United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 20, 1998 Decided January 29, 1999
No. 98-5399
United States of America,
Appellee
v.
Microsoft Corporation,
Appellant
Consolidated with
No. 98-5400
Appeals from the United States District Court
for the District of Columbia
(No. 98cv01232)
(No. 98cv01233)
Richard J. Urowsky argued the cause for appellant. With
him on the briefs were John L. Warden, D. Stuart Meikle-
john, Thomas R. Leuba, Christopher J. Meyers, Christine M.
Motta, James R. Weiss, William H. Neukom and Thomas W.
Burt. David A. Heiner, Jr., Richard C. Pepperman, II,
Steven J. Aeschbacher and Steven L. Holley entered appear-
ances.
Mark S. Popofsky, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Joel I. Klein, Assistant Attorney General, A. Douglas Me-
lamed, Deputy Assistant Attorney General, and Catherine G.
O'Sullivan, Attorney.
Lee Levine argued the cause for intervenors The New York
Times Company, et al. With him on the brief were Jay Ward
Brown, Richard L. Klein, Niki Kuckes and David S. Cohen.
Before: Williams, Ginsburg, and Sentelle, Circuit Judges.
Opinion for the court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: The Publicity in Taking Evidence
Act of 1913 provides that depositions of witnesses for use in
any suit in equity brought by the Government under the
Sherman Act "shall be open to the public as freely as are
trials in open court." 15 U.S.C. s 30. Microsoft Corporation,
the defendant in such an antitrust case, appeals the district
court's order requiring the depositions in this case to be
taken in public, subject to provisions for the protection of
trade secrets and other confidential business information.
Microsoft argues that the "depositions" referred to in the
statute are not the depositions known today under the Feder-
al Rules of Civil Procedure, namely, interrogations undertak-
en for the purpose of pretrial discovery. In the alternative,
Microsoft argues that s 30 conflicts with and is superseded
by the standard for granting a protective order under Rule
26(c).
We hold that although s 30 apparently was rendered an
anachronism by the Federal Rules in 1938, the statute does
not conflict with, and hence is not superseded by Rule 26(c).
Accordingly, we are constrained to enforce the statute by its
terms and to apply it to the depositions taken in this case.
We therefore affirm the judgment of the district court.
I. Background
In May, 1998 the United States filed a civil antitrust action
in the district court charging Microsoft with various violations
of the Sherman Act. See 15 U.S.C. ss 1 & 2. The case was
consolidated with a similar suit brought by 20 States and the
District of Columbia, and the district court set the case on an
expedited path to trial.
In order to protect the trade secrets and other confidential
business information both of Microsoft and of third parties
that might testify or otherwise provide information in the
case, the parties agreed to and the district court entered a
protective order governing discovery. See Fed. R. Civ. P.
26(c) (authorizing entry of protective order upon showing of
"good cause"). Under that protective order deposition tran-
scripts were to be treated as confidential for five days follow-
ing the deponent's receipt of the transcript, during which
time the deponent might designate portions of his or her
testimony confidential. After this five-day period the tran-
scripts presumably would be made available to the public in
redacted form, although the order does not expressly so state.
In August, 1998 the Government gave notice that it would
take the depositions of several Microsoft employees, including
its Chairman and Chief Executive Officer, William Gates III.
The New York Times Company thereupon urged the district
court to grant its pending motion to intervene "for the limited
purpose of enforcing its and the public's rights of access to
proceedings and the record herein." (Five other news orga-
nizations had joined in The Times's motion to intervene; we
shall refer to the six collectively as "The Times.") In renew-
ing its motion The Times sought access to the depositions
specifically pursuant to the Publicity in Taking Evidence Act
of 1913, 15 U.S.C. s 30, a little-known and even less used
statute that provides in its entirety:
In the taking of depositions of witnesses for use in any
suit in equity brought by the United States under sec-
tions 1 to 7 of [Title 15, United States Code], and in the
hearings before any examiner or special master appoint-
ed to take testimony therein, the proceedings shall be
open to the public as freely as are trials in open court;
and no order excluding the public from attendance on
any such proceedings shall be valid or enforceable.
