Appellate court upholds release of Bill Gates deposition

D.C. CIRCUIT–In late January, a federal appeals panel in Washington (D.C. Cir.) held that the deposition transcripts and videotapes of Bill Gates in the Microsoft antitrust trial must be made public.

The decision also opens about 100 other depositions already taken in the government’s case against Microsoft, including top executives of Intel Corp., International Business Machines Corp., Apple Computer Corp. and Netscape Communications Corp.

The appellate court upheld an earlier ruling by a federal District Court in Washington D.C., which had found that a 1913 statute, the “Publicity in Taking of Evidence Act,” requires that depositions in cases brought under the Sherman Antitrust Act be open to the public.

The appellate court acknowledged that the statute’s utility may be waning, comparing it to “Tithonus to whom Zeus gave eternal life but not eternal youth.” However, the court found no reason not to follow the statute. According to the court, the law “may well be with us longer than most anyone would wish,” but it added, “in our system of separated powers, it is for the Congress, not the courts, to jettison outdated statutes.”

The appellate court also held that a federal rule of civil procedure does not conflict with the 1913 statute. The federal rule at issue authorizes a district court to issue a protective order to prevent persons from attending discovery proceedings, if good cause is shown. The court found that the rule and statute did not conflict because the rule is a flexible one that requires an individualized balancing of the interests that may be present in a particular case. According to the court, rather than conflicting with the rule, the 1913 statute provides one of the interests to be weighed.

In May 1998, the Justice Department and 20 state attorneys general claimed that the Microsoft Corp., the world’s largest supplier of software for personal computers, violated antitrust laws by including Internet “browsing” technology in its Windows 98 operating system software.

The New York Times Company and several other news organizations moved in May 1998 to intervene in order to enforce the public’s right of access to the proceedings. In early August, upon learning that Microsoft chairman Bill Gates’ deposition was scheduled, the media organizations served notice on the parties that they would be present at the proceeding. Microsoft objected, prompting the media to file an emergency motion requesting access to the deposition. In mid-August, the court, relying on the 1913 statute, ruled that Gates’ deposition must be open to the public.

Microsoft appealed, arguing that open proceedings would expose its trade secrets. On August 19, the federal appellate court granted Microsoft’s motion for a stay pending appeal, which effectively reversed the district court’s ruling that the depositions be open to the public. The practical effect of the stay was to allow the depositions to be taken without members of the media present. The closed deposition of Bill Gates was taken in late August.

The trial commenced in federal District Court in Washington, D.C. on October 19. (United States v. Microsoft Corporation; Media Counsel: Lee Levine, Washington, D.C.)