(dissenting) :
IBM has been ordered to pay to the United States a continuing fine in excess of $1,000,000 per week for alleged contempt.
Its alleged contempt is for having respectfully declined to produce for the government’s inspection some 1200 documents which concededly are attorney-client communications. IBM’s claim of privilege was rejected out of hand by the district court — without an opinion, without findings of fact, without any examination whatsoever of the documents in question. IBM’s claim of privilege with respect to those documents has never been judicially reviewed, despite its repeated assurances of willingness to comply with an appellate determination of its claim of privilege. Indeed, the contempt adjudication below was sought by IBM itself for the express purpose of obtaining precisely that judicial review of its claim of privilege which the government on at least four occasions had advised the Supreme Court and our Court was the only way that IBM in good faith could obtain such review before the end of the case.1
*121The narrow question presently before us is whether the district court’s contempt adjudication was civil or criminal. All agree that if it was criminal, the contempt adjudication is appealable to our Court now, since it is a final judgment in a proceeding separate from the antitrust action. The majority, by adopting its own reading of United States v. UMW, 330 U.S. 258 (1947), would ignore the Supreme Court’s requirement that a district court in imposing a civil, coercive fine “must . consider the character and magnitude of the harm threatened by continued contumacy . . . .” 330 U.S. at 304. In the instant case, the district court’s contempt order was not based upon any such consideration whatsoever. The majority so concedes. But the majority also blinks at the district court’s omission of this indispensable requirement for a civil contempt adjudication on the ground, among others, as the majority puts it, that the Supreme Court’s “so-called requirement — that a court consider the harm of continued contempt— first appeared in United States v. UMW, and there it was propounded without explanation or citation.” Supra, p. 116. I think this is an exceedingly slender reed upon which to deny appellate review of a contempt order which imposes a continuing fine of a million dollars per week.
In light of the undisputed underlying facts which led to the district court order which is the basis for the contempt adjudication below, I would hold the contempt order to be criminal in nature and as such reviewable now by our Court. Since IBM has never waived its attorney-client privilege with respect to the documents in question, I would vacate the production order and remand the case to the district court with instructions to rule on the yet-to-be-ruled-on claim of privilege.
UNDISPUTED UNDERLYING PACTS
The underlying facts and prior proceedings that led to the district court’s production order which in turn is the basis for the district court’s contempt adjudication are uncontroverted. While the majority omits any reference to these underlying facts, in my view they are central to an understanding of the critical issue now before us.2
On January 17, 1969, the United States commenced a civil action in the Southern District of New York, alleging that IBM had violated Section 2 of the Sherman Act. 15 U.S.C. § 2 (1970). A number of private antitrust actions also were instituted against IBM. These private actions were transferred pursuant to 28 U.S.C. § 1407 (1970) to the District of Minnesota, were consolidated and were assigned to Judge Neville.
In the course of pretrial proceedings in one of the cases assigned to him, Control Data Corp. v. IBM (D.Minn.Civ. Action No. 3-68-312), Judge Neville on October 19, 1970 ordered that IBM accelerate its production of documents to Control Data. The magnitude of the IBM-Control Data document inspection program may be gleaned from the facts that IBM itself copied or microfilmed some 80 million Control Data documents and Control Data sent a staff of 61 persons to various IBM offices to inspect and copy IBM documents.
The accelerated schedule ordered by Judge Neville caused inevitable problems. IBM discovered, despite its careful pre-examination, of documents for privilege, that certain privileged docu*122ments inadvertently were falling into Control Data’s hands, including certain letters from IBM’s counsel, Cravath, Swaine & Moore, to IBM officers and personnel. To make the screening process more effective, IBM placed a lawyer in its document storage room where Control Data was microfilming. His assignment was to make a final inspection of the documents selected by Control Data for copying and to withdraw any document believed to be privileged before Control Data copied it. Control Data in turn complained that this “interceptor” seriously impeded its inspection schedule. It asked the court to remove him. In the interest of expedition, Judge Neville on November 2, 1970 did remove the interceptor. He did so, however, on the express condition that he “would thereafter brook no argument that the privilege had been waived [by IBM] merely because the document had been seen by CDC and perhaps copied.” 3
Subsequent to Judge Neville’s order of November 2, 1970 expressly protecting IBM’s right to assert its claim of privilege, the government in the Southern District action decided to abandon its own independent discovery program and to accept the documents IBM had furnished to Control Data in the Minnesota action. The government and IBM agreed that:
“IBM would first edit from the CDC microfilm [already delivered to CDC] documents for which privilege was claimed, and then supply the Government with a list showing the author, addressee, nature of privilege, date, file source and copyee for every document removed from the microfilm.4
Pursuant to this agreement, IBM supplied the government with a list of documents it had excised from the microfilm previously furnished to Control Data.
