concurring:
I concur in the result reached by the majority, that the subpoena duces tecum on Mr. Watkins, should have been quashed. I would reach this result on a nonconstitutional ground, Federal Rule of Civil Procedure 26(b).
We traditionally avoid deciding cases on constitutional grounds where nonconstitu-tional grounds lead to the same conclusion. “Fundamental principles of judicial restraint require federal courts to consider nonconsti-tutional grounds for decision prior to reaching constitutional questions.” Erickson v. United States, 976 F.2d 1299, 1301 (9th Cir.1992) (citing Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2997, 86 L.Ed.2d 664 (1985)). A constitutional ground for the decision removes the matters decided from democratic control. State legislatures and Congress have frequently considered various testimonial privileges over the last two or three decades. The legislature and governor of Arizona have promulgated a statute, A.R.S. § 12-2237,1 carefully delineating the scope of reporters’ testimonial privileges in a way which does not protect Watkins. See Matera v. Superior Court, 825 P.2d 971 (Ct.App.1992);2 see also, A.R.S. § 12-2214 (governing subpoena of media witnesses). The decision to treat something as an issue of constitutional law is an appropriation of power from the democratic organs of government to the judiciary. That is our duty in some cases, but not where the same result is properly reached on a ground which leaves the matter open for revision if the elected organs of government conclude that our views are mistaken.
The controlling decision on journalists’ privilege in this circuit, Farr v. Pritchess, 522 F.2d 464 (9th Cir.1975), held that a state judge could properly put a reporter in jail for refusing to divulge a source to the court. The Supreme Court decision Farr applied was Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), which held that a state judge could properly put a reporter in jail for refusing to disclose his source to a grand jury. The concurrence in Branzburg, and this court in Farr, included language suggesting that in some cases, but not the cases being decided, reporters might be privileged to refuse to disclose their sources. Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979), a subsequent Supreme Court decision, held that, in a civil defamation action, a reporter lacked a privilege which would entitle him to refuse to disclose materials relating to editorial processes and his state of mind and knowledge.
Of the three circuits relied upon by the majority, two held against the party asserting the privilege, von Bulow v. von Bulow, 811 F.2d 136 (2d Cir.1987) and United States v. La Rouche Campaign, 841 F.2d 1176 (1st Cir.1988). von Bulow upheld the contempt order against the author. She had to produce the manuscript. La Rouche affirmed a contempt order against NBC. NBC had to produce for in camera review videotapes which it had chosen not to broadcast. Only in United States v. Cuthbertson, 630 F.2d 139 (3d Cir.1980), did the proponent of the privilege win anything. CBS successfully appealed a contempt order, because the subpoena did not comply with Fed.R.Crim.P. 17, and because the party seeking production had not demonstrated its inability to get the informa*1299tion elsewhere. When a court holds that a party claiming a privilege loses for a particular reason, we cannot properly say that the court held that a proponent would be entitled to win if the reason did not apply. All we can say is that the case is distinguishable. The majority is creating new law, not conforming our law to that of other circuits.
Two previously unanswered questions of constitutional law are controlled by the majority opinion: (1) whether the first amendment journalists’ privilege applies to noncon-fidential statements of disclosed sources;3 and (2) whether the privilege applies in favor of a commercial writer not employed in the profession of disseminating periodic, current reports in the manner of journalists. We need not reach either of these questions. Our decision in Farr did not reach so far, and should not be extended here.
We should follow the well established principle that “[ejvidentiary privileges in litigation are not favored.” Herbert, 441 U.S. at 175, 99 S.Ct. at 1648. The reason is that they stand in the way of ascertaining the truth. VIII Wigmore, Evidence § 2192, at 73 (McNaughton rev. 1961). The majority’s approach nevertheless creates a new privilege which, to the extent that it applies, by logical necessity must reduce the reliability of verdicts and judgments in litigation. The majority’s approach seems to assume that discovery is mandatory unless barred by a privilege. But the rules provide for an area of judicial discretion between these alternatives.
This case can and should be decided on the ground that a proper exercise of discretion under Fed.R.Civ.P. 26(b)-required that the subpoena be quashed.4 Fed.R.Civ.P. 26(b)(1) states:
(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having .knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears rea*1300sonably calculated to lead to the discovery of admissible evidence.
The frequency or extent of use of the discovery methods set forth in subdivision, (a) shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive-, (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation. The court may act upon its own initiative after reasonable notice or pursuant to a motion under subdivision (c).
Fed.R.Civ.P. 26(b) (emphasis added). We review a district court’s discovery rulings for abuse of discretion. United States v. Bourgeois, 964 F.2d 935, 937 (9th Cir.1992). The district judge abused his discretion by ordering the writer to disclose what L.S. Shoen had told him, because the plaintiffs had not yet requested that information from Shoen.
