DOJ Files Appeal Brief on Depositions Issue

(September 23, 1998)  The Department of Justice filed its brief with the Court of Appeals yesterday  arguing that depositions in the Microsoft antitrust case should be open to the press and public.  While the decision of the Court of Appeals is not likely to affect the taking of depositions in the current case, it could affect depositions in subsequent government actions against Microsoft.  Also at issue is whether the press will be able to get copies of deposition transcripts.  See, Brief for Appellee.

On August 10 the New York Times, ZDTV, ZDNET, Seattle Times, Reuters, and Bloomberg moved for an order opening the scheduled August 12 deposition of Bill Gates and others to the press and public.  Trial court Judge Thomas Penfield Jackson 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.  However, it did grant the Motion for Stay.

Hence, the depositions of Bill Gates, and all other witnesses remained closed to the press and public.  Since the Appeals Court stayed Judge Jackson's order, the underlying appeal may be a moot issue.  The Appeals Court set a briefing schedule that entails that it would not rule on the appeal until well after pretrial discovery is completed, and the trial, currently set to start on October 15, is over.

However, the Department of Justice (DOJ) argues in its brief that this is not a moot matter, because, aside from the press being able to attend the depositions, it is also important to eventually allow the press to see the deposition transcripts.  The brief stated:

Entry of a stay pending appeal by this Court did not moot this appeal. Depositions have been proceeding under the terms of the original Protective Order, which excludes the public, and will likely be concluded before this appeal is heard. But, as the Intervenors explain (Brief for Intervenors ("Intrv. Br.") at 2), affirmance of the decision below would allow them to obtain appropriately edited versions of the deposition videotapes and transcripts.

While the DOJ did not argue this, it is also possible that the government will bring a third action action Microsoft, if it does not substantially prevail in the current action.  In any future action, the government would want to expose Bill Gates and other Microsoft officials to maximum public pressure in depositions.

The DOJ continues to argue that the press and public must be permitted to attend depositions in this case, under a 1913 statute, 15 U.S.C. § 30, which provides that:

In the taking of depositions of witnesses for use in any suit in equity brought by the United States under sections 1 to 7 of this title, and in the hearings before any examiner or special master appointed to take testimony therein, the proceedings shall be open to the public as freely as are trials in open court; and no order excluding the public from attendance on any such proceedings shall be valid or enforceable.

Microsoft's Reply Brief is due on September 29.  After that the Appeals Court will hear oral argument, and still later, render its opinion.