The district court granted The Times's motion to intervene
and pursuant to s 30 ordered "that intervenors and all other
members of the public shall be admitted to all depositions to
be taken henceforth in this action ... to the extent space is
reasonably available to accommodate them consistent with
public safety and order." The court stayed all depositions in
the case pending entry of "an agreed form of order establish-
ing a protocol for affording access for intervenors and other
members of the public to pretrial depositions which comports
with 15 U.S.C. s 30, but which also protects the interests of
the parties and of third-party deponents in preventing unnec-
essary disclosure of trade secrets or other confidential infor-
mation."
Microsoft immediately moved for a stay of this order, which
the district court denied. Microsoft then filed an interlocu-
tory appeal and moved this court for a stay of the order
pending appeal. We granted the stay; if The Times prevails,
we said, then "the text and videotape of a private deposition
can then be disclosed." Depositions resumed under the
terms of the original protective order, and Mr. Gates was
duly deposed for three days in a private, videotaped session.
The Government joins The Times on this appeal in arguing
that s 30 requires that the depositions be made public.
II. Analysis
As mentioned, Microsoft argues first that the term "deposi-
tions" as used in 15 U.S.C. s 30 does not include depositions
taken for the purpose of pretrial discovery. If such deposi-
tions are covered by s 30, then Microsoft argues in the
alternative that the statute conflicts with and, pursuant to the
Rules Enabling Act, 28 U.S.C. s 2072(b), yields to the stan-
dard for granting a protective order in Rule 26(c).
A.The Meaning of "Deposition" in the Act of 1913
Microsoft contends first that the term "deposition" as used
by the Congress in 1913 had a completely different meaning
than it has today, indeed that s 30 cannot have been intended
to apply to pretrial discovery depositions because they were
unknown in 1913. In modern federal practice, of course, the
use of pretrial depositions for the discovery of evidence is the
norm. See Fed. R. Civ. P. 26(b)(1) (authorizing depositions in
order to discover information that may or may not be admis-
sible at trial but is "reasonably calculated to lead to the
discovery of admissible evidence"). Microsoft claims, howev-
er, that before the Federal Rules of Civil Procedure became
effective in 1938, depositions were solely a means of preserv-
ing proof, or testimony, for possible use by the court if the
witness were to die or be otherwise unavailable at the trial;
any discovery that might have resulted from taking a deposi-
tion "was only accidental and incidental." See Charles A.
Wright et al., 8 Federal Practice and Procedure 2d s 2002,
at 52 (1994).
We agree with Microsoft's fundamental point that we must
construe the term "deposition" in accordance with its ordi-
nary meaning when the statute was enacted in 1913, for we
must presume the "Congress intended the [word] to have the
meaning generally accepted in the legal community at the
time of enactment." Director, Office of Workers' Comp.
Programs v. Greenwich Collieries, 512 U.S. 267, 275 (1994)
(examining historical sources to determine meaning of "bur-
den of proof" as used in Administrative Procedure Act of
1946). Unlike Microsoft, however, we conclude that "deposi-
tion" had the same meaning in 1913 as it has now--the
pretrial examination of a witness in which testimony is given
under oath pursuant to a process authorized by law; it is only
the use to which a deposition may be put in federal court that
has changed.
The legal treatises and dictionaries of the day reveal that
the term deposition generically
embrace[d] all written evidence verified by oath, includ-
ing affidavits. But as a word of legal terminology it
[was] usually limited to the testimony of a witness, taken
in writing, under oath or affirmation, before some judicial
officer, in answer to interrogatories, oral or written.
18 C.J. Depositions s 1, at 605 (1919) (citing, inter alia,
Eriksson v. Grandfield, 193 F. 296 (1912)); see William
Mack, 13 Cyclopedia of Law and Procedure 832 (1904) (same).
