In Re Adele Halkin

WILKEY, Circuit Judge,

dissenting;

The onslaught against the CIA started in late 1974 when an investigative reporter for a national newspaper charged in a series of articles that the agency had engaged in a “massive illegal domestic intelligence operation” in direct violation of its charter. 1 In the months that followed, media attention riveted on alleged CIA lawlessness with an intensity matched in recent times only by coverage of the Watergate scandals. 2 This *201 publicity can only be described as massive and concentrated. The prevailing atmosphere was such that some Congressmen even expressed concern that circumspect congressional investigation of the agency’s activities was possible under the circumstances. Nevertheless, during this period no less than six congressional committees and one presidential commission undertook formal investigations of alleged Agency abuses. Many of the congressional hearings were televised.

*202 It was in this climate that petitioners brought their suit against various present and former employees of the CIA and other federal agencies, seeking monetary damages in excess of $1 million for violation of their statutory and constitutional rights. 3 In the early stages of discovery, respondents learned that petitioners’ counsel intended to stage a series of press conferences at which they would selectively make public portions of CIA documents they had obtained in discovery and would accompany these disclosures with interpretations of the documents and commentary on their significance. These press conferences were to be held on the behalf of two organizations which were'not parties to the litigation, the American Civil Liberties Union and the Center for National Security Study. At this point, the respondents sought a protective order prohibiting petitioners and their counsel from staging these press conferences. They argued that the proposed extra-judicial use of the agency documents would prejudice their right to “adjudication of the issues . . . in an uncolored and unbiased climate”. 4 Moreover, they pointed out that petitioners’ proposed use of the discovered material violated the Local Rules of the District Court and the Disciplinary Rules of the Code of Professional Responsibility which prohibit extra-judicial statements, other than quotation from or reference to public records, if there is a reasonable likelihood that such dissemination would interfere with a fair trial. 5 The district judge granted the protective order.

The majority decision vacating the District Court’s protective order rests on three propositions. The first proposition is that the District Court’s order is a prior restraint on expression which violates the First Amendment because it was not based on a specific factual finding that petitioner’s disclosures would have posed a serious and imminent threat to the administration of justice.

The second proposition is that respondents failed to make a satisfactory showing of “good cause” for the protective order as required by Rule 26(c) of the Federal Rules of Civil Procedure and that hence the District Court abused its discretion in issuing the order.

The third proposition is that issuance of the order was such a clear abuse of discretion as to warrant mandamus. Not one of the three propositions is sustainable on precedent or on reason divorced from the passion of the moment.

I. THE FIRST AMENDMENT

The majority views as an assault on the Bill of Rights a protective order issued by the District Court in its discretionary administration of pre-trial discovery pursuant to the Federal Rules of Civil Procedure. This constitutional claim is unwarranted by any of the cases which it cites, and is incompatible with some cases which it has unsuccessfully attempted to distinguish.

We do not in this case deal, as in Near v. Minnesota 6 or in New York Times Co. v. *203 United States, 7 with an injunction seeking to restrain speech unrelated to judicial proceedings.

Nor do we confront, as in Pennekamp v. Florida 8 or in Craig v. Harney, 9 an attempt to punish or stifle extra-judicial criticism of a court’s treatment of a case pending before it.

Nor do we even face, as in Nebraska Press Ass’n v. Stuart 10 or in Chase v. Robson, 11 so heavily relied upon by the majority, an effort to limit any comment, whatever its basis or provenance, concerning pending litigation or a phase thereof.

Rather, the protective order issued by Judge Green in this case is of a quite limited scope. (1) It is addressed only to the immediate parties and their counsel. (2) It is limited in duration, contemplating the public disclosure during trial of those documents which are admissible as evidence and the public disclosure after trial of those which are not. 12 (3) Most importantly, it concerns only information obtained through the court’s own processes. There is no attempt to restrict the parties as to any general statements about the case, or any statements made on the basis of information or potential evidence gained by methods other than through the court’s processes.

The constitutional propriety of such an order is plain. As Judge Friendly wrote for the Second Circuit in International Products Corp. v. Koons: 13

The portion of the order which seals the deposition of Seldes and limits defendants and others in their use of information obtained therefrom was plainly authorized by F.R.Civ.Proc. 30(b) [now Rule 26(c)], and we entertain no doubt as to the constitutionality of a rule allowing a federal court to forbid the publicizing, in advance of trial, of information obtained by one party from another by use of the court’s processes. Whether or not the Rule itself authorizes so much of the order as also seals all affidavits submitted by defendants on various motions, we have no question as to the court’s jurisdiction to do this under the inherent ‘equitable powers of courts of law over their own process, to prevent abuses, oppression, and injustices,’ Gumbel v. Pitkin, 124 U.S. 131, 144 , 8 S.Ct. 379 , 31 L.Ed. 374 (1888); Parker v. Columbia Broadcasting System, supra, 320 F.2d at 938, or as to the propriety of the exercise of discretion here. Even though the affidavits were defendants’ own productions, their quasi-official appearance might give them more weight with the uninformed than they were entitled to receive, and newspapers might feel freer to publish them, under the privilege to report judicial proceedings, than extra-judicial statements.

The order in Koons, which the Court of Appeals sustained insofar as it sealed a deposition and related papers, also purported to restrict the party’s disclosure of certain information otherwise available to them. With respect to this latter provision, the Court of Appeals stated: 14

What causes concern here is that the order went further and curtailed disclosure of information and writings which defendants and their counsel possessed before they sought to take Seldes’ deposition. We fail to see how the use of such documents or information in arguing motions can justify an order preventing de *204 fendants and their counsel from exercising their First Amendment rights to disclose such documents and information free of governmental restraint.

To the same effect is the more recent decision of the Third Circuit in Rodgers v. United States Steel Corp. 15 There, too, the court sustained against constitutional attack a protective order insofar as it barred a ¿party’s extra-judicial use of material it had obtained through compulsory discovery processes. But it struck down another provision of the order which attempted to limit the party’s use of related information otherwise in its possession.

An analogous situation was also presented in Parker v. Columbia Broadcasting System, 16 a stockholder’s suit in which plaintiff appealed from an order restraining her from publishing or disseminating an unsworn “memorandum” which plaintiff herself had filed with the court in support of her motion for judgment on the pleadings. The document contained allegations of fraud and misconduct by defendants and their counsel. The district court’s restraining order also prohibited plaintiff from “communicating with any person or entity with respect” to “any of the matters contained therein.” The Second Circuit upheld against constitutional challenge that portion of the order that restrained promulgation of the document itself: 17

Insofar as the order enjoins appellant from “in any way publishing, disseminating, publicizing or otherwise promulgating to any person or entity all or any portion of the document,” we hold that, in view of the nature of the document, the order was properly issued under the inherent “equitable powers of courts of law over their own process, to prevent abuses, oppression, and injustice.” (citations omitted).

