Form 254 - Subpoena For Rule 2004 Examination (Page 2 of 2) in pdf

B254 (Form 254 – Subpoena for Rule 2004 Examination) (12/07)

PROOF OF SERVICE

DATE

PLACE

SERVED

SERVED ON (PRINT NAME)

MANNER OF SERVICE

SERVED BY (PRINT NAME)

TITLE

DECLARATION OF SERVER

I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof

of Service is true and correct.

Executed on

DATE

SIGNATURE OF SERVER

ADDRESS OF SERVER

Rule 45, Federal Rules of Civil Procedure, Subdivisions (c), (d), and (e), as amended on December 1, 2007, made applicable in cases under the Bankruptcy Code by Rule 9016,

Federal Rules of Bankruptcy Procedure:

(d) Duties in Responding to a Subpoena.

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

(1) Producing Documents or Electronically Stored Information. These procedures apply

issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or

to producing documents or electronically stored information:

expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an

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

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

produce them as they are kept in the ordinary course of business or must organize and label them

or attorney who fails to comply.

to correspond to the categories in the demand.

(2) Command to Produce Materials or Permit Inspection.

(B) Form for Producing Electronically Stored Information Not Specified. If a

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

subpoena does not specify a form for producing electronically stored information, the person

electronically stored information, or tangible things, or to permit the inspection of premises, need not

responding must produce it in a form or forms in which it is ordinarily maintained or in a

appear in person at the place of production or inspection unless also commanded to appear for a

reasonably usable form or forms.

deposition, hearing, or trial.

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

responding need not produce the same electronically stored information in more than one form.

to permit inspection may serve on the party or attorney designated in the subpoena a written

(D) Inaccessible Electronically Stored Information. The person responding

objection to inspecting, copying, testing or sampling any or all of the materials or to inspecting the

need not provide discovery of electronically stored information from sources that the person

premises — or to producing electronically stored information in the form or forms requested. The

identifies as not reasonably accessible because of undue burden or cost. On motion to compel

objection must be served before the earlier of the time specified for compliance or 14 days after the

discovery or for a protective order, the person responding must show that the information is not

subpoena is served. If an objection is made, the following rules apply:

reasonably accessible because of undue burden or cost. If that showing is made, the court may

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

nonetheless order discovery from such sources if the requesting party shows good cause,

may move the issuing court for an order compelling production or inspection.

considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the

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

discovery.

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

(2) Claiming Privilege or Protection.

resulting from compliance.

(A) Information Withheld. A person withholding subpoenaed information

(3) Quashing or Modifying a Subpoena.

under a claim that it is privileged or subject to protection as trial-preparation material must:

(A) When Required. On timely motion, the issuing court must quash or modify a

(i) expressly make the claim; and

subpoena that:

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

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

(ii) requires a person who is neither a party nor a party's officer to travel

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

more than 100 miles from where that person resides, is employed, or regularly transacts business in

enable the parties to assess the claim.

person — except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a

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

trial by traveling from any such place within the state where the trial is held;

subject to a claim of privilege or of protection as trial-preparation material, the person making the

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

claim may notify any party that received the information of the claim and the basis for it. After

exception or waiver applies; or

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

(iv) subjects a person to undue burden.

any copies it has; must not use or disclose the information until the claim is resolved; must take

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

reasonable steps to retrieve the information if the party disclosed it before being notified; and may

issuing court may, on motion, quash or modify the subpoena if it requires:

promptly present the information to the court under seal for a determination of the claim. The

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

person who produced the information must preserve the information until the claim is resolved.

or commercial information;

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

(e) Contempt.

not

The issuing court may hold in contempt a person who, having been served, fails without adequate

describe specific occurrences in dispute and results from the expert's study that was not requested by

excuse to obey the subpoena. A nonparty's failure to obey must be excused if the subpoena

a party; or

purports to require the nonparty to attend or produce at a place outside the limits of Rule

(iii) a person who is neither a party nor a party's officer to incur

45(c)(3)(A)(ii).

substantial expense to travel more than 100 miles to attend trial

Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or

production under specified conditions if the serving party:

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

otherwise met without undue hardship; and

(ii) ensures that the subpoenaed person will be reasonably compensated.

Form 254 - Subpoena For Rule 2004 Examination Page 2

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