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To: Gerald R. Lampton who wrote (22513)	1/31/1999 1:01:00 PM
From: Daniel Schuh	Read Replies (1) \| Respond to of 24154

Ruling Backs Release of Microsoft Trial Material nytimes.com Another setback, on the hearts and minds front anyway. This one goes back to that inconvenient law about public testimony, that Microsoft argued against on the grounds that it would require them to reveal the invaluable trade secret that Bill Gates has gone prematurely senile. Or was it deposition dependent amnesia? A fairly minor defeat, though, I don't know how much more confirmation is needed. Yesterday the United States Court of Appeals for the District of Columbia, where the trial is being held, ruled that the remainder of the pretrial deposition testimony must be released because of a little-known statute called the Publicity in Taking Evidence Act of 1913. Citing the 1913 law, The New York Times and five other news organizations filed a motion in the fall seeking to enable the press and the public to be present for the pretrial questioning of Gates and other industry executives. The 1913 statute, passed during the peak of trust-busting sentiment, states that in Government antitrust cases the taking of depositions must be "open to the public as freely as are trials in open court." Microsoft opposed the motion by the news organizations, saying the law was a throwback to the days when travel was difficult and depositions were the equivalent of witnesses appearing in court today. Back then, judges often simply read the deposition testimony and ruled, with few witnesses appearing before the court in person. Last fall, Judge Thomas Penfield Jackson, who is presiding over the antitrust case in Federal District Court, acknowledged Microsoft's objections but ruled in favor of the news organizations, saying the language of the old law was clear even if the law was little used. Microsoft then appealed and the appeals court stayed Judge Jackson's order, pending the company's appeal. But the appeals court allowed the deposition-taking to go forward in closed sessions, and Gates was questioned over three days in October. In its ruling, the appeals court compared the 1913 law to "Tithonus to whom Zeus gave eternal life but not eternal youth." The law "may well be with us longer than most anyone would wish," it added, but "in our system of separated powers, it is for the Congress, not the courts, to jettison outdated statutes." Microsoft can appeal to the Supreme Court, but that move seems unlikely. The depositions will probably be released in several weeks, after testimony deemed to involve trade secrets has been deleted. Oops, won't be much left after the evidence of premature senility/ deposition dependent amnesia is deleted.