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July 13, 1990


Appeals from the Superior Court of the District of Columbia; Hon. Steffen W. Graae, Trial Judge

Belson, Terry and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

Appellants seek reversal of an order awarding attorney's fees against them to compensate appellee for the reasonable expenses incurred in filing a motion to compel appellant Spellman to comply with a post-judgment deposition subpoena. See Super. Ct. Civ. R. 37 (a) (4) (1989). Appellants contend that the subpoena, issued with leave of court under Super. Ct. Civ. R. 69-I (attachment after judgment), was a court order within the meaning of Super. Ct. Civ. R. 37(b), and that as non-parties in the underlying action they could not be the subject of an award of attorney's fees as a sanction under Rule 37 (b) (2), but were subject only to an order of contempt under Rule 37 (b) (1). Appellants further contend that even if the trial court had authority to award fees against them under Rule 37 (a) (4), they were substantially justified in opposing the motion to compel, and that a fee award was therefore inappropriate. We hold that, in the circumstances of this case, the court had authority to award fees against appellants under Rule 37 (a) (4). We remand, however, for further findings by the court on the question whether appellants were substantially justified in opposing the motion to compel post-judgment discovery.


Appellee, American Security Bank (the Bank), brought a successful action on certain promissory notes against Jerry Spellman, then sought to depose his estranged wife, Patricia Spellman, in an attempt to execute on that judgment. *fn1 The Bank had been awarded approximately $500,000, and suspected that Mr. Spellman was making fraudulent transfers to his wife. Since Mrs. Spellman was not a party to the underlying action, the Bank sought and, on March 18, 1988, received permission of the court for issuance of a subpoena requiring her to appear at a deposition and to produce certain documents. Super. Ct. Civ. R. 69-I (a). *fn2 The deposition was originally set for April 14, 1988, but at the request of Mrs. Spellman's counsel, was postponed until April 26.

On the day of the scheduled deposition, Mrs. Spellman's attorneys informed the Bank that, for medical reasons, she would not submit to an oral examination but would be willing to cooperate through alternative means of discovery. They provided the Bank with a note from her physician, Dr. Kenneth W. Berger, stating that she was being treated for high blood pressure and that, in his opinion, she should not be subjected to the stress of a deposition. They also cited a previous protective order in the case issued under similar circumstances which had prevented the Bank from deposing Mrs. Spellman. *fn3 The Bank, however, refused to drop its demand that Mrs. Spellman appear at a deposition and, after deposing Dr. Berger, remained unpersuaded that a deposition would be damaging to her health. *fn4 The Bank therefore sought and, on September 8, 1988, obtained an order requiring Mrs. Spellman to submit to a physical examination by a physician chosen by the Bank. Mrs. Spellman's attorneys moved to vacate this order and for reconsideration of the March 18, 1988 order permitting issuance of the subpoena. They argued first that the September 8 order was void on the ground that the court lacked authority under Super. Ct. Civ. R. 35 to order the physical examination of a non-party, and second, that the March 18 order requiring her to submit to a deposition contradicted the 1984 protective order without overruling it, and therefore was void as well. This motion was denied on October 14, 1988.

On November 22, 1988, Mrs. Spellman submitted to a physical examination by Dr. Carl Wipplinger. His report concluded that while Mrs. Spellman did suffer from mild arterial hypertension,

here is no evidence of target organ damage from hypertension and her only risk factor is a family history of hypertension and diabetes. There is no medical reason to believe that Mrs. Spellman's condition would be unduly jeopardized by giving a deposition. [Because of 1] ability of her blood pressure responses as evident on this examination, the deposition should not take place in a threatening or stressful environment and she should arrange with her physician to have her blood pressure followed closely.

On the basis of this report, the Bank refused to withdraw its demand that Mrs. Spellman submit to a deposition, but offered to accommodate her by taking her deposition at her home. Still relying on Dr. Berger's opinion and the prior protective order, however, Mrs. Spellman refused to appear. *fn5 She also refused to provide the documents requested unless the Bank agreed to an alternative form of discovery. *fn6

On January 17, 1989, the Bank filed a motion under Super. Ct. Civ. R. 37 to compel Mrs. Spellman to appear in response to the deposition subpoena. The motion was set for a hearing on April 12, 1989, and both sides were ordered to produce their medical witnesses. At the Conclusion of the hearing, Judge Graae granted the bank's motion to compel Mrs. Spellman's appearance at a deposition and allowed the Bank to file a motion for attorney's fees and costs. Mrs. Spellman was deposed without incident on May 1, 1989. On May 11, pursuant to Super. Ct. Civ. R. 37 (a) (4), Judge Graae granted the Bank's motion for attorney's fees and costs in the amount of $9,911.66 against Mrs. Spellman and her attorneys jointly and severally.


Citing Floyd v. Leftwich, 456 A.2d 1241 (D.C. 1983), appellants contend that Judge Beaudin's March 18 order permitting the issuance of a subpoena to Mrs. Spellman constituted "an order to provide or permit discovery" under Rule 37 (b) (2) and that, under Floyd, the only sanction available against a non-party for non-compliance with that order was contempt of court. Thus, they argue, Judge Graae had no authority to award attorney's fees against Mrs. Spellman and her attorneys under Rule 37 (a) (4). *fn7 To the contrary, we view Floyd as distinguishable and hold that the court possessed authority under Rule 37 (a) (4) to award fees against appellants.