However, the order also enjoins appellant from communicating with any person with regard to any “matters contained” in the memorandum. This part of the order is repugnant to the First Amendment to the Constitution .... (citations omitted).

Thus, Koons, Rodgers, and, inferentially, Parker all recognize a distinction between,; on the one hand, restraining orders prohibit iting the communication of other kinds of information, and, on the other hand, protective orders solely directed at information and documents obtained in discovery through the court’s own processes. The distinction is this: Although each is a form of “prior restraint,” the constitutional permissibility of the first order is determined by application of a rigorous “clear-and-present-danger” type standard, whereas the constitutional permissibility of the latter order is governed by the less stringent standards embodied in the discovery laws.

Examples of the first type of order appear in Nebraska Press Ass’n v. Stuart, Chase v. Robson, and CBS, Inc. v. Young. 18 The order in Nebraska Press Ass’n prohibited the press from reporting the existence or nature of any confessions or other information “strongly implicative” of an accused murderer. In Chase, the restraining order prohibited defendants and their attorneys from making any public statements concerning the jury, the witnesses, the evidence, the merits, and the court rulings in a pending criminal case. The restraining order in CBS, Inc. prohibited counsel, court personnel, the parties, and their relatives, friends, and associates from “discussing in any manner whatsoever these cases with members of the news media.” These and similar cases articulate a rigorous standard for determining the permissibility of restraining orders of this type; they hold that such orders are permissible only upon a clear showing that they are necessary to prevent a serious and imminent harm to the fair administration of justice. 19

*205 Three features of this strict standard have been stressed: (1) insistence on an exceedingly high probability — bordering on certainty — that the harm predicted will materialize unless there is a prior restraint; 20 (2) insistence that the harm predicted be serious and irreparable and that the competing interests at stake be substantial, at least approaching in dignity the First Amendment interests sought to be curtailed; 21 and (3) insistence that the courts make formal and specific factual findings and articulate these findings in some detail. 22

Protective orders of the second type— that is, orders that are directed solely at the protection and control of discovered documents — also constitute a form of “prior restraint.” However, the standard applied in determining the permissibility of this type of order is not the rigorous standard set forth in the Nebraska Press Ass’n, Chase, and CBS, Inc. cases. Rather, the applicable standard is to be found in Rule 26(c) of the Federal Rules of Civil Procedure which provides:

(c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; . (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion. 2791; id. at 571, 96 S.Ct. 2791 (Powell, J., concurring).

As long as a protective ortjer meets the “good cause shown” standard embodied in Rule 26(c), it abridges no First Amendment rights; to the extent that such an order works a “prior restraint,” such a restraint is permissible under the First Amendment.

It is evident from the language of Rule 26(c), from the Koons case, and from a distillation of the numerous protective order cases arising under Rule 26(c), that the *206 “good cause shown” standard in Rule 26(c) is less stringent than the standard set forth in Nebraska Press Ass’n and the other cases dealing with broad restraining orders. First, in order to obtain a protective order under Rule 26(c), it is not necessary to demonstrate the same exceedingly high probability of harm that may be needed to justify broader restraining orders. It may be enough to show that the predicted harm is reasonably likely to occur unless a protective order is issued. 23 Second, it is not necessary in order to obtain a protective order under Rule 26(c) to show the same degree of serious and irreparable harm called for under the Nebraska Press Ass’n standard. Less crippling harm may do. 24 Nor is it necessary under Rule 26(c) to invoke the same quality of competing interest demanded by the Nebraska Press Ass’n standard. Somewhat more mundane interests are cognizable; for example, an order may issue to protect business information or even to protect against personal embarrassment. 25 Third, it is not necessary for district courts to make the same kind of formal and specific factual findings or to articulate these findings as elaborately as has been required under the Nebraska Press Ass’n line of#cases. The district court’s decision under Rule 26(c) is discretionary and involves the balancing of various competing interests; it is enough that the district court provide a record sufficient for meaningful review. 26

In sum, then, I submit (1) that in order to pass constitutional muster a protective order that is directed only at controlling the use of discovery materials need only comport with the standards embodied in Rule 26(c) and (2) that these standards are somewhat less stringent than the “clear and present danger”, type test se.t forth in cases dealing with broader restraining orders.

Why should these different types of restraining orders be treated differently? Why should a lower standard govern the permissibility of protective orders directed solely at discovery materials, while a higher standard governs the permissibility of broader restraining orders? The answer lies in the quantitative and qualitative differences between the First Amendment interests of a person seeking to disseminate discovery materials and one seeking to disseminate other kinds of information. The First Amendment interests of litigants in the promulgation of materials exacted from another party through the compulsory processes of the courts are much more limited and of a fundamentally different character from the First Amendment interests of litigants and nonlitigants in the public communication of other information concerning judicial proceedings. This is because litigants who wish to disseminate discovery materials have gained access to such materials — access which they would not ordinari-. ly have — through a statutory system that' expressly reserves to the courts the power to attach restrictions on the use of such; materials. Thus, when litigants receive dis-j covery materials, they receive them already subject to the courts’ exercise of this discretionary power. The First Amendment interest of litigants in the dissemination this material is, therefore, limited: It is necessarily qualified or conditioned by the potential restrictions that are part of the system through which the materials have been obtained.

The majority contends that this analysis “confuses plaintiffs’ right of access to materials with restraints imposed on materials after they have been obtained.” 27 If there is confusion, it is the majority’s. I do not believe that it is logical or legally sound to view the magnitude of one’s right to dispose of information once it has been obtained *207 wholly apart from explicit restrictions on use that are imposed by the same statutory system that granted access to the information in the first place. The majority suggests that “[a] prohibition on what plaintiffs may say about information once they have obtained it . directly implicates the First Amendment.” 28 I would agree; but I would submit further that the magnitude of those concerns may in large part be determined by limitations in the statute which conferred on plaintiffs the right of access to the information. My view that a recipient of discovery materials has no more than a conditional interest in those materials is thus very analogous to the view taken by Mr. Justice Rehnquist in Arnett v. Kennedy with respect to one’s property interest in a government job. Therein Mr. Justice Rehnquist concluded ,that “the property interest which appellee /had in his [nonprobationary federal] employment was itself conditioned by the proeedural limitations which had accompanied the grant of that interest.” 29