The government thereupon sought to repudiate the agreement on the ground that IBM was acting in bad faith in excising from the microfilm previously furnished to Control Data an unreasonable quantity of material before turning the microfilm over to the government. On April 7, 1972, the government made a motion in the Southern District action for an order requiring IBM to produce all material excised and withheld by IBM. The government argued that IBM’s production of the documents to Control Data in the Minnesota action constituted a waiver of all claims of privilege with respect to those documents ; and further that, since they were now “in the public domain”, the documents should be made available to the government in the Southern District action. In response, IBM contended that it did not waive its privilege by delivering the documents in the Minnesota action and furthermore that Judge Ne-ville’s order should be controlling.
After a hearing and oral arguments on May 12, 1972 and September 26, 1972 — but without any findings of fact, without any written opinion and without any examination of the documents in question — Chief Judge Edelstein on September 26, 1972 in the Southern District *123action entered Pretrial Order No. 5 (hereinafter “the production order”). This production order, which has provided the basis for all subsequent proceedings, directed that:
“IBM immediately deliver to plaintiff, in the form provided to Control Data Corporation, a copy of each document withheld and excised by it from the said microfilm, all such documents purportedly being identified and described by Charles M. Waygood, attorney for defendant, in a letter addressed to plaintiff’s counsel, dated April 4, 1972, a copy of said letter being attached to and made a part of this order.”
It is for violation of this production order that IBM has been held in contempt.
Despite repeated efforts, IBM has not been able to obtain judicial review of this production order.5 The closest it has come to obtaining such review was by the original panel of this Court in IBM v. United States, supra note 2, 471 F.2d at 517, which held that IBM had not waived its attorney-client privilege and directed that a new discovery order be entered providing for a judicial determination of the claim of privilege with respect to the documents withheld.6
Hence, in the present posture of this case, the underlying issues of whether the 1200 documents in question are privileged and whether IBM has knowingly and voluntarily waived its privilege as to them have not been judicially determined. There has been no determination whether the district court abused *124its discretion in compelling production of privileged documents which were expressly protected by the discovery order of Judge Neville. See IBM v. United States, supra, note 2, 471 F.2d at 513. Moreover, not even the majority denies that the practical effect of the production order of September 26, 1972 is to deprive IBM of the right to assert its attorney-client privilege or voluntarily to. waive it. Bluntly, IBM is being coerced into either sacrificing its attorney-client privilege — a privilege it has zealously guarded — or being held in contempt and required to pay a fine which has no relation either to the character of its alleged contumacious conduct or to the damage allegedly caused by its refusal to turn over the documents.
It is difficult to conceive of a more glaring instance of a wrong for which the law should provide a remedy — unless that first lesson that some of us learned under the New Haven elms is to be totally discarded.
CRIMINAL CONTEMPT ADJUDICATION BELOW
In my view, the contempt adjudication below was criminal in nature and as such is reviewable now by this Court.
True, the district court, in what strikes me as a transparent attempt to avoid appellate review, has larded its contempt order with all the civil contempt boilerplate — including a coercive recital and a purge provision. Styling the order as civil does not make it such.
Viewed realistically, the clear purpose and effect of the order is criminal in nature. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911). See generally Dobbs, Contempt of Court: A Survey, 56 Cornell L.Rev. 183, 235-45 (1971). The purpose of the order is punitive — to vindicate the authority of the court. By completely excluding the issue of damages in straining to frame a civil remedy, the district court first ignored the law of this Circuit, United States v. Aberbach, 165 F.2d 713, 715 (2 Cir. 1948) (Chase, /.), that a fine for civil contempt “which bears some reasonable relation to the amount of this damage [to the government] might lawfully be imposed.” The court further ignored the requirement of United States v. UMW, 330 U.S. 258, 304 (1947), that in assessing a civil fine in order to assure compliance the court “must . . . consider the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired.”
