Spina, J.

The present action concerns a claim for commercial disparagement arising from the publication of an article in the Journal of the American Medical Association (JAMA).1 The plaintiff, HipSaver, Inc. (HipSaver), is a Massachusetts corporation engaged in the design, manufacture, and sale of hip protectors, a device that provides protective padding over the wearer’s hip bones in order to reduce the risk of hip fractures in the event of a fall. On July 25, 2007, JAMA published an article entitled “Efficacy of a Hip Protector to Prevent Hip Fracture in Nursing Home Residents: The HIP PRO Randomized Controlled Trial” (article). According to the article, the “Hip Impact Protection PROject (HIP PRO) was designed to test the efficacy of a biomechanically tested energy-absorbing/shunting hip protector in reducing hip fracture incidence among nursing home residents.” The article was authored by nine individuals, including the defendant, Dr. Douglas P. Kiel, an associate professor at Harvard Medical School, who conducted the clinical trial that formed the basis for the article and was its lead author. The article described the clinical trial, analyzed the data collected, and concluded, among other things, that the clinical trial “confirm[ed] the growing body of evidence that hip protectors are not effective in nursing home populations.”

On February 15, 2008, HipSaver filed a complaint in the Superior Court against Kiel, alleging that he had disparaged HipSaver’s product in the JAMA article and was liable for monetary damages.2 A judge denied Kiel’s motion to dismiss the complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). After the completion of discovery, Kiel filed a motion for summary judgment on April 19, 2011, asserting that *519HipSaver had no reasonable expectation of proving the essential elements of its claim, including falsity and special damages. Following a hearing, the judge allowed the motion and dismissed HipSaver’s complaint. We granted HipSaver’s application for direct appellate review. Because we conclude that the judge properly entered summary judgment for Kiel where HipSaver failed to demonstrate that it had a reasonable expectation of proving all of the essential elements of a cause of action for commercial disparagement, we affirm.3

1. Background. We briefly summarize the undisputed facts contained in the summary judgment record, reserving additional facts for later discussion in conjunction with specific issues.

HipSaver was incorporated in 1995 and is one of at least twenty-three companies that markets hip protectors. There are two varieties of the device, one designed to divert the energy of a fall (hard shell type) and another designed to absorb the energy of a fall (foam type). HipSaver’s product is made of “soft pen cell foam.” Its customer base is, and always has been, long-term care facilities, and its largest client is the United States Veterans Administration. HipSaver advertises its product on a national basis, including through its own Internet Web site, and it also markets its product through distributors in eight foreign countries.

Kiel is a licensed physician in Massachusetts who is board certified in internal medicine and geriatric medicine. He has done research on osteoporosis, falls, and related bone fractures; has published over 125 papers in peer-reviewed journals; and is regarded by others as an expert on hip protectors. In February, 2001, the National Institutes of Health awarded Kiel a five-year grant, in the amount of $8,424,636, to study the efficacy of hip protectors in reducing the risk of hip fractures when worn by nursing home residents. The findings of at least twelve earlier studies on the efficacy of hip protectors had produced mixed conclusions.

A clinical trial was conducted between October, 2002, and *520October, 2004, and involved 1,042 residents of thirty-seven nursing homes in Massachusetts, Missouri, and Maryland. The device that was studied was a hybrid hip protector that contained a plastic sheath embedded in ethylene vinyl acetate (EVA) foam. It was not a HipSaver product. During the clinical trial, nursing home residents wore the pad on one hip, but not on the other hip, so that they could serve as their own control subjects.4 The National Institutes of Health appointed a data and safety monitoring board (DSMB) to oversee the conduct of the trial. Approximately twenty months after its commencement, the DSMB recommended that the trial be terminated “due to lack of efficacy and the low probability of being able to demonstrate efficacy in the remaining years of the study.” The researchers involved with the clinical trial then decided to submit an article to JAMA for publication.

JAMA is a highly respected, peer-reviewed, general medical journal whose key objective is to “promote the science and art of medicine and the betterment of the public health.” It is the most widely circulated medical journal in the world and has been published continuously since 1883. Following submission of the article, JAMA undertook a seven-month peer review process, after which it proceeded with publication. The following statement appeared in the conclusion of the article: “In summary, this large multicenter clinical trial failed to demonstrate a protective effect of a hip protector on hip fracture incidence in nursing home residents despite high adherence, confirming the growing body of evidence that hip protectors are not effective in nursing home populations” (emphasis added). Similarly, the following statements appeared in the abstract summarizing the article: “In this clinical trial of an energy absorbing/shunting hip protector conducted in US nursing homes, we were unable to detect a protective effect on the risk of hip fracture, despite good adherence to protocol. These results add to the increasing body of evidence that hip protectors, as currently designed, are *521not effective for preventing hip fracture among nursing home residents” (emphasis added).5

In its action against Kiel for commercial disparagement, Hip-Saver alleged that, prior to publishing the results of the clinical trial, Kiel knew or had reason to know that the product he had tested had a design that was different from and inferior to Hip-Saver’s product, that persons likely to read and write about the article would be unaware of this distinction, and that these people would believe that the challenged statements, which were false, applied to all hip protectors, including those made by HipSaver. HipSaver further alleged that Kiel published the article with malice and with reckless indifference to the fact that his conduct would injure the company. HipSaver claimed that, as a direct and foreseeable consequence of the article’s publication, it has suffered and will continue to suffer severe economic damages, including, but not limited to, the loss of sales and the costs of advertising to mitigate the harm caused by the challenged statements.

In her memorandum of decision and order allowing Kiel's motion for summary judgment, the judge first stated that Hip-Saver had not introduced any evidence demonstrating the falsity of the challenged statements. Proposed testimony from two expert witnesses that, in their opinions, the design of the clinical trial was flawed did not necessarily mean that its scientific conclusions were false. Therefore, HipSaver had failed to produce evidence to satisfy its burden of proof with regard to this essential element of its claim. Next, the judge pointed out that the issue whether “malice” is a required element of the tort of commercial disparagement has not been decided definitively in Massachusetts. Nonetheless, proceeding on the assumption that it is a required element, see Dulgarian v. Stone, 420 Mass. 843, 852 (1995), the judge concluded that HipSaver had not demonstrated that Kiel published the challenged statements with intentional or reckless disregard for their truth or falsity. Finally, the judge determined that, where HipSaver had failed to introduce evidence to support two essential elements of its claim *522for commercial disparagement, the judge need not address the remaining arguments presented in Kiel’s motion for summary judgment.

2. Standard of review. Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). See also Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). “[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Id. See Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991) (moving party’s burden “need not be met by affirmative evidence negating an essential element of the plaintiff’s case, but may be satisfied by demonstrating that proof of that element is unlikely to be forthcoming at trial”). We review a decision to grant summary judgment de novo. See Miller v. Cotter, 448 Mass. 671, 676 (2007).

3. Discussion. An action for commercial disparagement is similar in many respects to an action for defamation, but there are important differences. Both torts seek to impose liability on a defendant for harm sustained by a plaintiff as a result of the publication of a false statement about the plaintiff to others. See White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66 (2004); Dulgarian v. Stone, supra. See also Restatement (Second) of Torts § 623A comment g, at 340-341 (1977). A defamation action, which encompasses libel and slander, affords a remedy for damage to the reputation of the injured party. See White v. Blue Cross & Blue Shield of Mass., Inc., supra; Ravnikar v. Bogojavlensky, 438 Mass. 627, 629-630 (2003). See also Restatement (Second) of Torts, supra at § 559. By comparison, an action for commercial disparagement affords a remedy for harm to the economic interests of the injured party that results in pecuniary loss.6 See Dulgarian v. Stone, supra. See also Restatement (Second) of Torts, supra at § 623A comment g. A *523plaintiff asserting such a claim seeks to recover damages for false disparaging statements about the plaintiff’s property, often a product or service being sold. See U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 924 (3d Cir.), cert, denied, 498 U.S. 816 (1990). See also 2 R.D. Sack, Defamation § 13:1.1, at 13-3 (4th ed. 2012).

