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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br>No. 98-2133 <br> <br>         IN RE:  MICHAEL A. CUSUMANO AND DAVID B. YOFFIE <br> <br>       [UNITED STATES OF AMERICA v. MICROSOFT CORPORATION]. <br> <br>                        __________________ <br> <br>                      MICROSOFT CORPORATION, <br> <br>                      Petitioner, Appellant. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>          [Hon. Richard G. Stearns, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                                 <br>           Coffin and Bownes, Senior Circuit Judges. <br>                                 <br> <br> <br>     D. Stuart Meiklejohn, with whom John L. Warden, Richard J. <br>Urowsky, Steven J. Holley, Michael E. Swartz, Hilary M. Williams, <br>Sullivan & Cromwell, Thomas J. Sartory, Lynne Alix Morrison, and <br>Goulston & Storrs, P.C. were on brief, for petitioner. <br>     Jeffrey Swope, with whom Palmer & Dodge LLP was on brief, for <br>respondents Michael A. Cusumano and Massachusetts Institute of <br>Technology. <br>     Jonathan M. Albano, with whom Shaun B. Spencer, Bingham Dana <br>LLP, and Kimberly S. Budd, Office of the General Counsel, Harvard <br>University, were on brief, for respondents David B. Yoffie and <br>Harvard University. <br> <br> <br> <br> <br>December 15, 1998 <br> <br> <br> <br>

  SELYA, Circuit Judge.  In this appeal, petitioner- <br>appellant Microsoft Corporation (Microsoft) invites us to reverse <br>the district court's denial of its motion to compel production of <br>research materials compiled by two academic investigators.  <br>Microsoft wants to use the subpoenaed materials in defending a <br>civil antitrust case,  United States v. Microsoft Corp., presently <br>being tried in the United States District Court for the District of <br>Columbia.  Mindful that important First Amendment values are at <br>stake, we decline Microsoft's invitation. <br>I.  THE ANTITRUST CASE <br>  We draw our description of the antitrust litigation in <br>large part from the court in which that litigation pends.  SeeUnited States v. Microsoft Corp., 1998 WL 614485 (D.D.C. 1998). <br>  Microsoft is one of the most profitable companies in the <br>computer industry.  It first attained a significant foothold in the <br>production of operating systems for the personal computer (PC) <br>market when a leading computer manufacturer, International Business <br>Machines Corporation, chose Microsoft's "MS-DOS" operating system <br>for its PCs in the early 1980s.  An operating system is the <br>"command center" of a PC.  Microsoft, 1998 WL 614485, at *2.  It  <br>facilitates the integrated use of hardware and software by <br>controlling the interaction between a PC's processor, its memory, <br>and devices like keyboards and disk drives.  In relatively short <br>order, Microsoft's operating systems achieved a preeminent market <br>position.  Microsoft continued to introduce new operating systems, <br>including its phenomenally successful "Windows" systems, which <br>allow a user to control a PC's operations by manipulating images on <br>the computer screen with a mouse, rather than by typing commands. <br>  The dominance of Microsoft's operating systems has been <br>maintained, in part, because of the symbiotic relationship that <br>exists between software and operating systems.  Software programs <br>utilize certain general functions of operating systems and are <br>written to work with particular systems.  Since more PCs depend on <br>Windows than on any rival, software creators tend to write products <br>for use on that system.  In turn, most PC users want this operating <br>system for their PCs, so that they can access the widest possible <br>range of software programs.  To keep this lucrative circle <br>spinning, Microsoft licenses its operating system to PC <br>manufacturers for pre-installation on new computers. <br>  Microsoft's achievements in the operating systems market <br>have encouraged it to spread its corporate wings.  It now produces <br>an internet browser product known as "Internet Explorer."  Browsers <br>are software programs that allow computer users to access, <br>manipulate, and display portions of the world-wide web (the Web).  <br>The Web is a set of sites that employ graphics, text, and other <br>media to provide information to viewers.  Among other things, <br>browsers can be used to translate these sites from the language of <br>their creation into a format intelligible to a user's particular <br>PC.  