PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROY T. LEFKOE, on behalf of 

himself and all others similarly

situated; THE HAVERHILL

RETIREMENT SYSTEM; LEFKOE /

YANNUZZI; CEFERINO FAJARDO;

MASSACHUSETTS LABORERS’

ANNUITY FUND,

Plaintiffs,

v.  No. 08-2059

JOS. A. BANK CLOTHIERS,

INCORPORATED; ROBERT N.

WILDRICK; R. NEAL BLACK; DAVID

E. ULLMAN,

Defendants-Appellees,

v.

THE DOE CLIENT,

Movant-Appellant. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

William M. Nickerson, Senior District Judge.

(1:06-cv-01892-WMN)

Argued: May 15, 2009

Decided: August 13, 2009
Before Sandra Day O’CONNOR, Associate Justice

(Retired), Supreme Court of the United States, sitting by

designation, and NIEMEYER and GREGORY,

Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Associate Justice O’Connor and Judge

Gregory joined.

COUNSEL

ARGUED: Russell Beck, FOLEY & LARDNER, LLP, Boston, Massachusetts, for Appellant. Michael Broughton MacWilliams, VENABLE, LLP, Baltimore, Maryland, for

Appellees. ON BRIEF: Marie Scheibert, FOLEY & LARDNER, LLP, Boston, Massachusetts, Michael J. Lockerby,

FOLEY & LARDNER, LLP, Washington, D.C., for Appellant. James L. Shea, VENABLE, LLP, Baltimore, Maryland,

James A. Dunbar, Heather L. Mitchell, VENABLE, LLP,

Towson, Maryland, for Appellees. 

OPINION

NIEMEYER, Circuit Judge:

In the deposition of a law firm representing an unidentified

nonparty witness noticed in this securities fraud class action

and taken in the District of Massachusetts pursuant to a subpoena that issued there, the nonparty witness asserted a right

to anonymity under the First Amendment. The Massachusetts

district court, having authority over the subpoena, denied the

law firm’s motion to quash the subpoena and ordered the law

firm to reveal the nonparty witness’ identity. But the court

2 LEFKOE v. JOS. A. BANK CLOTHIERS
also entered a protective order prohibiting the lawyers for the

parties from disclosing the identity of the nonparty witness to

anyone else, including the parties. Finally, the court stated

that its protective order was subject to modification by the

Maryland district court, where the action is pending.

By order dated September 3, 2008, the Maryland district

court modified the protective order to allow disclosure of the

nonparty witness’ identity to the attorneys’ clients but to no

one else.

From the Maryland district court’s order, the nonparty witness filed this interlocutory appeal, contending (1) that the

Maryland district court had no authority to modify the Massachusetts district court’s protective order and (2) that the Maryland district court’s modification nonetheless violates the

nonparty witness’ First Amendment right to remain anonymous. For the reasons that follow, we reject both arguments

and affirm.

I

In the pending securities fraud litigation, the plaintiffs on

behalf of themselves and a purported class of persons who

purchased stock of Jos. A. Bank Clothiers, Inc. during the

period from December 5, 2005, to June 7, 2006, claim that

Jos. A. Bank and insiders issued a series of false and misleading statements about the company’s earnings, profits, and

inventory and thereby allowed the insiders to profit from

inflated stock prices. The plaintiffs allege that when the true

facts were disclosed in June 2006, the price of Jos. A. Bank

stock fell 29%, causing the plaintiffs "tens of millions of dollars of investor losses."

During the period defining the class, Jos. A. Bank received

a letter dated March 15, 2006, from the law firm of Foley &

Lardner LLP in Boston, Massachusetts, who represented a client whom it did not identify (referred to herein as "the Doe

LEFKOE v. JOS. A. BANK CLOTHIERS 3
Client"). The letter, addressed to Jos. A. Bank’s Audit Committee, stated:

Foley & Lardner LLP represents a shareholder of

Jos. A. Bank Clothiers, Inc. (the "Company") who

has held several hundred thousand shares of the

Company for some time. Our client is concerned

about the Company’s public communications and

financial reporting with respect to its inventory.

The letter proceeded to detail multiple allegations regarding

the handling, accounting, and reporting of inventory. Some

allegations suggested specific, nonpublic knowledge. But

other allegations were generalized, such as claims that the

public "assertions by management that [Jos. A. Bank’s]

inventory levels [were] necessary, appropriate or advantageous [were] not credible and defy common business sense."

