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Microsoft To Appeal Ruling

Microsoft says it will appeal a judge's order allowing the public to watch the government's questioning of Bill Gates and others.

The company asked U.S. District Judge Thomas Penfield Jackson for a stay of his ruling Tuesday, explaining that such a stay "is necessary to obtain other appellate review."

If the judge were to agree to stay his own ruling, Microsoft said the court-ordered depositions of Gates and others in the case could continue without the public or reporters present.

If the judge refuses, the company can ask the U.S. Circuit of Appeals to intervene. A hearing was scheduled for later Wednesday.

The company said it wants a decision "before the important issue to be addressed has been mooted by the taking of depositions in question."

Jackson, confronted with an obscure law, reluctantly agreed Tuesday to let the public watch the government's upcoming trial depositions with Gates, who is among the world's richest men.

But the judge also temporarily delayed the interviews until logistics are settled, including questions about how Gates and at least 24 others can be asked about sensitive company secrets with so many people watching.

The judge said he was bound by an 83-year-old federal law that covers depositions in antitrust lawsuits. The rarely used statute says such depositions "shall be open to the public as freely as are trials in open court."

Microsoft has argued that "there is a substantial threshold legal issue" about whether that law applies to modern pre-trial depositions.

Lee Levine, the lawyer who had pressed the judge to open the depositions, couldn't be reached immediately for comment Wednesday. He represented The New York Times, The Seattle Times and ZDTV, a subsidiary of Ziff-Davis Inc., which publishes PC Magazine and PC Week.

The Justice Department and 20 states are suing Microsoft, which makes the popular Windows operating systems. The government contends Microsoft illegally used its market influence to stifle competition in the high-tech industry, hurting consumers.

A decision to open the depositions could prove a curious mix of good news and bad for the software maker.

Questions about handling them in public will almost certainly cause delays for the antitrust trial scheduled to begin in just four weeks. Who can attend? How many journalists? Will the judge preside? How to deal with issues of sensitive trade secrets?

No hearings were scheduled immediately to even begin answering any of those questions.

Gates had been scheduled to be questioned by government investigators for two days starting Wednesday near Seattle, but that was quickly called off after Jackson's ruling. Government lawyers already were in the area preparing their questions for Gates.

Microsoft had fought the request to open the depositions, saying the interviews likely will include quetions about corporate secrets.

Written by Ted Bridis