Moreover, the record is crystal clear that the district court’s failure to comply with either of these indispensable requirements for a civil contempt adjudication was deliberate and not inadvertent. In its order of July 3, 1973 scheduling a hearing for July 16 “limited to the issues of the fine and damages to be assessed against [IBM] for its alleged contempt”, the court excluded any consideration of the “character and magnitude” of the threatened harm and the “effectiveness” of any suggested sanction. Moreover, by its order of July 10, the court excluded from the July 16 hearing any consideration of the “question of damages” caused by IBM’s alleged contumacious conduct. Thus, the only evidence before the court was IBM’s balance sheet.
The continuing fine imposed of more than a million dollars per week can be ascribed to nothing other than the court’s arbitrary assessment of IBM’s will power. The fine is wholly unrelated to any actual harm sustained by the government, to the character and magnitude of any harm threatened by continued contumacy, or to the probable effectiveness of any lesser sanction coupled with the option of a subsequent increase in the fine if compliance were not forthcoming.
To avoid what to me is the inescapable conclusion that IBM has been held in criminal contempt, the majority states that the district court “did not leave in doubt the purpose which the contempt citation here was to serve.” Supra, p. *125115. They say that “the order was both coercive and contingent, indicating a civil rather than criminal contempt.” Ibid. With deference, the majority ignores both the district court’s decision of July 10, 1973 emphasizing “the desire of the court to insure that its [production order] be promptly obeyed”, Memorandum of Decision of July 10, 1973, at 3, and the fact that the purpose to be accomplished by the order was not to remedy any harm sustained by the government.7 The record before us is totally barren of any proof or any finding of harm. The remedy of a million dollar per week fine clearly demonstrates that its chief purpose was to vindicate the court’s authority and to punish IBM if it failed to bow to the court’s power.
The majority’s suggestion that the district court’s failure to “consider the character and magnitude of the harm threatened by continued contumacy”, United States v. UMW, supra, 330 U.S. at 304, is of no importance, strikes me as a side-stepping of what I had thought, prior to today’s majority opinion, to be a decision of the Supreme Court binding upon our Court. The majority says that the district court’s refusal to weigh this consideration does not transform “what would otherwise be civil contempt into a criminal contempt.” Supra, p. 116. This ignores the stated purpose of the district court in holding IBM in contempt, and of the government in seeking to have it held in contempt. With due respect, I must say that the majority’s strained reading of UMW as requiring merely “that the coercive fine be reasonably set in relation to the facts, that it not be arbitrary”, utterly emasculates that landmark decision of the late Chief Justice Vinson. How can a contempt fine be reasonably or non-arbitrarily set if the “facts” — i. e. the harm caused by the contumacious conduct, as well as the character and mag-' nitude of that conduct — are not even explored? It would have been no more impossible to determine the harm sustained in the instant case than it was to determine the harm caused by the nationwide coal miners’ strike in UMW.8 Furthermore, the district court’s failure to consider this issue affects not merely the amount of the fine, as the majority suggests; it goes directly to the nature of the contempt adjudication. United States v. UMW, supra, 330 U.S. at 304.
Assuming arguendo that part of the district court’s contempt order could be construed as civil in nature, the fact *126that any part of it was criminal in nature makes the entire order immediately appealable. Union Tool Co. v. Wilson, 259 U.S. 107, 110 (1922); In re Merchants’ Stock and Grain Co., 223 U.S. 639, 642 (1912); In re Christensen Engineering Co., 194 U.S. 458, 461 (1904). The mere fact that the district court labeled the order as civil and adopted formal civil contempt boilerplate does not foreclose this Court from determining that at least part of the order was criminal in nature. The contempt adjudication below, even accepting arguendo the majority’s criteria, surely was partially criminal because it cannot be gainsaid that it was not “wholly remedial” but rather was intended, at least in part, “as a deterrent to offenses against the public.” McCrone v. United States, supra, 307 U.S. at 64. The court having excluded evidence relating to whether the contumacy was injurious to the government, it is simply impossible to say that the order was wholly civil. Since the court did not consider the “character and magnitude of the harm threatened”, its order surely cannot be said to be “wholly remedial”. And the court’s statement in its Memorandum of Decision of July 10 that it wanted “to insure that its [production order] be promptly obeyed”, indicates at the very least a purpose to deter offenses committed against the court and the public.
