GlaxoSmithKline Holdings (Americas) Inc. - Page 10




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          suggest that there is a high probability that critical testimony            
          will be lost.                                                               
               There is no indication that the applicants are attempting to           
          use the proposed depositions as a discovery device.  Although the           
          applicants have agreed that the Commissioner will be given an               
          opportunity to request information from Glaxo in order to prepare           
          for the depositions, such an exchange of information in advance             
          of the depositions is perfectly understandable given the                    
          complexity and magnitude of the examination.                                
              The circumstances presented in the instant application are             
          somewhat analogous to those presented in Texaco, Inc. v. Borda,             
          383 F.2d 607 (3d Cir. 1967), where Borda brought a civil                    
          antitrust suit against Texaco which was stayed pending the                  
          determination of a criminal action in which Texaco was named as a           
          coconspirator.  The District Court had denied Texaco’s                      
          application to take Borda’s deposition in advance of the trial in           
          the civil case.  On appeal, the Court of Appeals for the Third              
          Circuit held that the District Court had erred in denying                   
          Texaco’s application to take Borda’s deposition, considering that           
          Borda was 71 at the time, the events underlying the civil action            
          dated back some 11 years, and the trial of the matter would not             
          be conducted in the foreseeable future.  Cf. DeWagenknecht v.               
          Stinnes, supra (application to take deposition to perpetuate                
          testimony of witness 74 years of age was granted where claimant             






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