FRIENDLY, Circuit Judge.
This is an appeal, allegedly pursuant to 28 U.S.C. § 1292(a) (1), from an order of Judge Metzner in an action brought in the District Court for the Southern District of New York, on the basis of diverse citizenship, by International Products Corporation against Koons, its former president, and others. Koons has counter-claimed and also has instituted a suit for libel against International and its directors. The order concerns a deposition of Jose Seldes, now president of International, taken at defendants' instance, in which questions were asked as to payments by officers of International to officials of a South American government, and related matters; for convenience we quote the ordering portions in the margin.
The proceedings leading to the order began with an order to show cause signed by Judge Croake on May 24, 1963, itself
We think it better, in line with our prior decisions, to continue to read § 1292(a) (1) as relating to injunctions which give or aid in giving some or all of the substantive relief sought by a complaint (including stays of proceedings "at law," as in Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440 (1935) and Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942)) and not as including restraints or directions in orders concerning the conduct of the parties or their counsel, unrelated to the substantive issues in the action, while awaiting trial.
It does not follow, however, that an order purportedly made under F.R.Civ.Proc. 30(b) which exceeds the power there given to a district court is altogether beyond appellate scrutiny. The normal remedy for action taken in excess of jurisdiction is mandamus. See Rabekoff v. Lazere & Co., 325 F.2d 865, 867 fn. 1 (2 Cir. 1963). In contrast with at least one other circuit, this court has generally declined to consider an appeal from a nonappealable order as a petition for mandamus. See the authorities cited in United States v. O'Connor, 291 F.2d 520, 523-524 (2 Cir. 1961), in which we did so consider an unauthorized appeal in a case where the judge had died. As indicated in the O'Connor opinion, the only justification for what has been thought to be a rather formalistic attitude on our part, see 6 Moore, Federal Practice (1953 ed.), p. 93, is a desire to afford an opportunity for response by the judge, in addition to that made by the party favored by his order. Since this opportunity is rarely availed of, a suitable accommodation can be reached by treating such an appeal, in an appropriate case, as a motion for leave to file a petition for mandamus.
The portion of the order which seals the deposition of Seldes and limits defendants and others in their use of information obtained therefrom was plainly authorized by F.R.Civ.Proc. 30(b), and we entertain no doubt as to the constitutionality of a rule allowing a federal court to forbid the publicizing, in advance of trial, of information obtained by one party from another by use of the court's processes. Whether or not the Rule itself authorizes so much of the order as also seals all affidavits submitted by defendants on various motions, we have no question as to the court's jurisdiction to do this under the inherent
What causes concern here is that the order went further and curtailed disclosure of information and writings which defendants and their counsel possessed before they sought to take Seldes' deposition. We fail to see how the use of such documents or information in arguing motions can justify an order preventing defendants and their counsel from exercising their First Amendment rights to disclose such documents and information free of governmental restraint. Indeed, so far as concerns any claim based on the private interests of International or of Seldes, that question was settled against appellee by our decision in the Parker case, supra, 320 F.2d at 939, a few weeks after the order here under attack was entered. The issue that remains is whether any different conclusion is called for in this case because of the Suggestion of Interest of the United States.
Appellants claim in the first instance that the suggestion was unauthorized since the United States has no financial interest in the litigation. But the statute, 5 U.S.C. § 316, is not limited by its terms to cases of financial interest; it authorizes the Attorney General to send any officer of the Department of Justice "to attend to the interests of the United States in any suit pending in any of the courts of the United States, or in the courts of any State * * *." Long before the present statute, which derives from the Act of June 22, 1870, c. 150, § 5, 16 Stat. 162, the Attorney General had submitted suggestions as to the immunity of the property of foreign sovereigns, The Schooner Exchange v. M'Faddon, 7 Cranch 116, 147, 11 U.S. 116, 147, 3 L. Ed. 287 (1812), as he has frequently done thereafter. Yet "the interests of the United States" in such cases are simply its interests in friendly intercourse with other nations and in avoiding reprisals by them — the same interests asserted here.
Whatever the case may be as to suggestions of sovereign immunity, see American Law Institute, Restatement of Foreign Relations Law (Proposed Official Draft), § 75 (1962), it is plain that the suggestion here did not bind the court and certainly did not relieve it of the necessity of considering whether the action proposed to be taken would violate the First Amendment. We know of no authority that a court may restrain a private citizen in peace time from giving vent to his views, or publicizing his own information, as to the conduct of officials of foreign governments — any more than it may exert prior restraint on his publication of views concerning officials of our own. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1934). The facts here are far, indeed, from the "exceptional cases" of valid prior restraints recognized in Near — "No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of
We therefore suggest that the District Court modify its order so as to make it plain that no restrictions are imposed on the freedom of the persons named therein to make whatever use they wish of writings (other than papers filed in court) or information which have come into their possession otherwise than through the court's processes; if this is not done, as we are confident that it will be, appellants may apply for a writ. Since the briefs and appendices of the parties contain some matter the publicizing of which was properly restricted the Clerk is directed to obtain and impound all copies of the same. Appellants may recover their costs as on appeal.
"ORDERED, that after the deposition of Jose Seldes, held on January 14, 1963, May 23, 1963, and any continuance thereof, and the exhibits marked in connection therewith, is sealed, said deposition shall only be opened by order of this Court; and it is further
"ORDERED, that the affidavit of Gustave B. Garfield, Esq., dated April 3, 1963, and the exhibit thereto, submitted in testimony, and now on file in this Court, be impounded by this Court and be subject to the same restrictions applicable to the said deposition of Jose Seldes; and it is further
"ORDERED, that all papers on this motion, including the Order to Show Cause, signed by the Honorable Thomas F. Croake, United States District Judge, and dated May 24, 1963, be impounded by this Court and be subject to the same restrictions applicable to the said deposition of Jose Seldes."
Garfield's affidavit of April 3, 1963, referred to in the penultimate paragraph, was made in support of a motion to compel Seldes to answer certain questions.
"The Department of State understands that certain payments, allegedly improper, may have been made by parties or deponents in this litigation to officials of a friendly South American Government. Disclosures and publication to the public at large of the facts alleged in the course of the pretrial proceedings could, in the opinion of the Department of State, lead the Government of the aforesaid friendly country to react in a manner inimical to private American business interests in that country and contrary to the foreign policy objective of the United States.
"Accordingly, this Department requests that you support the attempt to preclude disclosure of the information described above, and that you bring to the attention of the Court the undesirability of premature public disclosure of these allegations.
"This request is subject, of course, to the recognized right of interested parties to apply in the future for orders releasing such information as the interests of justice may require."