The majority opinion ends with “Reversed and remanded” but remanded for what ? This case should not be a theoretical vehicle for an abstract discussion of certain fundamentals pertaining to the nature of a summary judgment motion. A proper decision here, in my opinion, calls for an examination of the actual proceedings conducted in the trial court in the light of reality — not the theoretical.
Of initial importance is the fact that all the judges of the Eastern District of New York are on an individual calendar basis — a system more and more being adopted throughout the country because of its proven success in the expedition of the disposition of the courts’ heavy caseload. Thus from its inception until its ultimate termination, this ease was, is and will be the responsibility of Judge Weinstein. It is he who must exercise his discretion as the trial judge as to whether the ease can be regarded as a class action and, if so, what the classes should be. It is he who must decide the nature and scope of the issues, the extent of the testimony which may bear on those issues, the extent of discovery to elicit the facts, the relevance of proffered testimony, the admission or rejection of cumulative testimony and all matters which relate to the development of the facts which he regards as essential to his decision.
This suit was commenced on November 11, 1966. In August 1967, the defendants asked the Court to declare that “this action is not to be maintained as a class action under Rule 23 of the Federal Rules of Civil Procedure.” Plaintiffs countered with a motion claiming that a decision on a motion as to a class action would be premature “prior to initiation of discovery proceedings” and, in the alternative, for a declaration that the suit should be regarded as a class action. On its own initiative the Court invited the Securities and Exchange Commission to submit a brief as amicus on the class action issue. In a lengthy decision, 43 F.R.D. 472 (E.D.N.Y. January 3, 1968), Judge Weinstein postponed the determination of this question pending a preliminary hearing — a procedure to which both parties agreed.
Prior to this time, plaintiffs had availed themselves of discovery procedures including some twelve sets of interrogatories and had obtained from defendants over 7,600 pages of documents. In addition, they had taken the depositions of *831the President and a Vice-President of Monsanto (some 1,500 pages). All these proceedings were under the supervision of Judge Weinstein who passed upon plaintiffs’ applications.
Despite this exhaustive inquiry by plaintiffs into the facts, Judge Weinstein gave them a further opportunity directly to examine Monsanto’s officers at an evi-dentiary hearing. The officers included the President, a Vice-President, the President and Vice-President of a subsidiary division, and the representative of the Estate of a deceased officer. The Court also gave to plaintiffs the privilege of calling additional witnesses.
Evidentiary hearings were held on December 18, 19 and 20, 1968. All material previously submitted was made part of the record and eight witnesses were subjected to direct and cross-examination. The record before us consists of 10 volumes. After almost two years of intensive fact exploration and development, Judge Weinstein suggested motions by both parties for summary judgment. Lengthy oral arguments were had. The Court then ruled:
“I am satisfied that all the relevant facts have been developed. Any further discovery or hearings would be cumulative. There is no suggestion that any relevant avenue of inquiry has not been sufficiently explored to indicate whether any relevant evidence might be devloped from further exploration.
“It is clear that despite the imagination and forceful advocacy of the Plaintiffs’ attorney, there is no evidence to support their charges. Construing every scrap of evidence that was revealed or that might be revealed in a way most favorable to Plaintiffs indicates no evidence to support their charges. All that the Plaintiffs have shown — and this at most is that in hindsight their business judgments might have been different than those of Defendants.
“Defendants demonstrated that no reasonable juror or Court could possibly find anything but that they have not violated any of the rights alleged in the complaints supplemented by the affidavits of the Plaintiffs.”
On March 24, 1969, plaintiffs moved for a rehearing. Plaintiffs’ supporting affidavit was merely an argument based on facts already adduced urging the Court to adopt plaintiffs’ conclusions. The Court denied the motion, saying: “The issues raised in the moving papers were considered by the Court.”
On April 7, 1969, the Court signed an order granting defendants’ motion that “the action shall not be maintained as a class action” and on the same day granted summary judgment in favor of defendants “on the grounds that there is no genuine issue as to any material fact and that the defendants are entitled to judgment as a matter of law.” Rule 56 was thus satisfied.
