(dissenting) .
From my own reading of the record, I concluded that the Trial Judge made it abundantly clear that he was about to consider the whole of the lawsuit, including the merits of the case. The defendants evidently so understood his direction. They brought in all of their witnesses, who, incidentally, were thus available for examination by plaintiffs as adverse witnesses, if necessary. There was neither offer of proof nor any motion based on what plaintiffs hoped to gain from discovery. I would affirm the decision of the District Judge.