A browser can be purchased individually, acquired as an <br>accessory to a newly purchased PC, or downloaded from internet <br>access providers or other Web sites. <br>  Microsoft's success has not gone unremarked.  On May 18, <br>1998, the United States Department of Justice (DOJ) and several <br>state attorneys general brought suit in the United States District <br>Court for the District of Columbia, charging Microsoft with various <br>antitrust violations.  The complaint's main allegations center <br>around Microsoft's accretion of market share for its Internet <br>Explorer product.  DOJ asserts that Microsoft, mindful that <br>browsers potentially can be used as platforms on which to run <br>software and thus replace, or at least compete with, operating <br>systems, set out to increase its share of the browser market in a <br>no-holds-barred campaign to safeguard its hegemony in the operating <br>systems market. <br>  In January 1997, Navigator, a competing browser produced <br>by Netscape Communications Corporation (Netscape), boasted an 80% <br>share of the browser market.  Explorer enjoyed less than 20%.  DOJ <br>charges that Microsoft first essayed to increase its market share <br>by colluding with Netscape.  When Netscape rebuffed Microsoft's <br>overtures, DOJ alleges, Microsoft illegally "tied" Explorer to its <br>Windows operating system   refusing to grant computer manufacturers <br>licenses to pre-install Windows for their customers unless the <br>manufacturers agreed to pre-install Explorer and no other browser <br>  and thereby increased its share of the browser market to <br>approximately 50% by May of 1998.  Microsoft denies the <br>government's accusations.  It avers that it never tried to split <br>the browser market between itself and its competitors or to use <br>monopoly power in the operating systems market to capture a lion's <br>share of the browser market in an illegal fashion.  Instead, it <br>attributes its increased share of the browser market to Explorer's <br>superiority. <br>  The district court placed the antitrust litigation on a <br>fast track.  Among other things, the court established a tightly <br>compressed schedule for pretrial discovery; shortened the usual <br>time within which parties and non-parties alike might respond to <br>discovery requests; directed that witness lists (to include no more <br>than twelve trial witnesses per side, absent special permission) be <br>submitted no later than August 24, 1998 (just over three months <br>after the government sued); and closed discovery as of October 9, <br>1998 (save for discovery already underway).  After that date, new <br>discovery could be initiated only with leave of court.  A bench <br>trial commenced on October 19, 1998.  That trial is ongoing. <br>II.  THE RULE 45 PROCEEDINGS <br>  In the course of pretrial discovery in the antitrust <br>case, Microsoft learned about a forthcoming book entitled Competing <br>on Internet Time:  Lessons from Netscape and the Battle with <br>Microsoft (Lessons) and obtained a copy of the manuscript.  As its <br>title implies, Lessons deals extensively with the "browser war" <br>waged between Microsoft and Netscape.  Its authors (respondents- <br>appellees here) are distinguished academicians:  Michael A. <br>Cusumano, a tenured full professor at Massachusetts Institute of <br>Technology's Sloan School of Management, and David B. Yoffie, a <br>tenured full professor at Harvard Business School. <br>  As part of their research for Lessons, the respondents <br>interviewed over 40 current and former Netscape employees.  Their <br>interview protocol dealt with confidentiality on two levels.  <br>First, the respondents signed a nondisclosure agreement with <br>Netscape, in which they agreed not to disclose proprietary <br>information conveyed to them in the course of their investigation <br>except upon court order, and then only after giving Netscape notice <br>and an opportunity to oppose disclosure.  Second, the respondents <br>requested and received permission from interview subjects to record <br>their discussions, and, in return, promised that each interviewee <br>would be shown any quotes attributed to him upon completion of the <br>manuscript, so that he would have a chance to correct any errors or <br>to object to quotations selected by the authors for publication. <br>  On September 18, 1998, believing that certain statements <br>from Netscape employees reported in Lessons offered succor for its <br>defense, Microsoft subpoenaed the professors' notes, tape <br>recordings and transcripts of interviews, and correspondence with <br>interview subjects.  