Microsoft contends, nonetheless, that in the legal community
of 1913 the term could not have been used to denote the
pretrial examination of a witness for the purpose of discovery,
"because there were no such depositions in 1913, when the
statute was enacted." In support of this argument Microsoft
points to the differences between the definitions found in the
1910 and 1990 editions of Black's Law Dictionary. In the
later edition, a deposition is defined as
testimony of a witness taken upon oral question or
written interrogatories, not in open court, but in pursu-
ance of a commission to take testimony issued by a court,
or under a general law or court rule on the subject, and
reduced to writing and duly authenticated, and intended
to be used in preparation and upon the trial of a civil
action or criminal prosecution.
Black's Law Dictionary 440 (6th ed. 1990) (emphasis added).
The 1910 edition of Black's is identical in relevant part except
that it does not contain the phrase italicized above. See
Black's Law Dictionary 357 (2d ed. 1910). "The omission is
not surprising," claims Microsoft, "given that discovery depo-
sitions did not exist at the time."
Contrary to the inference that Microsoft would have us
draw from these contrasting definitions, however, deposing a
party or a witness for the purpose of pretrial discovery was
far from unknown in 1913; for several decades it had been
permitted to some extent by statute in at least six states.
Although the statutes in question may have been directed
originally at the taking of depositions in order to preserve
testimony for use at trial, courts construed them also to
permit the use of depositions for pretrial discovery. See In
re Abele, 12 Kan. 451, 453 (1874) (Brewer, J.) (pretrial deposi-
tion may be taken regardless whether conditions for use at
trial then obtain; though it is "said that this permits one to
go on a 'fishing expedition' to ascertain his adversary's testi-
mony .... [t]his is an equal right of both parties, and justice
will not be apt to suffer if each party knows fully beforehand
his adversary's testimony"); Kelly v. Chicago & N.W. Ry.
Co., 19 N.W. 521, 525 (Wis. 1884) ("the object of our statute
... is to elicit a full and complete disclosure of whatever may
be relevant to the controversy" by permitting either party to
compel deposition of witnesses before trial); Dogge v. State,
31 N.W. 929, 931-32 (Neb. 1887) (same); Shaw v. Ohio
Edison Installation Co., 9 Ohio Dec. 809, 811-12 (1887) (Taft,
J.)* (rejecting argument that under statute granting absolute
right to take pretrial depositions "a party will go fishing for
evidence among the witnesses of the opposing party, and will
learn the case of his adversary.... There is no objection
that I know, why each party should not know the other's
case"); Herbage v. City of Utica, 16 N.E. 62, 63 (N.Y. 1888)
("a party litigant may ... have a general examination of his
adversary as a witness in the cause, as well before as at the
trial"); Olmstead v. Edson, 98 N.W. 415, 417 (Neb. 1904)
(holding statute governing evidentiary use of depositions "is
not a limitation of the right to take depositions, but on the
right to use them on the trial of the case [and] it is not
essential that the reasons which permit their use at the trial
should exist when they are taken"); Goldmark v. United
States Electro-Galvanizing Co., 97 N.Y.S. 1078, 1080 (N.Y.
App. Div. 1906) ("The object [of a deposition] is to obtain
testimony of an adverse party before the trial so that it can
be used at the trial.... [U]ntil the deposition is taken ... a
party cannot tell whether the evidence of the proposed wit-
ness would be sufficient to prove the particular facts desired
to be proved, or whether he must procure other evidence of
the fact"); Western Union Tel. Co. v. Williams, 112 S.W. 651,
653 (Ky. 1908) (explaining that statute "gives to one party the
absolute right to take the deposition of the adverse party ...
[thus] enabl[ing] the party to find out his opponent's evidence
in advance of the trial"); Owensboro City Ry. Co. v. Rowland,
153 S.W. 206, 210-11 (Ky. 1913) (same); Kentucky Util. Co. v.
McCarty's Adm'r, 183 S.W. 237, 240 (Ky. 1916) (same; ex-
__________
* Interestingly, it was President Taft whose Administration pro-
posed the Publicity in Taking Evidence Act of 1913 and who signed
it into law.
plaining that "Code confers the right on either party to take
the deposition of the adverse party, not merely for use as
evidence if the necessary conditions arise, but for the purpose
of exploration, or of ascertaining the facts on which the
adverse party relies").
