Microsoft Moves To Gag Depositions

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.