The U.S. Court of Appeals for the District of Columbia upheld a lower court ruling that depositions taken for the government antitrust case against Microsoft be made public.
The depositions include the videotaped testimony of Microsoft's Chairman and CEO Bill Gates, as well as all the other depositions taken for the trial. Both sides in the trial have deposed dozens of witnesses.
Microsoft has a chance to appeal Friday's court decision, taken by a three-judge panel, but said that it is now in the process of reviewing its options.
About eight out of a total of some 20 hours of Gates' videotaped deposition already have been shown in open court in the current trial taking place in U.S. District Court for the District of Columbia. But the entire deposition has not yet been made public.
In addition, the Department of Justice has shown dozens of other clips of the videotaped depositions of other witnesses. Aside from what has been shown in court, these depositions have also been under seal pending the appeals court's decision.
Judge Thomas Penfield Jackson ruled in August that under the Publicity in Taking Evidence Act-a little-cited 1913 law-he had to keep open to the public the depositions of witnesses during the discovery phase of the antitrust lawsuit, which was filed by the government against Microsoft last May.
Jackson made his decision in the wake of a request to open the depositions to the public, made by a variety of news organizations, including The New York Times, The Seattle Times, Bloomberg News and Reuters America.
Microsoft appealed Judge Jackson's decision, arguing that public depositions could lead to a "media circus" and may potentially result in the revealing of trade secrets to the public.
Now, Microsoft has several options if it decides it still wants to try to keep the depositions sealed, according to lawyers involved in the case and the appeal.
Microsoft can ask the Court of Appeals to review its decision by looking at it with a larger cross section of judges-known as an "en banc" panel-and it also can ask the Supreme Court to review the decision, according to lawyers involved in the case.
But whatever Microsoft decides to do, company officials said that the appeals court's decision does not have an affect on the overall case.
"This was not an unexpected decision and it won't have any impact on the substance of the case," said Mark Murray, a Microsoft spokesman.
"As far as the Gates deposition goes this ruling is not a significant issue since the government has already picked through the deposition and put eight hours of it into public view ... the only parts of the deposition that the public hasn't seen is what the government has left on the cutting room floor," Murray said.
Microsoft officials would not comment on whether the company will present videotaped segments of the depositions during its part of the case, which it is currently presenting.
Even if Microsoft does not appeal this decision, it will be at least several weeks before the public gets a chance to check out the depositions in their entirety, noted officials at both the Justice Department and Microsoft.
That's because both sides in the trial and the witnesses that were deposed will get a chance to review the depositions in order to get a chance to ask the judge that they be "redacted"-or edited-to protect trade and business secrets.
In a twist, the appeals panel, in its ruling, referred to the obscure 1913 law and said, "We do not disagree with Microsoft's claim that the reason underlying the statute has for the most part vanished." In 1913, the type of pre-trial depositions that occur today were unknown, the appeals court ruling noted, and more recent statutes related to pretrial testimony have largely rendered the 1913 law outdated. In fact, the appeals panel noted that "the current Administration recommended to the Congress that (the statute) be repealed."
And who wrote to the House Judiciary Committee to support the Clinton Administration's request to repeal the 1913 statute? None other than Joel Klein-head of the Justice Department's antitrust division.
But in absence of an act of Congress jettisoning the old law, it is still valid, the appeal judges decided.
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