Under the Conformity Act of 1872, Act of June 1, 1872, ch.
255, s 5, 17 Stat. 196, 197 (codified in Rev. Stat. s 914 (1878)),
federal courts hearing cases within either their removal or
their diversity jurisdiction were bound to "conform, as near as
may be" to the procedures followed in the correlative state
court. Consequently, the Supreme Court had occasion
squarely to address the uses to which the pretrial examina-
tion of a witness could be put in both federal and state courts.
In so doing, the Court consistently used the term "deposition"
to describe a pretrial examination even when made for the
purpose of discovery.
Consider Ex Parte Fisk, 113 U.S. 713 (1885), in which the
plaintiff had originally filed suit in state court in New York.
Before removal of the case to federal court the plaintiff had
obtained an order pursuant to the New York Code of Civil
Procedure that the defendant "be examined and his testimony
and deposition be taken as a party before trial." Id. at 714.
After removing the case to federal court the defendant assert-
ed that the order of the state court could not be enforced.
The Supreme Court agreed, see id. at 719-25, holding that
the New York statute conflicted with Rev. Stat. s 861 (1878),
which established the general rule in federal courts that the
"mode of proof, in the trial of actions at common law, shall be
by oral testimony and examination of witnesses in open
court," subject to two exceptions. First, the "testimony of
any witness [could] be taken ... by deposition de bene esse,"
that is, in order to preserve the testimony of a witness who
was expected to be unavailable at trial because he was aged,
infirm, or lived beyond the subpoena power of the court.
Rev. Stat. s 863 (1878) (emphasis added). Second, when
necessary in the interest of justice a federal court could grant
a "dedimus potestatem," that is, could commission someone
"to take depositions according to common usage." Rev. Stat.
s 866 (1878) (emphasis added). The plaintiff urged that the
second exception applied because the "common usage" in
New York was to depose parties in advance of trial, but the
Court held that the federal statute did not incorporate a
discovery practice that was "dependent wholly upon the New
York statute" and therefore not common. Fisk, 113 U.S. at
724.
The Supreme Court relied upon Fisk in Union Pac. Ry. Co.
v. Botsford, 141 U.S. 250 (1891), where it rejected the defen-
dant's attempt to subject the plaintiff to a pretrial medical
examination. The Court explained that because the Revised
Statutes set out the exclusive authority "for taking deposi-
tions," id. at 256 (emphasis added), a federal court could not
follow the procedure "in the nature of discovery, conducted in
accordance with the practice prevailing in New York," id. at
257.
Finally, in 1904 the Supreme Court summed up this line of
cases as standing for the proposition that "the courts of the
United States are not given discretion to take depositions not
authorized by Federal law, but, in respect of depositions
thereby authorized to be taken, they may follow the Federal
practice in the manner of taking, or that provided by the state
law." Hanks Dental Assoc. v. International Tooth Crown
Co., 194 U.S. 303, 309 (1904) (emphases added); see also
Turner v. Shackman, 27 F. 183, 184 (C.C.E.D. Mo. 1886)
(following Fisk, rejecting attempt to take deposition dedimus
potestatem because it was "an effort to see what the defen-
dant will testify to before he is put upon the witness stand in
presence of the jury"); cf. Evans v. Eaton, 20 U.S. (7 Wheat.)
356, 426 (1822) (refusing "to allow a deposition to be read by
the plaintiff, which had been taken according to a prevalent
practice of the state courts").