It must be remembered that plaintiffs 1 would have no right of access to the materials in this case in the absence of some statutory entitlement. 30 The discovery laws embodied in the Federal Rules of Civil Procedure confer on plaintiffs, as litigants, a right of access. These rules provide for very broad access to materials and information. However, while the scope of discovery is broad, its purpose is narrow. It is designed specifically to facilitate the fair trial of issues between parties. It has three distinct purposes: (1) to narrow the issues, in order that at trial it may be necessary to produce evidence only on m'atters actually in dispute; (2) to obtain evidence for use at trial; and (3) to secure information about the existence of evidence that may be used at trial. 31

The broad scope of discovery permitted under the Federal Rules of Civil Procedure raises the danger of abuse. As one authority notes:

Liberal discovery procedures are an important advance in the litigation process but it cannot be thought that they are an unmixed blessing. Any device, however salutary, can be abused and there are undoubtedly instances in which a party will seek to use discovery in a way that will oppress his opponent. . . . 32

In order to protect against potential abuse of discovery, the Federal Rules of Civil Procedure expressly confer on the courts broad discretionary power to issue orders for the protection of parties and persons from whom discovery is being sought. They authorize courts to impose conditions on a litigant’s access to information, and these conditions may be placed before or after the litigant’s receipt of information. The rules explicitly authorize courts to issue protective orders restricting the dissemination of discovery materials.

In short, the power of the courts to place conditions on discovery is an integral part of the scheme of discovery as a whole; it is a corollary to the broad right of access that litigants have under the laws, and the ability of the court to issue such orders is important to the overall fairness of the discovery process. A leading commentator observes:

Rule 26(c) [authorizing the issuance of protective orders] was adopted as a safeguard for the protection of parties and witnesses in view of the almost unlimited right of discovery given by Rule 26(b). The provision emphasizes the complete control that the court has over the dis co very process.

*208 It is impossible to set out in a rule all of the circumstances that may require limitations on discovery or the kinds of limitations that may be needed. The rules, instead, permit the broadest scope of discovery and leave it to the enlightened discretion of the district court to decide what restrictions may be necessary to a particular case. 33

Within the framework of the discovery laws, then, it is clear that whatever rights a party may have in the materials that it has exacted from another party in discovery are qualified by conditions properly imposed by the court in its discretion under Rule 26(c). There is no “waiver” of First Amendment rights, as the majority tries to term it; it is simply that when a party uses the court’s process in a manner which may be unfair to the other party and is unrelated to the litigation purpose of discovery, the court has the power and responsibility to take whatever action is necessary to protect its process from abuse, and a protective order requiring a litigant to use the products of discovery in a manner consistent with the purposes of discovery is a permissible “prior : restraint” if it meets the standards set ' forth in Rule 26(c). 34

The majority argues that revelation of governmental action which sometimes accompanies civil litigation should not be kept from the public. 35 Of course, this material on which petitioners wish to hold a press conference now will be made public — at the trial. Even matter which has been discovered, but which may not be deemed relevant to issues at trial, can later be fully disclosed and discussed, as I understand the purpose and tenor of the trial court’s order. No suppression of free speech is involved in this case; what is at issue is the orderly control of the judicial process by the trial judge. 36

This is illustrated by the striking anomaly in the majority opinion’s logic which the majority does not adequately explain. It is conceded “that plaintiffs do not have a First Amendment right of access to information not generally available to members of the public. Pell v. Procunier, 417 U.S. 817, 834 , 94 S.Ct. 2800 , 41 L.Ed.2d 495 (1974); Zemel v. Rusk, 381 U.S. 1, 16-17 , 85 S.Ct. 1271 , 14 L.Ed.2d 179 (1965); see also Nixon v. Warner Communications, Inc., 435 U.S. 589 , 609 10, 98 S.Ct. 1306 [1318], 55 L.Ed.2d 570 (1978).” 37 Federal Rule of Civil Procedure 26(c)(1) allows the district court to prevent discovery altogether, if *209 good cause is shown (“may . . order, . that the discovery not be had”)., No one argues that such prohibition raises any First Amendment issues or problems, and apparently it is conceded by all that such an order may be based on mere “good cause,” and the district court need not meet any more stringent test such as “reasonable likelihood of harm” or “serious and imminent threat,” etc., before it can issue such an order. However, the majority holds that when a less serious intrusion of the district court is made, i. e., it attempts to set limits on the use of the information already received, it must meet more stringent First Amendment standards.

Thus the anomalous situation results, in which the district court is completely unfettered by First Amendment considerations when it is most intrusive, i. e., prohibits discovery altogether, and is more restricted when it is less intrusive, i. e., puts limits on the use of material which it allows to be discovered. This has nothing to do with any “benefits-privileges” analysis, as the majority interprets my position (note 28). It is simply the principle that the greater (the power to prohibit altogether) includes the lesser (the power to grant with conditions), a bit of logic which has been recognized as valid at least since the ancient Greeks.

It seems to me, then, that the majority’s elaborate First Amendment analysis is gratuitous. Since an order properly issued under Rule 26(c) is constitutional, the focus of inquiry should be whether or not “good cause” has been shown for the order under review within the meaning of Rule 26(c). If the district court properly issued the order under Rule 26(c), then the order is consistent with First Amendment safeguards, and there is no reason to embark on an independent First Amendment analysis. If the district court did not properly issue the order under Rule 26(c), then it is violative of statutory standards, and there is again no reason to embark on a First Amendment analysis.

II. “GOOD CAUSE SHOWN” UNDER RULE 26(c)

Under Rule 26(c) of the Federal Rules of Civil Procedure the moving party must show “good cause” for a protective order. The majority finds that respondents’ showing was insufficient — indeed, that it was so deficient that the District Court clearly abused its discretion in acting upon it. Actually, however, the real gravamen of the majority’s censure is not the inadequacy of the showing made to the court, but, rather, the inadequacy of the findings made by the court on the basis of the data before it. The majority believes that the court was required to preface the order with elaborate and detailed factual findings. However, such findings are not required under Rule 26(c), and, as I have already discussed, the majority’s insistence on such findings is based on an erroneous belief that orders under Rule 26(c) must satisfy not only the “good cause shown” standard incorporated therein but also the more rigorous standards set forth in cases dealing with broader restraining orders unrelated to the discovery process.

The majority’s disposition of this matter raises two areas of inquiry. First, what kind of showing were respondents required to make to establish “good cause” under Rule 26(c)? Second, was the showing actually made by respondents adequate?

