(dissenting).
Here is a case where suit is brought in New Mexico, the only forum available to plaintiffs, on a claim arising out of a commercial transaction and amounting to only $1,000.00. Defendant pleads a number of defenses which he admits he has no proof to sustain, but asserts a right to try to establish the same by oral examination in the nature of discovery at the place where suit has been filed.
That ordinarily a party is entitled to do this is not open to question. However, there are exceptions. The best and most cited statement is in Hyam v. American Export Lines (C.C.A. 2) 1954, 213 F.2d 221, 222, cited by the majority, where the following is said:
“ * * * Thus not in every case is a party seeking pre-trial discovery entitled as of right to a deposition on oral examination at the situs of the forum. His preference therefor, if opposed under Rule 30(b), must be weighed both against his actual, as distinguished from his supposed, need for oral examination at the forum and against the resulting burden to his opponent. Where these considerations are in serious conflict, the judge after weighing the import of his ruling on the parties may order the deposition to be taken, if not at the forum, at an appropriate distant place under terms whereby the reasonable expense thereof may ultimately be reflected in the taxable costs, or may order that the depositions be taken, at least in the first instance, only on written interrogatories.”
A comparable expression is to be found in Armstrong v. Biggs (Ky.Civ.App.1957), 302 S.W.2d 565, 568; and see, also, Boone v. Wynne (D.D.C.1947), 7 F.R.D. 22, in which the discretion of the court was exercised in an almost identical manner as in the instant case.
Although the majority opinion is grounded on abuse of discretion, it would actually seem to be based on the failure of the trial court to make provision for a bond to provide for reimbursement of reasonable expenses as a part of the costs. The requirement of furnishing of cost bond is a matter within the sound discretion of the trial court. See, City of Roswell v. Bateman, 1915, 20 N.M. 77, 146 P. 950, L.R.A.1917D, 365; and State ex rel. Lebeck v. Chavez, 1941, 45 N.M. 161, 113 P.2d 179. The majority opinion, in effect, substitutes this court’s judgment for that of the trial court, and fails to follow our rule as to the test of abuse of discretion. We have held that the test is, not whether the appellate court agrees exactly with what was done, but “whether the action of the trial court exceeds the bounds of reason, all the circumstances being considered by the court.” Independent Steel & Wire Co. v. New Mexico Central R. Co., 1919, 25 N.M. 160, 178 P. 842; and Wright v. Atchison, Topeka and Santa Fe Railway Co., 1958, 64 N.M. 29, 323 P.2d 286. We do not believe that the trial court abused its discretion.
It should be observed that, to support their position, the majority rely on federal district court opinions and, in effect, ignore the only federal appellate court decision on the issue (Hyam v. American Export Lines, supra). That case is contrary to the result reached in the majority opinion, as are also many other federal district court decisions. See, 2A Barron and Holtzoff, Federal Practice and Procedure, 208, § 713; and 70 A.L.R.2d 726. The court had before it the fact that this was the only forum available, the place of residence of the plaintiffs, that plaintiffs were operating a large finance business, the amount and type of the claim, the lack of any specific basis as to the issues to be pursued in the deposition, and that the court and appellees’ counsel considered that appellees had furnished a cost bond (we realize that the record fails to disclose the bond, or any formal order requiring it, but the transcript contains discussion between court and counsel concerning the bond). With all these facts before the court, we fail to see how it can- be said that the order entered exceeded “the bounds of reason.”
In addition to the objection stated above, we feel that there is another serious error in the opinion. The majority apparently determines that the protective order is particularly unreasonable and oppressive as to the third method of discovery, and that the failure to provide for a cost bond as to the second made it invalid. However, the elimination of the first method (written interrogatories) by the majority and the direction that the case proceed only as to the second and third methods is a matter which requires our comment. In our search, we have been unable to find any case from an appellate jurisdiction which would be authority for the ruling of the majority. It is obvious that a party would prefer to take the deposition of the opposite party, but for a court to direct that written interrogatories cannot be taken is almost impossible to comprehend. It could hardly be contended that it would be an abuse of discretion for a court to direct that written interrogatories be first taken, prior to the allowing of taking costly depositions. The court retains jurisdiction, and if the answers to the interrogatories are not sufficient, or it appears that the information can only be obtained by deposition, then and at that time there would be justification in ordering such oral examination as might be required. See, Hyam v. American Export Lines, supra; O’Hara v. United States Lines Co., 1958, D.C.N.Y., 164 F.Supp. 549; 2A Barron and Holtzoff 215; and 70 A.L.R.2d 735.
Here, the court has summarily rejected a relatively inexpensive means of discovery and determined sua sponte that oral depositions are the only proper method. We firmly believe that the portion of the protective order as to the written interrogatories was absolutely proper, even though it might be argued, and as held by the majority, the remainder constituted an abuse of discretion. This we do not concede. As long as the order was not an abuse of discretion in its entirety, and the defendant refused to comply with any of its provisions, he has no valid standing to object to what thereafter followed, i. e., the entry of summary judgment.
For the above reasons, I dissent.
MOISE, J., concurs.