In Dulgarian v. Stone, supra, this court adopted the language of the Restatement (Second) of Torts, supra at § 623A, regarding liability for commercial disparagement: “One who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other if (a) he intends for publication of the statement to result in harm to [the] interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and (b) he knows that the statement is false or acts in reckless disregard of its truth or falsity.” Thus, in order to prevail on a claim alleging commercial disparagement, a plaintiff must prove that a defendant: (1) published a false statement to a person other than the plaintiff; (2) “of and concerning” the plaintiff’s products or services; (3) with knowledge of the statement’s falsity or with reckless disregard of its truth or falsity; (4) where pecuniary harm to the plaintiff’s interests was intended or foreseeable; and (5) such publication resulted in special damages in the form of pecuniary loss.7 See Restatement (Second) of Torts, supra at § 651 (setting forth plaintiff’s burden of proof in action for injurious *524falsehood). See also 2 R.D. Sack, Defamation, supra at § 13:1. 4[A], at 13-9; W.L. Prosser & W.P. Keeton, Torts § 128, at 967-970 (5th ed. 1984). Given the scarcity of appellate decisions in this Commonwealth analyzing a cause of action for commercial disparagement, we now set forth a framework for doing so. More specifically, we consider whether Kiel demonstrated that HipSaver had no reasonable expectation of proving each essential element of this tort such that the judge properly granted his motion for summary judgment. We recognize that a failure of proof as to even one element would be sufficient to defeat a claim for commercial disparagement.

a. Falsity of the statements. First, HipSaver has the burden of proving that Kiel published a false statement about HipSaver to a third party. See Dulgarian v. Stone, supra. See also Flotech, Inc. v. E.I. Du Pont de Nemours Co., 627 F. Supp. 358, 365 (D. Mass. 1985), aff’d, 814 F.2d 775 (1st Cir. 1987) (as matter of common law, plaintiff in commercial disparagement action must prove that offending statements are false). Given that the article was authored by, among others, Kiel, and appeared in the most widely circulated medical journal in the world, the focus of our inquiry is whether HipSaver has established that the challenged statements are false. See W.L. Prosser & W.P. Keeton, Torts, supra at § 128, at 967 (“the plaintiff must carry the burden of proving that the disparaging statement is false, and if he does not do so he has no claim”). HipSaver contends that the challenged statements are false because the design of the clinical trial was flawed.* ******8 We conclude that any purported design defects in the clinical trial were acknowledged by Kiel *525in the article, and did not necessarily render the challenged statements false. Accordingly, HipSaver has failed to present evidence that would satisfy its burden of proof in this regard.

The genesis of the clinical trial was a recognition that nearly 340,000 hip fractures were occurring each year in the United States, with the highest incidence rates being reported in nursing home residents. In the article, Kiel pointed out that the results of past studies on the efficacy of hip protectors had been conflicting.9 To the authors’ knowledge, their clinical trial was the first study of an “energy-absorbing/shunting hip protector” to be conducted in nursing homes in the United States. With regard to the design of the clinical trial, Kiel explained its underlying rationale and stated that “[n]ursing home residents wore a hip protector on [one] hip only so that each participant served as his or her own control.” After describing the study’s results, Kiel commented that the authors “were unable to detect a protective effect on the risk of hip fracture, despite successful recruitment, retention, and adherence to the protocol.” He acknowledged that differences between his clinical trial and previous studies “may have resulted from the type of hip protector used,” and he explained several possible limitations of the clinical trial, pointing out that it was intended to be an “efficacy” study and not an “effectiveness” study, particularly given the use of a one-sided hip protector.10 Kiel ended the JAMA article *526by stating that “[w]ith the development of better pad materials and more thorough testing, future studies should examine new hip protectors using nonclustered randomized designs like [his clinical trial] to avoid many methodological biases.”

HipSaver has taken issue with Kiel’s statements that the results of the clinical trial “add[ed] to” or “confirm[ed]” the “growing body of evidence that hip protectors are not effective in nursing home populations.” However, it does not follow from HipSaver’s assertion that the design of the clinical trial was flawed that the challenged statements are false. The article plainly acknowledged possible flaws and limitations with the methodology that was used, and it suggested that further studies be conducted to evaluate the efficacy of hip protectors. Irrespective of any design flaws, the results of this particular clinical trial did not show that hip protectors reduced the occurrence of hip fractures in nursing home residents, and HipSaver has not alleged that Kiel inaccurately interpreted or reported the collected data. Given that thirteen studies had been published on the efficacy of hip protectors, more than one-half of which had demonstrated no statistically significant reduction in the number of hip fractures, the challenged statements did, in fact, “add to” or “confirm!]” a “growing body of evidence that hip protectors are not effective in nursing home populations.” This is not to say that Kiel’s statements are the definitive word on the subject, or that the results of his clinical trial are scientifically conclusive. Nonetheless, HipSaver has failed to present evidence that would satisfy its burden of proving that the challenged statements by Kiel are false.11

b. Statements “of and concerning” the plaintiff. Given that a cause of action for commercial disparagement typically seeks to *527recover damages for pecuniary loss resulting from false statements about a plaintiff’s property, HipSaver has the burden of proving that the challenged statements were “of and concerning” HipS aver’s product. Until now, this element has arisen in the context of a defamation claim. See Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991) (to succeed in defamation action, plaintiff must establish that alleged defamatory statement published by defendant was “of and concerning” plaintiff); New England Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co., 395 Mass. 471, 474 (1985); Driscoll v. Trustees of Milton Academy, 70 Mass. App. Ct. 285, 298 (2007). See also Restatement (Second) of Torts § 613 & comment d (1977). However, the similarities between the two torts suggest that this element is equally relevant and essential to an action for commercial disparagement. See, e.g., QSP, Inc. v. Aetna Cas. & Sur. Co., 256 Conn. 343, 359-360 (2001) (treating commercial disparagement like defamation by requiring that alleged damaging statement be “of and concerning” plaintiff). As cogently articulated by the Supreme Court of California, “[t]he ‘of and concerning’ or specific reference requirement limits the right of action for injurious falsehood, granting it to those who are the direct object of criticism and denying it to those who merely complain of nonspecific statements that they believe cause them some hurt. To allow a plaintiff who is not identified, either *528expressly or by clear implication, to institute such an action poses an unjustifiable threat to society.” Blatty v. New York Times Co., 42 Cal. 3d 1033, 1044 (1986), cert, denied, 485 U.S. 934 (1988). For example, “the absence of the ‘of and concerning’ requirement ‘could invite any number of vexatious lawsuits and seriously interfere with public discussion of issues, or groups, which are in the public eye.’ ” Id., quoting Michigan United Conservation Clubs v. CBS News, 485 F. Supp. 893, 900 (W.D. Mich. 1980), aff’d, 665 F.2d 110 (6th Cir. 1981).

“In Massachusetts, the test whether [an alleged defamatory statement] is of and concerning the plaintiff is met by proving either (1) that the defendant intended the words to refer to the plaintiff and that they were so understood or (2) that persons could reasonably interpret the defendant’s words to refer to the plaintiff and that the defendant was negligent in publishing them in such a way that they could be so understood.” ELM Med. Lab., Inc. v. RKO Gen., Inc., 403 Mass. 779, 785 (1989). See Eyal v. Helen Broadcasting Corp., supra at 430; New England Tractor-Trailer Training of Conn., Inc. v. Globe Newspaper Co., supra at 483; Driscoll v. Trustees of Milton Academy, supra. We have said that “if the person is not referred to by name or in such manner as to be readily identifiable from the descriptive matter in the publication, extrinsic facts must be alleged and proved showing that a third person other than the person [defamed] understood it to refer to him.” Brauer v. Globe Newspaper Co., 351 Mass. 53, 56 (1966). Further, in those circumstances where the alleged defamatory statement is directed at a group, rather than a particular person, “an individual member of the defamed class cannot recover for defamation unless ‘the group or class is so small that the matter can reasonably be understood to refer to the member, or . . . the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member.’ ” Eyal v. Helen Broadcasting Corp., supra at 430 n.6, quoting Restatement (Second) of Torts, supra at § 564A.