See Fed. R. Civ. P. 45.  The respondents <br>produced some correspondence, but declined to surrender the notes, <br>tapes, or transcripts.  Microsoft moved to compel the production of <br>these items on October 1, 1998.  Because the documents, if produced <br>at all, would be produced in Cambridge, the subpoenas issued from <br>the United States District Court for the District of Massachusetts <br>and the motion to compel was docketed there as an independent <br>proceeding.  See id. (requiring a subpoena commanding only document <br>production to "issue from the court for the district in which the <br>production . . . is to be made" and allowing enforcement "pursuant <br>to an order of th[at] court").  On October 7, the respondents filed <br>their oppositions. <br>     Following a hearing held the next day, the district court <br>denied the motion to compel ore tenus.  The court performed a case- <br>specific balancing analysis, taking into account a myriad of <br>factors.  On one hand, it found that Microsoft's need for the <br>information sought by the subpoenas, though real, was not great.  <br>Microsoft could have obtained that information directly from the <br>sources revealed by the manuscript, and, in all events, its main <br>thrust likely would be for purposes akin to impeachment.  On the <br>other hand, the court found that the respondents had a substantial <br>interest in keeping the subpoenaed information confidential and <br>that significant First Amendment values favored its protection.  <br>Balancing these and other elements, the court declined to compel <br>production of the notes, tapes, and transcripts.  Withal, the court <br>retained jurisdiction in order to review individual items in camerafor materiality on Microsoft's later motion and proclaimed its <br>readiness to order specific material produced upon a showing of <br>particularized need.  Microsoft now appeals. <br>III.  APPELLATE JURISDICTION <br>     Federal courts, as courts of limited jurisdiction, may <br>not presume the existence of subject matter jurisdiction, but, <br>rather, must appraise their own authority to hear and determine <br>particular cases.  See Viqueira v. First Bank, 140 F.3d 12, 16 (1st <br>Cir. 1998).  We do so here. <br>     The procedural posture of this case is unusual.  <br>Microsoft, a litigant in a court in another district, moved in the <br>District of Massachusetts to compel the respondents (who are not <br>parties to that litigation) to honor subpoenas duces tecum.  When <br>the respondents objected, the district court obliged them, but <br>retained jurisdiction to hear particularized claims of need.  <br>Meanwhile, the primary action is ongoing   and any appeal therein <br>will go, in the first instance, to the District of Columbia <br>Circuit. <br>     Our customary appellate jurisdiction extends to "final <br>decisions of the district courts."  28 U.S.C.  1291.  Still, a <br>decision or order can be final in the sense needed to confer <br>appellate jurisdiction even if the proceeding in which it is <br>rendered is ancillary to some other proceeding.  Thus, in Horizons <br>Titanium Corp. v. Norton Co., 290 F.2d 421 (1st Cir. 1961), a <br>disappointed patent-seeker subpoenaed documents from a competitor <br>for use in an action challenging the dismissal of its patent <br>application.  See id. at 421-22.  The subpoenaed firm did not <br>comply, and the patent-seeker moved to compel production in the <br>United States District Court for the District of Massachusetts <br>(although the principal dispute was pending elsewhere).  See id. at <br>421.  When the district court refused to order production of the <br>documents, the patent-seeker appealed.  In rejecting the subpoenaed <br>firm's assertion that the court of appeals lacked jurisdiction, we <br>explained that "the order of the district court made a final <br>disposition of the only proceedings in its district growing out of <br>a particular controversy, and the only proceeding pending between <br>these particular parties anywhere," and, thus, was final and <br>appealable.  Id. at 424.  So it is here. <br>     Nor does the district court's decision to retain <br>jurisdiction detract from the immediate appealability of its order.  <br>It is settled law that a court's retention of jurisdiction in order <br>to facilitate the consideration of possible future relief does not <br>undermine the finality of an otherwise appealable order.  See FTCv. Standard Fin. Mgmt. Corp., 830 F.2d 404, 407 (1st Cir. 1987); <br>FTC v. Texaco, Inc., 555 F.2d 862, 873 n.21 (D.C. Cir. 1977); seegenerally 15B Charles Alan Wright, et al., Federal Practice and <br>Procedure  3915.3 (2d ed. 1992) (explaining that an order's <br>vulnerability to possible change through subsequent proceedings <br>does not automatically deprive it of finality).  Consequently, we <br>have jurisdiction to hear and determine this appeal. <br>IV.  THE MERITS <br>     Microsoft argues that the district court underestimated <br>its need for the subpoenaed information because that information <br>would be useful not only for impeachment purposes, but also as <br>independent evidence of Netscape's business miscalculations.  SeeFed. R. Evid. 807; see also United States v. American Tel. & Tel. <br>Co., 516 F. Supp. 1237, 1239-42 (D.D.C. 1981) (admitting into <br>evidence in an antitrust prosecution documents authored by agents <br>of defendants' non-party competitors under the residual hearsay <br>exception).  Moreover, it had no other feasible way to obtain the <br>information since the accelerated schedule in the antitrust case <br>effectively thwarted direct discovery.  Turning to the other side <br>of the balance, Microsoft claims that the district court erred in <br>affording substantial protection to the subpoenaed materials <br>because those materials were not confidential and emanated from <br>disclosed sources.  In this regard, Microsoft tells us that the <br>only protectable data obtained by the respondents is proprietary <br>information covered by the nondisclosure agreement   an agreement <br>signed with Netscape, not with the individual interviewees.  <br>Microsoft further asserts that the interviews were not confidential <br>because the authors presented the manuscript, including quotes from <br>interviews, to Netscape executives and outside reviewers prior to <br>showing it to the persons quoted. <br>     The respondents dispute virtually all of Microsoft's <br>assertions.  They maintain that Microsoft does not really need the <br>information at all and that it can secure the same data through <br>other, less intrusive avenues.  Furthermore, the respondents <br>asseverate that they are sufficiently like journalists for the <br>protection afforded to journalists' materials to be applied here; <br>that the information which they procured is confidential because of <br>their interview protocol; and that forcing them to disclose the <br>contents of the notes, tapes, and transcripts would endanger the <br>values of academic freedom safeguarded by the First Amendment and <br>jeopardize the future information-gathering activities of academic <br>researchers. <br>                     A.  Standard of Review. <br>     To resolve these issues, we focus first on the applicable <br>standard of review.  Discovery orders ordinarily are reviewed for <br>abuse of discretion.  See Dykes v. DePuy, Inc., 140 F.3d 31, 36-37 <br>(1st Cir. 1998); Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, <br>186-87 (1st Cir. 1989).  Microsoft seeks to bend this rule and <br>obtain plenary review.  It proffers two reasons. <br>     Microsoft's first ground is barren.  It  points out that <br>the district court did not take testimony, but, rather, decided the <br>case solely on a paper record, assisted by arguments of counsel.  <br>Thus, Microsoft contends, there is no occasion to defer since this <br>court is equally well-equipped to evaluate the corpus of evidence <br>upon which the district court based its decision.  This line of <br>argument is neither original nor persuasive.  It has been tried <br>before, and regularly rejected.  See, e.g., United States Liab. <br>Ins. Co. v. Selman, 70 F.3d 684, 688 (1st Cir. 1995); In re Tully, <br>818 F.2d 106, 108-10 (1st Cir. 1987).  We, too, dismiss it. <br>     Microsoft's second ground holds out more promise as a <br>theoretical matter.  It asserts that the lower court applied an <br>incorrect legal standard   and ample authority supports the <br>proposition that, whatever the procedural context, pure questions <br>of law warrant de novo review.  See, e.g., McCarthy v. Azure, 22 <br>F.3d 351, 354 (1st Cir. 1994); In re Howard, 996 F.2d 1320, 1327 <br>(1st Cir. 1993).  