dissenting.
The majority opinion rests principally upon relator’s failure to supply this court with a transcript of the hearing held by respondent upon the motion of defendant for a protective order. Although relator may be held to be remiss in failing to attach to its petition a copy of any record made as required by Rule 97.03, this matter is of such great importance to the bench and the bar as one of first impression that this court should exercise its prerogative to order that transcript to be filed. This may be done under Rule 97.01, which provides that in all particulars not provided for by Rules 84.22 to 84.26, “proceedings in prohibition shall be governed by and conform to the rules of civil procedure and the existing rules of general law upon the subject and the court may, by order, direct the form of such further details of procedure as may be necessary to the orderly course of the action or to give effect to the remedy.” One other such rule is 81.12 relating to the power of an appellate court to order that the record be supplemented in cases of direct appeal.
The “presumption of right action” of a trial court mentioned in the majority opinion should not be applied in this case where “protective order” Rule 56.01(c) is being invoked for the first time in this state for the allowance of airline transportation tickets and $200.00 per diem expenses for the attendance of counsel for opposing parties, absent some evidence to support a finding of “annoyance, embarrassment, oppression or undue burden or expense” to the opposing party. Rather, this court should deter*419mine for itself whether a factual basis exists for the issuance of a protective order concerning these requested transportation and expense allowances which would be chargeable to the party seeking depositions. Of course, if there exists no factual basis for the protective order, the preliminary rule issued herein should be made absolute.
It is not so well settled under the parallel federal rule and similar rules in other states that trial courts have [absolute] power to condition the taking of a deposition upon the payment of the opponent’s costs of attending it, as stated in the principal opinion. Even the cited authority, 8 Wright and Miller, Federal Practice § 2112, states: “Some district courts have adopted a local rule to the effect that if the examination is to be held more than a certain distance from the court, the court may require the applicant to pay the expense of the attendance of his adversary’s attorney, including a reasonable counsel fee, such payment to be taxable disbursement in the event the applicant recovers costs of the action. In other districts a rule of this type is not followed and an order for payment of expenses will be made only under unusual and impelling circumstances.” [Emphasis supplied.] Of course, there is no local rule to that effect in this case, but it should not be assumed that one could be adopted because it might infringe upon the Supreme Court’s rule-making power. The order here requires that payment be made prior to the taking of the depositions and is not further conditioned upon who might be the prevailing party in the case as a “taxable disbursement” for any allowable costs, if, in fact, they are allowable costs. What is of further importance in the above Wright and Miller quote is that “an order for payment of expenses will be made only under unusual and impelling circumstances.” That requirement runs through a majority of the cases deciding the propriety of an order allowing deposition attendance expenses to an opposite party in the light of an exercise of a trial court’s discretion. See, e.g., Madison v. Travelers Insurance Co., 308 So.2d 784 (La.1975), cited in the majority opinion, holding that such an order must be based upon reasonableness and good cause; Towe v. Sinclair Refining Co., 188 F.Supp. 222, 223 (D.Md.1960), noting Moore Federal Practice, 2d Ed., Vol. 4, p. 2037, Sec. 30.14, holding, “There is no such [local] rule in the District of Maryland, and it is not customary in this district to ask for a special order. As in many other districts, such an order is granted only under unusual and impelling circumstances.”; accord, Weeks v. Baltimore & O.R. Co., 5 F.R.D. 17 (E.D.Pa.1945); Adkins v. International Harvester Company, 286 S.W.2d 528 (Ky.1956), also cited in the majority opinion, is not strictly applicable because claimant’s attorney attended depositions after the employer’s notice to take them and thereafter sought fees and expenses from the employer, which the court denied, saying the attorney should have sought a ruling in advance of the deposition so the court could determine whether attending would have constituted a hardship [thus implying that an evidentiary hearing was required on that issue]; Orth v. Bauer, 163 Colo. 136, 429 P.2d 279 (1967), held it was within the trial court’s discretion to refuse travel and attorney expenses under the rule of civil procedure, so also in Vorthman v. Keith E. Myers Enterprises, 296 N.W.2d 772, 779[18] (Iowa 1980).
It has been a well known common practice in this state, where an opposing attorney deems it necessary that attendance be had at the taking of either a domestic or foreign jurisdiction, to arrange for local counsel to be present for protecting the record or for eliciting testimony from the deponent. The matter of necessity of being present is one element a trial court must determine as well as the other factors of Rule 56.01(c).
What the plaintiff Vanderpool is apparently seeking in its underlying claim for $79,707.61 as payment for gasoline and other products sold to defendants, a not insubstantial amount, is proof of its claim by the subpoenaed witnesses in Oklahoma and Texas. To get at the true state of the facts is the salutary purpose of discovery procedures, and that purpose should not be hindered by an order, made without a showing *420of reasonableness and good cause, lest the rule be employed contrary to the purported invocation of the rule here, to cause “annoyance, embarrassment, oppression or undue burden or expense” to the party seeking discovery by use of deposition. The majority opinion is devoid of any factual basis to support the order of expenses, and is so broad as to allow such expenses upon a mere motion therefor. It would add immeasurably to litigation expenses.
For the foregoing reasons, I dissent.