Henry Friendly

“ FRIENDLY, Circuit Judge concurring:
If asked to provide an example of an order that was not a "final decision" appealable under 28 U.S.C. § 1291, one could hardly do better than to pick the order review of which is here sought. The order does not compel or deny anything; it merely provides that consolidated pretrial discovery, which all agree to be proper, shall be conducted under a single consolidated complaint rather than separate complaints. ”

“ The majority holds out some hope that the time may come when we will bring ourselves in line with our sister circuits with respect to the appealability of consolidation orders. I can think of no better time than now, when appellate dockets have swollen to the breaking point. ”

“ This circuit seems to stand alone in having taken a different view. We upheld the appealability of an order denying pre-trial consolidation in MacAlister v. Guterma, 263 F.2d 65 (2 Cir. 1958) , and followed that precedent in the case of an order granting such consolidation in Garber v. Randell, 477 F.2d 711 (2 Cir. 1973) . However, under this court's doctrine not all such orders are appealable; they are "final" and appealable only under "exceptional circumstances" or when they raise "basic issues", Levine v. ”