Here, HipSaver was not mentioned in the JAMA article, and its product was not the one that was used in the clinical trial. At the time the article was published, the hip protector that was studied was not commercially available, unlike HipSaver’s *529product. The article gave a lengthy, detailed description of the device that was used in the clinical trial, which was a one-sided hybrid hip protector comprised of a hard plastic sheath embedded in EVA foam. HipSaver always has marketed its product as being made entirely of soft pen cell foam, and has distinguished its product from those containing a hard shell. Additionally, HipSaver does not make a product that is designed to cover only one hip.

To the extent that the challenged statements referred to the inefficacy of “hip protectors” in general, this reference was insufficient to give rise to a conclusion that Kiel was specifically discussing HipSaver’s product. Although HipSaver has alleged that it is the second largest manufacturer of hip protectors in the United States,12 there are at least twenty-two other companies that make similar products. HipSaver has presented no affidavits from third parties prepared to testify that they understood the article as referring to or being about HipSaver and its product. During his deposition testimony on December 2, 2010, Edward L. Goodwin, the president and chief executive officer of HipSaver, stated that it was unlikely that the hip protector described in the article could be confused with Hip-Saver’s product. Simply put, the article cannot be understood as referring to HipSaver, either expressly or by clear implication. We conclude that HipSaver has failed to present evidence that would satisfy its burden of proving that the challenged statements were “of and concerning” HipSaver’s product.

c. Publication of the statements with knowledge of or reckless disregard for their falsity. Next, HipSaver has the burden of proving that Kiel published the challenged statements with knowledge that they were false, or with reckless disregard for their truth or falsity. See Dulgarian v. Stone, 420 Mass. 843, 852 (1995).

This particular element of a cause of action for commercial *530disparagement mirrors what has been termed “actual malice” in the defamation context. “Actual malice” is proved by showing that a defendant published a defamatory statement13 “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964) (New York Times). See King v. Globe Newspaper Co., 400 Mass. 705, 719 (1987), cert, denied, 485 U.S. 940, and 485 U.S. 962 (1988); Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 867-868 (1975). “In the context of defamation, the term ‘actual malice’ does not mean the defendant’s dislike of, hatred of, or ill will toward, the plaintiff.” Rotkiewicz v. Sa-dowsky, 431 Mass. 748, 755 (2000). See Old Dominion Branch No. 496, Nat’lAss’n of Letter Carriers v. Austin, 418 U.S. 264, 281 (1974) (ill will or bad motives not elements of actual malice as articulated in New York Times, supra). “The inquiry is a subjective one as to the defendant’s attitude toward the truth or falsity of the statement rather than the defendant’s attitude toward the plaintiff.” Rotkiewicz v. Sadowsky, supra.

Expounding on the “reckless disregard” aspect of “actual malice,” the United States Supreme Court has said that “reckless conduct is not measured by whether a reasonably prudent man would have published or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” St. Amant v. Thompson, 390 U.S. 727, 731 (1968). See Garrison v. Louisiana, 379 U.S. 64, 74 (1964) (defining “reckless disregard” as “high degree of awareness of . . . probable falsity”). See also Murphy v. Boston Herald, Inc., 449 Mass. 42, 48 (2007), and cases cited.

*531In Vascular Solutions, Inc. v. Marine Polymer Techs., Inc., 590 F.3d 56, 59 (1st Cir. 2009) (per curiam), the United States Court of Appeals for the First Circuit noted that “neither the Supreme Court nor this one has decided whether the First Amendment [to the United States Constitution] requires in product disparagement actions the actual malice standard of New York Times Co. v. Sullivan, [376 U.S. 254, 279-280 (1964)].” The court pointed out that “[w]hether Massachusetts courts might independently read such a requirement into its common law cause of action is also unclear.” Id. In Dulgarian v. Stone, supra, this court, although not using the term “actual malice,” adopted the language of the Restatement (Second) of Torts, supra at § 623A, imposing liability for commercial disparagement where a defendant, inter alia, “knows that the statement is false or acts in reckless disregard of its truth or falsity.” Id. This is the applicable standard in a commercial disparagement case, mirroring the “actual malice” standard that has been employed in defamation cases. We see no need formally to adopt the term “actual malice” in this context because the standard as articulated by the Restatement (Second) of Torts, supra, is clear and precise as to what a plaintiff must prove in order to satisfy this element of a commercial disparagement claim.14

*532The focus of HipSaver’s argument is not that Kiel knew that the challenged statements were false, in the sense that he fabricated the data. Rather, the thrust of HipSaver’s argument is that because Kiel purportedly ignored or concealed evidence suggesting that the design of the clinical trial was flawed, he therefore published the challenged statements with reckless disregard for their truth or falsity.15 We disagree.

At the outset, it is important to recognize the scientific oversight that was an integral part of the clinical trial and the subsequent JAMA article. The National Institutes of Health appointed a DSMB to review and secure its members’ agreement on the design of the study, to approve the protocol for the clinical trial and the consent forms for participants, and to oversee the conduct of the trial. Four institutional review boards (three at clinical centers and one at a data coordinating center) also assessed the trial protocol and the consent forms to ensure that they satisfied guidelines established by the United States Department of Health and Human Services. As acknowledged in the article, twenty months after the commencement of the clinical trial, the DSMB recommended that it be terminated “due to lack of efficacy and the low probability of being able to demonstrate efficacy in the remaining years of the study.” The researchers involved with the trial then decided to submit an article for publication in JAMA, at which point the article underwent a seven-month peer review process. Where appropriate, the authors made changes to their draft of the article in response to the reviewers’ comments and suggestions. Once this process had been completed, JAMA proceeded with publication.

*533As recognized by Kiel, and acknowledged by HipSaver, prior to this clinical trial, at least twelve studies had been published on hip protectors, and the results of those studies had varied, “some finding hip protectors useful and some finding they were not useful.” Given these conflicting results, Kiel decided to approach his study of hip protectors from a different perspective, designing a clinical trial to address perceived deficiencies and biases in earlier studies. It is generally understood that scientific research is not characterized by perfect theories, flawless studies, and desired results. Rather, the hallmarks of scientific research are continuous inquiry, testing, debate, disagreement, and revision. See generally Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993) (scientific conclusions “subject to perpetual revision”); Underwager v. Salter, 22 F.3d 730, 736 (7th Cir.), cert, denied, 513 U.S. 943 (1994) (“More papers, more discussion, better data, and more satisfactory models — not larger awards of damages — mark the path toward superior understanding of the world around us”); Freyd v. Whitfield, 972 F. Supp. 940, 945 (D. Md. 1997) (“A rule requiring scientists and authors to guarantee the ‘truth’ of their hypotheses would inevitably lead to self-censorship and would stifle the very debate that leads to scientific knowledge”).