The discovery was not central to the lawsuit. The lawsuit was against L.S. Shoen and a faction of the- Shoen family for defaming the plaintiffs by making statements in 1989 and 1990 suggesting that they might be involved in the murder of their sister-in-law. It is important to note that plaintiffs were not suing Watkins for libel, and were not suing Shoen for anything he told Watkins. They were suing Shoen for things he had said before he began working with Watkins. In their motion to compel filed in district court, the plaintiffs said they “have yet to obtain any conclusive admission that defendants undertook their media relations efforts for purposes or linking plaintiffs to the murder.” Plaintiffs also asserted Watkins’ notes and tapes would “provide the exact content of L.S.’s defamatory message to the media— but also whatever malicious motivations impelled'those communications.” At oral argument, they said “communications made as to the personal feelings, ill will, what have you, of L.S. Shoen toward the plaintiffs, they’re directly relevant as to motive. If they’re inconsistent statements, they can be utilized to impeach L.S. Shoen.”
Yet they did not depose L.S. Shoen and ask him about his statements, purposes, motivations and feelings.5 Their lawyer could ask him, under oath, whether he had accused them of murder in his discussions with Watkins and why. He might well say yes, and explain why. His answers might well vitiate the need to do any discovery with Watkins at all. He might give them testimony so useful to their case that they would not want to dilute it with anything from Watkins. The *1301materials submitted suggest a strong possibility that L.S. Shoen would testify that he hated the plaintiffs, thought they had killed Eva, and had said so to reporters. That is substantially what they want Watkins’ notes and tapes to prove. L.S. Shoen might testify less helpfully, so .that Watkins’ materials could be useful to impeach Shoen or prove something different from what he said in deposition, but there would be time enough to pursue the impeachment evidence .after establishing that there was something to impeach.
That Watkins’ notes and tapes might contain relevant information does not compel the conclusion that plaintiffs can use a subpoena duces tectum to get them, and to depose Watkins and get them prior to deposing L.S. Shoen. The district judge could, under Fed. R.Civ.P. 26(b)(l)(i), limit the discovery of Watkins if he determined that the discovery sought was obtainable from L.S. Shoen at less burden. The judge could grant a protective order to Watkins under 26(c) to protect Watkins from annoyance, embarrassment, oppression and undue burden. The judge could, under 26(d), in the interests of justice, require that the sequence of discovery should be first Shoen, then Watkins if necessary. Any one of these invitations in the rule to exercise discretion, if accepted, would have avoided the harm. It was an abuse of discretion to reject all of'them.
Why do plaintiffs insist on asking Watkins what L.S. Shoen thought and felt instead of asking Shoen? Either this is an inefficient approach to getting the answer, or the purpose is more to intimidate Watkins as he writes his book, than to find out the answer. Requiring plaintiffs to ask Shoen first would prevent the discovery from being sought for an improper purpose.
There were significant burdens on Watkins. He testified that his sources were drying up because they heard that plaintiffs’ lawyers were requiring him to testify, and demanded his assurance that he would go to jail for contempt rather than disclose their identities. It is true that L.S. Shoen’s disclosures to him, far from being confidential as in the usual confidential source case, are intended to be broadcast to as large a public as will buy the book he is writing. But Watkins has a legitimate commercial interest in shaping the mode, form, and timing of disclosure so that the commercial success and public impact of his book is not frittered away by prepublication news stories. The discovery could scare away sources, and intimidate Watkins as he writes his book, perhaps inducing him to shy away from stating what he believes to be the truth about the plaintiffs. A rough deposition can be an intimidating experience. Watkins’ interests are legitimate, and deserve some consideration in discovery orders. .
Courts typically and correctly shy away from discovery orders where First Amendment interests may be implicated. Watkins does not need a solid constitutional claim of privilege to justify an exercise of discretion which would postpone discovery from Watkins until the unquestionably permissible discovery from L.S. Shoen had been done first. Judge Weinstein explained an exercise of discretion in these terms in Apicella v. McNeil Laboratories, 66 F.R.D. 78 (E.D.N.Y.1976). In denying a motion to compel discovery of editorial materials and sources on a newsletter, he reasoned that even though “No absolute rule of privilege protects newsmen,” id. at 83, nevertheless the parties requesting disclosure “should be able to show that they are unable to obtain the information from a source other than the Medical Letter.” Id. at 85. The reason for requiring them to try another source first was “the possible adverse impact on First Amendment rights.” Id.
Judge Weinstein noted that Judge Bonsai, in a situation somewhat analogous to ours, denied discovery of a reporter’s sources when other sources of information had not been exhausted. Id. Exhaustion is a matter of discretion, under Fed.R.Civ.P. 26(d), to be considered along with expense of exhausting other sources, and other considerations which may arise. Here, the Shoens failed to depose their father, L.S., before seeking to depose Watkins about L.S. Shoen’s thoughts and feelings. No constitutional privilege is necessary to require the district judge to exercise discretion under the criteria established in Fed.R.Civ.P. 26. Here, L.S. Shoen *1302was a “more convenient, less burdensome” source.
