By: Ted Bridis, Associated Press Writer
(AP) The judge in the Microsoft antitrust case ruled Tuesday that news organizations can listen to lawyers question technology executives in pretrial depositions unless Microsoft can prove the sessions would reveal confidential information.
The ruling by U.S. District Judge Colleen Kollar-Kotelly said Microsoft, which argued that depositions should take place privately, was seeking “an exclusion of the public that plainly exceeds” limits under another judge’s earlier orders.
Nine states oppose a landmark settlement between Microsoft and the Justice Department, and they want Kollar-Kotelly to impose harsher sanctions against the company than the Bush administration already has accepted.
News organizations, including The Associated Press, CNN, The New York Times, and The Washington Post, sought continued access to pretrial depositions under a 1913 law permitting public access to witness depositions in U.S. antitrust lawsuits. Reporters attended several depositions in spring 1999, including a dramatic standoff between Microsoft’s lawyers and Steve Case, now chairman of AOL Time-Warner Inc.
Microsoft argued in court papers earlier this month that, since the Justice Department along with nine other states negotiated an end to the historic case, the 1913 statute no longer applies.
The judge agreed, writing that she “can conceive of no rational basis” to allow reporters and the public to attend future depositions in the states’ lawsuit under the 1913 federal law.
“Although the two cases have remained consolidated up to this point, there can be no dispute that the non-settling portion … is proceeding down a different path,” Kollar-Kotelly wrote.
But the judge also said that a protective order aimed at preventing disclosure of a company’s confidential information does not allow lawyers to automatically exclude reporters and other members of the public. Questioning can occur privately “only when the answer to a question at deposition will result in the disclosure of confidential … or highly confidential information,” she wrote.
The judge noted that Microsoft had not asked her to broaden the protective order. Some legal experts suggested that was an invitation for the software giant to make such a request to keep the depositions private.
The protective order had been put in place by U.S. District Judge Thomas Penfield Jackson, who was removed from the case by a U.S. appeals court for, among other reasons, granting interviews with some reporters during the trial.
“The judge appears to have gotten to the same result, just taking a different road than Judge Jackson,” said Lee Levine, a Washington lawyer representing the news organizations.
Jackson had blocked reporters from attending depositions under the protective order, but reluctantly agreed to grant them access under the 1913 law.