Form 254 - Subpoena For Rule 2004 Examination (Page 3 of 3) in pdf

B254 (Form 254 – Subpoena for Rule 2004 Examination) (12/13) (Page 3)

Federal Rule of Civil Procedure 45(c), (d), (e), and (g) (Effective 12/1/13)

(made applicable in bankruptcy cases by Rule 9016, Federal Rules of Bankruptcy Procedure)

(ii) disclosing an unretained expert's opinion or information that does

not describe specific occurrences in dispute and results from the expert's

(1) For a Trial, Hearing, or Deposition. A subpoena may command a

study that was not requested by a party.

person to attend a trial, hearing, or deposition only as follows:

(A) within 100 miles of where the person resides, is employed, or

described in Rule 45(d)(3)(B), the court may, instead of quashing or

regularly transacts business in person; or

modifying a subpoena, order appearance or production under specified

(B) within the state where the person resides, is employed, or regularly

conditions if the serving party:

transacts business in person, if the person

(i) shows a substantial need for the testimony or material that cannot

(i) is a party or a party’s officer; or

be otherwise met without undue hardship; and

(ii) is commanded to attend a trial and would not incur substantial

(ii) ensures that the subpoenaed person will be reasonably

expense.

compensated.

(2) For Other Discovery. A subpoena may command:

(e) Duties in Responding to a Subpoena.

(A) production of documents, or electronically stored information, or

things at a place within 100 miles of where the person resides, is employed,

(1) Producing Documents or Electronically Stored Information. These

or regularly transacts business in person; and

procedures apply to producing documents or electronically stored

(B) inspection of premises, at the premises to be inspected.

information:

(A) Documents. A person responding to a subpoena to produce

(d) Protecting a Person Subject to a Subpoena; Enforcement.

documents must produce them as they are kept in the ordinary course of

business or must organize and label them to correspond to the categories in

(1) Avoiding Undue Burden or Expense; Sanctions. A party or

the demand.

attorney responsible for issuing and serving a subpoena must take

(B) Form for Producing Electronically Stored Information Not

reasonable steps to avoid imposing undue burden or expense on a person

Specified. If a subpoena does not specify a form for producing

subject to the subpoena. The court for the district where compliance is

electronically stored information, the person responding must produce it in

required must enforce this duty and impose an appropriate sanction —

a form or forms in which it is ordinarily maintained or in a reasonably

which may include lost earnings and reasonable attorney's fees — on a

usable form or forms.

party or attorney who fails to comply.

person responding need not produce the same electronically stored

(2) Command to Produce Materials or Permit Inspection.

information in more than one form.

(A) Appearance Not Required. A person commanded to produce

(D) Inaccessible Electronically Stored Information. The person

documents, electronically stored information, or tangible things, or to

responding need not provide discovery of electronically stored information

permit the inspection of premises, need not appear in person at the place of

from sources that the person identifies as not reasonably accessible because

production or inspection unless also commanded to appear for a deposition,

of undue burden or cost. On motion to compel discovery or for a protective

hearing, or trial.

order, the person responding must show that the information is not

(B) Objections. A person commanded to produce documents or tangible

reasonably accessible because of undue burden or cost. If that showing is

things or to permit inspection may serve on the party or attorney designated

made, the court may nonetheless order discovery from such sources if the

in the subpoena a written objection to inspecting, copying, testing or

requesting party shows good cause, considering the limitations of Rule

sampling any or all of the materials or to inspecting the premises — or to

26(b)(2)(C). The court may specify conditions for the discovery.

producing electronically stored information in the form or forms requested.

The objection must be served before the earlier of the time specified for

(2) Claiming Privilege or Protection.

compliance or 14 days after the subpoena is served. If an objection is made,

(A) Information Withheld. A person withholding subpoenaed

the following rules apply:

information under a claim that it is privileged or subject to protection as

(i) At any time, on notice to the commanded person, the serving party

trial-preparation material must:

may move the court for the district where compliance is required for an

(i) expressly make the claim; and

order compelling production or inspection.

(ii) describe the nature of the withheld documents, communications,

(ii) These acts may be required only as directed in the order, and the

or tangible things in a manner that, without revealing information itself

order must protect a person who is neither a party nor a party's officer from

privileged or protected, will enable the parties to assess the claim.

significant expense resulting from compliance.

(B) Information Produced. If information produced in response to a

subpoena is subject to a claim of privilege or of protection as trial-

(3) Quashing or Modifying a Subpoena.

preparation material, the person making the claim may notify any party that

(A) When Required. On timely motion, the court for the district where

received the information of the claim and the basis for it. After being

compliance is required must quash or modify a subpoena that:

notified, a party must promptly return, sequester, or destroy the specified

(i) fails to allow a reasonable time to comply;

information and any copies it has; must not use or disclose the information

(ii) requires a person to comply beyond the geographical limits

until the claim is resolved; must take reasonable steps to retrieve the

specified in Rule 45(c);

information if the party disclosed it before being notified; and may

(iii) requires disclosure of privileged or other protected matter, if no

promptly present the information under seal to the court for the district

exception or waiver applies; or

where compliance is required for a determination of the claim. The person

(iv) subjects a person to undue burden.

who produced the information must preserve the information until the claim

(B) When Permitted. To protect a person subject to or affected by a

is resolved.

subpoena, the court for the district where compliance is required may, on

…

motion, quash or modify the subpoena if it requires:

(g) Contempt. The court for the district where compliance is required – and

(i) disclosing a trade secret or other confidential research,

also, after a motion is transferred, the issuing court – may hold in contempt

development, or commercial information; or

a person who, having been served, fails without adequate excuse to obey

the subpoena or an order related to it

For access to subpoena materials, see

Fed. R. Civ. P. 45(a) Committee Note (2013)

Form 254 - Subpoena For Rule 2004 Examination Page 3

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