Local Rule LR 2004-1: Rule 2004 Examinations

LR 2004-1 Rule 2004 Examinations

(a) Definitions. In this rule,

(1) "2004 Examination" means the examination of, or the production of Documents or electronically stored information from, an entity under Fed. R. Bankr. P. 2004.

(2) "Documents" means information however stored, including in hard copy or electronically stored information.

(b) 2004 Examination of debtors.

(1) Motion requesting 2004 Examination order. A party must move for an order commanding a debtor to appear for examination or produce documents.

(2) Service of motion. A motion for a 2004 Examination of a debtor need be served only on the debtor, the debtor's attorney (if any), any trustee, the United States trustee, and any official committee.

(3) Order.

(A) Proposed order. The moving party must separately file and serve a proposed order when filing the motion.

(B) Service of court's order. If the court grants the motion for a 2004 Examination, the moving party must promptly serve the order on the debtor, if the debtor is not represented by counsel.

(4) Meet and confer requirement for a debtor represented by counsel. Before filing a motion for a 2004 Examination of a debtor represented by counsel, the moving party must in good faith confer or attempt to confer with the debtor's attorney to ascertain whether the debtor consents to the 2004 Examination and to arrange a mutually agreeable date, time, place, and scope. The motion must include a certification that the movant has complied with this paragraph.

(c) 2004 Examination of non-debtors.

(1) Motion requesting service of subpoena. To compel a non-debtor to appear for a 2004 Examination, the moving party must request the court to authorize the issuance of a subpoena to appear for examination or produce Documents in accordance with Fed. R. Bank. P. 2004(c) and 9016.

(2) Service of motion. A motion for a 2004 Examination of a non-debtor need be served only on the debtor (including on the debtor's attorney, if any), any trustee, the United States trustee, any official committee, and the entity to be examined, if that entity has appeared or filed a proof of claim.

(3) Proposed subpoena. The moving party must file (as an attachment to the motion) and serve a proposed subpoena that specifically provides for all requested examinations and Documents.

(4) Service of the subpoena in the form authorized by the court. Unless the court orders otherwise,

(A) after the court grants a motion for 2004 Examination of a non-debtor, the moving party must serve the non-debtor with a subpoena as authorized by the court's order;

(B) Fed. R. Bankr. P. 9016 governs the content, form, service and enforcement of the subpoena.

(d) Protective orders and motions to quash or modify subpoenas.

(1) Unless the court orders otherwise, an entity compelled under this rule to appear for a 2004 Examination or to produce Documents may move for a protective order and may move to quash or modify any subpoena as provided by Fed. R. Civ. P. 26(c) and Fed. R. Bankr. P. 9016 (incorporating Fed. R. Civ. P. 45).

(2) An entity requesting that a subpoena issued under this rule be vacated, modified, or quashed, or that the court enter a protective order, must file and serve that request as provided in Fed. R. Civ. P. 9016 (incorporating Fed. R. Civ. P. 45) and Local Rule 9014-1(a).

(3) An entity moving under this paragraph must file a certification with the motion specifying the movant's good faith efforts to confer with the party entitled to conduct the contested 2004 Examination to resolve the dispute.

(4) Any objection to a motion made under this paragraph must be filed no later than seven days after the motion is filed; the objecting party must address the party's good faith efforts to confer with the movant to resolve the dispute.

(5) Unless the court orders otherwise, the timely filing of a motion under this paragraph stays the effect of an order or subpoena issued under this Rule, until the court adjudicates the motion.

(e) Time for examination or production. If a motion for a 2004 examination requests that an examination or a production occur fewer than 21 days after the date on which the motion is filed, the motion and any supporting Declarations must show good cause for affording fewer than 21 days to comply.

(f) Immediate adjudication. The court may adjudicate a motion under this rule immediately and without notice or a hearing.

(g) Stipulations to alter examination or production. Unless the court orders otherwise, parties to an order or subpoena issued under this Rule may modify the date, time, place or scope of any examination or production by agreement of all affected parties without leave of court.

(h) Exception for chapter 13 trustee.

(1) Unless the court otherwise orders, no part of this rule applies to motions filed by a chapter 13 trustee before plan confirmation or adjudication of any motion to modify a confirmed plan to compel a debtor to produce documents, materials, or information related to a debtor's financial circumstances and chapter 13 plan confirmation or modification.

(2) The objection deadline for a motion to dismiss a chapter 13 case based on a debtor's failure to comply with an order requiring testimony or production of documents under Rule 2004 need not exceed 14 days from the date on which the motion is filed.

(i) The court may deny a motion under this Local Rule if it finds that the motion is inconsistent with an order governing discovery in an adversary proceeding to which the movant is a party.