Their argument, made in documents filed today with the U.S. Circuit Court of Appeals for the District of Columbia, is not a new one, but rather is the latest salvo in an ongoing battle over public access to government questioning of Microsoft chief executive Bill Gates and other top executives at the company.
Last week, the software giant asked the federal appellate court to stay a lower court decision allowing the public and news organizations to be present when government attorneys depose Microsoft executives.
Today's filing represents the last hurdle before a three-judge panel can rule on the lower court's order.
U.S. District Judge Thomas Penfield Jackson ruled that the media has a right to sit in on the proceedings under a rarely invoked 85-year-old law. In response, Microsoft described the order as "simply unworkable" and "bound to result in significant delay."
Indeed, public interest will be high when lawyers grill Gates about Microsoft's dominance in the desktop operating system market and about whether the company illegally used its monopoly to gain an advantage in other business areas, including the Web browser market.
Lawyers for Microsoft wrote today in their filing--which largely amounts to a mere legal formality--that the company will be "irreparably injured" as a result unless the higher court issues a stay.
"It is hard enough to prepare for trial in less than four months in a major antitrust case?without having to accommodate scores of members of the public and press at each deposition," Microsoft lawyers said.
Microsoft has additional concerns about the logistics of public access to the high-profile depositions, a point of contention that could lead to delays in the trial of the case. The software giant also is worried that confidential trade secrets and other private company information will be jeopardized if anyone is allowed to watch the pretrial proceedings.
In order to protect its trade secrets, Microsoft has suggested that the public and the media view edited videotapes of the depositions--or read edited transcripts of them--after they have been conducted. The company said edited videotapes "would still represent unprecedented access public access to pretrial discovery materials."
Meanwhile, negotiations continue over the procedures for allowing public access to the depositions should an appellate court stay be denied, a Microsoft spokesman said. Judge Jackson would have to approve any agreed-upon protocol that emerges.
The trial is slated to start September 8, but the parties involved reportedly are exploring the possibility of a delay of up to two weeks.