Here, however, Microsoft's argument fails <br>because, as we explain below, the district court's test, which <br>balanced the need for disclosure against the desirability of <br>confidentiality, is correct as a matter of law.  Refined to bare <br>essence, Microsoft's quarrel with the district court's <br>determination concerns the manner in which the court struck the <br>required balance, rather than its selection of a legal rule.  Since <br>abuse of discretion is the precise rubric under which an appellate <br>court should review a district court's application of a legal rule <br>to the facts it has found, our review proceeds accordingly. <br>                    B.  The Analytic Approach. <br>     The discovery rules apply to subpoenas issued under Fed. <br>R. Civ. P. 45.  See 9A Wright et al., supra,  2452.  Thus, we <br>start with Fed. R. Civ. P. 26(b)(2), which admonishes generally <br>that: <br>     the . . . extent of the use of the discovery <br>     methods otherwise permitted under these rules <br>     . . . shall be limited by the court if it <br>     determines that:  (i) the discovery sought is <br>     unreasonably cumulative or duplicative, or is <br>     obtainable from some other source that is more <br>     convenient, less burdensome, or less <br>     expensive; (ii) the party seeking discovery <br>     has had ample opportunity by discovery in the <br>     action to obtain the information sought; or <br>     (iii) the burden or expense of the proposed <br>     discovery outweighs its likely benefit, taking <br>     into account the needs of the case, the amount <br>     in controversy, the parties' resources, the <br>     importance of the issues at stake in the <br>     litigation, and the importance of the proposed <br>     discovery in resolving the issues. <br> <br>This admonition forms the backdrop against which a court must <br>consider whether to enforce a subpoena duces tecum issued as an <br>instrument of discovery in a civil case. <br>     From that point forward, our study of the merits of this <br>appeal must proceed in steps.  Initially, we must determine whether <br>the respondents' academic research is protected in a manner similar <br>to the work product of journalists.  This inquiry entails two <br>aspects:  (1) whether the respondents' positions warrant conferral <br>of any special consideration, and (2) whether their research <br>comprises confidential information.  If these hurdles are cleared, <br>we next must determine the type and kind of protection that the law <br>affords.  Finally, we must assess the district court's application <br>of the law to the facts, and the appropriateness of its order. <br>               C.  The Availability of Protection. <br>     1.  Who Is Protected?  Microsoft acknowledges that the <br>law supplies a measure of protection for materials compiled by <br>journalists.  See Bruno & Stillman, Inc. v. Globe Newspaper Co., <br>633 F.2d 583, 595-98 (1st Cir. 1980).  The respondents, however, <br>are academic researchers and commentators, not professional <br>newsmen.  We do not think that this makes a dispositive difference <br>in whether special protection vests.  Academicians engaged in pre- <br>publication research should be accorded protection commensurate to <br>that which the law provides for journalists. <br>     Courts afford journalists a measure of protection from <br>discovery initiatives in order not to undermine their ability to <br>gather and disseminate information.  See United States v. LaRouche <br>Campaign, 841 F.2d 1176, 1181 (1st Cir. 1988).  Journalists are the <br>personification of a free press, and to withhold such protection <br>would invite a "chilling effect on speech," id., and thus <br>destabilize the First Amendment.  The same concerns suggest that <br>courts ought to offer similar protection to academicians engaged in <br>scholarly research.  After all, scholars too are information <br>gatherers and disseminators.  If their research materials were <br>freely subject to subpoena, their sources likely would refuse to <br>confide in them.  As with reporters, a drying-up of sources would <br>sharply curtail the information available to academic researchers <br>and thus would restrict their output.  Just as a journalist, <br>stripped of sources, would write fewer, less incisive articles, an <br>academician, stripped of sources, would be able to provide fewer, <br>less cogent analyses.  