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MS judge releases ‘secret’ depositions

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MS on Trial Although the Microsoft trial is in recess until at least mid-May, procedural matters continue to be dealt with by the court. There was to be a scheduled status conference this morning, but this has been cancelled by mutual agreement. It was planned to discuss the emergency motion in which Microsoft sought to compel AOL/Netscape and Sun to produce more documents. It now appears that negotiations will take place outside the courtroom, although Microsoft could elect to return to the courtroom if it isn't satisfied. At issue is the fact that Microsoft received only three boxes of documents about the AOL-Netscape merger, whereas the DoJ received 120 boxes. Microsoft evidently thinks that some of these documents could help its case. It is interesting to speculate why Microsoft has agreed to negotiate outside the courtroom. The most likely explanation would appear to be a desire not to burden Judge Jackson any further with procedural wrangles. It may also prove that Microsoft no longer regards the merger as good evidence of there being a vigorous software industry. The current feeling seems to be that Microsoft brought about the demise of Netscape. In addition, as we suggested, it is unlikely that the documents would be very fruitful for Microsoft's case anyway. Judge Jackson has also issued two orders to abide by the Publicity in Taking Evidence Act of 1913, following an appeal by media organisations that was successful. Neither the DoJ nor Microsoft was keen for the public and media to be admitted to depositions, but that will now be allowed. It also means that all the depositions in the case so far will be made public, subject to some redaction. Microsoft has been running into some difficulties in its attempts to keep documents under seal. In the Caldera v Microsoft case in Salt Lake City, media organisations are seeking to stop Microsoft's over-designation of documents in the "confidential" category. They are likely to succeed. By making the taking of depositions open to the media, Judge Jackson may find that he is reading about matters that have not yet been formally entered into evidence in his own court. This should in fact cause no problem, but it is likely to increase the stress on those giving depositions. Had media attendance been permitted when Gates was deposed, he might well have behaved in a somewhat more mature fashion and not bodged his evidence. ® Complete Register trial coverage

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