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  Microsoft Depositions Open to Public

By Rajiv Chandrasekaran
Washington Post Staff Writer
Wednesday, August 12, 1998; Page C09

A federal judge ruled yesterday that pretrial interviews in government antitrust lawsuits against Microsoft Corp. should be open to the public, including the questioning of the company's billionaire chairman and chief executive, Bill Gates.

The decision by U.S. District Judge Thomas Penfield Jackson could postpone the suits' trial, now scheduled to begin Sept. 8, because Microsoft, government lawyers and media organizations must work out the logistics of opening more than 25 interviews. Microsoft also can appeal Jackson's ruling, which would further postpone the interviews.

Jackson yesterday temporarily delayed all interviews in the case, including one of Gates that was to begin today, until all sides can agree on arrangements for public questioning.

Gates, the country's richest person, is famous for being sharp-tongued with his critics. A forum in which he will answer extended questions under oath from people who are trying to force him to change his business practices is likely to draw intense interest from the media.

Pretrial interviews, or depositions, in civil cases typically are not open to the public. But an obscure law enacted by Congress in 1913, called the Publicity in Taking of Evidence Act, requires depositions in cases brought under the Sherman Antitrust Act – which the government alleges Microsoft has violated – to "be open to the public as freely as are trials in open court."

Several media organizations made the request to open the depositions yesterday. Jackson acknowledged to the media groups at a hearing yesterday that he didn't think "that under the statute, there's any question that you have the right to do what you want to do."

Microsoft opposed the request, saying the law was not intended to apply to cases such as the one against Microsoft. A lawyer representing the company, John L. Warden, also said the open depositions could expose some of Microsoft's trade secrets and "bog down" trial preparations.

But a Justice Department lawyer, Mark S. Popofsky, said few of the government's questions would involve the type of trade secrets that Microsoft could expect to answer in private.

Lee Levine, a lawyer representing the New York Times Co., the Seattle Times and publishing firm Ziff-Davis Inc., said he was "delighted" by the ruling. "When Congress passed the statute, it recognized that civil antitrust actions under federal law brought by the United States are a very special category of cases where the public is the real plaintiffs, and they should be afforded broad access," Levine said.

© Copyright 1998 The Washington Post Company

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