UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
|DO NOT PUBLISH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.
DOYLE and GLADYS LANCASTER, No. 98-14048
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
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
Accordingly, deposition by notice pursuant to FRCP 30(b)(1) was perfectly
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
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.
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
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 ____________________________
United States Bankruptcy