(concurring).
I have serious doubts that in this case the good faith refusal of the Secretary of Labor, on the ground of privilege, to produce the confidential statements taken by his investigators from four of eleven employees of the defendants, justified the dismissal of the action under Rule 37 (b) (2) (iii), even though the identity of the employees had been disclosed and the Secretary was the plaintiff in the action. In the circumstances of this case the statements which the Secretary was ordered to produce, reasonably can be regarded as unimportant to the defense (Cf. Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 83 L.Ed. 151), and the public interest in requiring nondisclosure would seem to outweigh the defendants’ interest in compelling disclosure. See and compare the opinion of Judge Nordbye in United States v. Deere & Co., D.C.Minn., 9 F.R.D. 523, 525-526, and Walling v. Comet Carriers, Inc., D.C.S.D.N.Y., 3 F.R.D. 442.
However, I must concede that language used by the Supreme Court in Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639, justifies the action taken by the District Court, which to my mind was neither necessary nor just. I shall not dissent from the af-firmance of the order appealed from.