Free Subpoena in a Case Under the Bankruptcy Code (B-256) - West Virginia

Form 256 ­ Subpoena in a Case under the Bankruptcy Code (12/06)

UNITED STATES BANKRUPTCY COURT
District of
In re Debtor ,

SUBPOENA IN A CASE UNDER THE BANKRUPTCY CODE
Case No. * ____________________________________________

To:

Chapter _______________________________________________

G YOU ARE COMMANDED to appear in the United States Bankruptcy Court at the place, date, and time specified below to testify in the
above case.
PLACE OF TESTIMONY COURTROOM

DATE AND TIME

G YOU ARE COMMANDED to appear at the place, date, and time specified below to testify at the taking of a deposition in the above case.
PLACE OF DEPOSITION DATE AND TIME

G YOU ARE COMMANDED to produce and permit inspection and copying of the following documents or objects at the place, date, and
time specified below (list documents or objects):

PLACE

DATE AND TIME

G YOU ARE COMMANDED to permit inspection of the following premises at the date and time specified below.
PREMISES DATE AND TIME

Any organization not a party to this proceeding that is subpoenaed for the taking of a disposition shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. Rule 30(b)(6), Federal Rules of Civil Procedure, made applicable in bankruptcy cases and proceedings by Rules 1018, 7030, and 9014, Federal Rules of Bankruptcy Procedure.
ISSUING OFFICER SIGNATURE AND TITLE DATE

ISSUING OFFICER'S NAME, ADDRESS, AND PHONE NUMBER

* If the bankruptcy case is pending in a district other than the district in which the subpoena is issued, state the district under the case number.

Form 256 ­ Subpoena in a Case under the Bankruptcy Code (12/06)

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, 2006, made applicable in cases under the Bankruptcy Code by Rule 9016, Federal Rules of Bankruptcy Procedure:
(c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS. (1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee. (2) (A) A person commanded to produce and permit inspection, copying, testing, or sampling of designated electronically stored information, books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial. (B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection, copying, testing, or sampling may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to producing any or all of the designated materials or inspection of the premises -- or to producing electronically stored information in the form or forms requested. If objection is made, the party serving the subpoena shall not be entitled to inspect, copy, test, or sample the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production, inspection, copying, testing, or sampling. Such an order to compel shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection, copying, testing, or sampling commanded. (3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it (i) fails to allow reasonable time for compliance; (ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of clause (c)(3)(B)(iii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held; (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or (iv) subjects a person to undue burden. (B) If a subpoena (i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or (ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, or (iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions. (d) DUTIES IN RESPONDING TO SUBPOENA. (1) (A) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand. (B) If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoena must produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably usable. (C) A person responding to a subpoena need not produce the same electronically stored information in more than one form. (D) A person responding to a subpoena need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or to quash, the person from whom discovery is sought must show that the information sought is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (2) (A) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial-preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim. (B) If information is produced in response to a subpoena that is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The person who produced the information must preserve the information until the claim is resolved. (e) CONTEMPT. Failure of any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a nonparty to attend or produce at a place not within the limits provided by clause (ii) of subparagraph (c)(3)(A).

B 256 SUBPOENA IN A CASE UNDER THE BANKRUPTCY CODE

Purpose of the Form This subpoena is for use in a bankruptcy case. It may be used to compel a witness to testify in a hearing before the bankruptcy court or at a deposition. The subpoena also may be used to command the production of documents or other objects for inspection and copying and to compel the inspection of premises. Variations of this form are used for Fed. R. Bankr. P. 2004 examinations and in adversary proceedings. Form B 254 is a subpoena compelling a witness to appear and testify and/or to produce documents or other objects at a Rule 2004 examination. Form B 255 is a subpoena compelling a witness to appear and testify at a hearing or deposition in an adversary proceeding. It also can be used to compel the production of documents or objects or the inspection of premises. Rule 45 of the Federal Rules of Civil Procedure, which is incorporated by Fed. R. Bankr. P. 9016, governs the use of subpoenas. The subpoena forms for use in bankruptcy cases and proceedings were revised when Rule 45 was amended extensively in 1991. The purposes of the 1991 amendments were (1) to clarify and enlarge the protections afforded persons who are required to assist the court by giving information or evidence; (2) to facilitate access outside the deposition procedure provided by Rule 30 to documents and other information in the possession of persons who are not parties; (3) to facilitate service of subpoenas for depositions or productions of evidence at places distant from the district in which an action is proceeding; (4) to enable the court to compel a witness found within the state in which the court sits to attend trial; and (5) to clarify the organization of the text of the rule. Advisory Committee Note to 1991 Amendments. Applicable Law and Rules 1. Fed. R. Civ. P. 45 provides for the issuance of a subpoena at the request of a party to compel testimony at a trial, hearing, or deposition; command production of documents or other objects; or permit the inspection of premises. Fed. R. Bankr. P. 9016 incorporates Rule 45 by reference.