The letter concluded:

This communication is a formal report on behalf of

our client to the Company’s Audit Committee

regarding the integrity of the Company’s financial

statements and the Company’s compliance with ethics policies and legal and regulatory requirements.

Our client requests that this letter be shared with the

Company’s auditors, Deloitte & Touche LLP. Please

advise us promptly as to what steps the Company’s

Board, Audit Committee and/or auditors are taking

in response to this letter.

The Audit Committee received the letter roughly two

weeks before Jos. A. Bank was scheduled to release its earnings report and hold its earnings call. To investigate the letter’s claims, the Audit Committee hired the law firm of

Wilmer, Cutler, Pickering, Hale & Dorr LLP and the accounting firm of Ernst & Young LLP. This investigation, which

was substantially completed by Friday, March 31, 2006, at a

cost of approximately $600,000, concluded that the allega4 LEFKOE v. JOS. A. BANK CLOTHIERS
tions were "without substance." The investigation, however,

caused Jos. A. Bank to delay its earnings report and call by

10 days, to April 13, 2006. On the next trading day after Jos.

A. Bank announced the delay in reporting its earnings, the

price of its stock dropped 5.8%.

Several months later, the plaintiffs commenced this action

in the District of Maryland, filing it on July 24, 2006.

In this litigation, Jos. A. Bank served a notice to depose the

Foley & Lardner law firm in Massachusetts to obtain the identity of and information about the Doe Client, suspecting that

the Doe Client could provide information relevant to the

pending action, particularly relating to the causation of losses

claimed by the plaintiffs and the bases for defining the class.

To compel Foley & Lardner to attend the deposition and

reveal the identity of and other information about the Doe Client, Jos. A. Bank caused a subpoena to be issued from the district court in the District of Massachusetts pursuant to Federal

Rule of Civil Procedure 45.

Foley & Lardner filed a motion in the Massachusetts district court to quash the subpoena, arguing that it "is punitive,

seeks irrelevant information, and violates Foley’s client’s

right of anonymity as protected by the First [A]mendment and

federal common law." The district court, however, allowing

for the possibility that the Doe Client might be complicit with

the plaintiffs and that its letter was "part of a cabal . . . to

affect [the] stock price [of Jos. A. Bank] and then [to] sue,"

denied the motion to quash and allowed a two-hour deposition

to be taken directly under its supervision. The court also

ordered that the deposition be sealed and directed counsel not

to disclose the identity of the Doe Client to anyone "absent an

order of the judge presiding in the lawsuit." In response to the

district court’s sealing order, Foley & Lardner on behalf of

the Doe Client then took the following position with respect

to the Doe Client’s First Amendment rights, which the court

rejected:

LEFKOE v. JOS. A. BANK CLOTHIERS 5
Counsel for Doe Client: Your Honor, I appreciate the effort to narrow this, but it

doesn’t obviate the

threshold issue from

their standpoint which

is that they are looking for complete anonymity here.

The Court: Well, they may be,

but they have no legal

right to complete anonymity.

Counsel for Doe Client: Under the First

Amendment cases

that we’ve identified

—I understand Your

Honor’s —

The Court: I’m not creating, I’m

not creating some

new privilege here.

I’m sorry. That’s

intriguing. This was,

this was very interesting. But we’re not

going there.

(Emphasis added).

The deposition took place in camera, and Foley & Lardner,

instead of designating a representative of the firm as required

by the notice of deposition and Federal Rule of Civil Procedure 30(b)(6), produced the Doe Client itself.* At the conclusion of the deposition, the court summarized its order:

*The production of the Doe Client may have been voluntary. When the

court directed that Foley & Lardner "get the 30(b)(6) person here," Foley

6 LEFKOE v. JOS. A. BANK CLOTHIERS
The deposition as I’ve earlier ordered will be entirely

sealed without prejudice to application being made

to the presiding judge [in Maryland] for whatever

treatment, and that also means application made to

the presiding judge to call for additional depositions

or expand the scope of this deposition; I express no

opinion on that.

I have a small piece of this dispute, and I’ve tried to

balance the interests of the entity that wished to

remain anonymous against the justified interests

under Rule 45 of Jos. A. Bank of obtaining discovery.