In short, for this Court to deny appellate review of the district court’s crushing million dollar per week fine imposed on IBM, and to do so in reliance upon the district court’s specious characterization of the contempt order as civil in nature, represents in my view a grave perversion of long established principles of civil contempt. Although carefully labeled to forestall appellate review, the contempt order in every real sense was punitive and was intended to vindicate the authority of the court. Gompers v. Bucks Stove & Range Co., supra, 221 U.S. at 441. I would hold the contempt order to be criminal and immediately ap-pealable to our Court. Such holding would in no way be inconsistent with our en banc decision in IBM v. United States, supra note 2, 480 F.2d at 293. It would, however, be wholly consistent with the proposition, which the majority does not deny, that the imposition of contempt based upon “a blanket order as broad and sweeping as [the production order below] ought to receive appellate review before IBM is irrevocably deprived of its right to claim the attorney-client privilege.” IBM v. United States, supra note 2, 471 F.2d at 513.
DOCTRINE OF INADVERTENT WAIVER
Since I believe that the contempt order is criminal in nature and therefore appealable, I would remand the case to the district court for a ruling by the panel of masters on the claim of privilege asserted by IBM. Such a panel of masters has already been appointed by the district court specifically for the purpose of ruling on IBM’s claims of privilege.9
It seems to me that this is one of those extraordinary cases which demands application of the doctrine of inadvertent waiver. Connecticut Mutual Life Ins. Co. v. Shields, 18 F.R.D. 448, 451 (S.D.N.Y.1955). The enormous number of documents to be produced, and the time pressures imposed by Judge Neville’s order, made the inadvertent production of some privileged ones virtually' inevitable. As Judge Neville stated in his order of April 18, 1972, supra note 3, “The document inspection program was massive .... Certain confusion and errors were bound to result in such a strenuous program.” *127Taking waiver in its traditional sense, it is utterly untenable that IBM should be bound by the unintended result of its good faith efforts under these most extraordinary circumstances.
The production order below ignored the protective provisions of Judge Nev-ille’s prior order as well as the intent clearly manifested by the agreement between IBM and the government. When the parties agreed upon the “second alternative” by which IBM would supply the government with documents, and when they so agreed in reliance upon the protective provisions of Judge Neville’s order, clearly IBM intended to confer upon the government rights in the documents no greater than those conferred on Control Data by Judge Neville’s order. The production order below is in direct conflict with Judge Neville’s order. This results from the erroneous assumption by the district court below that IBM waived its privilege by delivery of documents to Control Data. It ignores the intent of the IBM-government agreement.
The production order not only rests upon the erroneous assumption that IBM waived its right to invoke its privilege in the Southern District action when it delivered the disputed documents to Control Data in the Minnesota action; it also is predicated upon the court’s wholly unwarranted conclusion that “the doctrine of inadvertent waiver cannot be countenanced because it would open a Pandora’s box which would release enough devils that could possibly overwhelm the Court in this proceeding.” Transcript of September 12, 1973 Hearing, at 23-24. This conclusion that the circumstances of production are irrelevant and that it is of no consequence whether the privileged documents were produced inadverently, unintentionally or under compulsion is squarely inconsistent with a finding of waiver. In Johnson v. Zerbst, 304 U.S. 548 (1938), the Supreme Court made it very clear that a waiver “is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” 304 U.S. at 464. See Barker v. Wingo, 407 U.S. 514, 525-26 (1972). Here the district court made no finding that there was either an intentional or a voluntary disclosure of the documents by IBM. The record required a finding precisely to the contrary, for IBM had exercised every possible precaution to preserve its privilege. The district court was clearly erroneous in flatly refusing to consider the circumstances surrounding IBM’s production in the Control Data case. The most crucial factor which the court ignored is that the government was not free to lift the discovery proceedings in the Minnesota private action out of context and to engraft them willy-nilly upon the Southern District government action.
Moreover, a holding that IBM did not waive its attorney-client privilege would neither create unnecessary litigation nor open a “Pandora’s box”. The production order both relates to Judge Neville’s order and collaterally frustrates its most important provision, namely, that IBM’s right to assert its attorney-client privilege with respect to the documents already delivered to Control Data shall remain unimpaired. This is not the “run-of-the-mill” discovery order referred to by the majority. Supra, p. 118. It is indeed, as the majority observes, a “unique factual situation”. Ibid.
Of even more importance than whether the district court below correctly ruled upon the attorney-client privilege, is the question whether a district court in one circuit has the power collaterally to attack the discovery order of a district court in another circuit upon the theory that production under a protective umbrella constitutes a general waiver. I would hold it does not.
