Appeals Court Grants Microsoft's Motion for Stay of Deposition Order

(August 19, 1998, 6:30 PM EST.)  The U.S. Court of Appeals for the District of Columbia issued an Order granting Microsoft's Motion for Stay Pending Appeal of the August 11 Order of Judge Jackson that depositions of Bill Gates and others be opened to the public and the press.

The probability that the government will be able to grill Bill Gates and other Microsoft officials in public depositions in the glare of the press now appears unlikely.  The press will have to wait for the trial to hear the evidence that is presented there.

On August 10 the New York Times, ZDTV, ZDNET, Seattle Times, Reuters, and Bloomberg moved for an order opening the August 12 deposition of Bill Gates and others to the press and public.  Trial court Judge Thomas Penfield Jackson promptly issued an Order granting the motion the next day.  Microsoft immediately filed a Notice of Appeal, and further filed a Motion for Stay Pending Appeal.  The Court of Appeals has not ruled on the appeal.  Rather, it ruled on the Motion for Stay.

The Appeals Court Order stated in relevant part that:

"FURTHER ORDERED that the motion for a stay of the district court's August 11, 1998 order permitting members of the public to attend pretrial depositions be granted. See Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977); D.C. Circuit Handbook of Practice and Internal Procedures 60-62 (1997). The balance of harms favors appellant; if appellant prevails, the disclosure could not be undisclosed, whereas if appellees prevail, the text and videotape of a private deposition can then be disclosed."

However, the underlying appeal may be a moot issue.  The Appeals Court also set a briefing schedule that entails that it would not rule on the appeal under well after the trial, as currently scheduled, is over.

Judge Jackson scheduled an abnormally early trial date of September 8, less than four months after the May 18 filing of the DOJ Complaint.  Under the Court of Appeals' Order, briefing on the appeal of the August 11 Order would not be completed until September 29.  Then, oral argument would take place, and after that, the appeals court would take time to draft its opinion.   Either Judge Jackson's order to open the depositions to the public will not be reinstated, or Judge Jackson will have to abandon his trial schedule.  Or both.

The briefing schedule is as follows:

This is the second time two months that the Appeals Court has reversed or rebuffed Judge Jackson.  On June 23 the Appeals Court issued its Opinion reversing Judge Jackson's preliminary injunction in DOJ v. Microsoft I, the "consent decree case."