Martin F. McMahon

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
MARTIN F. McMAHON, JR.,
Debtor.
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Case No. 07-00612
(Chapter 13)
Not for Publication in West
Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER RE
MOTION TO COMPEL DISCOVERY AND FOR SANCTIONS
On January 12, 2008, the debtor served discovery relating to
a motion for relief from the automatic stay in which the debtor’s
former wife, Emily Jane Phifer, sought permission to litigate her
claims against the debtor in the Superior Court of the District
of Columbia. 	No other contested matter was then pending in this
court to which the discovery could have related.) 	On February
14, 2008, the court granted the motion for relief from the
automatic stay prior to the responses to the discovery coming
due. 	Phifer was entitled to treat the discovery request as a
dead letter as the contest in which the discovery was sought was
concluded, and no appeal was taken from the order disposing of
the contest.
The Memorandum Decision and Order below is hereby
signed. Dated: April 10, 2008.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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Nevertheless, the debtor has filed a motion to compel
discovery. 	Because the contest to which the discovery related,
the motion for relief from the automatic stay, has been disposed
of, there is no basis for compelling the discovery.
The debtor points to an objection he filed to Phifer’s proof
of claim on February 9, 2008, five days prior to the disposition
of the motion for relief from the automatic stay, and contends
that he needs the discovery to litigate his objection to Phifer’s
proof of claim. 	But that objection to claim was not filed until
well after the debtor filed his discovery requests on January 12,
2008, relating to Phifer’s motion for relief from the automatic
stay. 	At the hearing on that motion, Phifer contended that the
discovery was irrelevant to and unnecessary for purposes of
disposing of the motion for relief from the automatic stay, and,
in any event, the court agreed that no continuance was
appropriate to permit the discovery to be concluded before
hearing the motion.
Phifer was entitled to assume that if the debtor was going
to seek discovery relating to the objection to claim, the debtor
would identify the discovery as served incident to that objection
to claim. 	Even in the debtor’s counsel’s letter of February 29,
2008, requesting discovery responses and noting that a motion to
compel would be filed if the discovery was not forthcoming, there
was no mention of the objection to claim. 	Phifer might well have
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paid little attention to the discovery as it pertained to the
motion for relief from the automatic stay, being of the view that
the court would agree that it was irrelevant to that motion. 	But
if Phifer were alerted that the discovery was to be treated as
relating to the objection to claim (and viewed it as relevant to
that dispute), Phifer would have obviously devoted greater
attention to the discovery (by beginning to formulate responses,
locating documents, and so forth).
Phifer’s counsel is not completely without blame, however.
When he received the debtor’s counsel’s letter of February 29,
2008, he should have responded why Phifer was not required to
respond to the discovery (namely, that the court had already
disposed of the motion for relief from the automatic stay, the
contest with respect to which the discovery had been sought).
Whether intentional or not, his silence let the debtor’s counsel
proceed in his erroneous assumption that the discovery could be
enforced as relating to another contest, the objection to claim.
His opposition on behalf of Phifer to the motion to compel was
six days late (perhaps leading the debtor to believe that Phifer
acquiesced in treating the discovery as relating to the objection
to claim, and delaying the debtor’s correctly pursuing discovery
relating to the objection to claim).
Phifer’s counsel likely realized that the debtor now desired
the discovery for purposes of defending against Phifer’s claim,
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not the already-granted motion for relief from the automatic
stay, and should have made known to the debtor’s counsel the fact
that the disposition of the motion for relief from the automatic
stay terminated the effectiveness of the discovery. 	It is no
answer that he assumed that by granting relief from the automatic
stay, the court had decided that Phifer’s claim would be
adjudicated in the Superior Court instead of this court. 	The
matter is one of domestic relations law usually best left to the
Superior Court to resolve. 	But this court did not foreclose the
litigation of the claim in this court should the demands of the
bankruptcy case (such as confirmation of a plan) present a need
(assuming this court could meet that need) for a more expeditious
resolution of the claim than would occur in the Superior Court,
and expressly so noted on the record. 	Even if the court were to
defer trying the objection to claim upon the assumption that the
Superior Court would dispose of the matter in a time sufficient
to meet the need in this bankruptcy case to have the amount of
the claim fixed, that might not mean that the court would
foreclose the debtor from obtaining the discovery he is pursuing.
In Phifer’s opposition to the motion to compel, she has
included a request for a protective order. 	But that type of
request should have been filed as a separate motion and in order
to assure the orderly resolution of such a request, in which all
of the considerations pertinent to the issue can be ventilated in
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an orderly fashion, the request will be stricken.
The appropriate way to handle this discovery matter, in
which both parties are at fault, is to enter an order directing
that the pending discovery shall now be treated as relating to
the pending objection to Phifer’s proof of claim, with Phifer’s
response time shortened to 14 days from the date of entry of this
order. 	If she decides to seek a protective order, she may do so
within the 14 days, and need not respond pending disposition of
the motion for a protective order. 	It is accordingly
ORDERED that the precise relief sought by the debtor’s
motion to compel discovery and for sanctions is denied, but:
A. 	The debtor’s pending discovery that related to the
motion for relief from the automatic stay shall now be
treated as relating to the pending objection to Phifer’s
proof of claim.
B. 	Phifer shall have 14 days from the date of entry of
this Memorandum Decision and Order within which to respond
to the discovery.
C. 	Within that 14 days, Phifer may, only after
complying with LBR 7026-1(c), file a motion for a protective
order seeking to stay the litigation of the objection to her
proof of claim and the discovery in this court relating
thereto pending disposition of the Superior Court litigation
relating to Phifer’s claim, and if she does so, the
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responses to the pending discovery need not be filed until
10 days after disposition of such a motion (if it is
denied).
It is further
ORDERED that the request for a protective order contained in
Phifer’s opposition to the motion to compel is stricken.
[Signed and dated above.]
Copies to: Debtor; Debtor’s attorney; Chapter 13 Trustee; Daniel
M. Kennedy, III, Esq.
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