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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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