The challenged statements in the article reflected Kiel’s interpretation of the accurately reported data of this particular clinical trial, as it was designed and conducted, including any perceived or actual flaws. That concerns may have been raised about the chosen design does not mean that Kiel entertained serious doubts about the truth of the challenged statements as they were a reflection of the achieved results. Kiel candidly discussed the underlying flaws in and limitations of the clinical trial when he included the following statements, among others, in the article: “[T]he pad we chose, while believed to be the best available at the time of the study based on biomechanical testing, may not have been good enough to prevent hip fractures. . . . Our study design, while overcoming potential biases . . . does not completely generalize to the clinical setting where 2-sided hip protectors are used. Even adherence data for [one]-sided hip protector use may not be generalizable to the setting of [two]-sided hip protector use. . . . [W]e cannot *534exclude the possibility that having only [one] hip protected could have modified the propensity to fall to the protected side either because of the mechanical positioning of the pad or because of sensory cues from the pad that altered gait.” We conclude that HipSaver has not presented evidence that would satisfy its burden of proving that Kiel entertained serious doubts about the truth of the challenged statements such that he must be deemed to have published those statements with reckless disregard for their truth or falsity.16

d. Intent or likelihood that publication will result in pecuniary harm. As to the next essential element of a cause of action for commercial disparagement, we have said that “[o]ne who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other if ... he intends for publication of the statement to result in harm to [the] interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so . . . .” Dulgarian v. Stone, 420 Mass. 843, 852 (1995), quoting Restatement (Second) of Torts § 623A. See 3 D.B. Dobbs, P.T. Hayden, & E.M. Bublick, The Law of Torts § 658, at 622 (2d ed. 2011). The Restatement (Second) of Torts, supra at § 623A comment b, at 336, explains that “[t]he publisher . . . should as a reasonable man recognize the likelihood that some third person will act in reliance upon his statement, or that it will *535otherwise cause harm to the pecuniary interests of the other because of the reliance.”

HipSaver contends that Kiel recognized, or should have recognized, that publication of the article was likely to result in pecuniary harm to HipSaver.17 It points to two instances when Kiel purportedly revealed his understanding of the article’s potential negative consequences for manufacturers of hip protectors, including HipSaver. First, the name of the particular device that was used in the clinical trial, a FallGard hip protector manufactured by Dr. Stanley L. Weiner, was removed from the article prior to its publication in July, 2007. On September 7, 2005, Wiener had sent an electronic mail message (e-mail) to Kiel in which he said that including the name of his product in the article “might lead us to be involved in costly litigation and loss of market share.” Second, on April 20, 2003, Goodwin sent an e-mail to Kiel in which he said, “From what I am hearing about Fall Guard in the nursing homes . . . your study will be just another nail in the coffin of the hip protector product category.” In response, Kiel sent an e-mail to Goodwin in which he stated, “FallGard is superior to your untested product. You are the biggest scam artist. The nail will not be in any coffin but your own.” In HipSaver’s view, these communications showed that Kiel recognized and understood that publication of the article likely would cause manufacturers of hip protectors, including HipSaver, pecuniary harm — third parties would rely on the information that was set forth in the article and, as a consequence, decide not to purchase hip protectors. We agree and conclude that, based on the import of these communications, HipSaver had a reasonable expectation of proving this essential element of its claim for commercial disparagement.

e. Special damages. Finally, we turn to the last essential element of a cause of action for commercial disparagement. Hip-Saver has the burden of proving that it sustained “special damages” in the form of pecuniary loss as a result of the publication of the challenged statements.

Until now, this court has not had the opportunity to consider *536the “special damages” element of a claim for commercial disparagement. See Vascular Solutions, Inc. v. Marine Polymer Techs., Inc., 590 F.3d 56, 62 (1st Cir. 2009) (pointing out that Massachusetts jurisprudence has not analyzed proof of special damages in commercial disparagement cases, but has followed Restatement with regard to other aspects of tort). It is generally acknowledged that special damages are an essential part of a cause of action for commercial disparagement, see W.L. Prosser & W.P. Keeton, Torts § 128, at 970-971 (5th ed. 1984), and “must always be proved” by the plaintiff. Restatement (Second) of Torts, supra at § 623A comment g, at 341. See Sharratt v. Housing Innovations, Inc., 365 Mass. 141, 148 (1974) (recovery in action alleging intentional falsehood pertaining to professional services is for “specific, actual and proven harm done to the plaintiff’s economic interests”); Dooling v. Budget Publ. Co., 144 Mass. 258, 259 (1887) (“Words relating merely to the quality of articles made, produced, furnished, or sold by a person, though false and malicious, are not actionable without special damage”); Swan v. Tappan, 5 Cush. 104, 109 (1849). See also Restatement (Second) of Torts, supra at § 651(l)(h) & comment b, at 372-373 (burden of proof on plaintiff to show pecuniary loss resulting from publication). A plaintiff’s recovery is limited to the “pecuniary loss that results directly and immediately from the effect of the conduct of third persons” acting in response to the alleged disparagement, and “the expense of measures reasonably necessary to counteract the publication.” Id. at § 633(l)(a), (b).

Typically, to establish special damages in a commercial disparagement action, a plaintiff must show, where feasible, a specific loss of sales to identifiable customers. See id. at § 633(2)(a) & comment c, at 355 (“pecuniary loss may be established by . . . proof of the conduct of specific persons . . . . The most usual manner in which a third person’s reliance upon disparaging matter causes pecuniary loss is by preventing a sale to a particular purchaser”); W.L. Prosser & W.P. Kee-ton, Torts, supra at § 128, at 972 (plaintiff ordinarily “must identify the particular purchasers who have refrained from dealing with him, and specify the transactions of which he claims to have been deprived”); 2 R.D. Sack, Defamation § 13:1.4[F], at *53713-20 to 13-23 (4th ed. 2012). See also Amerinet, Inc. v. Xerox Corp., 972 F.2d 1483, 1503 (8th Cir. 1992), cert, denied, 506 U.S. 1080 (1993) (plaintiff’s business disparagement claims do not survive summary judgment on special damages issue where “[t]he record contains no evidence of specific lost sales or of losses directly attributable to particular false statements by [the defendant]”); Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 75 F Supp. 2d 235, 239-241 (S.D.N.Y. 1999), aff’d, 314 F.3d 48 (2d Cir. 2002) (rejecting claim for commercial disparagement where plaintiff did not identify specific lost customers when possible to do so).18 The Restatement (Second) of Torts, supra at § 633 comment g, at 356, explains that “[w]hen the loss of a specific sale is relied on to establish pecuniary loss, it must be proved that the publication was a substantial factor influencing the specific, identified purchaser in his decision not to buy.” The plaintiff’s burden of proving specific lost sales “ensures that the actual pecuniary harm the tort is designed to remedy did, in fact, occur.” Vascular Solutions, Inc. v. Marine Polymer Techs., Inc., supra at 65 (Lipez, J., concurring in part and dissenting in part).

An exception to the requirement of specific lost sales has been recognized in circumstances where a false statement has been “widely disseminated,” and it would be impossible to identify particular customers who chose not to purchase a plaintiff’s goods or services. See Restatement (Second) of Torts, *538supra at § 633(2)(b) (“pecuniary loss may be established by . . . proof that the loss has resulted from the conduct of a number of persons whom it is impossible to identify”). A plaintiff’s burden of proof with regard to widely disseminated commercial disparagement may be satisfied “by circumstantial evidence showing that the loss [of the market] has in fact occurred, and eliminating other causes.” Id. at § 633 comment h, at 357.