A civil defamation lawsuit is important. But it is not the only thing that is important. The writing and publication of a book is also important. The lawsuit threatens the book. Considering the relatively small value of Watkins’ information to ascertaining the truth in the lawsuit, and the potentially great burden the discovery might impose on writing and publication of the book, the judge should have exercised his discretion to make the plaintiffs ask L.S. Shoen their questions first. The likelihood that plenary discovery from Watkins would be necessary was low.
I would reverse and remand on the ground that the district court abused its discretion under Fed.R.Civ.P. 26 by failing to require the Shoens to seek the information regarding the content of the Watkins interviews from L.S. Shoen before going to Watkins.
. Section 12-2237 states:
A person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper, radio, or television station, shall not be compelled to testify or disclose in a legal proceeding or trial or any proceeding whatever, or before any jury, inquisitorial body or commission, or before a committee of the legislature, or elsewhere, the source of information procured or obtained by him for publication in a newspaper or for broadcasting over a radio or television station with which he was associated or by which he is employed.
. In Matera, the Court of Appeals of Arizona held that application of the media subpoena law, A.R.S. § 12-2214, is "limited to persons engaged in the gathering and dissemination of news to the public on a regular basis.” 825 P.2d at 973.
. I find the expansion of Farr to disclosed sources troublesome because the rationale for the development of a journalists’ privilege in Fan-relied on the confidential nature of the source and "the right of the newsmen to keep secret a source of information.” 522 F.2d at 467-68. Of the authority relied upon by the majority to support the expansion of the privilege, only the Third Circuit's decision in Cuthbertson, extended the privilege to information obtained from non-confidential sources. 630 F.2d at 147. The commentary by Morse and Zucker discusses the importance of protecting confidential sources regardless of whether the information obtained is held in confidence. The confidentiality of the source, not the information, is the key. It is an important distinction because the primary justification for a journalists' privilege is to protect the ability of reporters to obtain information by granting promises of confidentiality. The information itself is rarely kept confidential, since it is a journalist’s business to report.
. Although Watkins did not challenge the district court’s exercise of discretion under Rule 26(b), we should reach the issue to avoid determination of unsettled constitutional questions. Generally, we do not address issues not raised by the parties on appeal, see United States v. Carbajal, 956 F.2d 924, 930 n. 2 (9th Cir.1992), but we are not compelled to decide the case on the issues raised. Cf. United States v. Mendoza-Fernandez, 4 F.3d 815, 818 (9th Cir.1993) (vacating sentence on grounds not argued by appellant). "[A] federal court should decide constitutional questions only when it is impossible to dispose of the case on some other ground.” Erickson, 976 F.2d at 1301 (emphasis added). The parties can ask us to decide a question of constitutional law, but cannot force us to do so when the case may be decided on an alternative ground. I asked counsel in the plainest terms at oral argument why Watkins should not prevail on the ground that the district court abused its discretion, obviating the need to decide whether Watkins had a privilege, so the parties had the opportunity to address the issue. If my approach had become the basis for decision, then we would be required to "give serious consideration to requesting additional briefing and oral argument before issuing a disposition predicated upon the [unbriefed] point.” Ninth Circuit General Orders 4.2.
. The majority opinion explains, correctly I think, that L.S. Shoen’s answers to interrogatories are not fully satisfactory. The answers would, to any experienced trial lawyer, invite a deposition. But we need not and should not rely upon the answers to interrogatories. We denied a motion to supplement the record with them, because the district judge never saw them. We are supposed to be deciding whether that judge abused his discretion, and we cannot properly decide that on the basis of evidence he never saw.
Ordinarily interrogatories and answers are exchanged between counsel but not filed in court, unless they are attached as exhibits to motion papers. Under Fed.R.Civ.P. 5(d), discovery papers such as answers to interrogatories must be filed unless the court orders otherwise. But the district of Arizona, like most federal district ■ courts, "orders otherwise” by a local rule prohibiting the filing of answers to interrogatories except as exhibits to motions or at a hearing or trial. Local Rule 3(a)(2) states:
Discovery Papers. Unless ordered by the Court, Depositions, Interrogatories and answers thereto, Requests for Production, Inspection or Admission, and responses thereto, shall not be filed with the Court, except that a "Notice of Service” of the foregoing papers on opposing counsel shall be filed with the Court. Filing the Notice of Taking Deposition required by Rule 30(b)(1) of the Rules of Civil Procedure will satisfy the requirements of filing a "Notice of Service” with respect to depositions. This Rule shall not preclude the use of discovery papers at a hearing or trial or as exhibits to motions.
U.S. Dist.Ct., D.Ariz., R. 3(a)(2). The interrogatories were not available to Judge Strand when he had to decide whether to compel Watkins to produce his notes, recordings, etc. documenting his conversations with L.S. Shoen. If plaintiffs thought he should consider the inadequacy of Shoen’s answers, then they should have attached the answers as an exhibit to their motion papers.