The judge overseeing the antitrust suit between government antitrust officials and Microsoft on Wednesday denied further attempts by the software giant to ban spectators and the press from pre-trial testimony, but also invited the company to appeal his decision.
Microsoft did appeal, immediately after the end of the hearing in which the judge made his decision. In the brief hearing in Judge Thomas Penfield Jackson's Washington, D.C., courtroom, Microsoft attorneys told the judge his decision yesterday to let spectators view depositions taken from Chairman and CEO Bill Gates was founded on a law whose application in the modern world is no longer relevant.
Though Microsoft attorney John Warden conceded that the 1913 Publicity in Taking of Evidence Act was designed to compel open testimony in federal suits filed under the Sherman Antitrust Act, the act was meant to apply only to those depositions taken in place of testimony in court, he told Jackson.
Furthermore, he said, the law was intended not to assure the presence of others in the courtroom, but to keep the content of proceedings public. This, he told Jackson, could easily be achieved by the presence of video cameras during depositions whose tapes could be viewed after the fact once they had been reviewed for inadvertent disclosure of company secrets.
Unless the public is banned from pre-trial testimony, Warden said, Microsoft faces not only delay in bringing the case to a close, but inadvertent disclosure of trade secrets through the trial process, as well.
Jackson demurred. Though he disliked the statute, he said, no legal record suggests that a simple account of what happened during the proceeding, whether on videotape or transcript, could substitute for the presence of press or the general public. "I don't think this is a First Amendment case," he added. "I don't think there's ever been a First Amendment right to attend pretrial proceedings. So it's a statutory case."
Lee Levine, attorney for the New York Times., the Seattle Times and ZDNet News publisher Ziff-Davis, asked the judge to deny Microsoft's motion since, he said, Congress has already declined to repeal the Publicity in Taking of Evidence Act when faced with similar arguments. As recently as 1997, he told the court, Congress had rejected Justice Department recommendations to revoke the statute, which places greater standards of openness on Sherman Act proceedings than all others. "I know your honour is not delighted that this statute exists, nonetheless, your order yesterday was correct," he told Jackson.
David Boies, lead attorney for the Justice Department and the 20 states suing Microsoft, told Jackson the 13-year IBM antitrust case also required open depositions but never compromised the company's trade secrets. Jackson, after a half-hour of arguments, denied Microsoft's request for a stay and told each side to prepare for open pre-trial testimony. Nonetheless, he said, he expected a thorough agreement covering a myriad of issues to assure both order in the proceeding as well as confidentiality for Microsoft.
Jackson then ticked off a list of 16 separate issues he expected to have settled immediately. Among other things he required attorneys to decide between themselves what sort of public notice they would give, how many spectators they would allow, and how many reporters could be present. In addition, he told both sides to decide how members of the press would be chosen to cover the trial and how confidential exhibits and testimony would be handled during the trial without divulging their contents to spectators.
Attorneys for each side huddled in the courtroom for 10 minutes to discuss how to decide the issues put to them. Microsoft attorney Warden then hurried from the courtroom to file the company's appeal to Jackson's ruling today. "I believe the parties are going to get together today and I think the parties will get it worked out in the next day or two," Boies said after the hearing.
Though he conceded the appeal of Jackson's ruling could delay the scheduled Sept. 8 trial date, Boies said no matter what happens, he expects the case to go through beginning next month. Microsoft attorneys declined comment.