Microsoft opposes media access to transcripts

In the latest round of the DOJ v Microsoft battle, the software giant has mounted a vigorous opposition to media attempts to gain...

In the latest round of the DOJ v Microsoft battle, the software giant has mounted a vigorous opposition to media attempts to gain access to pre-trial interviews.

Microsoft is opposing media access to edited transcripts of interviews with Microsoft chief executive, Steve Ballmer, senior vice-president Jim Allchin, Netscape Communications' former chief executive Jim Barksdale and Liberate Technologies' chief exeuctive Mitchell Kertzman. The software giant is also opposing media access to a planned pre-trial interview with Sun Microsystems chief executive, Scott McNealy.

This latest battle between Microsoft and the media over access began in January, when several news organisations asked US District Court judge Colleen Kollar-Kotelly to allow access to the pre-trial interviews. The judge's response overturned an earlier ruling that had opened depositions to the public during the US Department of Justice antitrust battle with Microsoft.

Kollar-Kotelly upheld a protective order won by Microsoft to keep confidential information disclosed during the trial secret. However, she also said she would consider opening the depositions to the public if she was convinced that such access would not reveal confidential information.

The judge's decision caused much confusion, and in a conference following the decisions Kollar-Kotelly asked Microsoft and the media outlets to come to an agreement.

Microsoft maintained that all of the information in the depositions would be confidential, and therefore the media did not have access rights. The media outlets disagreed, according to Lee Levine, an attorney representing the news organisations.

In a filing dated 11 February, the media outlets again asked Kollar-Kotelly to grant them access to the depositions, but this time to only the five interviews they deemed "of substantial public concern" - namely those with Ballmer, Allchin, Barksdale, Kertzman, and McNealy. The organisations also requested access to edited versions of all the deposition transcripts.

The media organisations argued that their reporters were denied access to the pre-trial interviews. They were also prevented from purchasing transcripts of the interviews by Microsoft, which left them with no choice but to again file a motion with the court.

The media outlets offered a compromise: no more than three reporters from the outlets would attend the interviews and would share their reporting with the other organisations. They added that Microsoft's assumption that the depositions will contain confidential information did not constitute good cause for excluding public access to deposition material required by law.

Microsoft argued that since four of the five interviews had already occurred, the point is largely moot. It also argued that the protective order that Kollar-Kotelly upheld establishes that information discussed in the depositions is considered confidential by default for five days after the interview transcripts are made available.

"Media presence at depositions would eviscerate these provisions of the protective order, because it would be meaningless to accord confidential or highly confidential treatment to the deposition transcript if members of the press were present at the deposition itself," argued Microsoft.

The software giant also opposed the media organisations' attempts to gain access to edited versions of the transcripts.

Microsoft, the nine opposing states and the District of Columbia are scheduled to appear at the remedy hearing on 11 March.

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