William Horne, Appellant V. Optimiscorp, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
OPTIMISCORP, a Delaware
corporation,
Respondent,
v.
WILLIAM B. HORNE, an individual,
Appellant.
No. 80513-4-I
UNPUBLISHED OPINION
VERELLEN, J. — William Horne is a King County resident whose deposition
testimony was sought locally by a defendant in pending Delaware civil litigation.
Horne appeals a superior court order granting the defendant’s motion to compel
his attendance at a deposition and awarding attorney fees to the defendant in
connection with expenses incurred in bringing the motion. We affirm.
FACTS
OptimisCorp, a “nominal” defendant in Delaware litigation, sought to depose
William Horne, a King County resident and nonparty to the litigation. Consistent
with the procedures set forth in the Washington Uniform Interstate Depositions and
Discovery Act, chapter 5.51 RCW (UIDDA), OptimisCorp submitted a Delaware
deposition subpoena to King County Superior Court. The clerk of the court

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assigned a King County Superior Court cause number and issued the subpoena.
OptimisCorp served Horne with the subpoena by abode service on June 5, 2019.
The subpoena directed Horne to appear for a deposition on June 26, 2019, in
Bellevue, Washington.
On August 6, 2019, approximately six weeks after the scheduled deposition
date, OptimisCorp filed a motion in superior court seeking to compel Horne’s
attendance at a deposition. OptimisCorp alleged that Horne failed to appear as
ordered by the deposition subpoena and failed to seek a protective order or motion
to quash or modify the subpoena. In support of its motion, OptimisCorp filed the
declaration of the process server and declaration of service. OptimisCorp
requested attorney fees of $3,276 incurred in seeking to compel Horne’s
deposition.
Representing himself pro se, Horne opposed the motion to compel. Horne
discussed his prior involvement with OptimisCorp and urged the court to deny the
motion to compel because, in 2013 litigation involving OptimisCorp, he was
deposed and testified “extensively” and that testimony would be “admissible in the
subject Delaware litigation.”1 He also argued that the court should deny the
motion because in the weeks leading up to the June 26 deposition date, he made
reasonable, good faith efforts to coordinate the deposition with OptimisCorp and
remained willing to travel to Delaware. Alleging that OptimisCorp acted in “bad
1 Clerk’s Papers (CP) at 38.

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faith” by failing to disclose the ongoing negotiations, Horne informed the court that
he intended to file a motion for a protective order in Delaware.2 Finally, he asked
the court to deny OptimisCorp’s motion for attorney fees and requested that the
court award him $2,000 for the “vacation day” he was required to take to respond
to OptimisCorp’s “frivolous” motion.3 In support of his motion, Horne supplied an
unsigned copy of the motion for a protective order he intended to file in the
Delaware litigation. Horne also submitted evidence of e-mail exchanges between
his and OptimisCorp’s Delaware attorneys to show the parties’ attempts to reach
agreement regarding the scheduling and terms of his deposition.
Based on the pleadings, the superior court granted the motion to compel,
ordered that the deposition be scheduled to occur within 30 days, and granted
OptimisCorp’s request for attorney fees. Horne appeals.
ANALYSIS
Horne challenges the court’s order compelling his deposition and awarding
attorney fees to OptimisCorp in connection with the motion to compel.
As a threshold matter, Horne asserts in his briefing that the superior court’s
order granting the motion to compel is subject to review under the discretionary
review standards of RAP 2.3. OptimisCorp argues in response that Horne’s
appeal must be dismissed because he failed to file a motion for discretionary
review. But the entirety of the “action” in Washington was the deposition under the
2 CP at 39.
3 CP at 41.

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UIDDA. The court’s order granting the motion to compel is arguably appealable as
a matter of right under RAP 2.2(a)(3) because it is a decision “affecting a
substantial right in a civil case that in effect determines the action and prevents a
final judgment or discontinues the action.” The trial court’s decision on the motion
to compel left nothing to determine with respect to the King County Superior Court
proceeding to enforce the Delaware subpoena. In these circumstances, we
assume for purposes of this appeal that the order granting the motion to compel is
appealable.
The UIDDA governs the process and procedures in Washington to compel
a deponent residing in Washington to attend a deposition for an out-of-state case.4
A party to the out-of-state lawsuit must request issuance of a subpoena under the
UIDDA by submitting “a foreign subpoena to a clerk of the court in the county in
which discovery is sought” and the clerk “shall promptly issue a subpoena for
service upon the person to which the foreign subpoena is directed.”5 Once a
subpoena is issued, Washington has personal jurisdiction over the deponent, and
any subsequent application to the court for a protective order or to quash or modify
a subpoena must comply with Washington’s rules and statutes.6
Thus, after the superior court issued the subpoena and service was
accomplished, Horne was required to comply with it, unless he obtained a
4 Ch. 5.51 RCW.
5 RCW 5.51.020(1)-(2).
6 RCW 5.51.050; see also RCW 5.51.040 (“Superior court civil rules (CR)
26 through 37 apply to subpoenas issued under RCW 5.51.020.”).

