dissenting:
My quarrel with the majority opinion stems from the majority’s failure to recognize that the district court did not comply with the mandate we prescribed in our first review of this issue. Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir.1986). As I understand our mandate, we directed the district court to review the magistrate’s good cause determination under the clearly erroneous and contrary to law standard prescribed by 28 U.S.C. § 636(b)(1)(A). Instead, the district court, when faced with this directive and a record barren of any facts found by the magistrate, redrew the protective order with no regard to our remand for further factfinding.
After concluding that the district court had reviewed the magistrate’s original decision under an erroneous standard of review, the prior panel of this court set out *348its mandate. That panel, noting that “no specific good cause findings have been made,” Cipollone, 785 F.2d at 1120, directed the district court to “take second looks at the good cause issue ... and at the magistrate’s protective order.” Id. Moreover, the panel observed that a court of appeals review of the order would be “unwise.” Id. Such a review would entail “detailed consideration of the defendants’ assertion of good cause,” and therefore would be “exceedingly difficult” without a remand to the district court for its reconsideration under appropriate standards. Id. The panel then predicted that the district court’s “good cause hearing will likely reveal the appropriate shape that the protective order should take and it is thus better that any delineation of specifics await that hearing.” Id.
To comply with that instruction, Judge Sarokin should have reviewed the magistrate’s opinion and order using the “clearly erroneous and contrary to law” standard prescribed by 28 U.S.C. § 636(b)(1)(A). As explained in the statute’s legislative history, the magistrate’s “determination set forth in an appropriate order shall be ‘final’ subject only to the ultimate right of review by a judge of the [district] court.” See H. R. Report No. 1609, 94th Cong., 2nd Sess. 9-11, reprinted in 1976 U.S. Code Cong. & Ad. News 6162, 6170. Therefore, a district court judge first would determine whether the facts found by the magistrate to support the good cause determination were clearly erroneous and whether the conclusions of law supporting the finding were contrary to law. If the district court held that facts found by the magistrate were clearly erroneous or that conclusions of law were incorrect, then the district court must reconsider the magistrate’s decision.1
Unfortunately, in this case, the magistrate failed to make specific findings on the good cause “issue,” and thus the district court, while told to review good cause findings, was faced with no findings to review. Indeed, the district court itself observed that “[t]he magistrate’s protective order did not contain specific written findings that good cause existed for prohibiting plaintiffs either from disseminating the fruits of nonconfidential discovery to the public or from utilizing discovery in other litigation.” Cipollone v. Liggett Group, 113 F.R.D. 86, 89 (D.N.J. 1986).
Yet, although our court’s mandate required that specific written findings be made, the district court did not remand the issue to the magistrate for factfinding, nor did it perform such factfinding itself. Rather, the district court took it upon itself to formulate and examine five separate “arguments”2 to determine whether the “arguments” were “clearly erroneous or contrary to law.” As if in anticipation of my concern, the district court protested that it “[did] not attempt to identify the grounds upon which the magistrate’s general finding of good cause was based,” but only “analyze[d] whether any of these arguments could support the magistrate’s finding.” Id. at 89 n. 2.
Following this “review” of the magistrate’s order, the district court held, in *349part, that “[t]o the extent that the magistrate found good cause based upon embarrassment to defendants, the effect of dissemination [of discovery to the press and third parties] on the fairness of trial, or the prior conduct of plaintiffs’ attorney, the finding is clearly erroneous.” Id. at 93. The district court also held that “[t]o the extent that the magistrate found good cause based upon a desire to facilitate discovery or to prevent an abuse of the discovery process, the finding is contrary to law.” Id. In effect, without the benefit of any findings of fact, the district court constructed and then “reviewed” three of the five arguments, all of which required factual support. The arguments so reviewed were: the possibility of embarrassment to the defendant cigarette companies, the possibility of financial harm due to the pretrial dissemination of discovery materials, and a claim of estoppel based upon the conduct of plaintiffs’ attorney. It was on this basis that the district court concluded that good cause had not been demonstrated: a conclusion reached without the review of, or the finding of, a single fact.
At no point does the majority opinion claim that findings of fact appear in the record. Indeed, while the majority opinion notes that the magistrate made no findings, it curiously fails to mention that the district court’s decision and order is similarly flawed. Characterizing the district court’s opinion as a review of “five specific arguments” is no substitute for the absence of findings at both the district court and magisterial level.
As a reviewing court we must be sensitive to the factfinding functions of the courts we review, and to this date no findings on the issue of good cause have ever been made. The district court should have ensured that findings were made, not only to comport with the review process envisioned by 28 U.S.C. § 636(b)(1)(A), but also to obey the mandate handed down by the prior panel of this court.
My decision that the writ should issue to enforce our mandate is compelled by the fact that this panel is bound by the earlier mandate, just as Judge Sarokin was bound. See Taylor v. United States, 815 F.2d 249, 252 (3d Cir.1987) (“It is well-established that a district court must adhere to the mandate”); Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 949 (3d Cir.1985) (“It is axiomatic that on remand for further proceedings after decision by an appellate court, the trial court must proceed in accordance with the mandate”). The district court, by refusing to remand for factfinding or by failing to find the essential facts itself, did not satisfy the mandate of our court. Nothing that appears in the majority opinion excuses that failure. Because no compliance was had with our mandate I would issue the writ of mandamus.
While I of course agree with the majority’s disposition of the reassignment request, I am obliged to dissent from the majority’s disposition for the reason I have set out above.
. The legislative history for 28 U.S.C. § 636(b)(A)(l) sets out the circumstances in which a judge "may reconsider” the matter before the magistrate:
Use of the words "may reconsider” in sub-paragraph (A) is intended to convey the congressional intent that a matter "heard and determined" by the magistrate need not in every instance be heard a second time by the judge. However, if a party requests reconsideration based upon a showing that the magistrate’s order is clearly erroneous or contrary to law then the judge must reconsider the matter. Of course, the judge has the inherent power to rehear or reconsider a matter sua sponte.
See H.R. Report No. 1609, 94th Cong., 2nd Sess. 9-11, reprinted in 1976 U.S. Code Cong. & Ad. News 6162, 6170.
. The district court identified “upon analysis of the order itself, the transcript of the proceedings before the magistrate, and defendants’ briefs and oral arguments ... five specific arguments for ‘good cause' under Rule 26(c): 1) that defendants will suffer financial and other embarrassment; 2) that fairness at trial will be compromised; 3) that plaintiffs are estopped from disseminating this material by a prior agreement of plaintiffs’ counsel; 4) that discovery in this case will be facilitated; 5) that dissemination constitutes an abuse of the discovery process.” Cipollone v. Liggett Group, Inc., 113 F.R.D. 86, 89 (D.N.J.1986).