Judge Opens Pandora's Box With Public Depositions Order in Microsoft Case

(August 13, 1998)  U.S. District Court Judge Jackson ruled on Tuesday, and reaffirmed on Wednesday, that depositions in the government's antitrust suit against Microsoft must be open to the press and public.  Microsoft appealed the decision to the U.S. Court of Appeals.  The matter threatens to scandalize the case, and delay the commencement of trial, currently set for September 8.

On Tuesday, August 11, Judge Thomas Penfield Jackson ordered that the press and public must be allowed to attend the depositions of Microsoft CEO Bill Gates, and other deponents.  The New York Times, ZDTV, ZDNET, the Seattle Times, Reuters, and Bloomberg News had moved to intervene to request that the depositions be open to them and the public.  The Judge's three page Order stated in part:

"ORDERED, that the motions of prospective intervenors, as members of the public, for leave to intervene to enforce a generic "right of access" are granted in part; and it is

FURTHER ORDERED, that intervenors and all other members of the public shall be admitted to all depositions to be taken henceforth in this action, including the deposition of William Gates III, to the extent space is reasonably available to accommodate them consistent with public safety and order;"

The basis of the ruling was the Publicity in Taking Evidence Act of 1913,15 U.S.C. § 30, a federal statute enacted when the nature depositions, antitrust litigation, and media coverage, were different from today.

The use of pre-trial "depositions" to gather evidence, while common today, was generally not available in 1913.  This statute's use of the term "deposition" refers to the creation of a trial record by testimony before examiners in antitrust cases who travelled around the country to collect testimony which then served as part of the trial record.

The case involves a considerable amount of evidence that constitutes confidential trade secrets of Microsoft and other software companies.  The parties and attorneys are already bound by a Protective Order.  Since depositions will inevitably involve many lines of questioning about trade secrets, and questions about confidential documents, opening the depositions to the public opens a Pandora's box of legal and logistical problems.

In his Order, Judge Jackson did not attempt to resolve these problems.  Rather, he merely stayed discovery, and left it to the parties and prospective intervening parties to work out the details.  He wrote:

"all depositions in this action are stayed pending presentation by intervenors and the parties, for entry by the Court, of an agreed form of order establishing a protocol for affording access for intervenors and other members of the public to pretrial depositions which comports with 15 U.S.C. § 30, but which also protects the interests of the parties and of third-party deponents in preventing unnecessary disclosure of trade secrets or other confidential information."

Bill Gates had been scheduled to begin his deposition in Seattle on Wednesday.   This has been delayed.  Moreover, since the trial is scheduled to begin on September 8, and much discovery remains to be completed, it appears likely that Judge Jackson will postpone the trial date.

This ruling benefits Microsoft.  Judge Jackson set this case on an unusually short calendar -- fewer than four months between the May 18 filing of the Complaint, and the commencement of trial.   This schedule would be abnormally accelerated even for a simple case, let alone a complex landmark antitrust case.  The government had years to investigate, research, and prepare its case, while Microsoft was left with just over 100 days.

Now Judge Jackson is faced with two irreconcilable goals: holding to his September 8 trial commencement date, and maintaining an orderly pre-trial discovery process which preserves the trade secrets of the companies involved.  Any delay will allow Microsoft valuable time to prepare its case.  Also, beyond the question of trial preparation, continuing the status quo benefits defendants in antitrust suits.

However, there is also a benefit for the government in this ruling.  In addition to its litigation of antitrust issues, the DOJ is waging an aggressive publicity campaign to disparage Microsoft's business practices, products, and top executives.  Opening the depositions to the media gives it ample new opportunities to publicly harass and defame Microsoft, Bill Gates, and other top Microsoft officers.

On Wednesday, Microsoft filed a Motion for Stay of the Order opening the depositions to the public.  Microsoft did not try to re-argue the underlying decision to open the depositions.  Instead, it argued that since the depositions are being videotaped, a stay pending appeal would not harm the intervening parties who moved for access.  The motion argued that:

Movants will suffer no prejudice from a stay. Their sole claimed right is to view the depositions as an audience views a play. All of the depositions are being videotaped. Should Movants' position be sustained on appeal, they can be afforded the opportunity to view those videotapes, subject to the redaction of trade secrets or other confidential information. The res to which they claim access will be fully preserved, and is not time sensitive as would be matters of war or diplomacy.

Judge Jackson denied this Motion for Stay from the bench in an impromptu hearing on Wednesday, August 12.   Microsoft filed an interlocutory appeal with the U.S. Court of Appeals for the District of Columbia, which is located several floors up in the same courthouse building.  The Court of Appeals quickly put this appeal on a fast track, and required all briefing by the attorneys to be completed by by Monday.

If the Appeals Court does not reverse Judge Jackson's ruling, many deposition details would need to be worked out, including:

• How would attorneys conduct questioning about about trade secrets without divulging those secrets to the press.
• How many people would be admitted.
• How would seats and space be allocated among the press and public.
• What reportorial equipment would be admitted into the deposition rooms?  (TV cameras, still cameras, sketch artistry, audio recorders?)