In sum, the Court held that federal statutes generally
prohibited, in federal litigation, the pretrial examination of a
witness for the purpose of discovery even when that practice
was followed in the relevant state court. The Court did not
suggest, however, that a pretrial examination for the purpose
of discovery was anything other than the taking of a "deposi-
tion." Clearly, therefore, in the intervening years, there has
been a change not in the denotation of the word "deposition"
but in the use to which the thing denoted by that word may
be put in the federal courts. Accordingly, we conclude that
the ordinary meaning of the term "deposition" as used by the
legal community in 1913 was the pretrial examination of a
witness in which testimony is given under oath pursuant to a
process authorized by law. Therefore we hold that the
depositions taken in the case before us fall within the plain
meaning of the term "deposition" as it is used in the Publicity
in Taking Evidence Act of 1913, 15 U.S.C. s 30.
Microsoft next contends, in part by quoting Professor
Richard L. Marcus, that the 62d Congress could not have
intended in enacting s 30 "to ensure public access to genuine
discovery depositions, which were not generally available in
1913." Myth and Reality in Protective Order Litigation, 69
Cornell L. Rev. 1, 39 (1983); see also Wright, 8 Federal
Practice and Procedure 2d s 2041, at 539. At that time the
common practice in civil antitrust cases brought by the
Government for equitable relief was for an examiner (or
special master) to travel the country for some months before
trial taking evidence. He then would submit to the court a
report consisting of proposed findings of fact and conclusions
of law, to which the parties could take exceptions. At trial
the court would rule upon the exceptions and either accept or
reject the examiner's findings and conclusions. The typical
case would thus be decided upon a written record, with the
only oral testimony in the case having been given before the
examiner and not in open court. Although the antitrust court
could in its discretion permit testimony at trial, it seldom if
ever did so. This was in accord with the general practice at
that time "to try all equity causes on depositions." 18 C.J.
Depositions s 3, at 607 (1919); see Equity R. 67, 210 U.S. 508,
530-33 (1907); Earl W. Kintner, 8 Legislative History of the
Federal Antitrust Laws and Related Statutes 6373, 6376
(1984) (editor's introduction).
In 1912 a district court in a Sherman Act case had held that
Equity Rule 67 prohibited the public and the press from
attending as an examiner took evidence: "[O]ral proceedings
before an examiner are regarded as essentially different from
proceedings in open court.... That the public and press
should be entitled to hear what is not yet evidence and what
may never become evidence before the court which is to try
the case hears it is an unprecedented and unreasonable
proposition." United States v. United Shoe Mach. Co., 198 F.
870, 874-75 (D. Mass. 1912).
The Equity Rules were revised that same year, the major
change being that all testimony was to be received orally in
open court (thus bringing actions in equity into alignment
with actions at law, see Rev. Stat. s 861 (1878)). See Equity
R. 46, 226 U.S. 627, 661 (1912). Both the taking of a
deposition and reference to an examiner were to be permitted
only in "exceptional" cases. Equity R. 47 & 59, 226 U.S. at
661-62, 666; Kintner, 8 Leg. Hist. at 6377.
Nonetheless, the Taft Administration recommended that
the Congress enact what became s 30. As Attorney General
George Wickersham explained, due to the complicated nature
of cases brought under the Sherman Act, the use of examin-
ers to take testimony out of court would remain the practice
"in almost all [such] cases." Annual Rep. of the Att'y Gen. 22
(1912), reprinted in Kintner, 8 Leg. Hist. at 6392. In view of
the district court's decision in United Shoe, which the Attor-
ney General contended was wrongly decided, and the lack of
provision in the new Equity Rules for public depositions, the
Attorney General argued that a statute was necessary to
guarantee that the public, "the real parties to the suit," would
have access to the only live testimony likely to be given in the
case. Id. He also noted that "newspaper reports of evidence
given in the examination of witnesses often lead to persons
having knowledge of the facts furnishing the Government
with valuable evidence bearing upon the questions in dispute
which otherwise would not be discovered." Id. The ensuing
legislative debates focused upon the same considerations.
See Kintner, 8 Leg. Hist. at 6393-6408.