A. The Kind of Showing Required

According to a leading treatise, in order to establish “good cause,” a moving party must make “a particular and specific demonstration of fact.” 38

The first line of cases are district court cases in which trial judges have resisted parties’ attempts to limit their opponents’ discovery by making general and conclusory objections. 39 Typical of the kinds of general objections found unsatisfactory in these *210 cases are unsupported claims by one party that particular discovery by the other party would be burdensome, or inconvenient, or vexatious. 40 For example, as one district judge stated: 41

Objections to interrogatories should be sufficiently specific to the end that the Court may in considering such objections with the interrogatory propounded, ascertain therefrom their claimed objectionable character; that is, whether the interrogatory calls for matter that is relevant to the subject matter involved in the pending action, is privileged, or oppressive or vexatious. General objections to interrogatories are not proper.

The second line of cases are court of appeals cases reviewing a district judge’s denial of a protective order. These cases hold that the district judge has not abused his discretion in denying a protective order where the moving party has made no specific showing of good cause. 42 In White v. Wirtz, 43 for example, defendants asserted that answering certain interrogatories propounded by plaintiffs would be an “undue burden and expense.” Defendants provided no support for this assertion. The trial judge denied a protective order. The court of appeals held that the trial judge had broad discretion relating to protective orders and that, in view of defendants’ conclusory and unsupported statements as to burden, he had not abused his discretion in denying the order. 44 There is little support in these precedents for a rule that a court clearly abuses its discretion unless it insists in every case on a highly specific and particular factual demonstration. Actually, moving parties under Rule 26(c) are not held to any invariable standard of particularity in demonstrating “good cause.” In each case, the determination as to whether “good cause” had been demonstrated is committed to the sound discretion of the trial court. 45

The trial court has broad discretion under Rule 26(c) precisely because the appropriateness of a protective order involves the ad hoc balancing of competing interests. On the one hand, there is the general judicial interest in broad and open discovery. This militates against protective intervention by the court. On the other hand, there are the specific interests raised by the moving party as grounds for protective intervention. All that is required by the “good cause” requirement of Rule 26(c) in terms of the specificity of the showing is that the moving party provide the court with information sufficient to enable it meaningfully to balance the moving party’s interests against the opposing party’s interests. This means that the court must have before it enough information for it to ascertain the nature and magnitude of the moving party’s interests.

The degree of specificity with which this information must be brought to the court’s attention varies from case to case. For example, the kind of showing necessary to constitute “good cause” depends in each case upon the kind of protective order sought 46 The burden is heaviest on the moving party where the order sought would restrict the scope of discovery itself and therefore could adversely affect the other party’s ability to conduct the litigation. 47 In contrast, there is less of a burden on the moving party where the order sought con *211 cerns only the extra-judicial use of discovered materials and hence would affect in no way the ability of the other party to litigate. 48

It is important to note, then, that in the instant ease the protective order sought does not place any restrictions on discovery itself; It only prevents an extra-judicial use of discovered materials wholly unrelated to the conduct of the litigation. Thus, the order does not entail any potential prejudice to the litigation rights of petitioners. Consequently, while respondents were still required to show “good cause”, they were not required to do so with the degree of specificity and particularity that might otherwise have been required by the district judge.

Moreover, the kind of showing needed to constitute “good cause” necessarily depends in each case upon the type of harm with which the movant is threatened. Some kinds of harm are capable of clear objective demonstration. For example, a moving party can easily demonstrate with particularity that certain materials are “trade secrets” or that a particular oral deposition would entail great inconvenience. However, other kinds of harm are more subtle and less amenable to objective demonstration. Annoyance, embarrassment, and harassment are proper grounds for protective orders but are relatively difficult to demonstrate with particularity. This does not mean that these more subtle injuries pose any less of a threat to the moving party. Indeed, it may mean that more subtle abuses of discovery are occurring, and this is all the more reason for trial judges to be sensitive to these kinds of dangers.

In sum, then, the relative specificity of a particular showing under Rule 26(c) is not determinative of the showing’s adequacy. The inquiry is whether the court has before it information from which it can reasonably conclude that the nature and magnitude of the moving party’s interest are such that protective intervention by the court is justified.

One further point on the kind of showing required: The logic of the majority has virtually read out any kind of a showing under Rule 26(c) as adequate support for a trial court’s protective order. Fed.R.Civ.P. 26(c) provides that the district court may “make any order which justice requires>to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . .” I would submit, first that the majority has read out of the Rule the word “any” before the word “order,” and has also read out of Rule 26(c), to a large extent, the words “annoyance, embarrassment, oppression, or undue burden or expense” as a valid ground for such an order. It is hard to conceive of a situation where the majority would allow such interests as annoyance, embarrassment, etc., to outweigh the “overriding” interests in First Amendment expression asserted to be present.

This Rule of Civil Procedure is thus left with no content: if public disclosure which would be “prejudicial to the defendants’ right to adjudication of this civil action in an uncolored and unbiased climate, including a fair trial” is not sufficient within the above-quoted language of Rule 26(c), what is? We must not overlook the fact that drafters of the Rule, which comes to us with the imprimatur of the Supreme Court, must have realized that any grounds of a protective order, if successfully invoked, would have the effect of “overriding” free speech — in the same distorted sense as used by the majority here.

B. The Adequacy of Respondent’s Showing

In the instant case, respondents sought a protective order on the grounds that petitioners’ public release of discovered materials would likely aggravate an already hostile climate of public opinion developing toward respondents and thereby interfere with the prospects for a fair trial on the issues. It is clear from the record that *212 there was sufficient information before the District Court to satisfy the “good cause” requirement of Rule 26(c).

The court had before it the fact that the subject matter of petitioners’ claims had already generated massive, and in many cases possibly tendentious, publicity. From this the court could reasonably conclude that it had before it a case likely to attract sensational news coverage, particularly if any encouragement were given. In addition, respondents brought to the attention of the court, in their motion for a protective order, the fact that counsel for petitioners was planning to stage a series of press conferences at which selected portions of Agency documents obtained through discovery were to be released and interpreted for the media. The fact that release of information was to be selective is in itself significant. It obviously increases the danger that information will be taken out of context, and it suggests an intent to manipulate public opinion in regard to the pending judicial proceeding. If petitioners were motivated by a disinterested desire to educate the populace generally, they would have planned to release all of the documents and let them speak for themselves. It is true that respondents did not provide any objective demonstration concerning the extent to which prospective publicity would interfere with a fair trial. However, this is something which is virtually impossible to demonstrate objectively. Nevertheless, the court had before it the data of its own experience in dealing with press coverage of trials, and in exercising its discretion the court is expected to rely on its experience in making judgments.

