FRIENDLY, Circuit Judge:
Commodity Futures Trading Commission (CFTC or the Commission) and Howard Bodenhamer, Assistant Regional Administrator for Market Surveillance and Analysis in its Eastern Regional Office in New York City, appeal from and, in the alternative, petition for mandamus to vacate an order of the District Court for the Southern District of New York, which directed Bodenhamer to answer certain questions propounded on deposition despite the Commission's claim of governmental privilege.
The class action in which this controversy arose is one of a number of actions now pending in the same court arising out of a default on the May 1976 Maine Potato futures contract that was traded on the New York Mercantile Exchange (the Exchange). Members of plaintiff class had held long positions which they liquidated at prices allegedly depressed by the large short interest that had accumulated. Their complaint, which has been amended and consolidated with three other actions, named as defendants a number of traders, their brokers and also the Exchange. Count VI of the First Amended Consolidated Class Action Complaint, to which the Exchange was the sole defendant, alleged that CFTC had personnel on the floor of the Exchange; that through them and by mail-o-grams CFTC had advised the Exchange of the large short position in the May contract and, in the mail-o-grams, that the short sellers were "required by law to avoid causing artificial prices"; that officers of the Exchange assured CFTC that the short positions would be covered and that, contrary to the Commodity Act, CFTC rules, and its own by-laws and rules, the Exchange had failed to report and concealed violations of the Commodity Act, CFTC rules, and its own by-laws and rules by short sellers and exchange members, had failed to direct that liquidating orders be entered on or before the conclusion of trading with respect to accounts of members which the Exchange knew or should have known would default if not liquidated, but failed and neglected to perform its duties as a contract market with respect to the contract, and failed and neglected to exercise due care to halt manipulative practices with respect to the contract.
The Exchange sought to depose Mr. Bodenhamer, Dr. Mark Powers, the Commission's Chief Economist during the period in question and now a vice-president of a securities firm which is a defendant in this action, and Thomas Russo, then Director of the Division of Trading and Markets and now in private law practice. Subpoenas had been served on Mr. Bodenhamer and Dr. Powers on behalf of three other defendants; Mr. Russo agreed to testify voluntarily. The obvious purpose of the Exchange in seeking to take these depositions was to
After some months the Exchange moved before the special master to compel responses to these questions. CFTC lodged a formal claim of governmental privilege. The special master declined to make a general ruling but stated he would deal with CFTC's objection on a question-by-question basis. In the course of doing this he distinguished between questions asking for opinions and views that Mr. Bodenhamer communicated to other staff members, which the witness would not be required to answer, and questions asking only the witness' own opinion and views, which he was required to answer. Commission counsel instructed Mr. Bodenhamer not to answer questions of the latter sort pending consideration by the district judge. At the conclusion of this deposition, 27 questions — some of them repetitive — remained unanswered.
The Exchange then moved the district judge for an order confirming the rulings of the special master and "directing present and former officials of the Commodity Futures Trading Commission (`CFTC') who were responsible for monitoring trading in the May 1976 Maine Potato Futures Contract (the `May contract') to respond to deposition questions as to their respective contemporaneous views, opinions, observations, analyses and conclusions with respect to trading in the May Contract . . . ." While the motion was pending, the Commission considered the specific questions that its counsel had instructed Mr. Bodenhamer not to answer, and determined that governmental privilege should be invoked.
The non-appealability of the ruling directing Mr. Bodenhamer to answer would appear, at first blush, to have been largely settled, so far as this court is concerned, by Kaufman v. Edelstein, 539 F.2d 811, 813-14 (2 Cir. 1976).
The reasons for the Alexander rule are well stated in 9 Moore, supra, at 153-56, and need not be repeated here. See also 15 Wright, Miller & Cooper, Federal Practice and Procedure § 3914 at 567-68, 576-77 (1976). Subsequent to the Kaufman decision the Supreme Court has again quoted with approval from Mr. Justice Frankfurter's opinion in Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), which, on the basis of Alexander, held that an order denying a motion to quash a subpoena duces tecum to appear before a grand jury was not appealable. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 n. 8, 98 S.Ct. 2454, 2457 n. 8, 57 L.Ed. 351, 357 n. 8 (1978); see also Abney v. United States, 431 U.S. 651, 658, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).