To me nothing could be clearer than the invalidity of the production order below. It should be vacated.
DENIAL OF CRAVATH’S INTERVENTION MOTION
Finally, I vigorously dissent from the majority’s holding that the district *128court’s refusal to act upon Cravath’s attempted intervention in the contempt proceeding is not properly before this Court.
Contrary to the majority’s holding, the district court’s failure to act upon Cravath, Swaine & Moore’s motion to intervene and its entry of an order inconsistent with the relief sought by that motion amounts to a denial of the motion. At least since Mosier v. Federal Reserve Bank of New York, 132 F.2d 710, 712 (2 Cir. 1942), we have recognized the basic propositions that “[t]he determination of a motion is not always expressed, but may be implied” and that “the entry of an order inconsistent with granting the relief sought is a denial of the motion.” This has been consistently followed in this and other circuits. See, e. g., Clean Air Coordinating Committee v. Roth-Adam Fuel Co., 465 F.2d 323, 325 (7 Cir. 1972), cert. denied, 409 U.S. 1117 (1973); Weiss v. Duberstein, 445 F.2d 1297, 1299 (2 Cir. 1971). Cf. Abercrombie & Fitch v. Hunting World, Inc., 461 F.2d 1040, 1043-44 (2 Cir. 1972) (Timbers, J., concurring).
The majority does not disagree that the contempt adjudication below jeopardizes the rights which Cravath sought to protect by intervention. Since the order appealed from is inconsistent with the relief sought, the district court’s failure formally to act on the motion is the same, for purposes of appellate review, as if the motion had been formally denied.
If I am correct that Cravath’s motion to intervene as of right, by operation of law, was denied by the district court, it seems to me that the district court should be directed to permit Cravath to intervene. It is incontrovertible that Cravath meets the requirements of Fed. R.Civ.P. 24(a)(2) for intervention as of right. Cravath has shown that it has an “interest relating to the property or transaction which is the subject of the [proceeding]”; that it “is so situated that disposition of the [contempt proceeding] may as a practical matter impair or impede [its] ability to protect that interest”; and that its “interest is [not] adequately represented by the existing part[y].” See Ionian Shipping Co. v. British Law Ins. Co., 426 F.2d 186, 189 (2 Cir. 1970).
The district court completely ignored Cravath’s claim of personal interest in the documents claimed to be privileged. It refused even to consider Cravath’s proposed intervention. It took the position that, since the application to intervene was submitted on the morning of the contempt hearing (July 16, 1973), it was not properly before the court. This does not explain why the court did not set a hearing date to consider Cravath’s application, especially since the contempt order was not entered until more than two weeks later (August 1, 1973).10 If IBM is coerced by the district court’s contempt order into delivering to the government the privileged documents, then Cravath surely will be irreparably injured. Cravath’s work-product privilege- — a privilege which the courts heretofore have zealously protected, see Hickman v. Taylor, 329 U.S. 495, 510-12 (1947)- — will be sacrificed unnecessarily, immediately and irreversibly.
The procedure by which Cravath sought, if permitted to intervene in the contempt proceedings, to obtain prompt appellate review of the basic claim of work-product privilege, happens to be analogous to the procedure which I suggested IBM follow in my earlier en banc dissenting opinion, supra note 2, 480 F. 2d at 305 :11
*129“One way to obtain prompt appellate review of the basic claim of attorney-client privilege would be for an appropriate officer or employee of IBM respectfully to refuse to comply with the district court’s Pretrial Order No. 5. Direct appeal could then be taken to this Court from the district court’s ensuing civil contempt order. While this would result in prompt adjudication of the claim of privilege, the author of this opinion surely can take judicial notice that such course of procedure would be neither acceptable nor pleasant, especially from the standpoint of the alleged contemnor even when represented by distinguished — and effective — counsel.” (footnote omitted).
And speaking of distinguished counsel, it may be appropriate to observe that the contempt proceedings below— had Cravath’s intervention motion not been rejected out of hand by the district court’s expedient of ignoring it — would have had the benefit of the expertise and wisdom of two of the most widely experienced and highly esteemed lawyers in the land: Honorable Bruce Bromley, formerly an Associate Judge of the Court of Appeals of the State of New York (who tendered himself as the con-temnor), and Honorable Simon H. Rif-kind, formerly a Judge of the United States District Court for the Southern District of New York (who sought to represent the contemnor).