Despite the fact that under the individual assignment practice in the Eastern District, Judge Weinstein was, is and will be the trial judge, the majority, in effect, substitute themselves as trial judges and would relegate his position to that of a puppet with no discretion to decide whether evidence was cumulative, whether further discovery was appropriate, whether certain evidence was material and whether the plaintiffs’ suit should be maintained as a class action. The law is quite to the contrary and a host of decisions support the trial judge’s discretion in each category. The trial judge should have discretion to decide whether further evidence would be merely cumulative. Even broader is his discretion to control the limits of discovery. How else could a plaintiff’s insatiable curiosity or desire to harass be kept within reason or checked ? Of particular importance is the role of the trial judge in deciding whether or not to try the case as a class action. The trial and the formulation of appropriate issues are his responsibility.
The majority write that plaintiffs’ “discovery was not unrestricted.” But surely an appellate court should not issue a pronouncement, despite the law to the contrary, that restrictions placed up*832on discovery constitute reversible error as a matter of law. Particularly should this be true here, where a year or more of intensive discovery was followed by three days of hearing with examination and cross-examination of key witnesses and no restriction placed by the Court as to other witnesses whom plaintiffs might have desired to offer.
In my opinion the majority misconceive the purpose of Rule 56 and Judge Weinstein’s procedure thereunder. The Rule places within the power of the court to decide whether any material issues of fact remain to be resolved by a trial. Virtually all (in fact all would not be an unfair characterization) the cases of summary judgment involve situations — even as those specifically mentioned in Rule 56 — put before the courts on pleadings, affidavits and depositions. Of course, where issues of fact remain unresolved, summary judgment has been held to be inappropriate. In complete contrast is this case. Here Judge Weinstein, to satisfy himself that no factual issue was undeveloped, allowed not only the broadest discovery but, in effect, conducted a trial to give plaintiffs an opportunity to present all facts bearing upon the material issues. Only then did he issue his judgment.
The majority are faced with this dilemma. They recognize that “plaintiffs had a wide latitude in developing facts, building a record of some ten volumes.” But then anomalously they say that “determination of issues which apparently existed cannot properly be reviewed without detailed findings and conclusions by the court.” However, it was these so-called issues which Judge Weinstein gave plaintiffs every opportunity to develop. On the merits they failed. Therefore, on the proceedings before him as the Judge in charge of the case, he found that no open issues of fact remained — hence, he was entitled to give judgment, analogous to a directed verdict. If, on the other hand, the trial was merely to supplement the Rule 56 material, then he was entitled to rely upon Rule 52(a) which reads in part: “Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 and 56 * * If then, as the majority state, Judge Weinstein’s determination of the issues “cannot properly be reviewed without detailed findings and conclusions by the court,” they should at least give him the opportunity to submit them.
Finally, what should be done ? I would affirm. My belief, however, has not prevailed. What should Judge Weinstein do ? Surely he should not be asked to repeat the ten volumes already constituting the record. Nor should he be asked to acquiesce abjectedly in plaintiffs’ further demands for discovery no matter how cumulative or quixotic. Plaintiffs’ motion for a rehearing established that it brought forward no new matters not already passed upon.
At a time when the courts should be looking at “substance” rather than at “form,” how can the majority reconcile their opinion that “a lengthy technical trial” should be held when to the extent of ten volumes it already has been held and plaintiffs have been unable to produce more than their disagreement with the Court’s well-grounded conclusions. Although I accept Judge Weinstein’s conclusion that “there is no genuine issue as to any material fact” (meaning, of course, that the facts upon which he based his legal conclusions were not in issue) — and hence I would affirm, since there is to be a remand, in my opinion "it should be qualified and limited to the introduction of such further proof as in the judgment of the trial court may be tendered by the parties upon, and rel'evant to, the issues as framed and for the submission of findings of fact and conclusions of law thereon. In all likelihood the course of any future proceedings will follow these lines in any event.
As for the class action phase under Rule 23, the Court at any stage has the right to decide whether the suit be an appropriate class action. After hearing hundreds of pages of argument and testimony, the Court has so decided. This decision is within his discretion and should be affirmed.