
    CIRCUIT COURT OF ARLINGTON COUNTY
    Dempsey v. Government Employees Ins. Co. v. St. Paul Mercury Ins. Co.,
    September 12, 1974
    Case No. (Law) 16595
   By JUDGE WILLIAM L. WINSTON

The case is before the court on the third party defendant's (St. Paul) motion for a protective order filed in response to the third party plaintiff’s (GEICO) notice of the taking of three depositions and its request for production.

The Court has reviewed the authorities cited at oral argument, including Moore’s Federal Practice, p. 26.64, and the decisions found in Federal Rules Service (2nd Series) interpreting Federal Rules of Civil Procedure 26 and 34. It appears, however, that the question presented here should be determined as the parties determined it and not necessarily as the merits of the case would dictate.

It was represented to the Court at oral argument that counsel for the parties agreed that they would permit access to their files to one another. Following that GEICO’s file was made available to St. Paul’s counsel. Following that St. Paul forbade its counsel to release its file to his adversary. No objection was stated to the foregoing recitation of facts when it was so represented in Court.

Under these circumstances it would appear grossly unfair to permit one side to have the advantage of what has been furnished it and the other frustrated by a denial of what was agreed upon. To do otherwise would put the Court in the position of ruling hypothetically that St. Paul would have been entitled to GEICO’s file in any event and that hence it would gain no unfair advantage in securing the Court’s protective order. The motion for the protective order is denied.

With respect to the costs of deposing the witness who has moved to Alabama, those costs should be advanced by GEICO and ultimately assessed according to the merits of the case.

Counsel for GEICO should prepare the order and, when endorsed, present it for entry. The St. Paul file tendered to the Court is in the Judges’ Chambers, where it may be picked up by St. Paul’s counsel.  