From this bit of history behind the enactment of s 30,
Microsoft argues the Congress did not "imagine in 1913 that
as a precursor to the public trial there would be extensive
pretrial discovery depositions." That is most likely true, but
"it is no bar to interpreting a statute as applicable that 'the
question which is raised on the statute never occurred to the
legislature.' " Eastern Air Lines, Inc. v. CAB, 354 F.2d 507,
511 (D.C. Cir. 1965) (quoting Benjamin Cardozo, The Nature
of the Judicial Process 15 (1921)). As the Supreme Court
has said, "it is not, and cannot be, our practice to restrict the
unqualified language of a statute to the particular evil that
Congress was trying to remedy." Brogan v. United States,
118 S. Ct. 805, 809 (1998).
We do not disagree with Microsoft's claim that the reason
originally underlying the statute has for the most part van-
ished: "the Federal Rules [now] insure ... public access to
the taking of evidence at civil antitrust trials." To be sure,
depositions may still be used as evidence at trial under the
Federal Rules, see Rules 32, "Use of Depositions in Court
Proceedings," and 26(a)(3)(B) (requiring "designation of those
witnesses whose testimony is expected to be presented by
means of a deposition"); indeed portions of Mr. Gates's
videotaped deposition have been entered into evidence in the
trial of this case. But such use in an equitable action brought
by the Government under the Sherman Act is as much the
exception now as it was the rule in 1913.
Still, this is not one of those "rare cases [in which] literal
application of a statute ... would thwart the obvious purpose
of the statute." Griffin v. Oceanic Contractors, Inc., 458 U.S.
564, 571 (1982) (rejecting argument court should have discre-
tion to limit recovery period under statute entitling seaman to
double wages for each day payment delayed, both to compen-
sate seaman and to deter nonpayment, where result is award
of more than $300,000 for $412 claim). The statutory purpose
of disclosure is at least somewhat furthered, and by no means
is it thwarted, when a deposition is taken in public.
Accordingly, we hold that a deposition taken in pretrial
discovery in an antitrust case brought by the Government
seeking injunctive relief is subject to 15 U.S.C. s 30. Like
Tithonus, to whom Zeus gave eternal life but not eternal
youth, s 30 may well be with us longer than most anyone
would wish. In our system of separated powers, however, it
is for the Congress, not the courts, to jettison outdated
statutes.*
B.Was s 30 Superseded by Rule 26(c)?
Microsoft next contends that Rule 26(c)(5) effected a pro
tanto repeal of s 30. When a rule of civil procedure and
another statute "conflict[ ] irreconcilably," Henderson v.
United States, 517 U.S. 654, 663 (1996), the statute will be
deemed superseded, pursuant to the Rules Enabling Act,
unless such supersession would "abridge, enlarge, or modify
[a] substantive right." 28 U.S.C. s 2072(b). Because we find
no conflict between Rule 26(c) and s 30, however, we need
not address whether s 30 grants a substantive right.
Rule 26(c) authorizes the district court
for good cause shown [to] make any order which justice
requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense,
including ... that discovery be conducted with no one
present except persons designated by the court.
At the same time, s 30 provides that depositions "shall be
open to the public as freely as are trials in open court; and no
order excluding the public from attendance on any such
proceedings shall be valid or enforceable." According to
Microsoft, these two norms conflict because, in deference to
the constitutional values at stake, the standards for excluding
the public from a trial are very stringent, indeed--and this is
key--are more stringent than the "good cause" standard for
excluding the public from a deposition under Rule 26(c).
Compare Richmond Newspapers, Inc. v. Virginia, 448 U.S.
555, 581 (1980) (plurality opinion) (holding First and Sixth
amendments require that "[a]bsent an overriding interest
articulated in findings, the trial of a criminal case must be
__________
* We note that only months before this dispute arose the current
Administration recommended to the Congress that s 30 be re-
pealed. See Letter from Ass't Att'y Gen. Joel I. Klein to House
Judiciary Comm. at 3 (Mar. 17, 1998) ("[T]he [Antitrust] Division
sees no need for this type of provision. If the matter goes to trial,
the trial will be public").
open to the public"), and id. at 580 n.17 (indicating similar
standard applies to civil trials), with Seattle Times Co. v.