As explained in the Restatement (Second) of Torts, supra, “[w]idely disseminated [commercial disparagement] may . . . cause serious and genuine pecuniary loss by affecting the conduct of a number of persons whom the plaintiff is unable to identify and so depriving him of a market that he would otherwise have found. When this can be shown with reasonable certainty, the rule requiring the identification of specific purchasers is relaxed and recovery is permitted for the loss of the market.” See Rite Aid Corp. v. Lake Shore Investors, 298 Md. 611, 625-626 (1984) (“Pecuniary loss may be established by proof of the conduct of specific persons, or proof that the loss has resulted from the conduct of a number of persons whom it is impossible to identify”). See also Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., supra at 240-241 (where alleged disparaging statements made to nine identifiable customers, no evidence of widespread dissemination necessary to satisfy narrow exception to law of special damages); Charles Atlas, Ltd. v. Time-Life Books, Inc., 570 F. Supp. 150, 155-156 (S.D.N.Y. 1983) (plaintiff need not identify specific lost customers where plaintiff sells product only through mail orders, rendering it virtually impossible to identify those who did not order product because of disparaging article). This exception “is most plainly applicable when disparaging remarks appear in a publication that is distributed to a general audience, leaving the plaintiff unable to identify specific customers who were lost or specific individuals who might have become customers, but did not, because of the negative information communicated by the defendant.” Vascular Solutions, Inc. v. Marine Polymer Techs., Inc., supra at 66 (Lipez, J., concurring in part and dissenting in part). See Charles Atlas, Ltd. v. Time-Life Books, Inc., supra.

“The widespread dissemination exception is rooted in *539principles of fairness, meant to accommodate plaintiffs who lack one-to-one contact with their own customers and are therefore unable to identify individual recipients of the defendant’s message.” Vascular Solutions, Inc. v. Marine Polymer Techs., Inc., supra at 68 (Lipez, J., concurring in part and dissenting in part). We now recognize the “widespread dissemination” exception to the general rule that a plaintiff in a commercial disparagement action must prove a specific loss of sales to identifiable customers before the plaintiff can recover for pecuniary loss. Our recognition of this exception does not alter or eliminate the plaintiff’s burden of establishing that the disparaging publication was the direct and immediate cause of the pecuniary loss. See Restatement (Second) of Torts, supra at §§ 633(l)(a), 651(l)(h).

HipSaver contends that, as the second largest manufacturer of hip protectors in the United States, it felt the full brunt of the words in the challenged statements that hip protectors “are not effective.” As a consequence, HipSaver suffered special damages because it lost sales and its annual revenues decreased as a result of the article’s widespread dissemination, over the Internet and in print, to a large number of individuals who are impossible to identify. Further, HipSaver asserts that it incurred the expense of implementing measures that were reasonably necessary to counteract publication of the article, such as commencing this litigation and paying for advertising to mitigate the perceived harm.

We begin by pointing out that HipSaver has not elicited any information from its customers to determine whether their purchasing decisions were influenced by the article, and Goodwin has been unable to identify any existing or potential customers of HipSaver who decided not to do business with the company as a result of the article’s publication. Therefore, because Hip-Saver has not shown a specific loss of sales to identifiable customers, we focus on the “widespread dissemination” exception to this requirement.

In light of the fact that the article appeared in the most widely circulated medical journal in the world, both in print and on the Internet, it cannot be disputed that there was widespread dissemination of the challenged statements. HipSaver claims that it *540has lost sales of over four million dollars since the publication of the article. This contention is predicated on the opinions of two experts, Dr. Robert A. Rosenthal, an economics professor, and Deborah M. Salvucci, a certified public accountant. In his answers to Kiel’s interrogatories, Goodwin, on behalf of Hip-Saver, described the expected testimony from these experts. Based on their analyses of facts appearing in Federal income tax returns and sales-related data from records maintained by HipSaver, the experts were expected to testify that, due to a decline in sales revenues, HipSaver lost profits of $578,830 for the period from 2007 to 2009, and would lose profits of $3,716,625 for the period from 2010 to 2014. According to Goodwin, “[t]o determine lost net profits, [the] experts calculated lost revenues by employing the ‘before and after’ method, which invokes a comparison of HipSaver[’s] performance” before and after publication of the article. Further, the experts identified five per cent and ten per cent as “reasonable estimates of projected rates of growth of revenues in the years succeeding 2006.” What is significant is that there is no opinion from these experts that such alleged lost profits are a direct and immediate result of the publication of the article, rather than any number of other factors that could have negatively affected the sales of HipSaver’s product. In fact, Goodwin testified that no expert ever advised HipSaver that, in the expert’s opinion, the publication of the article caused an adverse impact on HipSaver’s sales.

Goodwin acknowledged that HipSaver had not examined whether there was any material change in the size of its customer base from before the publication of the article until after its publication. Nonetheless, Goodwin performed his own analysis of monthly sales from 2003 until approximately July of 2009, and he observed a decline in company sales beginning sometime in 2007. In Goodwin’s view, it was “obvious” that this decline was attributable to the article because “[i]t’s a well-known fact that clinical studies are a major asset to the value and sales of a company and if it’s a negative clinical study that’s published then it impacts negatively on the company as well.” However, Goodwin presented no evidence to substantiate this “well-known fact.” Prior to the publication of the article, at least twelve other *541studies had been published on the efficacy of hip protectors, some of which had been positive and others of which had been negative, but Goodwin did not analyze their particular impact on HipSaver’s sales. Moreover, Goodwin did not know whether any of HipSaver’s competitors had experienced a material change in the size of its customer base as a consequence of the publication of the article, thereby suggesting a causal relationship between the publication of the article and the over-all sales of hip protectors. Goodwin was not aware of any studies on the impact of the article on HipSaver’s competitors.

Even assuming that Goodwin’s “well-known fact” is true, he has not eliminated other causes for HipSaver’s pecuniary loss. Several years prior to the publication of the article, in 2004 and 2005, HipSaver had sued its largest competitor, J.T. Posey Company (Posey), for false advertising in which Posey essentially had asserted that “HipSaver was no good and Posey was great.” Goodwin testified that although HipSaver lost customers as a result of Posey’s false advertising, the negative impact on its sales had ended by September, 2005, long before the publication of the article in July, 2007. At the same time, Goodwin acknowledged that, by the end of 2005, HipSaver had been “completely frozen out of every private sector nursing home and health care facility chain and every private distribution chain.” Further, by January of 2007, HipSaver had been “frozen out of all the major catalog distributors and resellers of hip protectors,” and still had “no ability to access the private health care distribution and facility chains.” Based on this evidence, HipSaver has not eliminated the impact of the false advertising by Posey as a cause of its lost sales after publication of the article.19

In sum, HipSaver had the burden of proving that, as a direct *542and immediate consequence of the widespread dissemination of the challenged statements, it suffered pecuniary loss that was not attributable to other causes. We conclude that HipSaver has not presented evidence to demonstrate that it had a reasonable expectation of satisfying this burden of proof. It has not established that its purported pecuniary loss necessarily resulted from the publication of the article.20

4. Conclusion. HipSaver has failed to demonstrate that it had a reasonable expectation of proving all the essential elements of a cause of action for commercial disparagement. Accordingly, the decision and order of the Superior Court judge granting summary judgment to Kiel is affirmed.

So ordered.

*710SELYA, Circuit Judge.

In this appeal, petitioner-appellant Microsoft Corporation (Microsoft) invites us to reverse the district court’s denial of its motion to compel production of research materials compiled by two academic investigators. Microsoft wants to use the subpoenaed materials in defending a civil antitrust case, United States v. Microsoft Corp., presently being tried in the United States District Court for the District of Columbia. Mindful that important First Amendment values are at stake, we decline Microsoft’s invitation.

I. THE ANTITRUST CASE

We draw our description of the antitrust litigation in large part from the court in which that litigation pends. See United States v. Microsoft Corp., 1998 WL 614485 (D.D.C.1998).

Microsoft is one of the most profitable companies in the computer industry. It first attained a significant foothold in the production of operating systems for the personal computer (PC) market when a leading computer manufacturer, International Business Machines Corporation, chose Microsoft’s “MS-DOS” operating system for its PCs in the early 1980s. An operating system is the “command center” of a PC. Microsoft, 1998 WL 614485 at *2. It facilitates the integrated use of hardware and software by controlling the interaction between a PC’s processor, its memory, and devices like keyboards and disk drives. In relatively short order, Microsoft’s operating systems achieved a preeminent market position. Microsoft continued to introduce new operating systems, including its phenomenally successful “Windows” systems, which allow a user to control a PC’s operations by manipulating images on the computer screen with a mouse, rather than by typing commands.