Such similarities of concern and function <br>militate in favor of a similar level of protection for journalists <br>and academic researchers. <br>     Given this mise-en-scne, it is unsurprising that several <br>of our sister circuits have held that the medium an individual uses <br>to provide his investigative reporting to the public does not make <br>a dispositive difference in the degree of protection accorded to <br>his work.  See In re Madden, 151 F.3d 125, 128-31 (3d Cir. 1998); <br>Shoen v. Shoen, 5 F.3d 1289, 1293-94 (9th Cir. 1993); von Bulow v. <br>von Bulow, 811 F.2d 136, 142-44 (2d Cir. 1987).   Whether the <br>creator of the materials is a member of the media or of the <br>academy, the courts will make a measure of protection available to <br>him as long as he intended "at the inception of the newsgathering <br>process" to use the fruits of his research "to disseminate <br>information to the public."  von Bulow, 811 F.2d at 144. <br>     This case fits neatly into the architecture of these <br>precedents.  The sole purpose of the respondents' interviews of <br>Netscape personnel was to gather data so that they could compile, <br>analyze, and report their findings anent management practices in <br>the internet technology industry.  Thus, the respondents are within <br>a group whose pre-publication research merits a modicum of <br>protection. <br>     2.  What Is Protected?  This aspect of the question <br>raises vexing theoretical issues.  Leaving confidential sources to <br>one side, the prototypical situation in which a court provides <br>protection from disclosure for a journalist's or researcher's <br>materials involves confidential information.  See, e.g, United <br>States v. Cuthbertson, 630 F.2d 139, 146-48 (3d Cir. 1980).  When <br>the information cannot fairly be characterized as confidential, the <br>courts are divided as to whether any protection is warranted.  <br>Compare Shoen, 5 F.3d at 1295-96 (holding that materials should be <br>afforded protection even if the information contained therein is <br>not confidential) with Gonzales v. National Broad. Co., 155 F.3d <br>618, 626 (2d Cir. 1998) (disavowing protection for non-confidential <br>information).  Although we have not ruled definitively on this <br>issue, we have noted, in a situation involving only nonconfidential <br>information, "a lurking and subtle threat to journalists and their <br>employers if disclosure of outtakes, notes, and other unused <br>information, even if nonconfidential, becomes routine and casually, <br>if not cavalierly, compelled."  LaRouche, 841 F.2d at 1182. <br>     We perceive no need to resolve this unanswered question <br>today.  The district court found that the information sought by <br>Microsoft was confidential in character, and the record <br>sufficiently supports this finding.  To be sure, confidentiality <br>comes in varying shapes and sizes.  The confidentiality agreed upon <br>by the authors and the interviewees in this instance does not <br>ensure the most perfect privacy.  The respondents did not offer the <br>interviewees the sort of detailed nondisclosure agreement that they <br>signed with Netscape.  Moreover, they conducted the interviews in <br>the presence of a Netscape official, gave Netscape's management a <br>preview of planned quotations prior to showing those statements to <br>the persons who made them, and circulated their manuscript (or <br>portions of it) for pre-publication peer review. <br>     Still, determinations of where particular disclosures <br>fall along the continuum of confidentiality, and related <br>determinations anent the degree of protection that attaches to <br>them, must take into account the totality of the circumstances.  <br>When the respondents began their inquiry into Netscape's management <br>practices early in 1997, neither they nor their interview subjects <br>knew (or had any reason to believe) that Microsoft later would be <br>sued for antitrust violations based upon its peregrinations in the <br>browser market.  In that environment, handing individual interview <br>subjects complex legal agreements might have made them squeamish <br>(and thus less candid).  Instead, the respondents gave each <br>interviewee a personal, albeit verbal, assurance that he would be <br>accorded the opportunity to correct, comment upon, and/or disclaim <br>attributed quotations prior to publication.  At the very least, <br>this assurance is a species of confidentiality.  Microsoft's demand <br>for the full tapes (including outtakes) and transcripts of <br>interviews with all Netscape employees   materials which have not <br>to date been shown to anyone   obviates this assurance.  