Jean-Claude Fotso and Berthe Fotso

Debtor’s opposition to the Motion for a Protective Order (D.E. 75) disputes the1
availability of a protective order and the applicability of Rule 26(c) made applicable to
bankruptcy cases by Bankruptcy Rule 7026 to this case. Counsel, in filing this opposition,
overlooked the significance of Bankruptcy Rule 9014 that makes Rule 7026 applicable in
bankruptcy cases unless the court directs otherwise. No such direction has been entered in this
court.
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF MARYLAND
at Greenbelt
IN RE: :
:
JEAN CLAUDE FOTSO : Case No. 05-29843PM
BERTHE FOTSO : Chapter 13
a/k/a BERTHE NIETCHEU WANDJI :
a/k/a BERTHE W. NIETCHEU :
:
Debtors :
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - :
MEMORANDUM OF DECISION
Creditors Carol Blair and Harold Blair (“the Blairs”), by their attorney, Walter T. Evans,
Esquire, seek a protective order from this court that the deposition of Mr. Evans not be taken.1
The matter came before the court for hearing as an emergency matter on November 15, 2006.
After careful consideration of the facts presented and the arguments of the parties, the Motion for
a Protective Order will be granted.
Debtors filed a bankruptcy case under Chapter 7 on September 2, 2005. This case was
converted to a case under Chapter 13 on Debtors’ motion by an Order of this court entered
Date signed November 22, 2006
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June 15, 2006. Debtors’ motion followed the filing of Adversary Proceeding No. 05-9069 by the
Blairs on December 5, 2005, wherein the Blairs objected to the Debtors’ discharge and the denial
by Order entered March 22, 2006, of the Debtors’ motion to disqualify Mr. Evans as attorney for
the Blairs. The record also reflects that on January 3, 2006, the Chapter 7 Trustee filed a
statement of assets and notice to creditors to file claims. With the conversion of the case to one
under Chapter 13, the court conditionally dismissed the adversary proceeding by an Order
entered June 28, 2006, subject to reopening on certain conditions, and, pursuant to 11 U.S.C.
§ 348(e), the appointment of the Chapter 7 Trustee was terminated.
Jean Claude Fotso filed an Affidavit in the adversary proceeding on March 2, 2006, that
describes the complaint against Mr. Evans, namely, that he had retained Mr. Evans on several
occasions for such matters as traffic tickets, immigration matters, a used-car transaction, a
personal injury claim, and an action dealing with a property line issue. Mr. Fotso’s affidavit
asserts further that Mr. Evans represented him in connection with a transaction to buy a business
from the Blairs. Mr. Evans denies this, and the court finds no basis to find other than the fact
that Mr. Evans represented the Blairs solely in the sale. Debtors also complain that Mr. Evans
disclosed personal and confidential information to the Chapter 7 Trustee and the United States
Trustee. The Debtors also filed a complaint with the Attorney Grievance Commission of
Maryland that was dismissed.
Nothing in this record justifies taking a deposition of counsel for the Blairs. The court
denied the motion to disqualify Mr. Evans in the adversary proceeding. All of the information
relied upon by the Blairs in prosecuting their claims against Debtors was obtained as a result of
subpoenas issued in this civil action and in a prior state court action. The court finds utterly no
cause for the taking of the deposition of Mr. Evans other than to prolong the Debtors’ complaint
that Mr. Evans should not represent the Blairs.
As pointed out in Wright-Miller-Marcus, Federal Practice and Procedures § 2102
(1994),
The fact that the proposed opponent is an attorney, or even an attorney for the
party to the suit, is not an absolute bar to taking his or her deposition . . . . But the
opportunity to take the deposition of opposing counsel may invite abuse. As the
Eighth Circuit observed, ‘in recent years the boundaries of discovery have steadily
expanded, and it appears that the practice of taking the deposition of opposing
counsel has become an increasingly popular vehicle of discovery. To be sure, the
Federal Rules of Civil Procedure do not specifically prohibit the taking of
Case 05-29843 Doc 78 Filed 11/27/06 Page 2 of 3

opposing counsel’s deposition . . . . We view the increasing practice of taking
opposing counsel’s deposition as a negative development in the area of litigation,
and one that should be employed only in limited circumstances.’
Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (CA8 1986). In Shelton the Eighth
Circuit held that the depositions of opposing counsel should be limited to circumstances where
the parties seeking to take the deposition have shown that: (1) no means exists to obtain the
information other than to depose opposing counsel; (2) the information sought is relative and
non-privileged; and (3) the information is critical to the preparation of the case. See also,
Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1112 (CA10 2001). Here, the
information requested is the information obtained by counsel by subpoena, the information could
be obtained through discovery of the Blairs, and there is utterly no showing that the information
is critical. Encouragement of this type of deposition disrupts the adversarial system, lowers the
standards of the profession, adds to the burdensome time and costs of litigation, and detracts
from the quality of client representation. Shelton, supra.
An appropriate order will be entered.
cc:
Walter T. Evans, Esq., 966 Hungerford Drive, Suite 12A, Rockville, MD 20850
Richard S. Stolker, Esq., 110 N. Washington Street, Suite 320, Rockville, MD 20850
Lynn A. Kohen, Esq., United States Trustee, 6305 Ivy Lane, #600, Greenbelt MD 20770
Nancy S. Grigsby, Trustee, P.O. Box 958, Bowie, MD 20718
End of Memorandum
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