- 10 - 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 claimantPage: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: May 25, 2011