While the <br>level of confidentiality that characterizes a journalist's or <br>researcher's confidential information may, in the end, affect the <br>degree of protection conferred upon that information in a discovery <br>dispute, we agree with the district court that the interviews here <br>fall along the continuum of confidentiality at a point sufficient <br>to justify significant protection. <br>                  D.  The Degree of Protection. <br>     We turn now to the degree of protection that attaches to <br>the respondents' materials.  We begin with Bruno & Stillman, an <br>opinion that had its genesis in a libel suit brought by a <br>commercial boatbuilder against the Boston Globe after one Coughlin, <br>a Globe reporter, wrote an unflattering article.  See Bruno & <br>Stillman, 633 F.2d at 584-85.  During discovery, the defendants <br>refused to turn over portions of Coughlin's notes, which named <br>confidential sources and outlined information that the sources had <br>supplied.  See id. at 585.  The district court compelled disclosure <br>of the information, based on a finding that the information was <br>critical to Bruno & Stillman's non-frivolous claim and was <br>unavailable from other sources.  See id. at 586.  On appeal, <br>without deciding the "semantic[]" question of whether the <br>protection afforded to a journalist's sources and research is a <br>type of privilege, id. at 595, Judge Coffin explained the necessity <br>for attention to First Amendment concerns in such situations, seeid. at 595-96.  The opinion instructed district courts that when <br>     faced with enforcing requests for the <br>     discovery of materials used in the preparation <br>     of journalistic reports [they] should be aware <br>     of the possibility that the unlimited or <br>     unthinking allowance of such requests will <br>     impinge upon First Amendment rights.  In <br>     determining what, if any, limits should <br>     accordingly be placed upon the granting of <br>     such requests, courts must balance the <br>     potential harm to the free flow of information <br>     that might result against the asserted need <br>     for the requested information. <br> <br>Id.  Eight years later, the court reiterated this instruction.  SeeLaRouche, 841 F.2d at 1181. <br>     We, too, decline to spend our energies on semantics.  It <br>suffices to say that, when a subpoena seeks divulgement of <br>confidential information compiled by a journalist or academic <br>researcher in anticipation of publication, courts must apply a <br>balancing test.  This test contemplates consideration of a myriad <br>of factors, often uniquely drawn out of the factual circumstances <br>of the particular case.  Each party comes to this test holding a <br>burden.  See Bruno & Stillman, 633 F.2d at 597.  Initially, the <br>movant must make a prima facie showing that his claim of need and <br>relevance is not frivolous.  See id.  Upon such a showing, the <br>burden shifts to the objector to demonstrate the basis for <br>withholding the information.  See id.  The court then must place <br>those factors that relate to the movant's need for the information <br>on one pan of the scales and those that reflect the objector's <br>interest in confidentiality and the potential injury to the free <br>flow of information that disclosure portends on the opposite pan.  <br>See id. at 597-98. <br>                   E.  Calibrating the Scales. <br>     We now examine the district court's handiwork in light of <br>this legal framework.  Microsoft's need admittedly is substantial <br>in the sense that relevant information likely exists   indeed, the <br>district court specifically found that Microsoft had not embarked <br>on a fishing expedition   and Microsoft has a legitimate use for <br>it.  The company, after all, is in the throes of defending a <br>complex case of extraordinary importance to its future, and its <br>primary defense is that Netscape suffered a series of self- <br>inflicted wounds that dissipated its dominant position in the <br>browser market.  Lessons includes several quotations that suggest <br>missteps by Netscape management during the browser war, and it is <br>reasonable to assume that the notes, tapes, and transcripts include <br>more evidence of this genre.  Hence, Microsoft has made a prima <br>facie showing of need and relevance. <br>     The district court discounted this showing somewhat <br>because it found that the same information was otherwise available <br>to Microsoft by direct discovery.  