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Microsoft wants reporters barred from depositions

Microsoft Corp asked the judge in its antitrust case to bar reporters from depositions of President Steve Ballmer and other witnesses who will be questioned by states seeking tough restrictions on its business practices.

News organizations, including the Washington Post, New York Times and Bloomberg LP, won a 1998 court order allowing reporters to attend depositions during the 78-day trial of the government's landmark antitrust case against the largest software company.

The news organizations cited the 1913 Publicity in Taking Evidence Act, which requires depositions to be conducted in public when the US government sues a company under the Sherman Antitrust Act. Microsoft argued that the court order should be lifted because the US Justice Department has reached a proposed settlement of its antitrust claims against the software giant and is no longer a plaintiff in the case.

"The Publicity in Taking Evidence Act is not applicable to depositions taken in the non-settling states' separate action," Microsoft said in court papers. "Lawyers for the United States will not be taking any of the depositions" that will be taken as the nine states and Microsoft prepare for remedy hearings to start March 11.

Microsoft asked US District Judge Colleen Kollar-Kotelly to lift the order after the attorney for the Washington Post and New York Times notified all parties to the case that the news organizations intended to attend the depositions and wanted to be notified of them as the order requires.

Microsoft said the nine states seeking additional remedies didn't oppose its request to bar the press from the depositions.

Lee Levine, the newspapers' lawyer, declined to comment on Microsoft's filing, saying he would have to consult with his clients before deciding how to respond. Levine also represents AOL Time Warner Inc.'s Court TV in its attempt to provide live coverage of the first terrorism trial stemming from the Sept. 11 attacks in the US.

The nine states led by California, Connecticut, Iowa and Massachusetts object to the Bush administration's settlement with Microsoft, saying it is so riddled with loopholes and exceptions that it wouldn't prevent the company from continuing to protect its monopoly on personal computer operating software.

The proposed settlement, which was submitted in November for the judge's approval, would require Microsoft to give computer manufacturers freedom to promote rival software programs.

Microsoft also would have to disclose to rivals and computer makers the code needed to make competing software programs run smoothly on its Windows operating system. Kollar-Kotelly will hold separate hearings on the proposed settlement, which was supported by nine other states, including Ohio, New York and Wisconsin.

Earlier this week, Kollar-Kotelly rejected Microsoft's request to delay the March 11 start of the remedy hearings by at least four months. Both sides will be allowed to conduct as many as 30 depositions of prospective witnesses for the remedy hearings. Microsoft had listed Ballmer as a prospective witness, which means the states are likely to question him in a deposition before the hearings.

The holdout states want to require Microsoft to offer a version of Windows without the Internet Explorer browser and to place the code of the Web-search software in the public domain.

Microsoft also would be required to make versions of its popular Microsoft Office suite of spreadsheet and word-processing programs to run on rival operating systems such as Linux and Unix.

Microsoft's appeal of the 1998 order opening pre-trial depositions allowed Chairman Bill Gates's deposition to be taken in private. An appeals court ruling that the depositions should be made public resulted in release of transcripts of those sessions.
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