(dissenting):
For generations the confidential nature of communications, written and/or oral, between attorney and client has been respected and preserved by the courts. A client is supposedly able to make a statement, confessing or implying guilt, to his attorney with the assurance of its sacrosanct character — even as to a priest in a confessional. When an agent of the government calls the attorney to the stand and asks, “Did not your client tell you he was guilty?”, I would'predict that an objection would be sustained. And it would matter not whether the government, attempted to establish guilt by an áttorney-client statement or by a series of letters of a confidential nature between client and attorney. The confidentiality violated in either situation is the same.1
*300The present appeal is not one from a decision of a court that has made a determination that appellant’s letters and documents do not contain privileged matter. Of course separate appeals from separate decisions regarding privilege in each document should not be countenanced. But this is not such a situation. Rather, the facts presented indicate a peremptory command by a district court to a litigant to turn over attorney-client papers which apparently (for all that appears from the record) the court has not even undertaken to examine or pass upon as regards confidentiality.
The majority hold that “we have no jurisdiction to review the discovery order below either by appeal or by mandamus.” They thus wash their hands of this deprivation of the age-old privilege by placing the blame on Congress. Congress, they say, passed the Expediting Act. The Act states that an appeal will lie only to the Supreme Court, and only from a final judgment. The pre-trial order appealed from is not a final judgment. Ergo, since we are not the Supreme Court and since this is an interlocutory proceeding, no appeal — either to this Court or to the Supreme Court. Perfect logic — so perfect, in fact, that it misses the point completely. The majority, in effect, hold that Congress, in enacting the Expediting Act, gave uncontrolled power to a district court to take equally uncontrolled action which, even if it should violate the constitutionally and/or precedentially protected rights of a party, cannot be reviewed by any court in the land.2 Quite obviously, Congress could have intended no such thing.
As I read the brief legislative history accompanying passage of the Expediting Act, the statute was designed “to expedite litigation of great and general importance,” and not to extinguish, without any right of appeal, rights as fundamental as the attorney-client privilege. In introducing the bill on the Senate Floor, Senator Fairbanks stated:
The far-reaching importance of the cases arising under antitrust laws now upon the statute books or hereafter to be enacted, and the general public interest therein, are such that every reasonable means should be provided for speeding litigation. It is the purpose of the bill to expedite litigation of great and general importance. It has no other object. (Emphasis added.) 3
Surely, Congress did not intend, for the sake of expedition, that this Court should regard itself powerless to intervene in the procedural injustice presented by this appeal, in a matter completely unrelated to the antitrust merits of the case, and one which touches not only the rights of a private party, but also this Court’s supervisory power over the administration of justice in this Circuit. I cannot believe that such a result was intended when Congress decided to expedite antitrust litigation in 1903.
If such a result is possible under the Expediting Act, however, I would add my voice to those of the esteemed chorus that has urged Congressional re-appraisal of this statute in light of its insidious operation. In United States v. Singer Mfg. Co., 374 U.S. 174, 175, n. 1, 83 S.Ct. 1773, 1774, 10 L.Ed.2d 823 (1963), *301Mr. Justice Clark, writing for the Court, said:
Whatever may have been the wisdom of the Expediting Act in providing direct appeals in antitrust cases at the time of its enactment in 1903, time has proven it unsatisfactory, [citation omitted] Direct appeals not only place a great burden on the [Supreme] Court but also deprive us of the valuable assistance of the Courts of Appeals.
Writing in dissent, Mr. Justice Harlan voiced a similar opinion of the Expediting Act:
[I]t is gratifying to observe the Court’s recognition of the fact that the requirement of direct review in cases like this has become an anachronism in light of the modern work load of this Court. * * * [S]ee also the separate opinion of this writer in Brown Shoe Co. v. United States, 370 U.S. 294, 357, 364-365 [82 S.Ct. 1502, 1542, 1546, 1547, 8 L.Ed.2d 510]. The final outcome of this case might indeed have been different had this Court had “the valuable assistance of the Courts of Appeals” * * *. 374 U.S. at 202, 83 S.Ct. at 1788.
