DOJ and Press Oppose Microsoft Motion for Stay

(August 17, 1998)  Both the Department of Justice and a group of news media filed with the Court of Appeals on Friday their Oppositions to Microsoft's Motion for Stay of Judge Jackson's Order opening the deposition of Bill Gates and others to the public.  Under the accelerated schedule, Microsoft's Reply is due today.

Several news media have intervened in the District Court antitrust action for the purpose of seeking access to sealed documents and depositions.  These include The New York Times, The Seattle Times, ZDTV, ZDNet, Bloomberg News, and Reuters.  The first motion to intervene sought access to sealed documents, and was filed on May 21.  However, Judge Jackson took no action on these motions, and depositions proceeded without further filings from the media.  Meanwhile, Microsoft and the Department of Justice (DOJ) negotiated a Protective Order that kept the depositions closed to the public and press.

On Monday, August 10, just two days before the scheduled deposition of Bill Gates, the intervening media filed their Emergency Motion for Order Enforcing 15 U.S.C. § 30.  This was their first request to the Court for access to depositions.  The DOJ is scheduled to take the oral testimony of 17 Microsoft employees to discovery relevant evidence, and to preserve testimony for presentation at the trial.  Trial is schedule to begin on September 8, but is all but certain to be delayed because of this deposition procedure dispute.

The DOJ changed its position, and argued that the media motion should be granted access to the depositions.   U.S. District Court Judge Thomas Penfield Jackson granted the media motion on August 11.  He reaffirmed his decision at a hearing on August 12.

Microsoft had asserted in its Motion for Stay that the DOJ is acting on behalf of its real client in this matter -- Netscape.  This apparently struck a nerve with DOJ lawyers, who want people to believe that they always serve the public interest.  The DOJ brief called Microsoft's statement a "childish assertion" that is "entirely baseless."

The DOJ brief then criticized Microsoft's argument that 15 U.S.C. § 30 should not be applied to depositions in the DOJ case against it.  Microsoft had argued that,

"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."

The DOJ Opposition responded:

"Microsoft contends that the term "depositions" in 15 U.S.C. 30 was intended to apply only to depositions taken by "masters or examiners in equity as a substitute for trial testimony, not to discovery depositions", and that the Court should read that limitation into the statute. As an initial matter, even if Microsoft were correct that the term "depositions" in 15 U.S.C. 30 excludes "discovery" depositions, that would not support the result Microsoft seeks. The depositions noticed in this case are not -- as Microsoft represents -- simply "discovery" depositions. Rather, the majority are being taken for the purpose of creating substantive evidence to be used in lieu of live trial testimony, a procedure both Microsoft and the plaintiffs recommended to the district court and which the court adopted in modified form." [citations omitted]

The intervening press entities' joint memorandum urged the Appeals Court to follow "the plain language of the statute."   15 U.S.C. § 30 requires opening "depositions" to the public, and these are "depositions."

The media memorandum, like the DOJ's, cited precedent in support of its position.   However, no cases cited in either memorandum are directly on point.  Neither provides any cases resolving the question of whether the public or press can invoke 15 U.S.C. § 30 to gain access to a government antitrust case depositions.   Many cases have cited the statute, but deal with other questions, such as whether defendants in antitrust cases can get a copy of a grand jury transcript from a prior antitrust criminal investigation, whether the public has access to depositions in aircraft accident cases, and whether sealed depositions in antitrust cases can be opened.  (And of course, Microsoft cited no cases which directly supported its interpretation of the statute.)

The media memorandum also argued at length that the legislative history of the passage of the statute, as well as subsequent legislation, supports their interpretation.

"Congress enacted section 30 to overrule the decision in United Shoe and, in so doing, to ensure that – in this narrow category of cases instituted by the United States – the litigation of the public’s claims would be conducted in public. The plain language that Congress chose to accomplish that goal remains as applicable to discovery depositions today as it was to the analogous deposition procedures in place when the statute was first enacted."

The media described Microsoft’s arguments as an "effort to rewrite an Act of Congress."

The news media are being represented in the Appeals Court proceeding by Lee Levine, of the Washington DC law firm of Levine, Peirson, Sullivan & Koch.