It is precisely this caliber of professional competence which IBM and its counsel understandably want — and which the federal judicial system should welcome — in an adjudication involving one of the most fundamental rights indispensable to our system of law: the right of an attorney to complete privacy in his mental impressions and trial preparation. It is this fundamental right to which the Supreme Court referred in Hickman v. Taylor, 329 U.S. 495, 510 (1947):
“Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney.
Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways— aptly though roughly termed by the Circuit Court of Appeals in this case as the ‘work product of the lawyer.’ ”
And the Court in Hickman warned that if work product materials are thrown open to opposing counsel “on mere demand”, then
“ . . . much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.” Id. at 511. In short, we are told that this case is
one of the most important ever brought in the federal courts. The attorney-client privilege and the work-product privilege of which IBM and its counsel are *130being stripped without any adjudication and without judicial review are among the most fundamental rights long recognized in our jurisprudence. The principles here involved transcend in importance even the rights of the parties to this litigation. I think we have not only the jurisdiction but a plain duty to correct the clearly erroneous action of the district court below.
From the refusal of the majority to do so, I respectfully but most emphatically dissent.
. See, e. g., the government’s Motion To Dismiss Or Affirm, at 15-16, filed in the Supreme Court in June 1973 in IBM v. United States, No. 72-1173:
“If IBM is unwilling to await final judgment, it may refuse to comply with Pretrial Order No. 5 and risk sanctions under Rule 37 (b) (2), Fed.R.Civ.P., including contempt. In the event of such a sanction against it, or its representative, IBM may be able to obtain judicial review before final judgment.”
*121For similar representations in the instant litigation, see the government’s Memorandum For Tlie United States In Opposition [to Application for Stay], at 16, filed in the Supreme Court in June 1973; the government’s Petition For Rehearing And Suggestion For Rehearing En Banc, at 8, filed in the Second Circuit in January 1973; and the government’s Brief For The United States In Support Of Petition For Rehearing, at 9, filed in the Second Circuit in January 1973.
. Familiarity with the prior opinions of this Court is assumed. IBM v. United States, 471 F.2d 507 (2 Cir. 1972) (panel decision) ; IBM v. United States, 480 F.2d 293 (2 Cir. 1973) (enbanc).
. Control Data Corp. v. IBM, supra, Order Re Claimed Waiver of Privilege, April 18, 1972, at 2-3 (summarizing prior proceedings in the Minnesota action).
In this order of April 18, Judge Neville emphasized the condition which he imposed in connection with the removal of IBM’s interceptor :
“Neither IBM nor CDC shall be deemed to have waived the attorney-client or other privilege as to any document which heretofore has, or if reasonable precautions as in the past are taken hereafter may, come into the possession of any party to pending litigation . . . .”
Furthermore, the court also emphasized in its order of April 18 that its position consistently had been that IBM had not waived its attorney-client privilege merely because a document had been seen by Control Data and perhaps copied. See Transcript of November 2, 1970 Hearing, at 48, 49.
. In entering into this agreement, the parties rejected an alternative plan whereby IBM would deliver all the documents selected by Control Data and the government would stipulate that IBM had not waived any claims of privilege as to the documents delivered. See IBM v. United States, supra note 2, 471 F.2d at 509.
. IBM appealed to this Court from the production order pursuant to 28 U.S.C. § 1291 (1970). Concurrently it filed a petition for a writ of mandamus in this Court pursuant to 28 U.S.C. § 1651 (1970). Initially, a divided panel of this Court held that it had jurisdiction over both the appeal and the petition, and ordered that the production order be vacated. IBM v. United States, supra note 2, 471 F.2d 507.
On petition by the United States, this Court granted a rehearing en banc and reversed the panel decision. In a 4-2 decision, we held that the Expediting Act, 15 U.S.C. § 29 (1970), requires that appellate review of the production order be had, if at all, in the Supreme Court. Accordingly, we dismissed both the appeal and the petition for writ of mandamus. IBM v. United States, supra note 2, 480 F.2d 293. IBM on June 11, 1973 filed a petition for certiorari seeking review of our en banc decision. 41 U.S.L.W. 3658 (U.S. June 19, 1973) (No. 72-1662).
