States [under the Sherman Anti-trust Act] . . . shall be open to the public as freely as are trials in open court." In that instance, the courts held that "intervenors and all other members of the public shall be admitted to all depositions to be taken henceforth in this action." The parties and intervenors then negotiated a protocol for the taking of public depositions, which the District Court entered on April 1, 1999. But in todays motion Microsoft argued that since it, the United States and nine states have agreed to settle the matter and have filed a Revised Proposed Final Judgment (RPFJ) with the Court, the Publicity in Taking Evidence Act "makes clear that it has no application to depositions in actions brought by plaintiffs other than the United States. " … and as the United States has settled its claims against Microsoft and is proceeding separately under the Tunney Act to seek approval of the RPFJ, the Act is not applicable to the separate action being prosecuted by the non-settling States," Microsoft said in the deposition. The latest move follows a letter sent early this month from counsel for The New York Times and the Washington Post to counsel for Microsoft, the United States and the non-settling States. It said the publications would attend the depositions in the case of the non-settling states and Microsoft pursuant to the earlier rulings. According to the current timeline for the action between Microsoft and the dissenting states, expert depositions are scheduled to begin on Feb. 1. Robert Lande, a law professor at the University of Baltimore, told eWeek today that depositions were usually closed to the public if "there is something to hide." It was clear that Microsoft wanted them closed as any information from the depositions could be used in the 100 private antitrust suites against them, Lande said. While there is a proposed settlement before a District Judge in that matter, he has not yet ruled on the issue. Lande also said he was surprised that the dissenting states had agreed to hear the depositions in private, but ascribed the move to "probable horse-trading around the issues at hand where you give some and take some." Microsoft spokesman Jim Desler declined comment on Landes remarks or on todays motion, which follows Microsofts unsuccessful bid earlier this week to have Judge Kollar-Kotelly delay by four months the antitrust lawsuit pursued by the dissenting states. Spokesmen for the dissenting states could also not immediately be reached for comment.
Peter Galli has been a financial/technology reporter for 12 years at leading publications in South Africa, the UK and the US. He has been Investment Editor of South Africa's Business Day Newspaper, the sister publication of the Financial Times of London.

He was also Group Financial Communications Manager for First National Bank, the second largest banking group in South Africa before moving on to become Executive News Editor of Business Report, the largest daily financial newspaper in South Africa, owned by the global Independent Newspapers group.

He was responsible for a national reporting team of 20 based in four bureaus. He also edited and contributed to its weekly technology page, and launched a financial and technology radio service supplying daily news bulletins to the national broadcaster, the South African Broadcasting Corporation, which were then distributed to some 50 radio stations across the country.

He was then transferred to San Francisco as Business Report's U.S. Correspondent to cover Silicon Valley, trade and finance between the US, Europe and emerging markets like South Africa. After serving that role for more than two years, he joined eWeek as a Senior Editor, covering software platforms in August 2000.

He has comprehensively covered Microsoft and its Windows and .Net platforms, as well as the many legal challenges it has faced. He has also focused on Sun Microsystems and its Solaris operating environment, Java and Unix offerings. He covers developments in the open source community, particularly around the Linux kernel and the effects it will have on the enterprise.

He has written extensively about new products for the Linux and Unix platforms, the development of open standards and critically looked at the potential Linux has to offer an alternative operating system and platform to Windows, .Net and Unix-based solutions like Solaris.

His interviews with senior industry executives include Microsoft CEO Steve Ballmer, Linus Torvalds, the original developer of the Linux operating system, Sun CEO Scot McNealy, and Bill Zeitler, a senior vice president at IBM.

For numerous examples of his writing you can search under his name at the eWEEK Website at


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