Memorandum of Decision Re: Failure to Seek Protective Order

DO NOT PUBLISH This case disposition has no value as precedent and is not intended for publication. Any publication, either in print or electronically, is contrary to the intent and wishes of the court.
In re DOYLE and GLADYS LANCASTER,                             No. 98-14048      Debtor(s). ______________________________________/
Memorandum re Deposition
     On July 9, 1999, creditor Six Rivers National Bank noticed the deposition of Chapter 11 debtor Doyle Lancaster. The location of the deposition was designated to be Santa Rosa, where the Bank's counsel has his office. Lancaster lives in Eureka, which is 215 miles to the north. Both cities are within this division of the Northern District of California. The court hears cases in both locations.      Lancaster's counsel responded by the notice by a letter to the Bank's counsel on July 23, 1999, in which he stated that "[s]ince there is no order of examination, there is no requirement that [Lancaster] appear under the rules." Lancaster did not appear. The Bank's motion to compel attendance and for sanctions is now before the court. Lancaster takes the position that an order was necessary to compel his attendance, that Santa Rosa was an improper place for the taking of his deposition, and that he was free to ignore the notice of deposition rather than seek a protective order even if the notice was valid. Since none of these positions have any merit, the court will grant the Bank's motion. I. Necessity of an Order      Lancaster's counsel erroneously took the position in his letter of July 23 that an order pursuant to FRBP 2004(a) was necessary to compel his deposition. The purpose of the deposition was to prepare for the hearing on the Bank's objections to Lancaster's proposed Chapter 11 plan of reorganization. Pursuant to FRBP 3020(b)(1), objections to plan confirmation are contested matters governed by FRBP 9014. That rule specifically provides that the adversary proceeding rules governing discovery are applicable, including FRBP 7030. See In re Michelson, 141 B.R. 715, 719n12 (Bkrtcy.E.D.Cal.1992). Accordingly, deposition by notice pursuant to FRCP 30(b)(1) was perfectly proper. II. Failure to Seek a Protective Order      Lancaster takes the position that even if the notice was valid he was free to ignore it rather than seek a protective order. In support of his position, he cited Estrada v. Rowland, 69 F.3d 405 (9th Cir. 1995). However, that case applies only to a party who attends his deposition but refuses to testify, not a party who fails to appear at the deposition.      This dispute is governed by FRCP 37(d) which provides, in pertinent part:        If a party . . . fails to appear before the officer who is to take the        deposition, after being served with proper notice . . . the court in        which the action is pending on motion may make such orders in regard        to the failure as are just . . . . The failure to act described in this sub-        division may not be excused on the ground that the discovery sought        is objectionable unless the party failing to act has a pending motion        for a protective order as provided by Rule 26(c). [emphasis added]      The court sees no injustice in a debtor having to travel 215 miles to be deposed where the underlying issue is whether the court should confirm the debtor's plan. However, the propriety of Santa Rosa as a place for deposition is not at issue. Lancaster forfeited his right to raise the issue when he failed to seek a protective order. III. Sanctions      FRCP 37(d) requires the court to order the party failing to act and/or his attorney to pay the reasonable expenses, including attorney's fees, caused by the failure unless the court finds that the failure was substantially justified or that other circumstances make such an award unjust. No such exculpatory factors are present here. Accordingly, the court will grant the motion and order as follows:      1. Lancaster and his counsel shall pay counsel for the Bank the $2,062.50 for its attorney's fees and $97.50 for its costs on or before September 1, 1999. Lancaster and his counsel are jointly and severably liable for these fees and costs. The court will not consider confirmation of the plan unless these fees and costs have been timely paid.      2. Lancaster shall appear at such time and place as the bank may designate on 7 days' notice for the taking of his deposition. The place of the deposition may be any location within the geographic boundaries of this division. No witness fees need be paid to Lancaster.      Counsel for the bank shall submit an appropriate form of order.
Dated: August 20, 1999                                                  ____________________________                                                                                        Alan Jaroslovsky                                                                                        United States Bankruptcy