UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

MICROSOFT CORP


98-5399a

D.C. Cir. 1999


*	*	*


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conflicts with and is superseded  by the standard for granting a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hence is not superseded by Rule 26(c).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


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


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


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,




__________

n * 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


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


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


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 


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 




__________

n * 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


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


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.