The dominance of Microsoft’s operating systems has been maintained, in part, because of the symbiotic relationship that exists between software and operating systems. Software programs utilize certain general functions of operating systems and are written to work with particular systems. Since more PCs depend on Windows than on any rival, software creators tend to write products for use on that system. In turn, most PC users want this operating system for their PCs, so that they can access the widest possible range of software programs. To keep this lucrative circle spinning, Microsoft licenses its operating system to PC manufacturers for pre-installation on new computers.

Microsoft’s achievements in the operating systems market have encouraged it to spread its corporate wings. It now produces an internet browser product known as “Internet Explorer.” Browsers are software programs that allow computer users to access, manipulate, and display portions of the world-wide web (the Web). The Web is a set of sites that employ graphics, text, and other media to provide information to viewers. Among other things, browsers can be used to translate these sites from the language of their creation into a format intelligible to a user’s particular PC. A browser can be purchased individually, acquired as an accessory to a newly purchased PC, or downloaded from internet access providers or other Web sites.

Microsoft’s success has not gone unremarked. On May 18,1998, the United States Department of Justice (DOJ) and several state attorneys general brought suit in the United States District Court for the District of Columbia, charging Microsoft with various antitrust violations. The complaint’s main allegations center around Microsoft’s accretion of market share for its Internet Explorer product. DOJ asserts that Microsoft, mindful that browsers potentially can be used as platforms on which to run software and thus replace, or at least compete with, operating systems, set out to increase its share of the browser market in a no-holds-barred campaign to safeguard its hegemony in the operating systems market.

In January 1997, Navigator, a competing browser produced by Netscape Communications Corporation (Netscape), boasted an 80% share of the browser market. Explorer enjoyed less than 20%. DOJ charges that Microsoft first essayed to increase its market share by colluding with Netscape. When Netscape rebuffed Microsoft’s overtures, DOJ alleges, Microsoft illegally “tied” Explorer to its Windows operating system-— *711refusing to grant computer manufacturers licenses to pre-install Windows for their customers unless the manufacturers agreed to pre-install Explorer and no other browser— and thereby increased its share of the browser market to approximately 50% by May of 1998. Microsoft denies the government’s accusations. It avers that it never tried to split the browser market between itself and its competitors or to use monopoly power in the operating systems market to capture a lion’s share of the browser market in an illegal fashion. Instead, it attributes its increased share of the browser market to Explorer’s superiority.

The district court placed the antitrust litigation on a fast track. Among other things, the court established a tightly compressed schedule for pretrial discovery; shortened the usual time within which parties and non-parties alike might respond to discovery requests; directed that witness lists (to include no more than twelve trial witnesses per side, absent special permission) be submitted no later than August 24, 1998 (just over three months after the government sued); and closed discovery as of October 9, 1998 (save for discovery already underway). After that date, new discovery could be initiated only with leave of court. A bench trial commenced on October 19, 1998. That trial is ongoing.

II. THE RULE 45 PROCEEDINGS

In the course of pretrial discovery in the antitrust case, Microsoft learned about a forthcoming book entitled Competing on Internet Time: Lessons from Netscape and the Battle with Microsoft (Lessons) and obtained a copy of the manuscript. As its title implies, Lessons deals extensively with the “browser war” waged between Microsoft and Netscape. Its authors (respondentsappellees here) are distinguished academicians: Michael A. Cusumano, a tenured full professor at Massachusetts Institute of Technology’s Sloan School of Management, and David B. Yoffie, a tenured full professor at Harvard Business School.

As part of their research for Lessons, the respondents interviewed over 40 current and former Netscape employees. Their interview protocol dealt with confidentiality on two levels. First, the respondents signed a nondisclosure agreement with Netscape, in which they agreed not to disclose proprietary information conveyed to them in the course of their investigation except upon court order, and then only after giving Netscape notice and an opportunity to oppose disclosure. Second, the- respondents requested and received permission from interview subjects to record their discussions, and, in return, promised that each interviewee would be shown any quotes attributed to him upon completion of the manuscript, so that he would have a chance to correct any errors or to object to quotations selected by the authors for publication.

On September 18, 1998, believing that certain statements from Netscape employees reported in Lessons offered succor for its defense, Microsoft subpoenaed the professors’ notes, tape recordings and transcripts of interviews, and correspondence with interview subjects. See Fed.R.Civ.P. 45. The respondents produced some correspondence, but declined to surrender the • notes, tapes, or transcripts. Microsoft moved to compel the production of these items on October 1,1998. Because the documents, if produced at all, would be produced in Cambridge, the subpoenas issued from the United States District Court for the District of Massachusetts and the motion to compel was docketed there as an independent proceeding. See id. (requiring a subpoena commanding only document production to “issue from the court for the district in which the production ... is to be made” and allowing enforcement “pursuant to an order of th[at] court”). On October 7, the respondents filed their oppositions.1

Following a hearing held the next day, the district court denied the motion to compel ore tenus.-. The court performed a case-specific balancing analysis, taking into account a myriad of factors. On one hand, it found that Microsoft’s -need for the information *712sought by the subpoenas, though real, was not great. Microsoft could have obtained that information directly from the sources revealed by the manuscript, and, in all events, its main thrust likely would be for purposes akin to impeachment. On the other hand, the court found that the respondents had a substantial interest in keeping the subpoenaed information confidential and that significant First Amendment values favored its protection. Balancing these and other elements, the court declined to compel production of the notes, tapes, and transcripts. Withal, the court retained jurisdiction in order to review individual items in camera for materiality on Microsoft’s later motion and proclaimed its readiness to order specific material produced upon a showing of particularized need. Microsoft now appeals.

III. APPELLATE JURISDICTION

Federal courts, as courts of limited jurisdiction, may not presume the existence of subject matter jurisdiction, but, rather, must appraise their own authority to hear and determine particular cases. See Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir.1998). We do so here.

The procedural posture of this case is unusual. Microsoft, a litigant in a court in another district, moved in the District of Massachusetts to compel the respondents (who are not parties to that litigation) to honor subpoenas duces tecum. When the respondents objected, the district court obliged them, but retained jurisdiction to hear particularized claims of need. Meanwhile, the primary action is ongoing — and any appeal therein will go, in the first instance, to the District of Columbia Circuit.

Our customary appellate jurisdiction extends to “final decisions of the district courts.” 28 U.S.C. § 1291. Still, a decision or order can be final in the sense needed to confer appellate jurisdiction even if the proceeding in which it is rendered is ancillary to some other proceeding. Thus, in Horizons Titanium Corp. v. Norton Co., 290 F.2d 421 (1st Cir.1961), a disappointed patent-seeker subpoenaed documents from a competitor for use in an action challenging the dismissal of its patent application. See id. at 421-22. The subpoenaed firm did not comply, and the patent-seeker moved to compel production in the United States District Court for the District of Massachusetts (although the principal dispute was pending elsewhere). See id. at 421. When the district court refused to order production of the documents, the patent-seeker appealed. In rejecting the subpoenaed firm’s assertion that the court of appeals lacked jurisdiction, we explained that “the order of the district court made a final disposition of the only proceedings in its district growing out of a particular controversy, and the only proceeding pending between these particular parties anywhere,” and, thus, was final and appealable. Id. at 424. So it is here.

