Appeal from the Superior Court of the District of Columbia; (Hon. Cheryl M. Long, First Motions Judge), (Hon. Ellen S. Huvelle, Second Motions Judge)
Before Schwelb and Farrell, Associate Judges, and Reilly, Senior Judge. Opinion for the court by Associate Judge Schwelb. Concurring opinion by Associate Judge Farrell.
The opinion of the court was delivered by: Schwelb
SCHWELB, Associate Judge:
This is an appeal from the denial by Judge Ellen S. Huvelle of a motion for costs and counsel fees filed by appellant Earl Taylor after he had prevailed in a pretrial discovery dispute over subpoenas. Judge Cheryl M. Long had granted Mr. Taylor's motion to quash separate subpoenas duces tecum directed to him and to his attorneys, Lee H. Karlin and Richard Ira Lebovitz, by appellee Capital City Mortgage Corporation. The subpoenas had sought to compel Taylor, Karlin and Lebovitz each to appear for deposition in the case of Capital City Mortgage Corp. v. Perry, Civ. No. CA91-14236, then pending in the Superior Court. Taylor, Karlin and Lebovitz were all non-parties in that suit. *fn1
In support of the motion to quash, Mr. Taylor and his attorneys argued, inter alia, that Capital City was attempting, by means of these subpoenas, to circumvent a court order terminating discovery in Taylor v. Lilienfeld, et al., Civ. No. CA 91-6053 (Super. Ct. D.C.) (the underlying action). They also contended that "because counsel for plaintiffs in the underlying action had no involvement whatsoever with any of the factual circumstances at issue in either action, the interrogation of such litigation counsel under oath by opposing counsel is wholly offensive to attorney-client privilege, the work product doctrine, and the concept of an effective adversarial system." A footnote to their submission read as follows:
It is ironic that counsel for Capital City . . . purporting to attempt to inquire into and contest the extent of the attorney's fees incurred in the prosecution of the underlying action by employing means which can only result in the accrual of substantial increased fees and costs.
Finally, in a reply memorandum responding to Capital City's opposition to the motion, counsel for Mr. Taylor alleged that the subpoenas duces tecum to the attorneys "were issued for the sole purpose of obtaining documents and information protected as privileged and as attorney work product."
On October 27, 1992, in a written order, Judge Cheryl M. Long granted the motion to quash the subpoenas to Mr. Taylor's counsel. She held that "the subpoenas duces tecum issued to attorneys Lee H. Karlin and Richard Ira Lebovitz were improper and, at best, premature." She added that "for all of the reasons cited by the lawyers in their Motion to Quash, the court is satisfied that their motion is meritorious." (Emphasis added). The Judge also granted the motion to quash the subpoena to Mr. Taylor, but did so without prejudice to a more detailed showing as to why such a deposition would be necessary. *fn2
On November 17, 1992, Taylor filed a motion for costs and counsel fees. He invoked Rules 11, 26 and 37 of the Superior Court's Rules of Civil Procedure. He argued, in particular, that Rule 26 (c) of those Rules makes Rule 37 applicable to a motion for a protective order, and that Rule 37 (a)(4), by its terms, makes an award of costs and counsel fees obligatory "unless the Court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust."
On December 7, 1992, Capital City filed an opposition to the motion which contained a good deal of tendentious rhetoric, *fn3 but in which (prior) counsel did not challenge the applicability of Rules 26(c) and 37(a)(4). Rather, Capital City insisted that its "attempt to take discovery" was "substantially justified" (the language of Rule 37(a)(4)) and not "without a basis in law or a good faith extension of law" (the language of Rule 11).
On February 14, 1993, Judge Huvelle, who had "inherited" Judge Long's calendar, issued a brief order in which she denied the motion. She made no findings and provided no explanation of her Disposition of the motion. This appeal followed.
On appeal, Mr. Taylor contends that Judge Huvelle committed "reversible error by failing to make findings of fact and Conclusions of law with respect to the motion for sanctions." He also claims that, on the merits, the Judge abused her discretion in declining to award costs and counsel fees. With respect to his first contention, we agree that, on the present record, a more informative ...