Appeals court sides with secrecy at First Amendment’s expense

Tuesday, September 1, 1998

Even those who revere Bill Gates and despise the media should be troubled by the appellate court decision that is allowing Gates’ deposition to proceed in secret.

The decision, in which the court delayed determining whether the public and the media could attend the deposition until after the questioning had concluded, is a blatant and arrogant misuse of judicial power. Not only is the ruling inconsistent with the law, but it also demonstrates a reckless indifference to important First Amendment rights.

As anyone who has endured litigation is aware, a deposition is the pre-trial questioning of a witness under oath. Through a deposition, the lawyers learn what a witness knows about a case and what his or her testimony will be at trial.

While members of the media usually do not attend depositions, courts in several cases have held that, under the First Amendment, depositions are presumptively open to the public, including reporters. In the Microsoft antitrust case, the law is even clearer, as a statute provides that depositions in antitrust cases “shall be open to the public as freely as are trials in open court.”

Faced with this statute, the judge presiding over the Microsoft case, Thomas Penfield Jackson, begrudgingly ruled that the media had the right to attend Gates’ deposition and the depositions of approximately 25 other witnesses. In his ruling, Jackson predicted that media access to the depositions would be problematic and he encouraged Microsoft to appeal. Microsoft did so, arguing that media access to the depositions would permit disclosure of trade secrets and disrupt the proceedings.

Given the choice between the clear statutory language and the convenience of the parties, the U.S. Circuit Court of Appeals for the District of Columbia unfortunately chose convenience. Unable to avoid the statute, however, the court delayed deciding whether the media could attend the depositions until sometime after Sept. 29, which — not coincidentally — is three weeks after the trial is scheduled to begin. The court decided that, in the meantime, the depositions should proceed without the media in attendance. While the court indicated that edited transcripts and videotapes of the depositions could be made public by the parties prior to its pending decision, it did not require the release of these materials.

It doesn’t take a computer scientist to see that the court decided the issue by choosing not to decide it. By the time of its ruling, the depositions will have concluded, meaning that any victory for the media will be hollow at best. The court thus used its internal scheduling mechanisms to deny the media important constitutional and statutory rights, a result it likely could not have accomplished by deciding the issue on its merits. The use of procedure to deprive parties of established rights should be disturbing in any instance, but particularly in a case like this one, in which the deprivation cannot later be remedied.

The elevation of form over substance in this case is even more troubling because the rationales for doing so — to protect trade secrets and to prevent undue delay — are without merit.

The trade secret boogeyman is trotted out frequently in antitrust and other corporate litigation. In almost every instance, however, the number of actual trade secrets at issue is far fewer than the number claimed by the corporations involved. The same likely is true in this case. In fact, the government’s lawyers told Jackson that they suspected “only a few” of their questions for Gates would involve trade secrets.

The media was not claiming a right to Microsoft’s legitimate trade secrets. The media recognize that, if necessary to protect trade secrets, trial judges can seal documents and close parts of depositions and trials. While this opening and closing of proceedings can at times be cumbersome, the government in this case was willing to arrange its questions about trade secrets in a way that would minimize any disruptions or delays. Judges for decades have successfully balanced rights of access with the need to prevent disclosure of trade secrets, and no reason exists to believe that Jackson could not have done the same in this case.

The disruptions and delay cited by Microsoft and the courts were exaggerated and somewhat disingenuous. Microsoft, which has billions of dollars at stake, is the only party wanting this case to be decided as quickly as possible and it, through overly broad trade secret claims, would have been the only party that could have caused unnecessary delays. Had Microsoft been truly concerned about these delays, it could have sought a court ruling concerning media access much sooner. The statute at issue has been in effect since 1913, and everyone involved in the case has known about it since the beginning. Jackson, in fact, stated in his ruling that he had been trying to ignore the law as long as he could. The media should not be penalized for the head-in-the-sand attitude of those involved in the case.

Jackson and the court of appeals also ignored the fact that many of the logistical issues and disruptions that they feared have been easily handled in other cases through pool coverage arrangements. The media in this case were more than willing to work within reasonable restrictions, but the court of appeals’ ruling denied them that opportunity.

As much as Jackson and the court of appeals would like these access issues to disappear, they will not get their wish. The trial is this case is not far away, and the trade secret, delay and disruption concerns will inevitably resurface during the testimony of a number of witnesses. Microsoft, with the current victory under its belt, will undoubtedly seek to close at least parts of the trial, and Jackson seems likely to err on the side of closure whenever convenience would be served by doing so.

The media then will find themselves back before the court of appeals, which hopefully will demonstrate more respect for the First Amendment than it has done so far.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.