The landmark antitrust case seems certain to be delayed by wrangling over public access to pretrial examinations of witnesses.
But while Microsoft, the Department of Justice, and attorney generals from 20 states have agreed to the delay, presiding U.S. District Judge Thomas Penfield Jackson has yet to sign off on the proposal.
Scheduled to begin September 8, the trial was widely expected to be delayed after Judge Jackson yesterday declined to grant Microsoft a stay of his order allowing the press and the public access to the pretrial depositions of Gates and 16 other top executives while the software giant appealed his decision.
In order to avoid publicly disclosing sensitive trade secrets during the depositions, Jackson ordered the parties in the case to hammer out a set of plans that would deal with such issues and submit them to him for approval. It is this process that is expected to delay the trial.
"The government yesterday asked Microsoft for a two-week delay," said one source.
Another source familiar with the case noted that the request from government officials did not come from the DOJ.
The parties held a conference call this morning to discuss possible protocols for the depositions, the source said. However they did not reach enough of a consensus for the documents to be submitted to the court for approval.
If the appeals court agrees to hear the matter, the trial date becomes even more uncertain.
Justice Department attorney David Boies acknowledged that the timing of the case would slip a little, although he insisted all parties were determined to go to trial in September.
"Exactly what day it goes forward in September, that's not something I'm going to stand here and predict," he said outside the court.
In May, the federal government and 20 states filed a lawsuit accusing Microsoft of illegally maintaining its monopoly in personal computer operating systems and using that dominance to gain leverage in other business areas.
In particular, the government attorneys have accused Microsoft of illegally trying to drive Netscape Communications from the market by bundling a browser with its Windows operating system.
Microsoft has denied the charges and has asked for them to be dismissed.
Media companies have argued that the 1913 Publicity in Taking of Evidence Act calls for public access to any deposition taken in connection with an antitrust suit.
The opportunity to see Gates cross-examined on his personal knowledge of the facts by Boies, a renowned trial lawyer, is likely to draw a huge number of reporters and other interested spectators.
"It seems to me it is likely to be a little more complicated than the parties seem to suggest," Jackson said.
Jackson has expressed frustration with the law, but also has said its language is plain. The judge so far has stuck to a September 8 start date for trial.
Microsoft attorney John Warden had argued that journalists eventually could view edited videotapes of the depositions--a technology not foreseen 85 years ago--if media companies prevailed in an appeal.
But Lee Levine, a representative for the New York Times and Seattle Times, said Microsoft's concerns about confidential company data and the mechanics of public access could be settled quickly.
"A cold videotape down the road is no substitute for public access," Levine told the court.
Reuters contributed to this report.