EXAMINATION OF DEBTOR AND OTHERS
- This Rule Does Not Apply in Adversary Proceedings and Contested Matters. This rule applies only to examinations conducted pursuant to Bankruptcy Rule 2004. The rules governing discovery in adversary proceedings and contested matters are set forth in Part VII of the Bankruptcy Rules and Local Rule 7026-1.
- Manner of Setting Examination. A Court order is not necessary to authorize an examination pursuant to Bankruptcy Rule 2004 or to require production of documents at the examination. Examinations may be scheduled upon notice filed with the Court and served on the trustee, the United States trustee in Chapter 11 cases, the debtor, the debtor’s attorney, if any, and the party to be examined.
- Reasonable Notice. The attendance of the examinee and the production of documents may not be required less than twenty-one (21) days after service of the notice, except by agreement of the parties or order of the Court. To the extent that a request for production of documents under this rule may be construed as a request under Bankruptcy Rule 7034, the time to respond is shortened to twenty-one (21) days. The notice of examination may provide for the production of documents in advance of the examination, but in no event shall the production of documents be required less than twenty-one (21) days from service of the notice of examination, unless otherwise agreed to by the parties or ordered by the Court.
- Who May Attend. Any party in interest who wishes to attend an examination scheduled under this rule may do so by filing and serving a cross-notice of examination in advance of the scheduled examination according to the following schedule:
- If the original notice is served at least twenty-one (21) days before attendance is required, the later of fourteen (14) days after service of the original notice or fourteen (14) days before the scheduled examination; or
- If by agreement of the parties the original notice is served less than twenty-one (21) days before attendance is required, the earlier of 14 days after service of the original notice or three (3) days before the scheduled examination, except that if service of the notice is first made within three (3) days of the scheduled examination, any other party shall be entitled to attend the examination without filing and serving a cross-notice of examination.
- Motion for Protective Order. An interested party may file, prior to the date of the proposed examination or production of documents, a motion for protective order stating the reasons for prohibiting, limiting, or rescheduling the examination or production of documents. The examination and/or production of documents shall be stayed until the Court rules on the motion.
- Subpoena. No subpoena is necessary to compel the attendance of, or the production of documents by, the debtor at an examination of the debtor. A subpoena is necessary to compel the attendance of, or production of documents by, a witness other than the debtor. Rule 45, Federal Rules of Civil Procedure, as made applicable by Bankruptcy Rule 9016, applies to subpoenas issued under this rule.
- Videotaped Examinations. Examinations may be videotaped if the notice of examination or subpoena states that the examination will be videotaped and whether it will also be recorded stenographically.
Advisory Committee Notes
The amended rule includes only stylistic changes for purposes of internal consistency and/or to correct grammatical errors.
This new Rule is intended to formalize standard court practice, adding procedures and standards applicable to Rule 2004 examinations in the district. These procedures include initiation of examinations, standard time frames, protective orders, and the conduct of examinations.