In the Brown Shoe case, supra, Justice Harlan, in a sepai'ate opinion had said:
[U]nder modern conditions it may well be doubted whether direct review of such cases by this Court truly serves the purpose of expedition which underlay the original passage of the Expediting Act. I venture to predict that a critical reappraisal of the problem would lead to the conclusion that “expedition” and also, overall, more satisfactory appellate review would be achieved in these cases were primary appellate jurisdiction returned to the Courts of Appeals * * * 370 U.S. at 364-365, 82 S.Ct. 15024
Notwithstanding the strictures of the Expediting Act, however, and the mounting criticism directed at its usefulness, I continue to adhere to the rationale of the panel opinion in this case, see IBM v. United States, 471 F.2d 507 (2d Cir. 1972), and to “the hypothesis that a blanket order as broad and sweeping as the order before us ought to receive appellate review before IBM is irrevocably deprived of its right to claim the attorney-client privilege,” id. at 512. In short, I would hold that jurisdiction is conferred upon this Court by operation of both 28 U.S.C. § 1291 and 28 U. S.C. § 1651. See discussion in 471 F.2d at 512-517.
Taken literally, the majority’s “no jurisdiction” pronouncement means that, from the moment a complaint is served in a government civil antitrust action, no party defendant, no subpoenaed witness, no stranger to the proceeding called upon to produce privileged papers, or no attorney sought to be questioned as to confidential advice which he gave his client, could enter any courthouse in the country to prevent the invasion of his most personal constitutional rights or a violation of rights well established by law.
As noted in the panel opinion, a single example should suffice to illustrate the reductio ad absurdum of the majority position: The custodian of the 1,200 allegedly privileged papers in the instant case disregards (with or without advice of counsel) the court order to produce. A contempt order of commitment then ensues. The jail door closes. The Supreme Court has said that it will review only the final judgment so that it can pass upon important questions of antitrust law. But the order of incarceration has nothing to do with antitrust law. It is entirely ancillary or collateral to the “mainstream” of the antitrust litigation. The victim has no particular *302interest in the refinements of that field of the law. All that he desires is some court to which he can appeal the unlawfulness of his confinement. I seriously doubt that the Supreme Court would interpret its recent decision in Tidewater Oil Co. v. United States, 409 U.S. 151, 93 S.Ct. 408 (1972), as requiring the contemnor to languish in jail for five or more years with the dubiously cheerful knowledge that due process of law eventually would be accorded him when the antitrust appeal has finally been decided.
Since the majority has based their decision solely upon the ground of lack of jurisdiction to right any wrong in this particular type of suit, no purpose will be served by reiterating the facts as discussed in the panel opinion, see 471 F.2d at 508-511, facts which in my opinion clearly establish non-waiver of the attorney-client privilege. And it is clear that non-waiver and irreparable injury must be assumed in approaching the problem. See 471 F.2d at 509.
The majority regard this proceeding as an interlocutory appeal in a government civil antitrust case. Except for the circumstance that the order was made in an antitrust case, however, it has nothing whatsoever to do with antitrust law, nor does it relate in any way to the antitrust issues raised in the main action. In the language of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), the case giving rise to an exception to the general rule that interlocutory orders are not appealable, the pretrial order here appealed from is quite “separable from and collateral to” rights asserted in the main action. Further analogy to Cohen is found in the facts presented because once the appellant (IBM) has been forced to disclose the privileged documents, “it will be too late effectively to review the * * * order and the rights conferred * * * will have been lost, probably irreparably.” 337 U.S. at 546, 69 S.Ct. at 1225.