While the above proceedings were pending in this Court, IBM on November 24, 1972 filed a protective notice of appeal to the Supreme Court from the district court’s production order of September 26, 1972. That appeal was docketed in the Supreme Court on February 24, 1973. 41 U.S.L.W. 3477 (U.S. March 6, 1973) (No. 72-1173).
On June 11, 1973, together with its petition for certiorari, IBM also filed in the Supreme Court a petition for mandamus to review the production order. 41 U.S.L.W. 3658 (U.S. June 19, 1973) (No. 72-1661).
On May 21, 1973, IBM moved in the district court for a further stay of the production order. The district court granted the stay until June 4.
On June 1, an application for a continuation of the stay was made to Mr. Justice Marshall who, after hearing argument on June 4, granted a temporary stay subject to further order of the full Court. On June 13, the Supreme Court entered an order denying a stay of the production order and the mandate of this Court.
On petition by the government filed June 25, 1973, the district court on August 1 entered the order presently before us holding IBM in contempt and directing it to pay a continuing fine of $150,000 per day. The district court refused to stay its contempt order and fine even for a single day.
On August 2, upon application by counsel for IBM and by counsel for Cravath, Swaine & Moore, we stayed the district court’s contempt order and production order until the argument of the instant appeals. We also expedited the appeals and heard them on August 8. At the conclusion of the arguments on August 8, we continued the stays until determination of the instant appeals.
. Although this 2-1 panel decision later was vacated by a 4-2 en banc decision of our Court, IBM v. United States, supra note 2, 480 F.2d 293, the en banc decision was limited to the holding that “we have no jurisdiction to review the discovery order below either by appeal or by mandamus.” Id. at 295. The en banc Court did not purport to rule on the validity of the production order, including the refusal of the district court to make a judicial determination of the claim of privilege.
. The majority further ignores the purpose for which the government argued that the contempt order should issue.' At the July 16, 1973 hearing, government counsel argued that IBM should be held in contempt because of the necessity “to have a precedent in this Court that IBM will obey the Court’s orders and will obey them promptly and will obey them as they are directed to obey them and not on the basis of whether they want to or don’t want to.” Transcript of July 16, 1973 Hearing, at 6. The government’s purpose in seeking contempt clearly was to punish past conduct and to deter future conduct. This is a criminal sanction. McCrone v. United States, 307 U.S. 61, 64 (1939) ; MacNeil v. United States, 236 F.2d 149, 154 (1 Cir.), cert. denied, 352 U.S. 912 (1956) ; United States v. International Union, United Mine Workers, 190 F.2d 865, 873 (D.C.Cir. 1951).
. In United States v. UMW, 70 F.Supp. 42 (D.D.C.1946), modified and affirmed, 330 U.S. 258 (1947), although the severity of the harm caused by a nationwide coal miners’ strike would appear to have been obvious, the government produced eight witnesses and substantial documentary evidence to justify the magnitude of the contempt adjudication and fine. The district court made findings of fact concerning the size of the existing stockpile of coal, the amount by which the rate of production decreased due to UMW’s contempt, and the normal rate of consumption. In addition, the court received evidence and made detailed findings concerning the characteristics of the economy and of particular sectors thereof to establish exactly how the stoppage of coal production would cause damage and to what extent. Finally, the court made quantitative estimates as to the actual decline in national income and tax revenues which would result. 70 F.Supp. at 51.
This is a far cry from the total absence in the instant case of any evidence or finding in the district court of “the character and magnitude of the harm threatened by continued contumacy.” United States v. UMW, supra, 330 U.S. at 304.
. The panel of special masters appointed by the district court consists of Dean Joseph M. McLaughlin of the Fordham University Law School; Hon. Bernard S. Meyer, former Justice of the Supreme Court of the State of New York, Nassau County; and Jesse Climenko, Esq., the latter having been appointed on November 20, 1973 to replace Professor A. Leo Levin of the University of Pennsylvania Law School. N.Y.Law Journal, November 21, 1973, at 1.
. At the July 16 hearing, Judge Rifkind, counsel for Cravath, asked: “When does your Honor want to hear the argument on my application for intervention?” The district court responded: “I don’t think that question comes with any particular good grace.” Transcript of July 16, 1973 Hearing, at 54-55.
. This course of procedure, as noted above, supra note 1, also was in accord with the-suggestion which the government made on at least four occasions to the Supreme Court and to our Court — until “Something . . . Happened On The Way To The Forum” below.