Finally, the court also had brought to its attention by respondents the strong judicial policy against extra-judicial statements by counsel concerning pending litigation, 49 a point to which the majority seems to give no weight whatsoever. After all, a court is still a place of order and fair procedure, and the rule against extra-judicial statements is an important underpinning.

On the basis of all of this information, it was reasonable for the District Court to conclude, as it did, that petitioners’ proposed press conferences could well interfere with a fair trial by exacerbating the already hostile climate of opinion toward respondents that had developed. It was, therefore, reasonable for the court to conclude that sufficient cause had been shown to warrant issuance of a limited protective order.

The majority does raise at least two specific objections to the factual basis upon which the District Court acted. First, it complains that the record is devoid of evidence that this is the kind of sensational case which is likely to generate massive and concentrated publicity. As already noted, this is not entirely true. The court had before it the fact that the subject matter of petitioners’ claims had already generated massive publicity. Furthermore, this factor largely was in the control of petitioners and depended upon petitioners’ success in manipulating public opinion. Under these circumstances, it is difficult to see how any further evidence could have been adduced by respondents to demonstrate that the case would attract a great deal of press attention.

Second, and finally, the majority complains that the District Court took no account of the fact that the case was to be tried by a judge rather than a jury. While there is no indication that the district judge ignored this fact, and while it is relevant, it does not make groundless the judge’s concern that massive adverse publicity could well interfere with a fair trial. Prejudicial public disclosure can have a detrimental effect on the court in a bench trial. “Judges are human”, 50 and even the most *213 austere intellect among them can be affected — one way or another — by a highly charged climate of opinion. Conduct of a trial can yet be influenced in other ways. Witnesses, for example, may be affected by a highly charged atmosphere. Moreover, suits such as this have frequently employed advisory juries under Rule 39 of the Federal Rules of Civil Procedure. A prejudiced climate of opinion would make it difficult for a judge to employ this technique.

In sum, then, the District Court acted well within its discretion in entering a narrowly drawn order to minimize the prejudicial effect of pretrial publicity and to prevent parties from abusing the judicial process by seeking discovery for non-litigation purposes.

III. THE INAPPROPRIATENESS OF MANDAMUS

Traditionally, mandamus has only been proper where the action of the district court amounted to a clear abuse of discretion or usurpation of judicial power. 51 However, recently both the Supreme Court and this court have recognized that mandamus should also be available in limited circumstances for supervisory or advisory purposes. 52 But regardless of the type of mandamus involved — traditional, supervisory, or advisory — the availability of the writ is independent of the existence of error in the trial court’s ruling: 53

Mandamus, it must be remembered, does not “run the gauntlet of reversible errors.” Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382 , 74 S.Ct. 145 , 98 L.Ed. 106 (1953). Its office is not to “control the decision of the trial court,” but rather merely to confine the lower court to the sphere of its discretionary power.

The majority claims that mandamus is appropriate in the traditional sense — that the District Court’s entry of the protective order was a clear abuse of its discretion. 54 This is so, the majority contends, because the protective order was not based on a specific factual showing of serious and imminent danger to the fair administration of justice.

I have already demonstrated in Part I of this dissent that this constitutional claim is without merit. .The “clear and present danger” standard urged by the majority is in-apposite in this context. Protective orders such as the one issued here are permissible prior restraints so long as they are based on “good cause shown” as required in Rule 26(c). Furthermore, even if there were some merit in this constitutional claim, this would not necessarily entitle petitioner to mandamus. This court has previously recognized that discovery orders which allegedly violate constitutional rights are not appealable at least prior to entry of an-order of contempt. 55

*214 Nor would mandamus be appropriate on the ground that there has been an inadequate showing of “good cause” under Rule 26(c). The majority cannot claim that the District Court exceeded its power or clearly abused its discretion simply by entering (in its view) an erroneous order, for to do so would be to validate unrestricted interlocutory review. This theory was expressly rejected by the Supreme Court: 56

Acceptance of this semantic fallacy would undermine the settled limitations upon the power of an appellate court to review interlocutory orders. . . . Courts faced with petitions for the peremptory writs must be careful lest they suffer themselves to be misled by labels such as “abuse of discretion” and “want of power” into interlocutory review of nonappealable orders on the mere ground that they may be erroneous.

As I have already discussed in Part II of this dissent, the District Court acted well within its discretion in issuing the protective order. Not only was there a local rule which expressly provided restrictions on counsel in this situation, but the court also had before it the proposed press statements and petitioners’ avowed intention to continue publicizing selected documents and their “interpretations” thereof. Moreover, the court was cognizant of the fact that the subject matter of petitioners’ claims had already generated massive press coverage and that a hostile climate of public opinion was developing toward respondents’ agencies. Confronted with these circumstances, it cannot be said that entry of the protective order to preserve the right of fair trial constituted a clear abuse of discretion.

Indeed few courts have granted writs against discovery orders on the ground that the orders involved clear abuses of discretion. The cases in which this has been done have most commonly involved the most blatant kind of error 57 and orders either shutting off discovery of important aspects of petitioners’ case 58 or permitting broad, intrusive and unnecessary discovery. 59 None of these circumstances is present in this case.

It is also important to note that this is not a case where the petitioners lack any adequate means of appellate review. As *215 this court stated in National Right to Work . Legal Defense v. Richey: “ . [M]andamus is neither necessary nor appropriate in the instant case since the order may be challenged through disobedience.” 60 And “ . . . this principle extends even to the assertion of constitutional privilege.” 61 Thus in three recent court of appeals decisions, First Amendment interests of association, claimed as a shield against compelled revelation of association membership, have been found insufficient grounds to review the merits of discovery orders because of the availability of appeal by way of disobedience and contempt. 62

Finally, an important consideration in determining the appropriateness of mandamus is whether petitioner will be able to secure effective relief after final judgment. Many cases allowing interlocutory appeal from discovery orders through mandamus have done so in situations where failure to act immediately would result in permanent, irreparable damage to petitioner. Thus, mandamus is apt to be found appropriate to review orders that compel discovery of information that is claimed to be protected by the Constitution, 63 privilege, 64 or more general interests in secrecy. 65 The rationale of these cases has been that once petitioner is compelled to reveal the confidential information, it becomes impossible to provide effective relief in the future; permanent damage has been done.

