Form 256 - Subpoena In A Case Under The Bankruptcy Code (2007) (Page 2 of 2) in pdf

B256 (Form 256 – Subpoena in a Case under the Bankruptcy Code) (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

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

apply to producing documents or electronically stored information:

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

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

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

or attorney who fails to comply.

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

a 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 to

person responding need not produce the same electronically stored information in more than

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

one form.

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

(D) Inaccessible Electronically Stored Information. The person responding

to producing electronically stored information in the form or forms requested. The objection must be

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

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

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

If an objection is made, the following rules apply:

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

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

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

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

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

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

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

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

discovery.

from compliance.

(2) Claiming Privilege or Protection.

(3) Quashing or Modifying a Subpoena.

(A) Information Withheld. A person withholding subpoenaed information

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

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

subpoena that:

(i) expressly make the claim; and

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

(ii) describe the nature of the withheld documents,

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

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

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

privileged or protected, will 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 trial

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

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

subpoena is subject to a claim of privilege or of protection as trial-preparation material, the

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

person making the claim may notify any party that received the information of the claim and

exception or waiver applies; or

the basis for it. After being notified, a party must promptly return, sequester, or destroy the

(iv) subjects a person to undue burden.

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

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

claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it

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

before being notified; and may promptly present the information to the court under seal for a

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

determination of the claim. The person who produced the information must preserve the

commercial information;

information until the claim is resolved.

(ii) disclosing an unretained expert's opinion or information that does not

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

(e) Contempt.

party; or

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

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

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

substantial expense to travel more than 100 miles to attend trial

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

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

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 256 - Subpoena In A Case Under The Bankruptcy Code (2007) Page 2

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