dissents.
I must respectfully dissent. The result reached by the majority opinion points toward an unwarranted intrusion by the federal judiciary into a state court proceeding. I take no exception to section I of the majority opinion, which is simply a recital of background material. However, I respectfully disagree with sections II and III, and would decide as follows on the three matters urged by the appellant as error.
As the majority opinion states, the only issue in the case is whether the district court abused its discretion. By arguing that the federal district court abused its discretion, the Attorney General necessarily admits that in each of its rulings the federal district court had discretionary power.1 In other words, the Attorney General does not argue that the federal district court was required or somehow compelled to rule in the manner sought by the Attorney General. Hence, the Attorney General, of necessity, must argue that the federal district court had the discretion to either grant or deny its two interlocutory requests, and, further, had the power, discretionary as it was, to dismiss the action, but that in each instance the ruling of the federal district court was so arbitrary and capricious as to constitute an abuse of such discretionary power. Lawrence v. Willing-ham, 373 F.2d 731, 732 (10th Cir.1967) (to be an abuse of discretion the action must be “arbitrary and capricious”); Harrington v. DeVito, 656 F.2d 264, 269 (7th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 854 (1982) (“Appellate review of a district court’s discretion is very limited. Generally, an abuse of discretion only occurs where no reasonable person could take the view adopted by the trial court”). This places a heavy burden on the Attorney General, which, in my view, he has not met.
In an effort to obtain the records which were the subject of the state court’s order of suppression and secrecy, the Attorney General sought an order from the federal district court which would compel the defendants in the federal proceeding to go into the state district court and there consent to a release of the records. See Fed. R.Civ.P. 34, 37(a). In denying this request the federal district court noted that the records in question were no longer in the possession, custody or control of the defendants, but, on the contrary, were in the custody of the state court. The federal district court stated that the records were subject to a “valid state order suppressing access to them” and that in such circumstance the defendants could “neither consent nor be ordered to consent to the release of those records.” For the trial court to hold that records subject to a protective order by a state court, violation of which would be in contempt of court, are not within a party’s “possession, custody or control,” is certainly not an abuse of discretion. See Nissei America, Inc. v. Cincinnati; Milacron, Inc., 95 F.R.D. 471 (N.D.Ill.1982) (holding that documents subject to protective order issued by the International Trade Commission, a federal agency, were *1092not within a party’s “possession, custody or control”). Moreover, for the federal district court to compel the defendants in the instant case to go into state court and consent to a release of the records would be an unwarranted intrusion by the federal judiciary into a state court proceeding. See Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 286, 90 S.Ct. 1739, 1742, 26 L.Ed.2d 234 (1970) (state and federal judicial systems operate “independently”); Buckley Towers Condominium, Inc. v. Buchwald, 595 F.2d 253, 254 (5th Cir.1979) (“we have no general power to supervise state court proceedings or to correct errors of law that may occur from time to time in their course”).
The Attorney General also asked the federal district judge to conduct a hearing and determine for himself the admissibility under federal law of the records subject to the secrecy order. Apparently, though I am not certain, the Attorney General either has copies of the records subject to the secrecy order, or knows their contents, but is fearful that by using such in the federal proceedings he might be held in contempt by the state court for violating its secrecy order. In any event, the federal district judge declined to hold such a hearing, and, in my view, in so doing he did not abuse his discretion.
The majority opinion holds that under Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979) and Socialist Worker’s Party v. Grubisic, 619 F.2d 641 (7th Cir.1980),2 the federal district court should order the state court to turn over the grand jury materials and should then weigh the. need for disclosure against the need for continued secrecy. In Douglas Oil, the U.S. Supreme Court stated that the preferable practice is to have the court which supervised the grand jury determine whether there is a continued need for secrecy, and if not, for the court in the civil case to determine whether there is a need for disclosure. Id. at 230-31, 99 S.Ct. at 1678-79. However, Douglas Oil was expressly limited to cases where the court “having custody of the grand jury records is unlikely to have dependable knowledge of the status of, and the needs of the parties in, the civil suit in which the desired transcripts are to be used.” Id. at 231, 99 S.Ct. at 1679. The door was left open for cases where the court having custody of the grand jury materials “will be able, intelligently, on the basis of limited knowledge, to decide that disclosure is plainly inappropriate.” Id.
