concurring:
Although I do not oppose a remand, it will take only a brief statement of reasons to satisfy me that the judge did not abuse her discretion — our conceded standard of review — in denying the motion for costs and attorney’s fees. Assuming Rules 26(e) and 37(a)(4) provide sanctions for the issuance of an improper subpoena, the gravamen of Judge Long’s order quashing the subpoena to depose the attorneys was that it was premature, not that it would be unfounded once “the underlying case is concluded.” As to the subpoena to depose Taylor, the judge saw no “permanent bar to any de bene esse deposition in the instant case,” requiring Capital City only “to proffer more specifically why another deposition must be taken at this time.” That reasoning does not sound like a conclusion that the subpoenas were a device to circumvent discovery limitations or a claim of privilege, or to harass a witness or another party.