As against this the Commission, in addition to citing United States v. Nixon, supra, 418 U.S. at 690-92, 94 S.Ct. 3090, with which we dealt in Kaufman v. Edelstein, supra, urges that we follow the Fifth Circuit in dispensing with the contempt requirement where the government, whether state or federal, asserts governmental or "executive" privilege in cases where it is not a party. See Cates v. LTV Aerospace Corp., 480 F.2d 620, 622 (5 Cir. 1973); Carr v. Monroe Manufacturing Co., 431 F.2d 384, 387 (5 Cir. 1970), cert. denied sub nom. Aldridge v. Carr, 400 U.S. 1000, 91 S.Ct. 456, 27 L.Ed.2d 451 (1971); Overby v. United States Fidelity and Guaranty Co., 224 F.2d 158, 162 (5 Cir. 1955). We see no basis for constructing such an exception to Alexander broad enough to include this case even if we had power to do so.
Perlman was an unusual case. The papers and models there at issue were exhibits alleged to belong to Perlman which a company partly owned by him had submitted in a patent infringement suit brought by it; as a condition to allowing the company to dismiss without prejudice, the district court directed that the exhibits should be impounded and deposited with the clerk of the court, to be opened only by order of the court on notice to each of the parties to the infringement suit. Later, on motion of the United States Attorney on notice to the attorneys for the two corporations but not to Perlman, the court had issued an order directing the clerk to produce the exhibits before a grand jury, which was investigating a charge that Perlman had perjured himself in the patent trial, see Perlman Rim Corp. v. Firestone Tire & Rubber Co., 244 F. 304 (S.D.N.Y.1917); that the United States Attorney should have access to the exhibits at all reasonable times; and that if an indictment should be found, the United States Attorney should have such temporary custody of the exhibits as might be proper. Perlman then moved, in what in effect was a proceeding independent of the discontinued patent suit, although entitled therein in the district court, see 247 U.S. at 12, 38 S.Ct. 417, 244 F. at 304, for an order restraining the United States Attorney from using the exhibits or presenting them to the grand jury. When Perlman appealed the denial of the requested relief to the Supreme Court in what by then had become styled as the independent proceeding that it should have been, the United States moved to dismiss on two grounds, namely, 247 U.S. at 12, 38 S.Ct. at 419:
In overruling the motion the Court said that as to the first ground neither the Government nor Perlman had any interest in the equity suit but that both did in the controversy giving rise to Perlman's motion. With respect to the second ground, the one relevant here, the Court, speaking through Mr. Justice McKenna, observed as follows, 247 U.S. at 12-13, 38 S.Ct. at 419:
It is hardly surprising that so Delphic a deliverance should give rise to differing interpretations. The original understanding of Perlman, both by the Supreme Court, Cogen v. United States, 278 U.S. 221, 225, 49 S.Ct. 118, 73 L.Ed. 275 (1929); Go-Bart Importing Co. v. United States, 282 U.S. 344, 356, 51 S.Ct. 153, 75 L.Ed. 374 (1931), see also Carroll v. United States, 354 U.S. 394, 403 & n. 14, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957), and by this court, United States v. Poller, 43 F.2d 911 (1930); In re Cudahy Packing Co., 104 F.2d 658 (2 Cir. 1939), had stressed the "independence" of Perlman's motion from the criminal proceedings. Some tests with regard to independence were stated in Cogen, supra, 278 U.S. at 225, 49 S.Ct. at 120:
This broad reading of Perlman was first narrowed by Cobbledick v. United States, supra, 309 U.S. at 323, 60 S.Ct. 540, holding, contrary to this court's In re Cudahy Packing decision, supra, that the denial of motions to quash grand jury subpoenas duces tecum were not appealable and that the witness must first allow himself to be placed in contempt. Perlman, however, was approved on the basis that the contempt avenue for ultimately securing review was not available since Perlman was not being required to do anything, 309 U.S. at 328-29, 60 S.Ct. 540; Burdeau was distinguished, less convincingly, on the ground that since there the district court had granted relief and it was the Government that appealed, it was the action of the district court and not the appeal that halted the orderly progress of the grand jury, 309 U.S. at 329 n. 6, 60 S.Ct. 540. When this court continued to hold that orders granting or denying pre-indictment motions to suppress under F.R.Cr.P. 41(e) were appealable, the Supreme Court, although conceding the existence in its own decisions, to wit, Cogen, Cobbledick, and Carroll, of "explanatory dicta that lend support to the rule developed in the Second Circuit", decided that our decisions and presumably its own dicta had been wrong in upholding appealability "[w]hen at the time of ruling there is outstanding a complaint, or a detention or release on bail following arrest, or an arraignment, information, or indictment . . ." DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). "Only if the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant can the proceedings be regarded as independent." Id. at 131-32, 82 S.Ct. at 66. Such broad language would seem to have spelled the doom of Perlman, and also of Burdeau insofar as that decision can be regarded as having held anything about appealability, although they were not even cited.