Mandamus is not justified here because the challenged protective order is of such limited scope that petitioners’ claims will soon be resolved in the course of the trial itself, and to the extent that they are not resolved, they will come to us as a redressable claim on appeal after trial. To the extent that the documents covered by the protective order are offered as evidence during trial and are received into the record, they will become public, and the parties can bleat about them to their hearts’ content. Thus, to the extent that the documents are admitted into evidence, the controversy will have worked itself out by the time the trial is over, without any mandamus from us. Moreover, the controversy will probably not survive even as to those documents which are not offered or received into evidence. Since the sole basis for the order is possible prejudice to respondents, it will probably be vacated at the close of litigation. At that point petitioners will be free to disclose publicly any remaining documents. If, however, any restrictions are retained, this court will be able to satisfy petitioners’ claims on appeal.

I respectfully dissent.

. New York Times, 22 December 1974, at 1. For a later, more reflective view, .see “The War on the CIA,” Washington Post, 12 November 1978, pp. B-1 et seq.

. Apparently, some media coverage of the CIA during this period was tendentious or inaccurate. In his statement before the House Appropriations Committee on 20 February 1975, the Director of Central Intelligence, William E. Colby, stated:

Mr. Chairman:

Our national intelligence agency, the CIA, is the object of great attention and concern. A series of serious allegations have been made by the press and other critics about our operations and activities.

At the same time, a number of responsible Americans are concerned that a degree of hysteria can develop that will result in serious damage to our country’s essential intelligence work by throwing the baby out with the bath water.

There is equally serious concern within the CIA itself as to whether its personnel can continue to make their important contribution to our country or will be the target of ex post facto sensationalism and recrimination for actions taken at earlier times under a different atmosphere than today’s.

I welcome this opportunity to describe the importance of our intelligence, how it works *201 and what it does, and the small extent to which its activities may in past years have come close to or even overstepped proper bounds. We certainly make no claim that nothing improper occurred, but we do think it important that such incidents be given only their proper proportion.

It would perhaps be useful, Mr. Chairman, to start by reviewing some of the allegations made recently about the CIA.

The leading charge was that, in direct violation of its charter, CIA conducted a “massive illegal domestic intelligence operation” against the anti-Vietnam war and other dissident elements in recent years. In my testimony to the Senate Appropriations and Armed Services Committees, on 15 and 16 January, I flatly denied this allegation. I pointed out that CIA instead had conducted a counterintelligence operation directed at possible foreign links to American dissidents, under the authority of the National Security Act and the National Security Council Intelligence Directives which govern its activities and in response to Presidential concern over this possibility. Thus this operation was neither massive, illegal, nor domestic, as alleged.

The same allegations stated that “dozens of other illegal activities,” including break-ins, wire tapping, and surreptitious inspection of mail, were undertaken by members of the CIA in the United States beginning in the 1950’s. Again I reported to the Senate Appropriations and Armed Services Committees a few such activities that in fact occurred. I pointed out that most such actions were taken under the general charge of the National Security Act on the Director of Central Intelligence to protect intelligence sources and methods against unauthorized disclosure. Whether or not they were appropriate, there are very few institutions in or out of Government which in a 27-year history do not on occasion -make a misstep, but in CIA’s case such instances were few and far between and quite exceptional to the main thrust of its efforts.

Another allegation given prominence was apparently based on the statements of an anonymous source who claimed that, while employed by the CIA in New York in the late 60s and early 70s, “he and other CIA agents had also participated in telephone wiretaps and break-ins” in the New York area. As I told the journalist involved before the story was printed, it does not bear any relation to CIA’s actual activities in that area. Nor can we identify any former employee who answers to the journalist’s description of his source. I fear that the journalist has been the victim of what we in the intelligence trade call a fabricator.

Another published allegation was that CIA, through Agency-owned corporate structures organized to provide apparent sponsorship for its overseas operations, manages a “$200-million-a-year top-secret corporate empire” which could circumvent the will of Congress. This allegation is also false. CIA does maintain certain corporate support structures that are essential to conducting its operations and concealing CIA’s role overseas. These activities are managed, however, in the most meticulous manner by CIA to ensure the safekeeping of the Government’s investment, and to audit these activities to ensure that they stay within proper bounds.

One individual continues to give national prominence to an allegation that CIA was somehow more involved in Watergate and its cover-up than has been demonstrated publicly. His lack of credibility should cause the charge to fall of its own weight, but in addition I believe the extensive investigations made into this subject, and in particular the tapes most recently released, indicate that CIA’s limited assistance in 1971 certainly had nothing to do with the Watergate in 1972, and that CIA was the institution that said “No” to the cover-up rather than be involved in it.

There are also a number of allegations of improper CIA relationships with domestic police forces. The facts are that CIA maintained friendly liaison relationships with a number of police forces for assistance in CIA’s mission of investigating its applicants, contractors, and similar contacts. These relationships from time to time included various mutual courtesies which have been warped into allegations of improper CIA manipulation of these police forces for domestic purposes. These allegations are false. Since the 1973 legislation barring any CIA assistance to the Law Enforcement Assistance Administration, CIA has terminated any assistance to the LEAA and in compliance with the spirit as well as the letter of that particular law has terminated any assistance to local police forces as well.

For a detailed rebuttal of certain charges made in the media, see DCI Colby’s testimony before the Senate Appropriations Committee, 15 January 1975.

. Supplemental Appendix at 18-33.

. Joint Appendix (J.A.) at 24.

. Local Rule l-27(d) of the Local Rules of the District Court of the District of Columbia expressly prohibits an attorney from

. participating] in making an extrajudicial statement [about evidence regarding the occurrence involved], other than a quotation from or reference to public records . if there is a reasonable likelihood that such dissemination will interfere with a fair trial. In addition, the District of Columbia Court of Appeals has recently amended the Disciplinary Rules of the Code of Professional Responsibility, sections DR7-107(G) and (H). The amendment reads:

Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the Courts and otherwise prejudice the due administration of justice. Generally they are to be condemned. If the extreme circumstances of a particular case justify statement to the public, it is unprofessional to make it anonymously. An ex parte reference to the facts should not go beyond quotation from the records and papers on file in the court; but even in extreme cases it is better to avoid any ex parte statement.

. 283 U.S. 697 , 51 S.Ct. 625 , 75 L.Ed. 1357 (1931).

. 403 U.S. 713 , 91 S.Ct. 2140 , 29 L.Ed.2d 822 (1971).

. 328 U.S. 331 , 66 S.Ct. 1029 , 90 L.Ed. 1295 (1946) .

. 331 U.S. 367 , 67 S.Ct. 1249 , 91 L.Ed. 1546 (1947) .

. 427 U.S. 539 , 96 S.Ct. 2791 , 49 L.Ed.2d 683 (1976).

. 435 F.2d 1059 (7th Cir. 1970).