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protective order in accordance with the Washington superior court civil rules.7
CR 26(c) gives superior courts broad authority to enter protective orders “to
protect a party or person from annoyance, embarrassment, oppression, or undue
burden or expense” in the context of discovery. But Horne did not seek a
protective order in King County under CR 26. He apparently filed a motion for a
protective order in Delaware, but not until after the date on which he was ordered
to appear had passed and after OptimisCorp filed its motion to compel.
Horne claims that while he was negotiating the terms, timing, and location
of the deposition, he never refused to appear in Bellevue on the scheduled date.
He also points out that OptimisCorp does not represent or establish that the
company’s representatives were present and prepared to proceed with the
deposition on June 26. The record indicates that negotiations between the
company and Horne reached an impasse in 2019 when Horne rejected the
company’s position that its obligation to indemnify him as a former corporate
officer for expenses incurred in appearing for a deposition would be capped at
$10,000. About a week prior to the scheduled deposition date, Horne’s Delaware
counsel provided the terms on which Horne would agree to appear. Those terms
included the condition that the deposition take place in Delaware during the week
of July 22, 2019, and the condition that the company pay Horne a nonrefundable
7 See Rhinehart v. Seattle Times, 98 Wn.2d 226, 256-57, 654 P.2d 673
(1982) (CR 26(c) provides a mechanism to seek relief from improper discovery
requests), affirmed, 467 U.S. 20, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (1984).

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fee of $10,000 for his expenses, in addition to travel expenses. Two days before
the deposition was scheduled to occur, Horne’s Delaware counsel again confirmed
that Horne would agree to appear for a deposition during the week of July 22,
2019, in Delaware, if OptimisCorp would agree to his other terms.
This evidence clearly indicates that there was no final agreement to conduct
a deposition in Delaware in lieu of the Bellevue deposition based on the subpoena
authorized by the King County Superior Court and served on Horne. Horne did
not seek or obtain any protective order in King County. He did not appear for the
Bellevue deposition. The parties did not agree to waive compliance with the
subpoena.
Horne raises various arguments as to why he believes that his Delaware
motion was timely filed and why a Delaware protective order was warranted. But it
is undisputed that on the date of his scheduled deposition in Bellevue, no court
had issued a protective order. He was required to comply with the subpoena. The
superior court did not abuse its discretion in granting the motion to compel.8
Horne also claims that OptimisCorp was not entitled to an award of attorney
fees because he had legitimate reasons for opposing the deposition.
CR 37 addresses circumstances where parties fail to comply with discovery
requirements and allows the party seeking discovery to bring a motion to compel.
8 See Lake Chelan Shores Homeowners Ass’n v. St. Paul Fire & Marine
Ins. Co., 176 Wn. App. 168, 183, 313 P.3d 408 (2013) (decision on a motion to
compel discovery is within the discretion of the superior court).

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If the court grants a motion to compel, the court “shall” require the party or
deponent whose conduct necessitated the motion to pay “reasonable” expenses
incurred in obtaining the order “unless the court finds that the opposition to the
motion was substantially justified or that other circumstances made an award
unjust.”9
Attorney fees awarded under CR 37 will not be disturbed on appeal except
upon a clear showing of abuse of discretion.10 The trial court abuses its discretion
when its decision is manifestly unreasonable or based upon untenable grounds.11
Horne simply restates his reasons for opposing the deposition; namely,
because he believed that the discovery sought was duplicative, overly
burdensome, and OptimisCorp was using the discovery process as a means to
harass him. But there is no evidence in the record that substantiates Horne’s
claims that the discovery sought was unnecessary or that the process was
abused. Again, Horne did not seek a protective order in King County, and the
evidence in the record does establish that he would have been entitled to such an
order. Under these circumstances, the court did not abuse its discretion in
awarding fees under CR 37 in conjunction with its order granting the motion to
compel Horne’s attendance at a deposition. To the extent Horne claims that
discovery sanctions under CR 37 were warranted, there was no evidence before
9 CR 37(a)(4).
10 Dalsing v. Pierce County, 190 Wn. App. 251, 261, 357 P.3d 80 (2015).
11 Id.

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the court of OptimisCorp’s noncompliance with a superior court discovery order or
other compelling basis for sanctions.12
Citing RAP 18.1 and RAP 18.9, OptimisCorp requests attorney fees on
appeal, arguing that Horne’s appeal is frivolous. An appeal is frivolous if there are
no debatable issues upon which reasonable minds might differ, and it is so totally
devoid of merit that there was no reasonable possibility of reversal. All doubts as
to whether the appeal is frivolous should be resolved in favor of the appellant.13
Although Horne’s arguments are not persuasive, we do not find his appeal
frivolous. We deny OptimisCorp’s request for attorney fees.
Affirmed.
WE CONCUR:
12 We decline to consider Horne’s references to facts that are not supported
by citations to the record and documents attached to his briefing that are outside
the record on appeal. See RAP 10.3(a)(5), (8).
13 Espinoza v. Am. Commerce Ins. Co., 184 Wn. App. 176, 202, 336 P.3d
115 (2014) (quoting Griffin v. Draper, 32 Wn. App. 611, 616, 649 P.2d 123 (1982)).