(concurring and dissenting):
I concur in Judge Werker’s carefully considered opinion except for its provision that upon remand any interview of employees by attorneys for the defendants must be conducted “in the presence of the court or a magistrate so that any interviewed employee will be protected from intimidating or coercive questioning” (p. 1037, supra). In my view this requirement may have just the opposite effect from that intended. In addition, since many employees are involved, it could result in unnecessary waste of judicial resources and inconvenience to employees.
To require employees who may possibly become witnesses to leave work and proceed to court for interrogation by defense counsel in a strange and formal atmosphere before a judicial official unfamiliar to them may well serve to increase, rather than ease, the apprehension of the employees, as well as to heighten the chance that their identities will become known to the defendants themselves. Since the defendants are already faced with criminal charges in the district court as well as with unfair labor practice charges before the National Labor Relations Board, the chance that their counsel would attempt to intimidate a witness in a private interview strikes me as minimal, particularly since evidence of intimidation might be admissible against the defendants at trial. See United States v. Lord, 565 F.2d 831, 835 n. 2 (2d Cir. 1977); United States v. Cirillo, 468 F.2d 1233, 1240 (2d Cir. 1972), cert. denied, 410 U.S. 989, 93 S.Ct. 1501, 36 L.Ed.2d 188 (1973); 2 Wigmore, Evidence § 278 (3d ed. 1940).
We are not here dealing with the possibility of one or two interviews but with the prospect of interviews of some 150 or more employees.1 The employees, moreover, may prove to be important to the defense not only to determine whether their signatures were forged (which would require very little questioning) but also to find out whether they were coerced into signing the cards by either Matthew Eason, a convicted felon, or by his alleged henchman Fred Lawson, who, according to the appellees, has been convicted of a long series of felonies, including assault, rape, forgery, and possession of a deadly weapon and of narcotics.
The only practical method for determining whether the employees were subjected to coercion or duress would be to permit defense counsel to interview each employee who signed an authorization card (or at least those who are in the bargaining unit and whose cards were not clearly forged). Each of these interviews would take more time than a mere interrogation to determine the authenticity of the signature. Since defense counsel would not know which employees might have been the subject of coercion or duress, they would, under the majority’s decision, be forced to subpoena a large number of employees to appear in court for questioning, which would lead to a substantial waste of judicial resources and a greater risk of identification by the defendants.
If approached informally at home or at work the average employee would in my view be much more likely to cooperate in answering questions, particularly if he realized that failure to do so would require him to appear pursuant to subpoena before a magistrate, than if he were forced in the first place to come to court and spend a good deal of time waiting around to be questioned. In short, there would be less risk of intimidation, less waste, and less danger of identification or retaliation by the defendants if the witnesses were inter*1039viewed privately by defense counsel and brought before the judge or magistrate only if they proved to be recalcitrant.
I further believe that it should be made clear to the district court that in vacating the criminal contempt order and remanding the matter to it for reconsideration we are not holding that it would be an abuse of discretion for the district court, after full consideration of the record in the light of our modification of its order, to exercise its power to hold parties in criminal contempt. Since we have substantially modified the district court’s order so as to preclude access to the authorization cards by the defendants personally and the NLRB had no feasible alternative for testing the original discovery order, we must give the district court the opportunity to reconsider its holding and penalty in the light of our modification and appellant’s decision to comply or not to comply with the order as modified. See Nilva v. United States, 352 U.S. 385, 396, 77 S.Ct. 431, 1 L.Ed.2d 415 (1957); Yates v. United States, 356 U.S. 363, 366, 78 S.Ct. 766, 2 L.Ed.2d 837 (1958); Donovan v. City of Dallas, 377 U.S. 408, 414, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964); and Southern Railway Co. v. Lanham, 403 F.2d 119, 135 (5th Cir. 1968).
. The exact number of authorization cards submitted by Local 20408 is unknown, but the NLRB requires signatures of at least 30% of the employees to accompany any representation petition, and IDC has some 500 employees. See Brief for U.S. Attorney at 4; Appendix at 85-86.