. According to the terms of the order, the prohibition on disclosure remains in effect until modified or removed by the District Court. However, because the order is based on possible prejudice to a fair trial, it is likely that the prohibition on disclosure will be removed upon completion of the litigation.

. 325 F.2d 403 , 407-08 (2nd Cir. 1963).

. 325 F.2d at 408.

. 536 F.2d 1001 (3rd Cir. 1976).

. 320 F.2d 937 (2nd Cir. 1963).

. Id. at 938-39 .

. 522 F.2d 234 (6th Cir. 1975).

. CBS, Inc. v. Young, 522 F.2d at 238, 241 ; Chase v. Robson, 435 F.2d at 1061; Nebraska Press Ass’n v. Stuart, 427 U.S. 569 , 96 S.Ct.

. See Nebraska Press Ass’n v. Stuart, 427 U.S. at 569-70 , 96 S.Ct. 2791 ; CBS, Inc. v. Young, 522 F.2d at 238, 241 ; Chase v. Robson, 435 F.2d at 1061. See also New York Times Co. v. United States, 403 U.S. 713 , 726 27, 91 S.Ct. 2140 (1971) (Brennan, J., concurring); id. at 730 , 91 S.Ct. 2140 (Stewart, J., joined by White, J., concurring).

. See Nebraska Press Ass’n v. Stuart, 427 U.S. at 551, 561 , 96 S.Ct. 2791 ; id. at 590 91, 96 S.Ct. at 2791 (Brennan, J., concurring); New York Times Co. v. United States, 403 U.S. at 725 26, 91 S.Ct. 2140 (Brennan, J., concurring); id. at 730 , 91 S.Ct. 2140 (Stewart, J., joined by White, J., concurring); id. at 731-33 , 91 S.Ct. 2140 (White, J., joined by Stewart, J., concurring); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419-20 , 91 S.Ct. 1575 , 29 L.Ed.2d 1 (1971); CBS, Inc. v. Young, 522 F.2d at 238 .

. See Nebraska Press Ass’n v. Stuart, 427 U.S. at 569 , 96 S.Ct. 2791 ; id. at 571, 96 S.Ct. 2791 (Powell, J., concurring); Chase v. Robson, 435 F.2d at 1061.

. See international Products Corp. v. Koons, 325 F.2d at 405, 405 n.2, 408.

. See id.

. See id.; Essex Wire Corp. v. Eastern Elec. Sales Co., 48 F.R.D. 308 (E.D.Pa.1969) (business interests); Nichols v. Philadelphia Tribune Co., 22 F.R.D. 89 (E.D.Pa.1958) (personal embarrassment).

. See cases cited at note 25.

. Maj. Op. at of 194 U.S.App.D.C., at 190 of 598 F.2d.

. Maj. Op. at of 194 U.S.App.D.C., at 190 of 598 F.2d.

. Cf. Arnett v. Kennedy, 416 U.S. 134, 155 , 94 S.Ct. 1633 , 40 L.Ed.2d 15 (1974) (Rehnquist, J., joined by Burger, C. J., and Stewart, J.).

. Presumably, plaintiffs could also obtain these materials through the FOIA, in which case this controversy would not have arisen. But plaintiffs have not done so and rely exclusively on their rights under the discovery laws.

. See generally 8 Wright & Miller, Federal Practice and Procedure: Civil § 2001 (1st ed. 1970).

. Wright, Federal Courts § 83 at 412 (3rd ed. 1976).

. 8 Wright & Miller, Federal Practice and Procedure: Civil § 2036 at 267-68 (1st ed. 1970).

. Congress could have adopted discovery laws that completely prohibited the extra-judicial use and dissemination of discovery materials, and such a statutory limitation would undoubtedly have been constitutional. At the other extreme, Congress could have adopted discovery laws that mandated the public dissemination of discovery materials (unless dissemination clearly violated a party’s constitutional rights). Congress did not choose either extreme, however; it adopted the middle course. There are no explicit restrictions on extra-judicial use of discovery materials, but a court has the discretionary power and responsibility to impose such restrictions where a party demonstrates to the court’s satisfaction that there is a palpable risk of injury to a somewhat significant interest.

This “middle approach,” by its very nature, “takes into account" First Amendment -interests by placing both the burden of production and the burden of persuasion on the party seeking a protective order.

It is clear that Congress, having imposed those burdens, can define their magnitude. If it would be constitutional for Congress to prohibit completely the extra-judicial use of discovery materials, then it is constitutional for Congress to define those burdens in modest terms — less exacting and absolute than those urged by the majority.

Thus the statement by the majority, “The discovery Rules themselves place no limitations on what a party may do with materials obtained in discovery” (Maj. Op. - of 194 U.S.App. D.C., at 188 of 598 F.2d), is somewhat misleading. The control of all discovery, its extent and use, including pre-trial restrictions, has been left to the trial court.

. Maj. Op. at of 194 U.S.App.D.C., at 182 of 598 F.2d.

. The majority is frank to admit that the documents obtained under Rule 34 are not yet part of the “public record” in this case. Maj. Op., note 28.

. Maj. Op. at of 194 U.S.App.D.C., at 190 of 598 F.2d.

. 8 Wright & Miller, Federal Practice and Procedure 265 (1st ed. 1970).

. See, e. g., Bowles v. Safeway Stores, 4 F.R.D. 469 (1945); Essex Wire Corp. v. Eastern Elec. Sales Co., 48 F.R.D. 308 (1969).

. Id.

. Bowles v. Safeway Stores, 4 F.R.D. at 470 .

. See, e. g., White v. Wirtz, 402 F.2d 145 (10th Cir. 1968); General Dynamics Corp. v. Selb, 481 F.2d 1204 (8th Cir. 1973).

. 402 F.2d 145 (10th Cir. 1968).

. 402 F.2d at 148 .

. See, e. g., U. S. ex rel. Edelstein v. Brussell Sewing, 3 F.R.D. 87 (D.C.N.Y.1943); Chemical & Indus. Corp. v. Druffel, 301 F.2d 126 , 129 (6th Cir. 1962); Galella v. Onassis, 487 F.2d 986 (2nd Cir. 1973).

. See generally 4 Moore’s Federal Practice §§ 26.68-26.78.

. See, e. g., Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975); Kamin v. Central States Fire Ins. Co., 22 F.R.D. 220 (E.D.N.Y. 1958); Traejon Bristle Mfg. Co. v. Omnex Corp., 13 F.R.D. 448 (S.D.N.Y.). See generally 4 Moore’s Federal Practice § 26.69.