Nor does the district court’s decision to retain jurisdiction detract from the immediate appealability of its order. It is settled law that a court’s retention of jurisdiction in order to facilitate the consideration of possible future relief does not undermine the finality of an otherwise appealable order. See FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 407 (1st Cir.1987); FTC v. Texaco, Inc., 555 F.2d 862, 873 n. 21 (D.C.Cir.1977); see generally 15B Charles Alan Wright, et al., Federal Practice and Procedure § 3915.3 (2d ed.1992) (explaining that an order’s vulnerability to possible change through subsequent proceedings does not automatically deprive it of finality). Consequently, we have jurisdiction to hear and determine this appeal.

IV. THE MERITS

Microsoft argues that the district court underestimated its need for the subpoenaed information because that information would be useful not only for impeachment purposes, but also as independent evidence of Netscape’s business miscalculations. See Fed. R.Evid. 807; see also United States v. American Tel. & Tel. Co., 516 F.Supp. 1237, 1239-42 (D.D.C.1981) (admitting into evidence in an antitrust prosecution documents authored by agents of defendants’ non-party competitors under the residual hearsay exception). Moreover, it had no other feasible way to obtain the information since the accelerated schedule in the antitrust case effectively *713thwarted direct discovery.2 Turning to the other side of the balance, Microsoft claims that the district court erred in affording substantial protection to the subpoenaed materials because those materials were not confidential and emanated from disclosed sources. In this regard, Microsoft tells us that the only protectable data obtained by the respondents is proprietary information covered by the nondisclosure agreement — an agreement signed with Netscape, not with the individual interviewees.3 Microsoft further asserts that the interviews were not confidential because the authors presented the manuscript, including quotes from interviews, to Netscape executives and outside reviewers prior to showing it to the persons quoted.

The respondents dispute virtually all of Microsoft’s assertions. They maintain that Microsoft does not really need the information at all and that it can secure the same data through other, less intrusive avenues. Furthermore, the respondents asseverate that they are sufficiently like journalists for the protection afforded to journalists’ materials to be applied here; that the information which they procured is confidential because of their interview protocol; and that forcing them to disclose the contents of the notes, tapes, and transcripts would endanger the values of academic freedom safeguarded by the First Amendment and jeopardize the future information-gathering activities of academic researchers.

A. Standard of Review.

To resolve these issues, we focus first on the applicable standard of review. Discovery orders ordinarily are reviewed for abuse of discretion. See Dykes v. DePuy, Inc., 140 F.3d 31, 36-37 (1st Cir.1998); Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 186-87 (1st Cir.1989). Microsoft seeks to bend this rule and obtain plenary review. It proffers two reasons.

Microsoft’s first ground is barren. It points out that the district court did not take testimony, but, rather, decided the case solely on a paper record, assisted by arguments of counsel. Thus, Microsoft contends, there is no occasion to defer since this court is equally well-equipped to evaluate the corpus of evidence upon which the district court based its decision. This line of argument is neither original nor persuasive. It has been tried before, and regularly rejected. See, e.g., United States Liab. Ins. Co. v. Selman, 70 F.3d 684, 688 (1st Cir.1995); In re Tully, 818 F.2d 106, 108-10 (1st Cir.1987). We, too, dismiss it.

Microsoft’s second ground holds out more promise as a theoretical matter. It asserts that the lower court applied an incorrect legal standard — and ample authority supports the proposition that, whatever the procedural context, pure questions of law warrant de novo review. See, e.g., McCarthy v. Azure, 22 F.3d 351, 354 (1st Cir.1994); In re Extradition of Howard, 996 F.2d 1320, 1327 (1st Cir.1993). Here, however, Microsoft’s argument fails because, as we explain below, the district court’s test, which balanced the need for disclosure against the desirability of confidentiality, is correct as a matter of law. Refined to bare essence, Microsoft’s quarrel with the district court’s determination concerns the manner in which the court struck the required balance, rather than its selection of a legal rule. Since abuse of discretion is the precise rubric under which an appellate court should review a district court’s application of a legal rule to the facts it has found, our review proceeds accordingly.

*714B. The Analytic Approach.

The discovery rules apply to subpoenas issued under Fed.R.Civ.P. 45. See 9A Wright et al., supra, § 2452. Thus, we start with Fed.R.Civ.P. 26(b)(2), which admonishes generally that:

the ... extent of the use of the discovery methods otherwise permitted under these rules ... shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.

This admonition forms the backdrop against which a court must consider whether to enforce a subpoena duces tecum issued as an instrument of discovery in a civil case.

From that point forward, our study of the merits of this appeal must proceed in steps. Initially, we must determine whether the respondents’ academic research is protected in a manner similar to the work product of journalists. This inquiry entails two aspects: (1) whether the respondents’ positions warrant conferral of any special consideration, and (2) whether their research comprises confidential information. If these hurdles are cleared, we next must determine the type and kind of protection that the law affords. Finally, we must assess the district court’s application of the law to the facts, and the appropriateness of its order.

C. The Availability of Protection.

1. Who Is Protected? Microsoft acknowledges that the law supplies a measure of protection for materials compiled by journalists. See Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 595-98 (1st Cir.1980). The respondents, however, are academic researchers and commentators, not professional newsmen. We do not think that this makes a dispositive difference in whether special protection vests. Academicians engaged in pre-publication research should be accorded protection commensurate to that which the law provides for journalists.

Courts afford journalists a measure of protection from discovery initiatives in order not to undermine their ability to gather and disseminate information. See United States v. LaRouche Campaign, 841 F.2d 1176, 1181 (1st Cir.1988). Journalists are the personification of a free press, and to withhold such protection would invite a “chilling effect on speech,” id., and thus destabilize the First Amendment. The same concerns suggest that courts ought to offer similar protection to academicians engaged in scholarly research. After all, scholars too are information gatherers and disseminators. If their research materials were freely subject to subpoena, their sources likely would refuse to confide in them. As with reporters, a drying-up of sources would sharply curtail the information available to academic researchers and thus would restrict their output. Just as a journalist, stripped of sources, would write fewer, less incisive articles, an academician, stripped of sources, would be able to provide fewer, less cogent analyses. Such similarities of concern and function militate in favor of a similar level of protection for journalists and academic researchers.

Given this mise-en-scene, it is unsurprising that several of our sister circuits have held that the medium an individual uses to provide his investigative reporting to the public does not make a dispositive difference in the degree of protection accorded to his work. See In re Madden, 151 F.3d 125, 128-31 (3d Cir.1998); Shoen v. Shoen, 5 F.3d 1289, 1293-94 (9th Cir.1993); von Bulow v. von Bulow, 811 F.2d 136, 142-44 (2d Cir.1987). Whether the creator of the materials is a member of the media or of the academy, the courts will make a measure of protection available to him as long as he intended “at the inception of the newsgathering process” to use the fruits of his research “to disseminate information to the public.” von Bulow, 811 F.2d at 144.

*715This case fits neatly into the architecture of these precedents. The sole purpose of the respondents’ interviews of Netscape personnel was to gather data so that they could compile, analyze, and report their findings anent management practices in the internet technology industry. Thus, the respondents are within a group whose prepublication research merits a modicum of protection.

2. What Is Protected? This aspect of the question raises vexing theoretical issues. Leaving confidential sources to one side, the prototypical situation in which a court provides protection from disclosure for a journalist’s or researcher’s materials involves confidential information. See, e.g, United States v. Cuthbertson, 630 F.2d 139, 146-48 (3d Cir.1980). When the information cannot fairly be characterized as confidential, the courts are divided as to whether any protection is warranted. Compare Shoen, 5 F.3d at 1295-96 (holding that materials should be afforded protection even if the information contained therein is not confidential) mth Gonzales v. National Broad. Co., 155 F.3d 618, 626 (2d Cir.1998) (disavowing protection for' non-confidential information). Although we have not ruled definitively on this issue, we have noted, in a situation involving only nonconfidential information, “a lurking and subtle threat to journalists and their employers if disclosure of outtakes, notes, and other unused information, even if nonconfidential, becomes routine and casually, if not cavalierly, compelled.” LaRouche, 841 F.2d at 1182.