My ruling is based upon what seems to me the

appropriate limits of discovery, not any privilege as

I said when we were in open court. But I am willing

that the presiding judge who has the lawsuit under

his care make the final call as to all of these matters

and Foley may find itself before that . . . presiding

judge, defending or seeking to modify the limits that

I’ve put on it.

When counsel for Jos. A. Bank requested that he be allowed

to disclose the identity of the Doe Client to his client, the

Massachusetts district court instructed that counsel had to

keep the Doe Client’s identity to himself and his partners. It

directed counsel, however, to "go to the presiding judge [in

Maryland] and say, this was far too limited, open it up. . . .

And that judge, I’m sure, will give notice to Foley, and Foley

can be heard. . . . This is a sealed proceeding; sealed, unless

& Lardner responded that "the client is not located in the state," to which

the court observed, "Well, planes fly. Do you want Monday rather than

tomorrow?" On Monday, June 2, 2008, the Doe Client was produced and

its deposition taken. And during the deposition, it revealed its identity,

after again asserting a right to anonymity and after the court overruled the

objection. 

LEFKOE v. JOS. A. BANK CLOTHIERS 7
the presiding judge should otherwise order." But the court

allowed that Jos. A. Bank’s counsel could "go out and investigate" the Doe Client, but could not reveal its identity to inhouse counsel or anyone else, except with permission of the

Maryland district court.

Jos. A. Bank’s outside counsel accordingly sought out all

publicly available information on the Doe Client and uncovered several facts suggesting to counsel that the Doe Client

"took deliberate and successful actions [e.g., sending the letter

to the Audit Committee] to drive down the market price of

[Jos. A. Bank’s] stock during the proposed class period."

Most importantly, Jos. A. Bank’s outside counsel learned that

the Doe Client was a known "short seller" and that it, in addition to holding several hundred thousand shares of Jos. A.

Bank stock, also held several times that quantity of puts on

Jos. A. Bank stock, giving the Doe Client the option of selling

Jos. A. Bank stock at an agreed-upon price and thus potentially allowing the Doe Client to profit from the stock price’s

fall.

With this information in hand, Jos. A. Bank’s outside counsel filed a motion in the Maryland district court to unseal the

deposition of the Doe Client and permit further discovery

from the Doe Client. Jos. A. Bank asserted that the discovery

from the Doe Client would be relevant to its various defenses,

including discovering whether the Doe Client manipulated the

price of the stock, "a fact that goes to both substantive liability and damages," and which may have "spawned inefficiencies in the market for the Company’s stock—a fact that

strongly militates against certification of the proposed class."

Jos. A. Bank also expressed a wish to "file any appropriate

lawsuits" against the Doe Client.

Despite the Doe Client’s opposition to Jos. A. Bank’s

motion, the Maryland district court modified the protective

order by making the Doe Client’s identity "accessible to parties to this litigation." The order allowed Jos. A. Bank’s out8 LEFKOE v. JOS. A. BANK CLOTHIERS
side counsel to reveal the Doe Client’s identity to in-house

counsel and to pursue further discovery against the Doe Client. But the district court continued the Massachusetts district

court’s protective order insofar as it prohibited disclosure to

the public.

From the district court’s order, dated September 3, 2008,

the Doe Client filed this interlocutory appeal, invoking the

collateral order doctrine. See Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 546 (1949); United States v. Moussaoui,

483 F.3d 220, 227-28 (4th Cir. 2007). And pending our decision on appeal, the district court stayed its order.

II

The Doe Client contends first that the Maryland district

court lacked statutory authority to unseal, even partially, the

deposition that the Massachusetts court had ordered sealed,

even though the Massachusetts court expressly contemplated

that the Maryland court could determine to unseal the deposition. The Doe Client argues:

By reversing a final order of the Massachusetts District Court—from which Jos. A. Bank and the Insider

Defendants never appealed to the First Circuit—the

Maryland District Court usurped the prerogatives of

the Massachusetts District Court and the First Circuit

alike. To the extent that the Maryland District Court

had any authority to review the ruling of the Massachusetts District Court, its review was subject to the

law of the case doctrine.

