(dissenting in part):
I concur in the majority’s holding that the order below is appealable and the granting of class action status proper. I respectfully dissent, however, from the reversal of the district court order directing defendant Oppenheimer Fund, Inc. (“the Fund”) to cull out the names of class members from the Fund’s computer tapes at the Fund’s expense. The majority’s decision, ostensibly predicated on the Supreme Court’s decision in Eisen v. Carlisle & Jacquelin (Eisen IV), 417 U.S. 156, 94 S.Ct. *6442140, 40 L.Ed.2d 732 (1974), uncritically treats a discovery issue as notice and indiscriminately applies a rule appropriate to arms-length relationships to the fiduciary relationship between the parties herein. An elaboration of the particular facts attending this suit is fundamental to understanding the nature of the action and my disagreement with the panel’s holding.
Defendant Fund is an open-end diversified investment fund registered under the Investment Company Act of 1940,15 U.S.C. §§ 80a-l et seq. Defendant Oppenheimer Management Corporation (“the Manager”) manages the Fund’s investment portfolio and, pursuant to an Investment Advisory Agreement, receives compensation calculated as a percentage of the Fund’s net asset value. Defendant Oppenheimer & Co. (“the Broker”) is a brokerage firm owning approximately 82% of the outstanding stock of the Manager and 100% of the voting stock. The individual defendants are all directors of the Fund, some of whom also hold offices or directorships or partnership interests in the Manager and/or Broker. The Manager has the right to act as exclusive distributor and sole principle underwriter of Fund shares. Shares are sold to the public at a price equal to net asset value plus a sales charge.
This consolidated suit involves stockholder derivative and class action claims. The class, as certified by the district court, is composed of all persons who purchased Fund shares between March 28, 1968 and April 24, 1970. The complaint alleges that the defendants violated the federal securities laws by failing to disclose material information to investors. The gravamen of the damage claims is that restricted securities purchased by the Fund were overvalued and, consequently, the net asset value of the Fund was overstated. Overstatement of net asset value, in turn, caused an overvaluation of Fund shares being sold to the public during the relevant period and, because the Fund-Manager fee arrangement was geared to net asset value, caused the Fund to pay inflated fees to the Manager.
As the majority apparently recognizes, the Supreme Court’s Eisen IV decision is not dispositive of the issue of the allocation of costs of identification in the context herein. Eisen IV construed the notice requirements of Rule 23(c)(2), which apply to class actions maintained under Rule 23(b)(3), in the context of a case wherein “the relationship between the parties is truly adversary.” Eisen IV, supra at 178-179, 94 S.Ct. at 2153 and held that “[t]he usual rule is that a plaintiff must initially bear the cost of notice to the class.” Id. at 178, 94 S.Ct. at 2153. In the instant case, in contrast, we deal not with notice costs — a burden plaintiffs herein willingly assume— but with class member identification costs, and we deal not with the usual rule applicable to truly adversarial relationships, but with a rule as to which the Supreme Court took pains to express no opinion — the rule which governs in “situations where a fiduciary duty pre-existed between the plaintiff and defendant. . . .” Id. Both of these distinctions merit pause before we rush to close yet another door to the class action procedure.
In Eisen IV the Supreme Court held that in a Rule 23(b)(3) class action the cost of notice, i. e., the letter, envelope, stuffing, and postage is, in the usual case, the responsibility of the plaintiff “as part of the ordinary burden of financing his own suit.” Eisen IV, supra at 179, 94 S.Ct. at 2153. The opinion properly construed requires only that the litigation expense of notice be borne by plaintiff. It does not require, and surely the Supreme Court did not intend, that all litigation expenses, contrary to established rules and practice, are to be hereinafter the plaintiff’s responsibility. When identification is sought information allowing a party to proceed with his suit is at the core of the request. Thus, in purpose and effect such a request is not different in kind from other requests for information routinely made during discovery. That a suit will be unable to proceed absent identification does not vitiate the validity of characterizing identification as a product ascertainable by discovery and governed by the rules applicable thereto. A contrary *645view clearly is belied by the common practice of establishing jurisdiction by means of discovery.
Rule 34 governs the production of computerized information, making discoverable, inter alia, “data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form. .1,1 As noted by 8 C. Wright and A. Miller, Federal Practice and Procedure § 2218 at 659 (1970):
“The responding party who is required to prepare a printout or otherwise make the data reasonably usable for the discovering party must ordinarily bear the expense of doing this. He can shift the cost to the discovering party only on a showing under Rule 26(c) that justice so requires in order to protect himself from ‘undue burden or expense.’ ” (footnote omitted)
While the authors suggest that courts should be sensitive to the expense involved since the disclosing party may be obliged “to engage in fairly sophisticated electronic manipulation and analysis,” id., expense remains an issue properly resting within the sound discretion of the district judge. Under the facts of this particular case the district judge did not consider the costs of processing the defendant’s tapes an “undue burden or expense.” It is not our practice to disturb the discretionary judgment of a district court in the realm of discovery absent a showing of abuse, see, e. g., Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2147, 36 L.Ed.2d 686 (1973); H. L. Moore Drug Exchange, Inc. v. Smith, Kline & French Laboratories, 384 F.2d 97 (2d Cir. 1967), and discovery of class members should provide no exception. Imposing the cost of culling out the names of members of the class upon the Fund involved no abuse of discretion. The district court, finding this expense attributable to defendants’ objections to plaintiffs’ efforts to define a subclass minimizing expenses, cf. Eisen IV, supra at 179, n. 16, 94 S.Ct. 2140, did not commit reversible error in refusing to shift this burden to plaintiffs. Moreover, the order below specifically notes that it is “without prejudice to the right of this defendant [the Fund], at the conclusion of the action, to make whatever claim it would be legally entitled to make regarding reimbursement by another party.”