. See 4 Moore’s Federal Practice §§ 26.70, 26.73, 26.74, 26.75; 8 Wright & Miller, Federal Practice and Procedure: Civil §§ 2038, 2041 (1st ed. 1970).

. As the First Circuit has recently stated, the proper function of an attorney is

to present his case in the courtroom, not to make extrajudicial statements interpreting or explaining the evidence, anticipating his own or his adversary’s strategy, or attempting to build a favorable climate or opinion.

United States v. Coast of Maine Lobster Co., 538 F.2d 899, 901-02 (1st Cir. 1976).

. Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 256-57 (7th Cir. 1975).

. Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 , 74 S.Ct. 145 , 98 L.Ed. 106 (1953).

. See generally Schlagenhauf v. Holder, 379 U.S. 104 , 85 S.Ct. 234 , 13 L.Ed.2d 152 (1964); Colonial Times, Inc. v. Gasch, 166 U.S.App. D.C. 184, 509 F.2d 517 (1975); 9 Moore’s Federal Practice 110.26 at 287 (2d ed. J. Moore & B. Ward 1973).

. Will v. United States, 389 U.S. 90, 104 , 88 S.Ct. 269 , 19 L.Ed.2d 305 (1967).

. Maj. Op. at of 194 U.S.App.D.C., at 198 of 598 F.2d. The majority does not contend that either advisory or supervisory mandamus would be appropriate in this case. It is clear that neither are available. The supervisory writ is not appropriate unless the district court has shown a “. . . persistent or deliberate disregard of limiting rules . .” National Right to Work Legal Defense v. Richey, 167 U.S.App.D.C. 18, 22 , 510 F.2d 1239, 1243 (1975). Advisory mandamus is available only where the decision will clarify a question “that is likely to confront a number of lower court judges in a number of suits before appellate review is possible . . .” Id., at 22 , 510 F.2d at 1243 [citations omitted].

. See United States v. Anderson, 464 F.2d 1390, 1392 (D.C.Cir. 1972); National Right to Work Legal Defense v. Richey, 167 U.S.App. D.C. 18, 24, 510 F.2d 1239 , 1245 (1975). See also Central South Carolina Chapter, Society of Professional Journalists v. District Court, 551 F.2d 559 (4th Cir. 1977), wherein the district court entered an order prior to a criminal trial regulating the conduct of the participants in the trial and the conduct and seating of the press in the courtroom. The order prohibited participants in the trial, including lawyers, parties, witnesses, jurors, and court officials from mak-

*214 ing “extrajudicial statements which might divulge prejudicial matter not of public record,” and from “mingling with or being in proximity” to reporters and photographers in the environs of the court. It prohibited the release of names and addresses of prospective jurors, and the sketching or photographing of jurors within the environs of the court. It prohibited witnesses from news interviews during the trial period. The Fourth Circuit concluded that it would be improper to grant relief from this order on a petition for mandamus:

The order issued by the district judge was a result of his judgment that it was necessary to protect the defendant’s right to a fair trial. We do not reach the merits of the order and we express no opinion concerning its validity. We note only that it involved the exercise of judgment by the district court on a question not nearly conclusively settled in law, especially adversely to the opinion of the district court, that is, whether rather than prohibiting the press from publishing information already obtained, which the district court did not do, and which may only be done in extraordinary circumstances not shown to be present here, it may indirectly prevent the press from obtaining information by regulating trial procedures and ordering the trial participants not to speak with members of the press.

In view of Sheppard v. Maxwell, 384 U.S. 333 , 86 S.ct. 1507, 16 L.Ed.2d 600 (1966), Nebraska Press Ass’n v. Stuart, 427 U.S. 539 , 96 S.Ct. 1791 , 49 L.Ed.2d 683 (1976), and Pell v. Procunier, 417 U.S. 817 , 94 S.Ct. 2800 , 41 L.Ed.2d 495 (1973), the Society’s right to relief from the order is far from clear and indisputable. Even considering abuse of discretion to be the standard, that has not been shown. Thus, we do not grant relief on the petition for mandamus.

Id. at 561.

. Will v. United States, 389 U.S. at 98 n. 6, 88 S.Ct. at 275 n. 6; see also Bankers Life & Cas. Co. v. Holland, 346 U.S. at 383 , 74 S.Ct. 145 .

. See, e. g., Winters v. Travis, 495 F.2d 839 (2nd Cir. 1974).

. See, e. g., Investment Properties Int’I, Ltd. v. IOS, Ltd., 459 F.2d 705 (2nd Cir. 1972); Western Elec. Co. v. Stern, 544 F.2d 1196 , 1198-99 (3rd Cir. 1976).

. See, e. g., U. S. Bd. of Parole v. Merhige, 487 F.2d 25 (4th Cir. 1973), cert. denied, 417 U.S. 918 , 94 S.Ct. 2625 , 41 L.Ed.2d 224 .

. 167 U.S.App.D.C. at 24 , 510 F.2d at 1245 . See also United States v. Ryan, 402 U.S. 530, 533 , 91 S.Ct. 1580 , 29 L.Ed.2d 85 (1971).

. Ibid., citing United States v. Anderson, 462 F.2d 1390 (1972).

. Grinnell Corp. v. Hackett, 519 F.2d 595, 598-99 (1st Cir. 1975); Dow Chemical Co. v. Taylor, 519 F.2d 352, 355-56 (6th Cir. 1975); National Right to Work Legal Defense v. Richey, 167 U.S.App.D.C. 18 , 510 F.2d 1239 (1975), cert. denied, 422 U.S. 1008 , 95 S.Ct. 2631 , 45 L.Ed.2d 671 . See also Kerr v. U. S. District Court, 511 F.2d 192 (9th Cir. 1975), aff’d, 426 U.S. 394 , 96 S.Ct. 2119 , 48 L.Ed.2d 725 ; City of Los Angeles v. Williams, 438 F.2d 522 (9th Cir. 1971); Gialde v. Time, Inc., 480 F.2d 1295 (8th Cir. 1973); American Exp. Warehousing, Ltd. v. Transamerica Ins. Co., 380 F.2d 277 (2nd Cir. 1967).

. See Nixon v. Sirica, 159 U.S.App.D.C. 58, 65-66 , 487 F.2d 700 , 707-708 (1973).

. See, e. g., Usery v. Ritter, 547 F.2d 528 (10th Cir. 1977); Pfizer, Inc. v. Lord, 456 F.2d 545, 547-48 (8th Cir. 1972).

. See Hartley Pen Co. v. U. S. District Court, 287 F.2d 324 (9th Cir. 1961).