Appeals Court to Decide Microsoft Deposition Question on Accelerated Basis

(August 14, 1998)  The U.S. Court of Appeals has set an accelerated motion schedule for Microsoft's Motion for Stay Pending Appeal.  The Notice of Appeal, and Motion for Stay, were filed on Wednesday, August 12.  The government's response is due today by 3:00 pm.  Microsoft's reply is due by Monday, August 17 at 10:00 am.

On Monday, August 10, several press entities filed a motion requesting that the public be admitted to the depositions of Bill Gates and other witnesses.  The government's lawyers support their position.

The next day, the presiding Judge, Thomas Jackson, ruled that an ancient statute requiring that masters or examiners in equity conducting "depositions" to serve as part of subsequent antitrust trial records applies to modern pre-trial "depositions" conducted by attorneys to discover evidence.  Microsoft attorneys immediately filed a short Motion for Stay with the District Court.   Judge Jackson held a hearing on Wednesday, and denied that motion.

Later in the day, Microsoft attorneys went up to the fifth floor of the same courthouse to file a Notice of Appeal and a sixteen page Motion for Stay Pending Appeal with the U.S. Court of Appeals for the District of Columbia.  The Court of Appeals issued an Order late on Wednesday regarding the briefing schedule on this Motion for Stay.  The Court set a rare, and unusually accelerated, timetable.  It wrote:

Upon consideration of the motion for stay pending appeal, it is

ORDERED, on the court's own motion, that appellees hand-deliver and hand-file a response to the motion for stay by 3:00 p.m. on Friday, August 14, 1998, and that appellant hand-deliver and hand-file any reply by 10:00 a.m. on Monday, August 17, 1998.

In addition, the Wall Street Journal has reported that attorneys for Microsoft and the Department of Justice held a conference call with Judge Jackson in which they requested that the trial start date be postponed from September 8 until September 22.

Microsoft argued in its Motion for Stay Pending Appeal that the statute relied upon by Judge Jackson does not apply to pre-trial discovery depositions.  Its brief stated:

"Notwithstanding its use of the term "deposition," 15 U.S.C. § 30 was intended to apply, as its title suggests, only to the taking of "evidence" by masters or examiners in equity as a substitute for trial testimony, not to discovery depositions under the Federal Rules of Civil Procedure, which (i) are not part of the trial record and (ii) frequently involve inquiries regarding matters that turn out to have no relevance. Thus, contrary to the intervenors' assertion, the statute does not create an absolute statutory right for members of the public to attend all pretrial depositions in this case. To the extent those depositions lead to the discovery of evidence relevant to this action ... that evidence will be presented at trial, which the public is free to attend. ... When 15 U.S.C. § 30 was enacted in 1913, the term "deposition" did not refer to the discovery depositions that occur today under the Federal Rules of Civil Procedure, which did not then exist. Rather, a "deposition" referred to the taking of testimony before an examiner for submission in written form to a court of equity, which--decided cases on a written record."  (Motion for Stay Pending Appeal, paragraphs 15-16, pages 8-9.)

While several cases have cited 15 U.S.C. § 30, no cases have resolved the specific question of whether media can invoke this statute to gain access to depositions in antitrust cases.  In contrast, two commentaries briefly support Microsoft's position.

In addition, the Appeals Court could grant a stay on other grounds.  It could find that  15 U.S.C. § 30 applies, but nevertheless close any depositions which will include questioning about corporate trade secrets.  Such a protective order would apply to all or most of the remaining depositions.

Microsoft has several other factors working in its favor.  First, the press organizations waited to file their "emergency" until just two days before Bill Gates' deposition.

Also, the government entered into the Protective Order which keeps confidential corporate trade secrets.  This Protective Order is in conflict with the interpretation of 15 U.S.C  § 30 rendered by Judge Jackson.  Moreover, the government relied upon this Protective Order when employees of its "client," Netscape, were being deposed.  But, now that it is the turn of Microsoft's employees to be deposed, it suddenly argues that the Protective Order is ineffective in the face of 15 U.S.C. § 30.

For months now the Appeals Court judges and employees have had to run the gauntlet of gawking reporters circling the federal courthouse on the Monica Lewinsky watch just to get into their office building.  They are not likely to be so anxious as the DOJ to extend press priviledges in the Microsoft case.  Moreover, it might not have helped their position that DOJ lawyers have sought out the Lewinsky stakeout media to publicize their case against Microsoft.

Nevertheless, this whole dispute works to Microsoft's advantage.  Judge Jackson's granting of the press' motion will certainly delay the trial.  And, Microsoft's interlocutory appeal to the Court of Appeals, regardless of its outcome, is likely to delay things further.  Microsoft has all along sought to delay this trial.