The Doe Client’s arguments are far too rigid for the legal

scheme created by the Federal Rules of Civil Procedure for

obtaining discovery in federal cases, and they are especially

strained in light of the fact that the two courts involved appropriately divided authority with respect to the deposition and

neither overstepped that division of authority. The MassachuLEFKOE v. JOS. A. BANK CLOTHIERS 9
setts court acted within the authority granted it by the Federal

Rules of Civil Procedure, and it did not enter any order

intending to control the authority of the Maryland district

court to manage discovery and the litigation. Likewise, the

Maryland district court acted within the authority granted it

by the Rules, and it did not overrule any order entered by the

Massachusetts court.

Stated generally, the deposition noticed in the Maryland

case was taken in Massachusetts and supervised by the Massachusetts district court for use in the Maryland case, and the

two courts recognized their roles in the process. Indeed, the

Massachusetts court was especially sensitive to not interfere

with the Maryland court’s role in managing discovery and the

litigation.

More particularly, the Massachusetts court ruled that the

Doe Client could not maintain complete anonymity under the

First Amendment but that disclosure of its identity would be

limited to enable the Maryland district court to make "the

final call." And the court repeated this message: "The deposition as I’ve earlier ordered will be entirely sealed without

prejudice to application being made to the presiding judge [in

Maryland] for whatever treatment," and "I am willing that the

presiding judge who has the lawsuit under his care make the

final call as to all of these matters and [the Doe Client] may

find itself before that . . . presiding judge, defending or seeking to modify the limits that I’ve put on it." When counsel for

Jos. A. Bank expressed his desire to disclose the identity of

the Doe Client to his client, the Massachusetts district judge

stated that counsel should "go to the presiding judge [in

Maryland] and say, this was far too limited, open it up. . . .

And that judge, I’m sure, will give notice to [the Doe Client]

and [the Doe Client] can be heard." In giving these instructions, the Massachusetts court defined its role: "I have a small

piece of this dispute, and I’ve tried to balance the interests of

the [Doe Client] that wished to remain anonymous against the

justified interests under Rule 45 of Jos. A. Bank of obtaining

10 LEFKOE v. JOS. A. BANK CLOTHIERS
discovery." And the court indicated that it was deferring to the

presiding judge to "make the final call."

It is apparent that both the Massachusetts court and the

Maryland court recognized the division of authority anticipated by the Federal Rules of Civil Procedure.

Under the Rules, the deposition of a nonparty witness is

noticed in the pending action, with notice served on all parties. See Fed. R. Civ. P. 30(b)(1). As Rule 30(a) provides, "A

party may, by oral questions, depose any person, including a

party, without leave of court except as provided in Rule

30(a)(2). The deponent’s attendance may be compelled by

subpoena under Rule 45." Fed. R. Civ. P. 30(a)(1). Because

the deponent in this case was a nonparty witness, Jos. A. Bank

caused the issuance of a subpoena, as authorized by Rule

30(a) and pursuant to Rule 45, to compel the attendance of the

witness. And because the deponent was located in Massachusetts, Jos. A. Bank caused the subpoena to be issued from the

district court there. Accordingly, the Massachusetts district

court had authority to enforce, modify, or quash the subpoena

in accordance with Rule 45(c).

But under this scheme, the deponent could also have sought

protection from the Maryland district court under the authority given by Rule 26(c). That rule provides:

A party or any person from whom discovery is

sought may move for a protective order [1] in the

court where the action is pending—or as an alternative on matters relating to a deposition, [2] in the

court for the district where the deposition will be

taken.

Fed. R. Civ. P. 26(c)(1) (emphasis added). The Maryland district court is also given authority to regulate depositions under

Rules 30(d) and 37. Of course, use of the deposition in the litLEFKOE v. JOS. A. BANK CLOTHIERS 11
igation is controlled by the Maryland court, where the action

is pending. See Fed. R. Civ. P. 32(a).

Thus, a nonparty witness whose deposition is noticed for a

location other than in the district where the case is pending

has a range of options in seeking protection.

Even though Rule 26(c) authorized the Doe Client to seek

protection from either the Maryland court, where the case is

pending, or the Massachusetts court, where the deposition was

being taken, it could also invoke Rule 45(c) to obtain protection specifically from the Massachusetts court where the subpoena issued. These multiple accommodations to the

deponent, however, do not create an antagonistic jurisdictional division of authority. To the contrary, they afford flexibility so that the nonparty witness can facilely obtain

protection and not be unduly burdened.