We view this finding of fact <br>deferentially, see Ross-Simons of Warwick, Inc. v. Baccarat, Inc., <br>102 F.3d 12, 16, 19-20 (1st Cir. 1996), and decline to disturb it.  <br>Despite the accelerated trial schedule in the antitrust case, <br>Microsoft had the Lessons manuscript while discovery was still <br>open, and the quotations in the book are attributed to named <br>individuals.  Microsoft   which deployed no fewer than eight <br>lawyers in the preparation of its brief in this appeal   had enough <br>time, enough knowledge, and enough resources to depose those <br>individuals (or some subset of them), or otherwise obtain discovery <br>from them.  This factor must figure in the balance.  See Haworth, <br>Inc. v. Herman Miller, Inc., 998 F.2d 975, 978 (Fed. Cir. 1993). <br>     The opposite pan of the scale is brim-full.  Scholars <br>studying management practices depend upon the voluntary revelations <br>of industry insiders to develop the factual infrastructure upon <br>which theoretical conclusions and practical predictions may rest.  <br>These insiders often lack enthusiasm for divulging their management <br>styles and business strategies to academics, who may in turn reveal <br>that information to the public.  Yet, pathbreaking work in <br>management science requires gathering data from those companies and <br>individuals operating in the most highly competitive fields of <br>industry, and it is in these cutting-edge areas that the <br>respondents concentrate their efforts.  Their time-tested interview <br>protocol, including the execution of a nondisclosure agreement with <br>the corporate entity being studied and the furnishing of personal <br>assurances of confidentiality to the persons being interviewed, <br>gives chary corporate executives a sense of security that greatly <br>facilitates the achievement of agreements to cooperate.  Thus, in <br>the Bruno & Stillman taxonomy, the interviews are "carefully <br>bargained-for" communications which deserve significant protection.  <br>Bruno & Stillman, 633 F.2d at 597. <br>     Considering these facts, it seems reasonable to conclude <br>  as the respondents' affidavits assert   that allowing Microsoft <br>to obtain the notes, tapes, and transcripts it covets would <br>hamstring not only the respondents' future research efforts but <br>also those of other similarly situated scholars.  This loss of <br>theoretical insight into the business world is of concern in and of <br>itself.  Even more important, compelling the disclosure of such <br>research materials would infrigidate the free flow of information <br>to the public, thus denigrating a fundamental First Amendment <br>value. <br>     It is also noteworthy that the respondents are strangers <br>to the antitrust litigation; insofar as the record reflects, they <br>have no dog in that fight.  Although discovery is by definition <br>invasive, parties to a law suit must accept its travails as a <br>natural concomitant of modern civil litigation.  Non-parties have <br>a different set of expectations.  Accordingly, concern for the <br>unwanted burden thrust upon non-parties is a factor entitled to <br>special weight in evaluating the balance of competing needs.  SeeHaworth, 998 F.2d at 978; Dart Indus. Co. v. Westwood Chem. Co., <br>649 F.2d 646, 649 (9th Cir. 1980); Addamax Corp. v. Open Software <br>Found., Inc., 148 F.R.D. 462, 468 (D. Mass. 1993). <br>     We need go no further.  The district court used the <br>proper test, balanced the right array of factors, and acted well <br>within its discretion in determining that the scales tipped in <br>favor of preserving confidentiality and against the wholesale <br>disclosure of investigative materials gleaned in the course of pre- <br>publication academic research.  Our confidence in the <br>appropriateness of this ruling is fortified by the fact that the <br>district court took pains to protect Microsoft's legitimate <br>interests.  After denying the motion to compel, the court announced <br>that it would retain jurisdiction so that, should a material <br>conflict develop between quotations from the book and other <br>evidence, it could review the notes, tapes, and transcripts incamera for purposes of verification and, if necessary, order <br>production.  This even-handed ruling treats all parties fairly.  We <br>discern no error. <br> <br>Affirmed.</pre>

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