In Floyd, a party to an underlying divorce action, Mrs. Leftwich, and her neighbor, Mr. Floyd, were served with subpoenas requiring their testimony at a deposition. *fn8 A.2d at 1243. The trial court denied a motion to quash the subpoenas and ordered the depositions taken. Mr. Floyd appeared on the required date but refused to be sworn. The husband then filed a motion to compel discovery and for sanctions, and the trial court granted the motion and awarded attorney's fees and costs against Mrs. Leftwich and Floyd jointly and severally. Id. On appeal, Floyd argued, inter alia, that the trial court lacked authority to impose sanctions under Rule 37 (b), claiming that the order requiring the parties to submit to a deposition "was not an order compelling discovery pursuant to Super. Ct. Civ. R. 37 (a), and therefore, Rule 37 (b) sanctions could not be imposed." Id. at 1245. He further argued that even if such authority existed, Rule 37 (b) (2) did not allow an award of attorney's fees and costs against a non-party. Id.

This court held that the trial court's deposition order was an "order to provide or permit discovery" for violation of which sanctions could be imposed under Rule 37 (b). Id. This was so even though the order was not pursuant to a motion to compel discovery. The court observed, however, that "Rule 37 (b) (2) directs that reasonable expenses including attorney's fees be imposed against 'the party failing to obey the order or the attorney advising him or both' [emphasis in Floyd]," and that Floyd was not a party to the underlying action. Id.

Thus, as a nonparty, appellant Floyd can be ordered either to be sworn or to answer questions pursuant to a Rule 37 (a) motion to compel discovery, or he can be held in contempt, pursuant to Super. Ct. Civ. R. 37 (b) (1), for his violation of [the trial court's] order by his refusal to be sworn or to answer questions. Rule 37 (b) (1) provides for the only sanction which is available against a nonparty, contempt.

Id. (footnote omitted). We therefore reversed the award of attorney's fees against Floyd.

Appellants argue that since Super. Ct. Civ. R. 69-I (a) requires a court order before a post-judgment subpoena to testify can issue to anyone other than the judgment debtor, Mrs. Spellman's failure to appear was a violation of an order providing or permitting discovery, sanctionable -- according to Floyd -- only under Rule 37 (b) (1). In Floyd, however, before a motion to compel was filed, the trial court had denied Mrs. Leftwich's motion to quash the subpoenas and expressly ordered the depositions to be taken. Floyd was then sanctioned for failing to comply with that order. In the present case, by contrast, the Rule 69-I (a) order merely authorized the clerk of the Superior Court to issue the subpoena in question. As the comment to Rule 69-II states, the Rule 69-I requirement of leave of court was designed "to provide a safeguard against harassment of the judgment debtor and other persons, especially the judgment debtor's employer." Thus, in seeking to depose Mrs. Spellman, the Bank was required to obtain leave of the court before a subpoena could issue. The resulting order was not directed to Mrs. Spellman, but rather to the clerk, and had no force separate from the subpoena itself; it was not tantamount to a Rule 37 (b) order to provide or permit discovery, as was the order in Floyd. We conclude that the Bank could properly apply for an order under Rule 37 (a) compelling Mrs. Spellman's appearance at a deposition, and seek attorney's fees in connection with that application.


Rule 37 (a) (4) provides that if a motion to compel is granted, the trial court shall assess fees against the losing party or deponent (or attorney advising the conduct that necessitates the motion) "unless the court finds that the opposition to the motion was substantially justified." See Habib v. Thurston, 517 A.2d 1, 8 (D.C. 1985) (award of expenses mandatory absent showing of substantial justification). In Habib, we held that a person is substantially justified in opposing the motion if issues are raised "about which reasonable persons could genuinely differ on whether a party was bound to comply with a discovery rule." Id. at 9 (quoting Smith v. Montgomery County, 573 F. Supp. 604, 614 (D. Md. 1983) (fee award inappropriate where significant privacy grounds justified opposition)); C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2288, at 790 (1970). See also Reygo Pacific Corp. v. Johnston Pump Co., 680 F.2d 647, 649 (9th Cir. 1982) (losing party substantially justified if reasonable persons could differ as to appropriateness of opposition). *fn9 As we noted in Habib, (supra) , the Advisory Committee Note to the 1970 amendment of Fed. R. Civ. P. 37 (a) (4) provides that

n many occasions . . . the dispute over discovery between the parties is genuine, though ultimately resolved one way or the other by the court. In such cases, the losing party is substantially justified in carrying the matter to court.

517 A.2d at 9.

Under the circumstances of this case, we would have some difficulty in concluding that Mrs. Spellman and her attorneys were not substantially justified in opposing the motion to compel compliance with the subpoena. Dr. Berger, Mrs. Spellman's treating physician for approximately fifteen years, expressed the opinion that she should avoid the stress associated with a deposition, citing her "grossly elevated" blood pressure at the time of previous impending depositions. Several years earlier, his similar opinion had persuaded the trial court to issue a protective order requiring interrogatories at least initially as an alternative to a deposition. See note 3, (supra) . Hence it is at least questionable whether the attorneys representing Mrs. Spellman could be faulted for heeding the continued concern of her physician and refusing voluntarily to present her for deposition. Were these facts all the record contained, the actions of Mrs. Spellman and her attorneys would not fairly support a finding of no substantial justification.

Judge Graae, however, in his April 12, 1988 ruling granting the Bank's motion to compel compliance with the deposition subpoena, expressed the belief that appellants could possibly have avoided the need for a deposition had they provided the Bank with certain documents which had also been the subject of a subpoena. *fn10 In other words, the Judge may have concluded that appellants' refusal to furnish the documents -- and provide discovery generally -- stemmed in part from motives less laudable than a concern to protect Mrs. Spellman's health. We are unable to discern the Judge's reasoning with confidence, however, because he made no findings in later granting the request for attorney's fees. Although we are mindful of the workload of the trial courts, the closeness of the fee issue here dictates that we have the benefit of the Judge's express findings in light of the applicable standard. Accordingly, we will remand the case for further findings on the question of whether appellants were substantially justified in opposing the motion to compel. *fn11

So ordered.

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