The media will be given access to the transcripts and video tape recordings of the recent depositions of Microsoft Corp., Washington District Court Judge Colleen Kollar-Kotelly has ordered on Monday.
The recordings would include: Microsoft CEO Steve Ballmer and Senior Vice President James Allchin, former Netscape CEO Jim Barksdale, Liberate Technologies CEO Mitchell Kertzman, and Sun Microsystems Inc. CEO Scott McNeally.
In a memorandum of opinion issued on Sunday and filed with the Court on Monday, Kollar-Kotelly added that the media was not entitled to access to the transcripts of all of the remaining depositions taken in the case between Microsoft and the nine litigating states and the District of Columbia.
Her order follows a motion to intervene by the Associated Press, Bloomberg News, Cable News Network, Dow Jones and Company, the Los Angeles Times, The New York Times Co., The Washington Post, and USA Today.
They asked the court for leave to intervene in the case "for the limited purpose of being heard in connection with their affirmative motion for public access to depositions taken and/or to be taken following remand from the Court of Appeals, and in connection with any other motion that would affect such access."
They also asked for access to the five specific depositions and to transcripts of all depositions taken in this case following remand from the Court of Appeals. In the event that the depositions had already been taken, the media requested access to copies of the video recordings of the five specific depositions.
Neither Microsoft nor the litigating states filed any opposition to the medias motion to intervene, which the Court also granted on Monday, but Microsoft did oppose the Medias motion for access.
In her opinion, Kollar-Kotelly said "… it appears that four of the relevant depositions have already been completed and the fifth deposition [Scott McNeally] has not been noticed by any party. In the event that Mr. McNeallys deposition is taken in relation to this case, the media may have access to the redacted video recordings of the depositions as well as the redacted transcripts of the same."
Microsoft spokesman Jim Desler said he was "not aware" of any move to depose McNeally at this time.
As regards the medias request for access to the transcripts of all depositions taken in the case following remand from the Appeals Court, Kollar-Kotelly said that the available case law on this particular issue "is exceedingly sparse."
The cases relied upon by the media provided "little guidance on the issue of access to all deposition transcripts, and in many instances, rely upon a provision in the Federal Rules of Civil Procedure which is no longer in force.
"Similarly, Microsofts response to the Medias motion does not offer new case law, but merely attempts, albeit successfully, to further distinguish the cases relied upon by the Media. Thus, it appears that both parties come to the Court without any substantial legal basis to support their respective positions," she said.
Microsofts Desler said the company still believed that depositions in civil antitrust cases should not be made public, but would be providing transcripts and video tape recordings of the Ballmer and Allchin depositions, which had been taken over the past few weeks, to the media over the next few days.