concurring:
I join the majority opinion and write separately for the sake of completeness to note that Civil Rules 26(g) and 37 are other arrows in the sanctions quiver.
In order for these rules to apply in the present instance, however, we would have to conclude that Polo’s motion to compel is, itself, a “contested matter” under Bankruptcy Rule 9014. Fed.R.Bankr.P. 9014, incorporating Fed.R.Bankr.P. 7026-7037.
I
If applicable, Civil Rule 26(g), is another basis for affirming the award. Fed. R.Civ.P. 26(g), incorporated by Fed. R.Bankr.P. 7026. This rule applies in adversary proceedings, contested petitions, and contested matters. Fed.R.Bankr.P. 7037, 1018 & 9014.
It would apply because Civil Rule 26(a)(5) designates a subpoena as a discovery device for obtaining documents or permitting inspection of premises. Fed.R.Civ.P. 26(a)(5).5
Moreover, Civil Rules 26(g) and 45(c) are not mutually exclusive. The drafters of Civil Rule 45(c) made clear that the rule was not intended to cut back on any protections that already existed. The advisory committee explained, the rule “is not intended to diminish rights conferred by Civil Rules 26-37 or any other authority.” Fed.R.Civ.P. 45(c), 1991 advisory committee note; David Siegel, Federal Subpoena Practice Under the New Rule 45 of the Federal Rules of Civil Procedure, 139 F.R.D. 197, 228 (1992). To the extent subpoena abuse was encompassed by other rules, those rules would also continue to apply.
Civil Rule 26(g) would be particularly pertinent to this appeal because the court purported to be acting under bankruptcy’s clone of Civil Rule 11. The salience of Civil Rule 26(g) is that it embodies the former version of Civil Rule 11 that was in effect until 1993 (and which remained in effect in bankruptcy until the 1997 amendment to Bankruptcy Rule 9011) and that is not subject to the procedural straightjacket included in the new Civil Rule 11 and Bankruptcy Rule 9011.6
Moreover, key substantive provisions of Civil Rule 11 and Bankruptcy Rule 9011 relating to improper purpose and warranted by law are replicated in Civil Rule 26(g). Compare Fed.R.Civ.P. 11(b)(1)-(2) and Fed.R.Bankr.P. 9011(b)(1)-(2), with *549Fed.R.Civ.P. 26(g)(2)(A)-(B). Thus, a motion under the “improper purpose” or “warranted by law” prongs of Civil Rule 11 and Bankruptcy Rule 9011 raises the identical substantive issues as a Civil Rule 26(g) motion on the same theories.
Since Rakita’s Bankruptcy Rule 9011 motion squarely presents issues of “improper purpose” and not “warranted by law,” it follows that appellants have already had their due process opportunity to respond to the same theories presented under Civil Rule 26(g).
The court’s determination that appellants proceeded in bad faith is tantamount to a determination that the subpoena, which is a form of discovery request, was interposed for an improper purpose within the meaning of Civil Rule 26(g)(2)(B), was not warranted by existing law or a nonfriv-olous argument for change in law, was unreasonable or unduly burdensome in violation of Civil Rule 26(g)(2)(C), and was done without substantial justification.
In short, if we were to conclude that Polo’s motion to compel was a “contested matter” under Bankruptcy Rule 9014, then I believe that Civil Rule 26(g) would apply and that the court did not abuse its discretion in finding a violation of the rule and in making the award to Rakita.
II
Likewise, while we find it unnecessary to delve into the mysteries of Civil Rule 37 in light of the plain applicability of Civil Rule 45(c), it should be noted that there is a theory- — -albeit attenuated — under which that rule might be applied if the motion to compel were to be deemed a “contested matter.”
Civil Rule 37 applies in bankruptcy per Bankruptcy Rule 7037. Fed.R.Bankr.P. 7037. This rule applies in adversary proceedings, contested petitions, and contested matters. Fed.R.Bankr.P. 7037, 1018 & 9014.
One who successfully opposes a Civil Rule 37(a) motion to compel is entitled to reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the motion was substantially justified or that other circumstances make an award of expenses unjust. Fed.R.Civ.P. 37(a)(4)(B).7 Since the entitlement is automatic unless the court makes a specific determination to rescue the movant, the expense award is better described as a cost of doing business in the discovery dispute arena than as a sanction. Cf. Barton Business Park Assocs. v. Alexander (In re Barton Business Park As-*550socs.), 118 B.R. 776, 780 (Bankr.E.D.Cal.1990) (prior rule).