Douglas Oil concerned procedures between separate federal trial courts; when one of the court’s involved is a state court, as here, an additional dimension, that of comity, is added to the problem. I believe federal courts should be hesitant to apply decisions such as Douglas Oil to controversies involving state courts. Nonetheless, what guidance Douglas Oil does provide suggests that a proper procedure was used in the instant case, and that the interests of secrecy and disclosure were adequately balanced by the state trial court. Although in the instant case the state trial judge did not supervise the grand jury, she was held by the Colorado Court of Appeals to be in a “better position” than the judges who supervised the grand juries “to determine whether documents were grand jury documents and whether they should be disclosed.” State v. Tynan, Slip Opinion at 3 (Colo.App. November 8, 1984). Moreover, the state trial judge was well aware of the federal civil proceedings, as evidenced by her submittal of affidavits to the federal court as to the extent of her protective order. Thus, the instant case is unlike Douglas Oil where the trial judge having custody of the records was “largely igno*1093rant” of both the civil case and the grand jury proceedings and was characterized by the U.S. Supreme Court as having “no knowledge whatsoever of the facts underlying either the criminal or civil proceedings ____” Douglas Oil, 441 U.S. at 229, n. 18, 99 S.Ct. at 1678, n. 18. Rather, it appears that this is a case where the criminal court “will be able intelligently, on the basis of limited knowledge, to decide that disclosure [in the civil case] is plainly inappropriate.” Douglas Oil, 441 U.S. at 231, 99 S.Ct. at 1679. Thus, I do not believe that the federal district court erred in refusing to hold an independent hearing to determine the admissibility of the grand jury materials.
As his final argument, the Attorney General claims that the federal district court abused its discretion in dismissing the action. Under the circumstances, I find no such abuse. The Attorney General was granted several continuances to give him the opportunity to convince the state court that the secrecy order should be lifted. The state district court, however, refused to lift the order, and its ruling has recently been upheld by the Colorado Court of Appeals. State v. Tynan, Slip Opinion (Colo. App. November 8, 1984). The Attorney General repeatedly advised the federal district court that he could not proceed to trial unless he could make use of the records subject to the secrecy order. The federal proceeding cannot be continued ad infinitum on the chance that some day in the distant future the secrecy order may be lifted.
In closing, I reemphasize my belief that a state court protective order is entitled to the respect of the federal courts. State court judgments are entitled to such “full faith and credit in every court within the United States ... as they have by law and usage in the courts of such state.” 28 U.S.C. § 1738. As stated by the U.S. Supreme Court, “[t]he federal courts ... have ... consistently accorded preclusive effect to issues decided by state courts,” noting that such a practice “promote[s] the comity between state and federal courts that has been recognized as a bulwark of the federal system.” Allen v. McCurry, 449 U.S. 90, 95-96, 101 S.Ct. 411, 415-416, 66 L.Ed.2d 308 (1980). I believe the decisions of the Colorado trial court and Colorado Court of Appeals, holding that the records are grand jury materials entitled to secrecy, should be respected by the federal courts.
. It should be noted that: 1) Fed.R.Civ.P. 34 vests a trial judge with broad discretion. Wright & Miller, Federal Practice and Procedure § 2215 at 653 (1970). See Williams v. Continental Oil Co., 215 F.2d 4 (10th Cir.1954), cert. denied, 348 U.S. 928, 75 S.Ct. 341, 99 L.Ed. 728 (1955).
2) A trial judge "called upon to determine whether grand jury transcripts should be released necessarily is infused with substantial discretion." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 223, 99 S.Ct. 1667, 1675, 60 L.Ed.2d 156 (1979). We recognize that in Douglas Oil, a federal court was making such a decision; whereas in the instant case, a state court made the decision. Nonetheless, implicit in the Douglas Oil balancing test is substantial discretion as to the release of grand jury records as a matter of federal law.
3) A trial judge’s decision to dismiss a case for failure to prosecute is discretionary. Link v. Wabash R.R. Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962).
Therefore, it appears that all of tahe court’s rulings below were within its discretionary powers.
. Socialist Workers Party v. Grubisic, 619 F.2d 641 (7th Cir.1980) is distinguishable. In Socialist Workers no state court had issued a protective order; rather the issue was whether a state statutory privilege applied in federal court. Thus, the federal court was not clearly contravening a state court order. The issue there was the effect of a state law privilege on a federal court’s power to order disclosure of grand jury materials; the issue here is the effect of a state court protective order on a federal court’s power to order disclosure of grand jury materials.