January 30, 2002 8:20 AM PST
Judge could close Microsoft depositions
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For now, the depositions would remain open to the public, unless Microsoft makes an additional request they be closed, say legal experts.
U.S. District Judge Colleen Kollar-Kotelly said she would allow the media to file court briefs in response to Microsoft's request.
A deposition is sworn oral testimony generally available only to the parties in the action. Depositions in the next phase of the trial start Feb. 1.
Kollar-Kotelly's giving the media the opportunity to respond is in some ways unprecedented, say legal experts.
"To my knowledge this is the first time any outsider has been allowed to intervene in the suit, even if it's for a limited purpose," said Bob Lande, a professor at the University of Baltimore School of Law. "This means they will be able to submit papers and probably speak in court."
Late Tuesday, the Associated Press, CNN, The Los Angeles Times, The Washington Post and several other news organizations asked for a hearing to present oral arguments on the matter.
In a Jan. 9 filing, Microsoft argued that a 1913 federal law that allowed the court to open depositions in the case is not applicable. Under that law, the public has the right to attend antitrust actions brought by the U.S. government.
Microsoft reasoned that the statute would not apply given that nine states and the District of Columbia are pushing ahead with the case without the Justice Department.
Kollar-Kotelly accepted that argument, which the states did not oppose.
But the judge also relied on other legal precedents, particularly a May 28, 1998 court order, that would allow at least partial public access to the depositions unless certain questions or answers would reveal confidential information, such as trade secrets.
"Despite Microsoft's argument in favor of an exclusion of the public that plainly exceeds the language of the existing Stipulation and Protective Order, Microsoft does not request that the Court extend, alter or amend the terms of the Stipulation and Protective order to exclude the public," Kollar-Kotelly wrote in a memorandum.
"In the absence of such a request to exclude the public, the Court will not do so (spontaneously)," she continued.
Lande interpreted this to mean that the judge could still close the depositions.
"To me that looks like a hint that if Microsoft asked that the depositions generally be closed, the court will seriously consider the matter," he said.
"We have no comment right now," Microsoft spokesman Jim Desler said in response to the judge's late-Monday order.
In November, Microsoft, the Justice Department and nine of 18 states settled the nearly 4-year-old antitrust case. Monday concluded 60 days of public comment about the settlement. The Justice Department has 30 days to respond to the comments before Kollar-Kotelly rules to accept, modify or reject the settlement. She could hold hearings before reaching her decision.
Meanwhile, discovery is under way in ongoing litigation, and soon depositions will be made in preparation for the March 11 remedy hearing. Microsoft and AOL Time Warner exchanged legal briefs last week, with the software titan accusing the media giant of not handing over all the material requested as part of discovery. The two companies informed the court Monday that they had resolved their differences.
The remedy hearing could be a ferocious battle between Microsoft, the states and Microsoft competitors that are backing stiffer sanctions against the software giant.
In a December remedy proposal, the states asked that Microsoft be compelled to open the source code to the Internet Explorer Web browser, include Sun Microsystems' Java with Windows XP, and license, through auction, its popular Office software for use on competing operating systems. A "crown jewel" provision would force Microsoft to open the source code to Windows should the company violate the terms of the proposed remedy.