We perceive no need to resolve this unanswered question today. The district court found that the information sought by Microsoft was confidential in character, and the record sufficiently supports this finding. To be sure, confidentiality comes in varying shapes and sizes. The confidentiality agreed upon by the authors and the interviewees in this instance does not ensure the most perfect privacy. The respondents did not offer the interviewees the sort of detailed nondisclosure agreement that they signed with Netscape. Moreover, they conducted the interviews in the presence of a Netscape official, gave Netscape’s management a preview of planned quotations prior to showing those statements to the persons who made them, and circulated their manuscript (or portions of it) for pre-publication peer review.

Still, determinations of where particular disclosures fall along the continuum of confidentiality, and related determinations anent the degree of protection that attaches to them, must take into account the totality of the circumstances. When the respondents began their inquiry into Netscape’s management practices early in 1997, neither they nor their interview subjects knew (or had any reason to believe) that Microsoft later would be sued for antitrust violations based upon its peregrinations in the browser market. In that environment, handing individual interview subjects complex legal agreements might have made them squeamish (and thus less candid). Instead, the respondents gave each interviewee a personal, albeit verbal, assurance that he would be accorded the opportunity to correct, comment upon, and/or disclaim attributed quotations prior to publication.4 At the very least, this assurance is a species of confidentiality. Microsoft’s demand for the full tapes (including outtakes) and transcripts of interviews with all Netscape employees — materials which have not to date been shown to anyone — obviates this assurance. While the level of confidentiality that characterizes a journalist’s or researcher’s confidential information may, in the end, affect the degree of protection conferred upon that information in a discovery dispute, we agree with the district court that the interviews here fall along the continuum of confidentiality at a point sufficient to justify significant protection.

D. The Degree of Protection.

We turn now to the degree of protection that attaches to the respondents’ materials. We begin with Bruno & Stillman, an opinion *716that had its genesis in a libel suit brought by a commercial boatbuilder against the Boston Globe after one Coughlin, a Globe reporter, wrote an unflattering article. See Bruno & Stillman, 633 F.2d at 584-85. During discovery, the defendants refused to turn over portions of Coughlin’s notes, which named confidential sources and outlined information that the sources had supplied. See id. at 585. The district court compelled disclosure of the information, based on a finding that the information was critical to Bruno & Still-man’s non-frivolous claim and was unavailable from other sources. See id. at 586. On appeal, without deciding the “semantic[ ]” question of whether the protection afforded to a journalist’s sources and research is a type of privilege, id. at 595, Judge Coffin explained the necessity for attention to First Amendment concerns in such situations, see id. at 595-96. The opinion instructed district courts that when

faced with enforcing requests for the discovery of materials used in the preparation of journalistic reports [they] should be aware of the possibility that the unlimited or unthinking allowance of such requests will impinge upon First Amendment rights. In determining what, if any, limits should accordingly be placed upon the granting of such requests, courts must balance the potential harm to the free flow of information that might result against the asserted need for the requested information.

Id. Eight years later, the court reiterated this instruction. See LaRouche, 841 F.2d at 1181.

We, too, decline to spend our energies on semantics. It suffices to say that, when a subpoena seeks divulgement of confidential information compiled by a journalist or academic researcher in anticipation of publication, courts must apply a balancing test. This test contemplates consideration of a myriad of factors, often uniquely drawn out of the factual circumstances of the particular case. Each party comes to this test holding a burden. See Bruno & Stillman, 633 F.2d at 597. Initially, the movant must make a prima facie showing that his claim of need and relevance is not frivolous. See id. Upon such a showing, the burden shifts to the objector to demonstrate the basis for withholding the information. See id. The court then must place those factors that relate to the movant’s need for the information on one pan of the scales and those that reflect the objector’s interest in confidentiality and the potential injury to the free flow of information that disclosure portends on the opposite pan. See id. at 597-98.

E. Calibrating the Scales.

We now examine the district court’s handiwork in light of this legal framework. Microsoft’s need admittedly is substantial in the sense that relevant information likely exists — indeed, the district court specifically found that Microsoft had not embarked on a fishing expedition — and Microsoft has a legitimate use for it.5 The company, after all, is in the throes of defending a complex case of extraordinary importance to its future, and its primary defense is that Netscape suffered a series of self-inflicted wounds that dissipated its dominant position in the browser market. Lessons includes several quotations that suggest missteps by Netscape management during the browser war, and it is reasonable to assume that the notes, tapes, and transcripts include more evidence of this genre. Hence, Microsoft has made a prima facie showing of need and relevance.

The district court discounted this showing somewhat because it found that the same information was otherwise available to Microsoft by direct discovery. We view this finding of fact deferentially, see Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16, 19-20 (1st Cir.1996), and decline to disturb it. Despite the accelerated trial schedule in the antitrust case, Microsoft had the Lessons manuscript while discovery was still open, and the quotations in the book are *717attributed to named individuals. Microsoft— which deployed no fewer than eight lawyers in the preparation of its brief in this appeal— had enough time, enough knowledge, and enough resources to depose those individuals (or some subset of them), or otherwise obtain discovery from them. This factor must figure in the balance. See Haworth, Inc. v. Herman Miller, Inc., 998 F.2d 975, 978 (Fed.Cir.1993).

The opposite pan of the scale is brim-full. Scholars studying management practices depend upon the voluntary revelations of industry insiders to develop the factual infrastructure upon which theoretical conclusions and practical predictions may rest. These insiders often lack enthusiasm for divulging their management styles and business strategies to academics, who may in turn reveal that information to the public. Yet, pathbreaking work in management science requires gathering data from those companies and individuals operating in the most highly competitive fields of industry, and it is in these cutting-edge areas that the respondents concentrate their efforts. Their time-tested interview protocol, including the execution of a nondisclosure agreement with the corporate entity being studied and the furnishing of personal assurances of confidentiality to the persons being interviewed, gives chary corporate executives a sense of security that greatly facilitates the achievement of agreements to cooperate. Thus, in the Bruno & Stillman taxonomy, the interviews are “carefully bargained-for” communications which deserve significant protection. Bruno & Stillman, 633 F.2d at 597.

Considering these facts, it seems reasonable to conclude — as the respondents’ affidavits assert — that allowing Microsoft to obtain the notes, tapes, and transcripts it covets would hamstring not only the respondents’ future research efforts but also those of other similarly situated scholars. This loss of theoretical insight into the business world is of concern in and of itself. Even more important, compelling the disclosure of such research materials would infrigidate the free flow of information to the public, thus denigrating a fundamental First Amendment value.

It is also noteworthy that the respondents are strangers to the antitrust litigation; insofar as the record reflects, they have no dog in that fight. Although discovery is by definition invasive, parties to a law suit must accept its travails as a natural concomitant of modern civil litigation. Non-parties have a different set of expectations. Accordingly, concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs. See Haworth, 998 F.2d at 978; Dart Indus. Co. v. Westwood Chem. Co., 649 F.2d 646, 649 (9th Cir.1980); Addamax Corp. v. Open Software Found., Inc., 148 F.R.D. 462, 468 (D.Mass.1993).

We need go no further. The district court used the proper test, balanced the right array of factors, and acted well within its discretion in determining that the scales tipped in favor of preserving confidentiality and against the wholesale disclosure of investigative materials gleaned in the course of pre-publication academic research. Our confidence in the appropriateness of this ruling is fortified by the fact that the district court took pains to protect Microsoft’s legitimate interests. After denying the motion to compel, the court announced that it would retain jurisdiction so that, should a material conflict develop between quotations from the book and other evidence, it could review the notes, tapes, and transcripts in camera for purposes of verification and, if necessary, order production. This even-handed ruling treats all parties fairly. We discern no error.

Affirmed.