Form 255 - Subpoena In An Adversary Proceeding (2007) (Page 2 of 2) in pdf

B255 (Form 255 – Subpoena in an Adversary Proceeding) (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:

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

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

responsible for issuing and serving a subpoena must take reasonable steps to avoid

under specified conditions if the serving party:

imposing undue burden or expense on a person subject to the subpoena. The issuing court

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

must enforce this duty and impose an appropriate sanction — which may include lost

otherwise met without undue hardship; and

earnings and reasonable attorney's fees — on a party or attorney who fails to comply.

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

(2) Command to Produce Materials or Permit Inspection.

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

(d) Duties in Responding to a Subpoena.

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

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

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

producing documents or electronically stored information:

unless also commanded to appear for a deposition, hearing, or trial.

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

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

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

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

correspond to the categories in the demand.

the subpoena a written objection to inspecting, copying, testing or sampling any or all of

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

the materials or to inspecting the premises — or to producing electronically stored

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

information in the form or forms requested. The objection must be served before the

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

earlier of the time specified for compliance or 14 days after the subpoena is served. If an

forms.

objection is made, the following rules apply:

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

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

serving party may move the issuing court for an order compelling production or

(D) Inaccessible Electronically Stored Information. The person responding need not

inspection.

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

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

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

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

order, the person responding must show that the information is not reasonably accessible because of

significant expense resulting from compliance.

undue burden or cost. If that showing is made, the court may nonetheless order discovery from such

(3) Quashing or Modifying a Subpoena.

sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The

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

court may specify conditions for the discovery.

modify a subpoena that:

(2) Claiming Privilege or Protection.

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

(A) Information Withheld. A person withholding subpoenaed information under a

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

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

officer to travel more than 100 miles from where that person resides, is employed, or

(i) expressly make the claim; and

regularly transacts business in person — except that, subject to Rule 45(c)(3)(B)(iii), the

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

person may be commanded to attend a trial by traveling from any such place within the

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

state where the trial is held;

the parties to assess the claim.

(iii) requires disclosure of privileged or other protected

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

matter, if no exception or waiver applies; or

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

(iv) subjects a person to undue burden.

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

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

party must promptly return, sequester, or destroy the specified information and any copies it has; must not

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

use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the

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

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

development, or commercial information;

the court under seal for a determination of the claim. The person who produced the information must

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

preserve the information until the claim is resolved.

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

that was not requested by a party; or

(e) Contempt.

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

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

incur substantial expense to travel more than 100 miles to attend trial

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

the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(ii).

Form 255 - Subpoena In An Adversary Proceeding (2007) Page 2

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