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Microsoft moves to close depositions

The software giant files a motion with the U.S. District Court for the District of Columbia to prevent the public from gaining access to future depositions in its antitrust case.

Microsoft filed a motion that, if successful, would bar the public from access to any future depositions in its antitrust case, but The New York Times and other media organizations will likely oppose it.

The Redmond, Wash.-based software behemoth filed a motion Wednesday with the U.S. District Court for the District of Columbia to vacate a standing order in an ongoing antitrust case maintained by 10 states and the District of Columbia. The case grew out of a case originally brought by the Department of Justice.

Under the order, granted in August 1998, the public was allowed to see and/or read seven depositions taken in the original case, including the deposition of Chairman Bill Gates. A deposition is sworn oral testimony generally only available to the parties in the action.

Although the DOJ and some states have agreed to settle with Microsoft, 10 states and the District of Columbia continue to press their claims against the company. If granted, Microsoft's request would bar the public from seeing any future depositions in the ongoing case unless later presented at trial, according to a Microsoft representative.

The states will not likely oppose the motion, but media organizations probably will. On Jan. 2, 2002, counsel for The New York Times and The Washington Post informed Microsoft that they intended to attend future depositions in the case.

Microsoft's argument to close future depositions is grounded in the procedural history of the case and the court's interpretation of the Publicity in Taking Evidence Act of 1913. Under that law, the public has the right to attend antitrust actions brought by the U.S. government. In August 1998, the court granted a motion that declared that the depositions had to be open to the public under the act.

In November 2001, the federal government and several states agreed to settle the case with Microsoft. The court at that point split the case in two: One case would effectively handle the settlement under the original case number, 98-1232, while another case, 98-1233, would handle the continuing dispute between the company and the 10 states.

Microsoft contends that the open-depositions order only applies to cases in which the federal government is a party, and that would be the settling case.

Opponents will likely argue that the remaining state case is so intertwined with the original case that it is an extension of the original matter and thus has effectively been brought by the federal government. For one thing, the "new" case hasn't been given a 2001 case number, but one that clearly relates to the original 1998 case.