As the bankruptcy court explained, its rulings that the subpoena and motion were made in bad faith and were not warranted by law necessarily subsume the propositions that they also were not substantially justified and that other circumstances do not make an award unjust. Thus, if Civil Rule 37(a) applies, then the court’s award could easily be justified on that basis.
The court noted, correctly, that a Civil Rule 37(a) expense award poses conceptual problems because Polo’s subpoena was not issued in connection with any of the discovery devices enumerated in that rule. 8A Wright, Miller & Marcus § 2288 n. 15 (2d ed.1994).
Civil Rule 37(a) encompasses failures to make a disclosure required by Civil Rule 26(a), Fed.R.Civ.P. 37(a)(2)(A), as well as failures to answer a question asked under Civil Rules 30 or 31, to make a designation under Civil Rule 30(b)(6) or 31(a), to answer an interrogatory under Civil Rule 33, or to respond to a request for inspection under Civil Rule 34, all of which may be addressed by a motion to compel discovery. Fed.R.Civ.P. 37(a)(2)(B).
The one other circumstance in which Civil Rule 37(a) expense awards are expressly permitted is in connection with a Civil Rule 26(c) motion for protective order. Fed.R.Civ.P. 26(c) (“The provisions of Civil Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion”).
The naked subpoena in this instance would not lie within the direct compass of Civil Rule 37(a). Nothing had happened to trigger a disclosure obligation under Civil Rule 26(a). Nor was there any associated deposition, interrogatory, or request for production. And there was no motion for a protective order.
Nevertheless, the naked subpoena may lie within the indirect compass of Civil Rule 37(a). A Civil Rule 45 subpoena is itself a form of discovery as defined by Civil Rule 26(a)(5). Moreover, it has been held that expenses in connection with a Civil Rule 45 subpoena may be awarded under the “undue burden or expense” analysis of Civil Rule 26(c). Fed.R.Civ.P. 26(c); Columbia Broad. Sys., Inc., 666 F.2d at 368-69.
As the Moore’s treatise notes, “the interplay between Civil Rules 26(c), 37(a), and 45, remains a subject of debate when discovery is sought from, or a protective order is litigated by, a nonparty.” 7 James Wm. Moore et al., Moore’s Federal Praotice ¶ 37.23[11], at 37-58—37-59 (3d ed.2000) (parentheses omitted).
Thus, I do not regard our decision as holding that Civil Rule 37 does not apply to subpoena abuse.
In light of the unambiguous applicability of Civil Rule 45(c), the issue can be left to another day.
. Civil Rule 26(a)(5) provides:
(5) Methods to Discover Additional Matter. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property under Rule 34 or 45(a)(1)(C), for inspection and other purposes; physical and mental examinations; and requests for admission.
Fed.R.Civ.P. 26(a)(5), incorporated by Fed.R.Bankr.P. 7026.
. Civil Rule 26(g)(2) — (3) echoes old versions of Civil Rule 11 and Bankruptcy Rule 9011:
(2) Every discovery request, response, or objection made by a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name, whose address shall be stated. An unrepresented party shall sign the request, response, or objection and state the party's address. The signature of the attorney or party constitutes a certification that to the best of the signer’s knowledge, information, and belief, formed after a reason*549able inquiry, the request, response, or objection is:
(A) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;
(B) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and
(C)not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation. If a request, response, or objection is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party making the request, response, or objection, and a party shall not be obligated to take any action with respect to it until it is signed.
(3) If without substantial justification a certification is made in violation of the rule, the court, upon motion or upon its own initiative, shall impose upon the person who made the certification, the party on whose behalf the disclosure, request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney’s fee.
Fed.R.Civ.P. 26(g), incorporated by Fed.R.Bankr.P. 7026.
. Civil Rule 37(a)(4)(B) provides:
(B) If the motion is denied, the court may enter any protective order authorized under Rule 26(c) and shall, after affording an opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion *550was substantially justified or that other circumstances make an award of expenses unjust.
Fed.R.Civ.P. 37(a)(4)(B), incorporated by Fed.R.Bankr.P. 7037 (emphasis supplied).