Microsoft has told a federal appeals court that opening up depositions in the government's antitrust case against it to the public will create a "media circus" that will delay the trial.
After The New York Times, The Seattle Times and other news organisations requested access, US District Court Judge Thomas Penfield Jackson ruled last week that the depositions should be open to the public because of a provision of the Sherman Act, which governs antitrust cases. When the judge refused to stay the ruling as Microsoft requested, Microsoft appealed to the U.S. Court of Appeals for the District of Columbia.
The US Department of Justice, which brought the lawsuit along with 20 state attorneys general, said that although it too questioned the "wisdom" of the provision opening up antitrust depositions, the law clearly states that the testimony should be open to the public.
Microsoft argued that open depositions, including that of chairman and chief executive officer Bill Gates, would delay the proceedings and that closing them would do no harm. Instead, the media could read edited transcripts or view edited videotapes after the testimony was given, Microsoft argued.
"Microsoft will be irreparably injured absent a stay because broad public and press attendance will convert the remaining depositions into a media circus, causing both delay and disruption," Microsoft's filing today said. "It is hard enough to prepare for trial in less than four months in a major antitrust case ... without also having to accommodate scores of members of the public and press at each deposition."
Having public depositions will also make the process take longer as lawyers will need to conduct numerous off-the-record consultations to discuss confidential matters, Microsoft said. Negotiating the protocol for holding the depositions will not insure against disruption or delay and it will be difficult to find adequate facilities to accommodate members of the press and public, the filing said.
"In short, the situation created by the (judge's) Order is simply unworkable and is bound to result in significant delay," Microsoft said.
Jackson is considering a request by both sides to delay by two weeks the start of the trial, which is scheduled for Sept. 8, according to sources. The judge also is considering a Microsoft motion for summary judgment seeking dismissal of the case.
The DOJ and states have accused Microsoft of illegally using its dominance in the PC operating systems market to control other software markets, particularly the Internet market. However, Microsoft claims it has not prevent browser rival Netscape Communications from widely distributing its software.