Agentless Backup is Not a Myth

Yesterday, the DoJ filed a brief to the court of appeals concerning Microsoft's appeal to prevent Bill Gates' and other Microsoft executives' video-taped depositions being made public, as required by the 1913 Publicity in Taking Evidence Act. The parallel to the Clinton videotape being made public sharply focuses attention on just how political the US judicial system has become. Three Republican-appointed judges in the court of appeals overruled Judge Jackson's decision to allow public and media access to the depositions, pending a hearing in the appellate court, which will now be on 20 October, five days after the trial in the federal court is scheduled to begin. The DoJ has been joined by the New York Times, Reuters and Bloomberg as intervenor-appellees, who feel that the public should know what was said. The DoJ's brief is a great improvement on some of its earlier argument, and neatly draws attention to fallacies and omissions in Microsoft's brief. The DoJ noted that Congress did not intend so-called discovery depositions to be excluded from being covered by the 1913 Act, since Congress expressly exempted pre-complaint (also known as CIDs -- civil investigative demand) depositions from a subsequent Act. Despite Microsoft's legal spokesman, Jim Cullinan, saying yesterday that "we are preparing to move ahead on 15 October" for trial, this does not mean that Microsoft will not try for a further delay. Microsoft needs to appear willing, and is unlikely to ask for a further delay until very close to the trial, when it will say it needs more time to analyse the documents it is receiving from its competitors about their actions against Microsoft. Normally, the competitors would object to Microsoft having access to their secrets, but they know that in this case, it would give grounds for a considerable delay, to Microsoft's advantage. Sun asked for an extra week to gather documents -- it considered two days notice was ridiculous -- and sent some documents to Microsoft last Friday. Novell is evaluating Microsoft subpoena, according to spokesman Jonathan Cohen. The most likely outcome on the present facts would seem to be that Microsoft will use every legal avenue, including a supreme court appeal, to delay the trail. At the end of that process, it is rather unlikely that Microsoft would want any dirty laundry to be hung out in a public trial. Several times in the past Microsoft has backed down at the courtroom door -- and even once while the jury was deliberating -- rather than face something much worse than a pie in the face. ®

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