Appellate court allows Bill Gates to testify in closed session

WASHINGTON, D.C.–In mid-August, a federal appeals panel in Washington, D.C. (D.C. Cir.) held that the depositions of Bill Gates and 16 other Microsoft Corporation executives could be closed to the public.

By granting Microsoft’s motion for a stay pending appeal, the court effectively reversed the trial court’s ruling that an obscure 1913 antitrust statute requires that the depositions be open to the public. The stay allowed the depositions to be taken without members of the media present, and the closed deposition of Bill Gates was taken in late August.

The court held, “The balance of harms favors [Microsoft]; if [Microsoft] prevails, the disclosure could not be undisclosed, whereas if [the government and news organizations] prevail, the text and videotape of a private deposition can then be disclosed.” The court said that the depositions “may proceed in the manner they have to date.”

The trial was delayed and is now scheduled to begin in mid-October.

The Justice Department and 20 state attorneys general have contended that Microsoft violated antitrust laws by including Internet “browsing” technology in its Windows 98 operating system software. The government wants Microsoft either to remove its browser for Windows 98 or include one made by rival Netscape Communications Corporation.

Several news organizations, including the New York Times Company and The Seattle Times, asked to attend the deposition of Gates, Microsoft’s chairman. In ruling that the depositions be open, the trial court relied on the 1913 statute, entitled the “Publicity in Taking of Evidence Act,” which requires that depositions in cases brought under the Sherman Antitrust Act “be open to the public as freely as are trials in open court.” Microsoft appealed, arguing that open proceedings would expose its trade secrets. (United States v. Microsoft Corporation; Media Counsel: Lee Levine, Washington, D.C.)