The courts have consistently recognized as a matter of law that “appeal after disclosure of the privileged communication is an inadequate remedy * * Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 492 (7th Cir. 1970), aff’d mem. by equally divided Court, 400 U.S. 348, 91 S.Ct. 479, 27 L.Ed.2d 433, reh. denied, 401 U.S. 950, 91 S.Ct. 917, 28 L.Ed.2d 234 (1971). And as noted in Covey Oil Co. v. Continental Oil Co., 340 F.2d 993, 997 (10th Cir.), cert. denied, 380 U.S. 964, 85 S.Ct. 1110, 14 L.Ed.2d 155 (1965), “[t]he practical effect of the order [requiring disclosure of trade secrets] will be irreparable by any subsequent appeal.” This only states the obvious and it would be folly to reason that appellant’s right would ultimately be protected by some appeal (possibly five years hence) from some “final judgment”.
In view of my belief that this proceeding is quite divorced from the situation which Congress had in mind in enacting the Expediting Act, I cannot believe that the Supreme Court would say that an individual or a corporation can be deprived of fundamental rights without judicial review by some appropriate court. Recourse cannot be had to the Supreme Court because this is not a “final judgment” under the Expediting Act. But a court of appeals would be an appropriate way station for less than final judgment review, as noted supra, by Justices Harlan and Clark.
Exhaustive review of the many decisions cited and analyzed in Tidewater Oil Co., supra,, and of the pertinent procedural statute does not lead me to the conclusion reached by the majority, namely, that the courts are powerless to exercise their power to rectify miscarriages of justice. If the courts were ingenious enough to afford relief in Cohen, supra, they should be equally ingenious twenty-four years later, during a period in which courts have shown extraordinary precocity in accepting jurisdiction and in fashioning relief to meet the particular situations presented to them. In my opinion, this is such a situation and I regret that the majority has chosen to bar the door to a litigant’s *303meritorious plea for relief. For this reason, I continue in my firm belief that the two paths on which I was joined toy my Brother Timbers in the panel opinion, see 471 F.2d at 512-517, both lead to the very necessary finding that this Court has jurisdiction to hear this appeal and petition for mandamus.
Accordingly, I would (1) entertain jurisdiction, (2) vacate Pretrial Order No. 5 and (3) -provide for a judicial determination of the privileged nature of the documents in question, with delivery thereafter to the government of such documents as may be determined not to be privileged.
. See Radiant Burners, Inc. v. American Gas Ass’n, 320 F.2d 314, 322-23 (7th Cir.), cert. denied, 375 U.S. 929, 84 S.Ct. 330, 11 L.Ed.2d 262 (1963). See generally, Comment, Corporations and the Attorney-Client Privilege, 12 B.C.Ind. & Com.L.Rev. 1200 (1971), and Weinschel, Corporate Employee Interviews and the Attorney-Client Privilege, 12 B.C.Ind. & Com.L.Rev. 873 (1971).
. The Expediting Act, 15 U.S.C. § 29, provides that:
In every civil action brought in any district court of the United States under any of said [antitrust] Acts, wherein the United States is complainant, an appeal from the final judgment of the district court will lie only to the Supreme Court.
The Act not only precludes an appeal to a court of appeals but also, since appeal lies only from the final judgment of the district court, it precludes any interlocutory appeal to either a court of appeals or the Supreme Court. See United States v. California Coop. Canneries, 279 U.S. 553, 558, 49 S.Ct. 423, 73 L.Ed. 838 (1929).
. 36 Cong.Kec. 1679 (1903) (remarks of Senator Fairbanks).
. See also, Comment, Direct Appeals in Antitrust Cases, 81 Harv.L.Rev. 1558 (1968) ; Comment, The Antitrust Expediting Act — A Critical Reappraisal, 63 Mich.L.Rev. 1240 (1965) ; Gessell, A Much Needed Reform — Repeal the Expediting Act for Antitrust Cases, 1961 N.Y. State Bar Ass’n Antitrust L.Sym. 98 (CCH).