In this case, when the Doe Client filed its motion to quash

the deposition subpoena and demanded complete anonymity

under the First Amendment, the Massachusetts district court

denied the motion, stating that the deponent has "no legal

right to complete anonymity." The district court explained,

"I’m not creating some new privilege here. I’m sorry. That’s

intriguing. This was, this was very interesting. But we’re not

going there." The court nonetheless entered a protective order

prohibiting disclosure of the Doe Client’s identity except to

the lawyers for the parties and subject to review and modification by the Maryland district court. The protective order,

therefore, not only prohibited the attorneys from disclosing

the identity of the deponent to anyone, but also, by its terms,

allowed the Maryland district court to modify it.

The Maryland district court, which had ultimate supervisory authority over the litigation, including discovery and its

use in the litigation, modified the protective order, allowing

the attorneys for the parties to disclose the Doe Client’s identity, but only to their clients. It did so after concluding that

12 LEFKOE v. JOS. A. BANK CLOTHIERS
Jos. A. Bank has made an adequate showing that this

information is relevant to its opposition to class certification as well as to certain defenses it might raise

to Plaintiff’s claims.

* * *

[The Doe Client’s] desire to keep this information

private simply does not rise to the level of good

cause necessary to maintain it under seal from the

parties to this litigation and doing so interferes with

Jos. A. Bank’s counsel’s ability to represent its client.

The court added, however, that it was maintaining a protective order with respect to disclosure of the Doe Client’s identity to the public.

When the Maryland district court expanded disclosure of

the Doe Client’s identity to the parties to this litigation, it did

not overstep its authority under the Federal Rules of Civil

Procedure, nor did it overstep anything in the Massachusetts

court’s protective order. Accordingly, we reject the Doe Client’s argument that the district court acted without authority.

III

The Doe Client also contends that the Maryland district

court violated its "fundamental First Amendment right to

speak anonymously" when it relaxed the protective order to

permit disclosure of the Doe Client’s identity to the parties in

the litigation. The Doe Client argues that its choice to send the

March 15, 2006 letter to the Audit Committee of Jos. A. Bank

anonymously was protected by the First Amendment and that

the Maryland district court violated its rights by expanding

the scope of disclosure.

At the outset, we observe that the Doe Client asserted its

claim to complete anonymity under the First Amendment in

LEFKOE v. JOS. A. BANK CLOTHIERS 13
the District of Massachusetts, and the Massachusetts court

rejected the argument, ordering the Doe Client to disclose its

identity in the deposition—albeit subject to a protective order.

Despite the Doe Client’s argument that even ordering disclosure to the attorneys violated its right of complete anonymity,

the Doe Client did not persist on its claim and appeal to the

First Circuit. By failing to appeal the order of the Massachusetts district court, the Doe Client has waived further review

of the issue whether partial disclosure of its identity—i.e. disclosure to the attorneys on this case—compromised its

claimed right to complete anonymity, and we are not authorized to review that ruling of the Massachusetts district court.

See 28 U.S.C. § 1294(1); Moussaoui, 483 F.3d at 232.

The Doe Client presents us with a similar issue, arguing

that the Maryland district court violated its First Amendment

rights by modifying the protective order and allowing the further disclosure of its identity to the parties in this case. This

rests on the premise that a First Amendment right to speak

anonymously may also be violated by the district court’s

allowance of the further disclosure to the attorneys’ clients.

Rather than evaluate this premise, however, we assume for

our discussion that the district court’s modification of the protective order to allow disclosure to a broader class of persons

can amount to an additional violation of the Doe Client’s

claimed right to speak anonymously.

The First Amendment does appear to include some aspect

of anonymity in protecting free speech. The quintessential

example is provided by the anonymous speech of the Federalist Papers, published by James Madison, Alexander Hamilton,

and John Jay under the pseudonym "Publius." See McIntyre

v. Ohio Elections Comm’n, 514 U.S. 334, 341-43, 343 n.6

(1995); id. at 342 ("[A]n author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by

the First Amendment"). The right to anonymous speech, however, is not unlimited. See, e.g., McConnell v. FEC, 540 U.S.

93, 230-31 (2003); Lyrissa Barnett Lidsky & Thomas F. Cot14 LEFKOE v. JOS. A. BANK CLOTHIERS
ter, Authorship, Audiences, and Anonymous Speech, 82 Notre

Dame L. Rev. 1537, 1599-1600 (2007) ("[R]ight" to anonymous speech is better termed a "qualified privilege"). Courts

have typically protected anonymity under the First Amendment when claimed in connection with literary, religious, or

political speech. See McIntyre, 514 U.S. at 342-43; see also

Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of

Stratton, 536 U.S. 150, 166-67 (2002); Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 197-204 (1999);

Green v. City of Raleigh, 523 F.3d 293, 301-02 (4th Cir.

