(dissenting):
I dissent from my brothers’ opinion dismissing the appeal of American Ex*285press Company (Amexco) from Judge Ryan’s order granting the defendant insurers discovery of documents prepared by nonlawyer investigators under the supervision of Amexco’s attorneys despite Amexco’s claim that the documents are protected by the work-product doctrine enunciated in Hickman v. Taylor, 329 U.S. 495, 508-514, 67 S.Ct. 385, 91 L.Ed. 451 (1947), and refusing to consider Amexco’s alternative petition for a writ of mandamus. I would consider Amexco’s petition for a writ of mandamus on its merits.
Judge Ryan’s denial of Amexco’s work-product claim on its merits rested upon the ground that only “professional attorney’s work,” as distinguished from investigation, is entitled to work-product protection.1 This holding, in my opinion, squarely presents a question of law, which I have serious doubt that Judge Ryan decided correctly, and on which district judges in this circuit have divided.
Some district judges in this circuit have held, as Judge Ryan did, that the work-product doctrine protects only the work normally performed by an attorney as distinct from that usually done by an investigator. See Burke v. United States, 32 F.R.D. 213 (E.D.N.Y.1963) (Bartels, D. J.); Brown v. New York, N. H. & H. R. R., 17 F.R.D. 324 (S.D.N.Y.1955) (Dawson, D. J.); Szymanski v. New York, N. H. & H. R. R., 14 F.R.D. 82 (S.D.N.Y.1952) (Sugarman, D. J.); Bifferato v. States Marine Corp., 11 F.R.D. 44 (S.D.N.Y.1951) (Weinfeld, D. J.). Other judges have held that the doctrine extends to investigation performed by nonlawyers under the direction of attorneys. See Synder v. United States, 20 F.R.D. 7 (E.D.N.Y. 1956) (Bruchhausen, D. J.); Slifka Fabrics v. Providence Washington Ins. Co., 19 F.R.D. 374 (S.D.N.Y.1956) (Levet, D. J.). The conflict of decisions in the district courts of this circuit is paralleled by a similar conflict among courts of appeals, compare, e. g., Alltmont v. United States, 177 F.2d 971 (3 Cir. 1949), cert. denied, 339 U.S. 967, 70 S.Ct. 999, 94 L.Ed. 1375 (1950), holding that statements obtained by nonlawyers for the use of attorneys are work-product, with, e. g., United States v. McKay, 372 F.2d 174 (5 Cir. 1967), and among commentators. Compare, e. g., Wright, Discovery, 35 F.R.D. 39, 50-51 (1964), with, e. g., Developments in the Law — Discovery, 74 Harv.L.Rev. 940, 1031 (1961).
Whether the work-product doctrine protects investigations performed by non-lawyers under the supervision of attorneys is an' issue of great importance to the members of the trial bar of this circuit. In recent years, there has been a wealth of complex litigation in which attorneys have had to make use of much nonlegal assistance. The issue presented by this appeal is also one on which district judges in this circuit have long disagreed, and one in which the harm done by an order erroneously granting discovery cannot usually be meaningfully remedied upon appeal from a final judgment. It is understandable that this issue has not reached the Court of Appeals, as the only meaningful way for a party to obtain review of a discovery order, other than by seeking a prerogative writ or certification under 28 U.S.C. § 1292(b),2 is to disobey the order and risk a contempt citation or the *286dismissal of his action or defense. We ought not to leave the bar of this circuit without some sure guide as to their duties and rights in the preparation of complex litigation.
For all these reasons, mandamus would be a proper remedy should this court conclude that Judge Ryan applied an erroneous standard. Atlass v. Miner, 265 F.2d 312 (7 Cir. 1959), aff’d, 363 U.S. 641, 80 S.Ct. 1300, 4 L.Ed.2d 1462 (1960); see 4 Moore, Federal Practice par. 26.37[4] (2 ed. 1966). I would accordingly rehear the merits of this appeal in banc, and invite the bar associations to file briefs amicus, as we did in Spanos v. Skouras Theatres Corp., 364 F.2d 161, 168 (2 Cir.), cert. denied, 385 J.S. 987, 87 S.Ct. 597, 17 L.Ed.2d 448 (1966). Taking this course to review the important question of law presented by this appeal would not, of course, commit us to entertain writs of mandamus to review ordinary questions regarding the propriety of discovery orders.
. Insofar as Judge Ryan’s decision rested upon the alternative ground that Amexco waived the right to invoke the work-product doctrine by its stipulation with the insurers regarding discovery procedures, it seems to me clearly erroneous. Throughout the proceedings, Amexco carefully saved its rights under the work-product doctrine, and even the insurers do not argue to the contrary.
. Before a district judge may certify a “controlling question of law” for interlocutory appeal under 28 U.S.C. § 1292 (b), he must find that “an immediate appeal * * * may materially advance the ultimate termination of the litigation.” An order granting or denying discovery could rarely, if ever, satisfy this requirement. See, e. g., Atlantic City Elec. Co. v. General Elec. Co., 337 F.2d 844 (2 Cir. 1964).