The Microsoft depositions won't be open, regardless

As a member of the public, I'm looking forward to hearing what Bill Gates has to say. As an attorney, and a member of the legal community, I'm not going to get my hopes up. That's because if the depositions do take place publicly, I'm probably not going to hear much.

Depositions, generally speaking, are not open to the public, and for good reason.

First, there are privacy concerns. By opening up the deposition, Microsoft faces a much greater risk of exposing its trade and business secrets. Besides, people want to go becaus they think they'll hear something juicy, which Microsoft will probably consider confidential, and there's a very good chance that when those questions get asked, one of two things will happen: Either everyone not a party to the case will be asked to leave the room, or the question will have to wait until the parties have another opportunity to ask the question in private. And whether one question or another can be asked in private will ultimately be up to Judge Thomas Penfield Jackson.

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Another factor to consider is the time concerns. In a closed deposition, to maximize the available time, the person being deposed generally answers all questions, even in the face of objections. Later on, the parties sort out what's admissible as evidence and what's not. Clearly, that won't be the protocol in an open deposition.

Judge Jackson has the law on his side, and the law says, unequivocally, that antitrust suits brought by the Justice Department "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."

That law has survived, unscathed, for 85 years. In fact, last year, the Department of Justice, not Microsoft, recommended that the law be repealed. Congress refused, indicating strong support for the law as it stands.

So, in obeying the law, Jackson may find his hands full.

First of all, among other things, he'll have to work out differences between the parties on who and how many spectators can attend. You can expect differences of opinion on this.

Also, judges don't attend depositions. So, if questions arise that might expose confidential information, there must be some method of deciding how to proceed, which may even mean Judge Jackson must effectively be on call during the process. Otherwise, the parties will have to table questions until the judge is available to rule on them.

Under most scenarios, spectators probably won't hear much of the kind of testimony they came to hear.