2008).

While Jos. A. Bank does not dispute some qualified right

to anonymity in the context of political or literary speech, it

contends that the Doe Client’s letter enjoys less First Amendment protection inasmuch as it is commercial speech. We

agree. The March 15, 2006 letter demanded that the Audit

Committee take action of a commercial nature—"Our client

requests that this letter be shared with the Company’s auditors, Deloitte & Touche LLP. Please advise us promptly as to

what steps the Company’s Board, Audit Committee and/or

auditors are taking in response to this letter." See Bolger v.

Youngs Drug Prods. Corp., 463 U.S. 60, 66-68 (1983); Va.

State Bd. of Pharmacy v. Va. Citizens Consumer Council,

Inc., 425 U.S. 748, 761-65 (1976). The letter was an "expression related solely to the economic interests of the speaker

and its audience." Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980); El Dia,

Inc. v. Puerto Rico Dep’t of Consumer Affairs, 413 F.3d 110,

115 (1st Cir. 2005).

Because the Doe Client’s letter was commercial speech,

any First Amendment right to speak anonymously "enjoys a

limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, and is

subject to modes of regulation that might be impermissible in

the realm of noncommercial expression." Bd. of Trustees of

SUNY v. Fox, 492 U.S. 469, 477 (1989) (internal quotation

LEFKOE v. JOS. A. BANK CLOTHIERS 15
marks, citation, and alterations omitted); see also W. Va.

Ass’n of Club Owners & Fraternal Servs., Inc. v. Musgrave,

553 F.3d 292, 301 (4th Cir. 2009). We thus conclude that the

Doe Client’s claimed First Amendment right to anonymity is

subject to a substantial governmental interest in disclosure so

long as disclosure advances that interest and goes no further

than reasonably necessary. See Central Hudson, 447 U.S. at

566; see also Fox, 492 U.S. at 477, 480; accord United States

v. Edge Broadcasting Co., 509 U.S. 418, 427-28 (1993).

In this case, Jos. A. Bank, named as a defendant in a class

action, claims that discovery of the Doe Client and information from it relate to the litigation and are necessary to defend

itself. It contends that "[t]he available evidence strongly indicates that the [Doe] Client took deliberate and successful

actions to drive down the market price of the Company’s

stock during the proposed class period," providing a basis for

it to contest class certification and damages. Moreover, the

Maryland district court agreed that the limited further disclosure of the Doe Client’s identity and discovery was appropriate. The court stated that it was "persuaded that Jos. A. Bank

has made an adequate showing that this information is relevant to its opposition to class certification as well as to certain

defenses it might raise to Plaintiff’s claims." It explained that

Jos. A. Bank learned that the Doe Client is a known short

seller and that short selling during the class period, as

opposed to Jos. A. Bank’s fraud or malfeasance, may have

been a cause of the drop in the price of Jos. A. Bank stock.

As the court stated, "[Jos. A. Bank] also persuasively argues

that the presence of a high volume of short selling of Company stock is relevant to its opposition to class certification in

that it could support Jos. A. Bank’s argument that there was

not an efficient market for the Company stock during the class

period."

Once it is recognized that the deposition of the Doe Client

and information that it could present could be relevant and

useful to Jos. A. Bank’s defense of the litigation, the substan16 LEFKOE v. JOS. A. BANK CLOTHIERS
tial governmental interest in providing Jos. A. Bank a fair

opportunity to defend itself in court is served by requiring the

Doe Client to reveal its identity and provide the relevant

information. Rule 26 explicitly expresses this interest, providing that Jos. A. Bank "may obtain discovery regarding any

nonprivileged matter that is relevant to any party’s claim or

defense—including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know

of any discoverable matter." Fed. R. Civ. P. 26(b)(1).

In the circumstances, we conclude that the Maryland district court’s order of September 3, 2008, modifying the protective order entered by the Massachusetts district court, does

not unduly infringe upon any right that the Doe Client may

otherwise have to anonymity.

Accordingly, the order of the district court is

AFFIRMED.

LEFKOE v. JOS. A. BANK CLOTHIERS 17