Rhinehart 467 U.S. 20, 36 (1984) (Rule 26(c), "requires, in
itself, no heightened First Amendment scrutiny"). The
Times and the Government respond that there is no conflict
because the "good cause" standard of Rule 26(c), properly
understood, is informed by and incorporates the policy under-
lying s 30. Cf. United States v. IBM, 67 F.R.D. 40, 43
(S.D.N.Y. 1975) ("a plain reading of [s 30] indicates that if the
public may be excluded during trial or if evidence may be
received there in camera, the same may be possible during
depositions governed by the statute"). We agree.
Rule 26(c) is highly flexible, having been designed to ac-
commodate all relevant interests as they arise. See, e.g., Adv.
Comm. Note, 28 U.S.C. App., p. 715 ("The courts have not
given trade secrets automatic and complete immunity against
disclosure, but have in each case weighed their claim to
privacy against the need for disclosure"); Burka v. HHS, 87
F.3d 508, 517 (D.C. Cir. 1996) (factors considered include "the
requester's need for the information from this particular
source, its relevance to the litigation at hand, the burden of
producing the sought-after material, and the harm which
disclosure would cause to the party seeking to protect the
information"); Hines v. Wilkinson, 163 F.R.D. 262, 266 (S.D.
Ohio 1995) ("the Rule's incorporation of the concept of 'good
cause' implies that a flexible approach to protective orders
may be taken, depending upon the nature of the interests
sought to be protected and the interests that a protective
order would infringe"); H.L. Hayden Co. of New York, Inc. v.
Siemens Med. Sys., Inc., 106 F.R.D. 551, 556 (S.D.N.Y. 1985)
(assessing interests of third party state governments that had
subpoenaed from plaintiff documents plaintiff had obtained
from defendant in discovery subject to protective order);
Wright, 8 Federal Practice and Procedure 2d s 2036, at 484-
86 ("the existence of good cause for a protective order is a
factual matter to be determined from the nature and charac-
ter of the information sought ... weighed in the balance of
the factual issues involved in each action"). Rather than
conflicting with the rule, therefore, s 30 provides one of the
interests to be weighed under it in assessing Microsoft's need
for a protective order upon the particular facts of this case.
We have previously held that the meaning of "good cause"
in Rule 26(c) is properly informed by the interests underlying
the Privacy Act. See Laxalt v. McClatchy, 809 F.2d 885, 889
(D.C. Cir. 1987). Similarly, as the Supreme Court explained
in upholding the good cause standard against a challenge to
its constitutionality as a prior restraint where a trial court
entered a protective order prohibiting dissemination of infor-
mation received in discovery, although "the Rule contains no
specific reference to privacy or to other rights or interests
that may be implicated, such matters are implicit in the broad
purpose and language of the Rule." Seattle Times, 467 U.S.
at 35 n.21 (holding Rule 26(c) furthers a substantial govern-
ment interest unrelated to suppression of expression). As we
understand the Court, the good cause standard of Rule 26(c)
comports with the first amendment not fortuitously but pre-
cisely because it takes into account all relevant interests,
including those protected by the first amendment. We see no
reason why that broad standard should not also be deemed,
and be applied, to take into account the interests advanced by
s 30.
Accordingly, we conclude that Rule 26(c) and s 30 do not
conflict because the "good cause" standard in the Rule is a
flexible one that requires an individualized balancing of the
many interests that may be present in a particular case.
Section 30 expresses one of those interests.
III. Conclusion
We hold first that depositions taken for pretrial discovery
are subject to the Publicity in Taking Evidence Act of 1913,
15 U.S.C. s 30. Second, we hold that s 30 is not superseded
by Rule 26(c) because it does not conflict with the standard
for granting protective orders under that Rule. Accordingly,
the judgment of the district court is
Affirmed.