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UNITED STATES v. NUTRITION SERV.

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA


October 2, 1964

UNITED STATES of America
v.
NUTRITION SERVICE, INC., a corporation, Drosnes-Lazenby Cancer Clinic, apartnership, Philip L. Dorsnes, Lillian M. Lazenby, Joseph M. Wilson, M.D., andGeraldine M. Maiden, Individuals

The opinion of the court was delivered by: ROSENBERG

A motion was presented by the defendants for a protective order to prevent the taking of depositions and the production of documents.

The plaintiff desires to proceed with discovery of witnesses during the time that an appeal to the United States Court of Appeals for the Third Circuit is pending from a preliminary injunction granted in its favor. The defendant argues that this discovery proceeding may be futile because there is a possibility that the Court of Appeals will make the matter moot.

 The argument of the defendant has merit, but the contention of the plaintiff also has merit, and the counter argument is easily recognizable that the action may not be futile or the matter made moot. Ordinarily, where no harm may accrue by delaying a process in judicial procedure, a delay or postponement should be granted. But where the public interest, public welfare and the public health is a matter of concern in such litigation, as it is here, no possible delay or obstruction should be permitted and aid should be given to the administrative agents who, in good faith, are attempting to administer the public health laws. And in addition, the Federal Rules of Civil Procedure must be applied liberally for their intended purposes. United States of America v. 38 Cases, More or Less, etc., D.C., 35 F.R.D. 357 (1964).

 Accordingly, the defendants' Motion for Protective Order to Prevent the Taking of Depositions and Production of Documents will be denied.

19641002

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