United States v. Microsoft Corp.

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Microsoft argues that s 30 conflicts with and is superseded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not conflict with, and hence is not superseded by Rule 26(c).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.