However, predictions of Perlman's demise would have been as exaggerated as those of Mark Twain's. Although United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971), refused to recognize an exception to Cobbledick in a case where compliance with a grand jury subpoena would cause a substantial burden, the Court approved Perlman on much the same basis propounded in Cobbledick, namely, that Perlman, unlike Ryan, did not have a means of challenging the subpoena by being put in contempt. Id. at 533, 91 S.Ct. 1580. The statement in United States v. Nixon, supra, 418 U.S. at 691, 94 S.Ct. at 3099, on which CFTC relies, elaborated on the Cobbledick-Ryan rationalization of Perlman as resting on the basis that "it was unlikely that the third party would risk a contempt citation in order to allow immediate review of the appellant's claim of privilege." In fact it was not only "unlikely" but unimaginable. The only third party who could have helped Perlman was the clerk of the District Court for the Southern District of New York and we do not exactly see that clerk defying an order of then District Judge Learned Hand in order to assist the target of a grand jury perjury investigation.
We find no parallel to this in regard to Mr. Bodenhamer — a responsible CFTC employee who has dutifully followed the instructions of Commission counsel not to answer the questions at issue and has joined in the appeal.
This brings us to CFTC's petition for such relief. Its strongest ground is a claim that the district judge did not in fact exercise his discretion and that we should require him to do so. If the premise were sound, the conclusion would follow, Interstate Commerce Comm'n v. Humboldt S. S. Co., 224 U.S. 474, 484-85, 32 S.Ct. 556, 56 L.Ed. 849 (1912); Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). The district judge's endorsement is indeed cryptic and we cannot agree with so much of it as seems to assume that the Commission would be fully protected by objection to the use of answers at trial. However, the judge did confirm the ruling of the special master and adhered to this after a motion for reconsideration by CFTC and Mr. Bodenhamer which forcefully urged the points they have made here, and we must assume that he acted only after considering the Commission's objections. Cf. Jayson v. United States, 294 F.2d 808, 810 (5 Cir. 1961). Under the circumstances the issuance of mandamus to require the district judge to reconsider the matter would only produce further delay.
In holding in Kaufman v. Edelstein, supra, 539 F.2d at 816-22, that neither "supervisory" nor "advisory" mandamus were there available, we took as our guide the "touchstones" stated in American Express Warehousing, Ltd. v. Transamerica Ins. Co., 380 F.2d 277, 282-83 (2 Cir. 1967), also a discovery case, on the basis of Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). These were "usurpation of power, clear abuse of discretion, and the presence of an issue of first impression." We need not here consider whether the plurality opinion in Will v. Calvert Fire Ins. Co., 437 U.S. 655, 98 S.Ct. 2552, 2559-60, 57 L.Ed.2d 504 (1978), requires an even narrower standard, since this case does not measure up to those stated in American Express. Clearly there was no "usurpation of power." Neither was there "an issue of first impression." The parties agree that the governmental privilege asserted here does exist but that even if Mr. Bodenhamer's conclusions and observations are within it, the Government's need for confidentiality must be balanced against the litigant's need for evidence to assist in the defense or prosecution of the case. See Kaiser Aluminum & Chemical Corp. v. United States, 157 F.Supp. 939, 141 Ct.Cl. 38 (1958); Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C.1966), aff'd mem. sub nom. V. E. B. Carl Zeiss, Jena v. Clark, 128 U.S.App.D.C. 10, 384 F.2d 979, cert. denied, 389 U.S. 952, 88 S.Ct. 334, 19 L.Ed.2d 361 (1967). The question is simply one of applying these acknowledged principles. Finally we discern no "clear abuse of discretion." The special master sustained the claim of governmental privilege with respect to intra-agency communications, and the Government did not assert one with respect to "facts within" Mr. Bodenhamer's "knowledge." The debated area was the intermediate one of the witness' views and opinions, something which in the context of this case differed from "facts within his knowledge" only by a hair's breadth. Whether the special master's rulings were right or wrong, no significant national interest will suffer from disclosure of Mr. Bodenhamer's views, particularly in light of the disclosures already made by Chairman Bagley to the Senate Subcommittee, see note 2 supra, in the contingency that Mr. Bodenhamer should refuse to submit to a contempt citation and elect to comply with the directions of the special master and the district judge. In sum, this is not one of those "really extraordinary causes" for which mandamus is reserved. Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947).
The Commission might be able to make a better case for appealability if, when Dr. Powers is called, the Exchange should seek to press the questions to which the Commission objects and Dr. Powers should indicate unwillingness to follow the instructions of Commission counsel, but see note 9 infra. We need not anticipate this; when a similar problem arose during the testimony of Mr. Russo, he refused to answer and the Exchange did not pursue the matter before the district court.