(dissent-
ing) :I respectfully dissent. While these cases are not free from doubt, I feel that the dismissal of these actions with prejudice was an abuse of discretion when all the circumstances are considered, including the possible effect on *878rights of employees allegedly under the Fair Labor Standards Act.
The court’s opinion has outlined the facts in detail, and I mention only the circumstances that impel me to this view. In No. 73-1738, the suit against the Sines as partners, the Department did make a request for production of documents on filing suit in December, 1971. This request covered records relating to whether a covered enterprise existed, hours worked and rates of pay ■ — the principal issues. A letter in March, 1972 from the Department to the Clerk of the trial court states that the motions for an order compelling discovery had been delayed at the request of defendants’ counsel, but that no agreement could be reached. Plaintiff’s motion for an order compelling discovery was then filed in March, 1972. It was argued in April and denied, the trial court’s reasons not being stated in the record.1 The motion was argued at the same hearing where pretrial was conducted and the pretrial order stated that an issue was whether the defendants are entitled to assert their privilege against self-incrimination with respect to disclosure of information.
Following this adverse ruling the Department again sought discovery in January, 1973 in No. 73-1738. A notice for depositions was served, advising again that the same records were sought. A subpoena duces tecum for the records was issued for an appearance on January 29. The defendants moved for a protective order on February 7. The trial court granted an ex parte protective order the same day, excusing the defendants from appearing. Reasons for the order were not stated. The grounds of the motion, however, were that the deposition notice and subpoena were contrary to the trial court’s prior order denying an order for discovery. The motion was supported by exhibits from the earlier and this subsequent discovery proceeding seeking to show that they sought the same records and information.
To this point in early June, 1973, the proceedings in No. 73-1739, the suit involving the Rancho Lanes, Inc., bowling alley, were almost parallel. However here there was no claim of the privilege against self-incrimination as grounds for refusing discovery. In the Rancho Lanes case on June 7 the Department filed interrogatories. On June 8 notice was given the parties of a calendar call and trial on June 18. On that date objections to the Rancho Lanes case interrogatories were overruled and the defendants were ordered to answer, no date being specified or sought by the Department earlier than the 30-day deadline provided by 33(a), F.R.Civ.P.
As the majority opinion says, the record shows no motion for a continuance and no motion to shorten the time to answer the interrogatories. However the Department did make two substantial efforts to obtain discovery in the cases which resulted in adverse rulings. When the favorable ruling in the Rancho Lanes case came, on June 18, not much time remained before trial on June 27. And on that day when the defendants had not answered the interrogatories, the Department was obviously at a serious disadvantage by not having had access for so long to the main source of competent proof on the issues — the defendants’ records.
Despite the lack of further steps by counsel when the favorable ruling came on June 18, I feel that in view of the background of earlier discovery efforts *879and the posture at the June 27 hearing, the severity of dismissals with prejudice was not justified. While it is suggested that the Department could have sought relief earlier from the trial court’s adverse rulings on discovery, such orders are not generally reviewable by an extraordinary original action, see S. E. C. v. Stewart, 476 F.2d 755, 758 (2d Cir.); Paramount Film Distributing Corp. v. Civic Center Theatre, Inc., 333 F.2d 358, 360-361 (10th Cir.), nor by an attempted appeal under 28 U.S.C.A. § 1291, see Gosa v. Securities Investment Co., 449 F.2d 1330, 1332 n. 1 (5th Cir.); Borden Co. v. Sylk, 410 F.2d 843, 845 (3d Cir.); Natta v. Hogan, 392 F.2d 686, 689 (10th Cir.). And I do not believe the Department should be faulted for not pursuing the dubious route of a § 1292(b) appeal. See United States v. Salter, 421 F.2d 1393 (1st Cir.); Wright and Miller, Federal Practice and Procedure, § 2006, p. 31; but cf. Christian Echoes National Ministry, Inc. v. United States, 404 F.2d 1066 (10th Cir.). Rulings on discovery disputes may be challenged as errors on appeal from a final judgment. See e. g., Donnelly v. Parker, 486 F.2d 402, 409 (D.C.Cir.); Goldman v. Checker Taxi Co., 325 F.2d 853 (7th Cir.); Marshall v. Ford Motor Co., 446 F.2d 712 (10th Cir.); Wright and Miller, Federal Practice and Procedure, § 2006, p. 34. And in this respect I am satisfied that the earlier rulings sustaining the broad objections to discovery, at least on the grounds relied on by defendants, were in error.2
In view of all that went before and the situation when the cases were called, I feel the dismissals with prejudice were unjustified. They are,a harsh sanction, reserved for extreme cases. Meeker v. Rizley, 324 F.2d 269 (10th Cir.). The law favors hearing the litigant’s claim on its merits. Davis v. Operation Amigo, Inc., 378 F.2d 101, 103 (10th Cir.). And there was involved also the potential of frustration of the rights of others, employees allegedly entitled to the Act’s benefits.3
For these reasons I would set aside the dismissals with prejudice and the findings and remand the cases for further proceedings.
. At a later hearing, defendants’ counsel stated that the court had indicated the Department ought not to file suit without knowing what they were doing and without evidence of interstate commerce. In No. 73-1738 defendants had asserted broad grounds for refusing to produce the records. They said the Department lacked power to require production and examination of the records, and they also asserted their privilege against self-incrimination. These were the only grounds for opposing discovery before the court at the time the plaintiff’s motion for an order compelling discovery was denied, so far as our record shows.
. The grounds asserted were that there was no jurisdiction and the privilege against self-incrimination. The jurisdictional argument begged the question and discovery could not be denied on a “fishing expedition” objection. See Goldman v. Checker Taxi Co., supra, 325 F.2d at 856. And without more the broad claim of the privilege against self-incrimination could not support denial of discovery. United States v. Roundtree, 420 F.2d 845, 852 (5th Cir.).
It might be proper that certain restrictions be imposed by protective orders limiting discovery sought here to prevent abuse. However the earlier orders entered here were not apparently sought or granted for such a limited purpose but sustained a broad claim that discovery should not proceed at all. This was apparently the trial court’s view until the contrary order entered shortly before trial in No. 73-1739.
. I believe that the general statements of the Department’s affidavits opposing summary judgment cannot be viewed as insubstantial in view of Brennan v. Dillon, 483 F.2d 1334 (10th Cir.). The trial court did not have the benefit of that decision, however, when the cases were dismissed.