Assuming, arguendo, that the majority is correct in failing to distinguish identification from notice, reversal of the district court’s order is neither compelled by Eisen IV nor an advisable extension of that case. As we noted in Eisen v. Carlisle & Jacquelin, 479 F.2d 1005, 1009 n.5 (2d Cir. 1973)2 (“Eisen III”) and the Supreme Court noted *646in Eisen IV, the usual rule that the representative plaintiff must bear the cost of notice may not apply “where a fiduciary duty pre-existed between the plaintiff and defendant. . . . ” Eisen IV, supra at 178, 94 S.Ct. at 2153. The instant appeal squarely raises the issue, heretofore undecided, of whether notice costs may properly be imposed upon a defendant when the relationship of the parties is truly fiduciary. I. would hold that they may.
Unquestionably the relationship between Fund shareholders and the defendants herein is of a fiduciary nature. As one court has observed, the Investment Company Act “impose[s] fiduciary obligations of the highest order upon persons who control investment companies.” Securities and Exchange Commission v. Advance Growth Capital Corp., 470 F.2d 40, 55 n.21 (7th Cir. 1972). See, Investment Company Act of 1940, 15 U.S.C. § 80a-35. So too, “[t]he Investment Advisors Act of 1940 . . . reflects a congressional recognition ‘of the delicate fiduciary nature of an investment advisory relationship.’. . . ” Securities and Exchange Commission v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 191, 84 S.Ct. 275, 282, 11 L.Ed.2d 237 (1963), quoting 2 Loss, Securities Regulation (2d ed. 1961) at 1412. It is the breach of these fiduciary duties which is at the core of this suit.
When the defendants assumed their positions with the Fund they knew, or clearly should have known, that the law imposes very strict standards upon their conduct. Their relationship to the plaintiff class is one of trust; the entire scheme of our investment company and advisor regulation is predicated upon that trust being respected inviolate. A breach of a fiduciary duty traditionally has been considered a much graver transgression than, for example, breach of a contractual duty. Thus, as the majority notes, the Supreme Court in Eisen “refused to foreclose the possibility” of allocating notice costs where there exists a fiduciary duty between the parties and their relationship is not truly adversarial. Absent such a special relationship and without support under Rule 23, the Supreme Court found no justification for deviating from the usual rule that a plaintiff must bear notice costs. In cases involving fiduciaries, however, the usual rules traditionally have been modified to insure that the trust relationship is not abused. The norms appropriate in the context of arms-length bargaining are simply inapposite in the fiduciary context. Thus, the usual rule should not apply to preclude class action when to do so creates a serious potential for insulating fiduciary breaches from redress. I would affirm the district court.
. It is somewhat disingenuous to focus, as the majority does, on Rule 33 which governs interrogatories rather than the Rule more specifically designed to govern computerized information. Since the disclosing party has opted to keep his records on computer tapes, there is good reason to allow the district court the usual discretion as to costs of retrieving information from those tapes lest discovery be obstructed by irretrievably burying information to immunize business activity from later scrutiny.
. The footnote, in pertinent part, states:
“Nor did we decide or intend to say [in Eisen II, 391 F.2d 555 (2d Cir. 1968)] that in all cases or under all circumstances plaintiffs in class actions are or must be required to defray the cost of giving the various notices specified in amended Rule 23. This is an action to recover money damages for alleged violations of Section 4 of the Clayton Act and Section 6 of the Securities and Exchange Act of 1934. It is not a derivative stockholder’s action asserting a cause of action in favor of a defendant corporation, which regularly sends communications to all the stockholders and may be said to owe its stockholders certain fiduciary duties, nor a case where a public utility corporation which regularly sends monthly bills to its current customers has been held to have overcharged its customers and the class suit is brought to compel a refund. There may be other similar examples of class actions in which, depending on the circumstances of particular cases, courts might find justification for holding that a representative plaintiff was not obligated to defray the cost of giving the notices required by amended Rule 23. We do not attempt any enumeration. It must be recalled that the provisions for notice in amended Rule 23 were intended to comply with constitutional requirements. See Advisory Committee’s Note, 39 F.R.D. 69, 107.”