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B 256 continued 3. A subpoena commanding attendance at a trial or hearing shall issue from the court for the district in which the hearing or trial is to be held. A subpoena for attendance at a deposition shall issue from the court for the district designated by the notice of deposition as the district in which the deposition is being taken. If separate from a subpoena commanding the attendance of a person, a subpoena for production or inspection shall issue from the court for the district in which the production or inspection is to be made. Rule 45(a)(2). At the request of a party, the clerk shall issue a subpoena. Rule 45(a)(3). As an officer of the court, an attorney may issue and sign a subpoena on behalf of a court in which the attorney is authorized to practice. An attorney also can issue a subpoena on behalf of a court for a district in which a deposition or production is compelled by the subpoena, if the deposition or production pertains to an action pending in a court in which the attorney is authorized to practice. Rule 45(a)(3). Fed. R. Civ. P. 30(b) and 31(a), which are incorporated by reference by Fed. R. Bankr. P. 7030 and 7031, govern dispositions. The rules require reasonable notice of a deposition in writing to every party to the action. (Fed. R. Bankr. P. 1018 and 9014 incorporate Rules 7030 and 7031.) The notice is served prior to the issuance of the subpoena. Permission from the court is required to take a deposition under certain circumstances set out in Rules 30(a)(2) and 31(a)(2). If discovery materials are filed in the court, copies of the notice, proof of service for the notice, subpoena, and proof of service for the subpoena should be filed in the court in which the subpoena was issued. See Rule 45(b)(3). A party or attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. Rule 45(c)(1). The court on behalf of which the subpoena was issued shall enforce this duty and impose an appropriate sanction upon a party or attorney in breach of the duty. In addition to compelling testimony, a subpoena can require the person to whom it is directed "to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified." Rule 45(a)(1)(C). A subpoena for production of evidence or to permit inspection may be joined with a subpoena to appear at trial or hearing or at deposition, or may be issued separately. Rule 45(a). If issued separately, a subpoena for production or inspection shall issue from the court for the district in which the production or inspection is to be made. Rule 45(a)(2).

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B 256 continued

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A person commanded to produce documents or objects or to permit inspection need not appear in person at the time of production or inspection unless commanded to appear for deposition, hearing, or trial. Rule 45(c)(2)(A). A subpoena may require a person who is not a party or an officer of a party to travel to an examination up to 100 miles from the place where that person resides, is employed, or regularly transacts business in person, or, subject to certain restrictions, to travel from anyplace within the state. Rule 45(c)(3). A subpoena may be served by any person who is not a party and is not less than 18 years of age. Rule 45(b)(1). Service of a subpoena upon a person named therein is made by delivering a copy of the subpoena to the person and, if the person's attendance is commanded, by tendering to that person the fees for one day's attendance and the mileage allowed by law. When the subpoena is issued on behalf of the United States or an officer or agency thereof, fees and mileage need not be tendered. Rule 45(b)(1). Computation of the fees and allowances to be paid a witness for attending a trial, hearing, or deposition is governed by 28 U.S.C. § 1821. As of July 1, 1999, the witness fee was $40 per day, 28 U.S.C. § 1821(b), and the mileage for an automobile was 31 cents per mile, 41 C.F.R. § 301-10.303. Computation of mileage is set by a uniform table of mileage maintained by the General Services Administration. 28 U.S.C. § 1821(c)(2). Subject to the restrictions in Rule 45(c)(3)(A)(ii), a subpoena may be served at any place within the district of the court by which it is issued, at any place without the district that is within 100 miles of the place of examination, or at any place within the state where a state statute or court rule permits service of a subpoena issued by a state court of general jurisdiction sitting at the place of the examination. In addition, when provided by a federal statute, the court may, for cause, authorize the service of a subpoena at any other place. Rule 45(b)(2). Subpoenas are an exception to the nationwide service of process in bankruptcy cases. Fed. R. Bankr. P. 7004(d).

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B 256 continued 18. "Proof of service when necessary shall be made by filing with the clerk of the court by which the subpoena is issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service." Rule 45(b)(3). The duties of a person responding to a subpoena are set out in Rule 45(d). In particular, the rule provides that documents shall be produced as they are kept in the usual course of business or the records may be organized and labeled to correspond with the categories set out in the subpoena. Rule 45(e) provides that failure to obey a subpoena without adequate excuse may be deemed a contempt of court.

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Instructions for Subpoena Caption 1. Identify the judicial district in which the bankruptcy case was filed. Example: "Eastern District of California." "In re": Insert the name of the debtor as it appears in the bankruptcy petition. "Case No.": Insert the bankruptcy case number assigned by the court when the case was filed. "Chapter": Insert the chapter of the Bankruptcy Code under which the case is pending.

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To Insert in this box the complete name and address of the person to whom the subpoena is directed. (The clerk may issue a subpoena, signed but otherwise in blank, but the form must be filled in, including the name and address, before the subpoena is served.) Check boxes

Check the appropriate box or boxes.

B 256 continued

Place Insert in this box the complete address of the place where the witness is to appear and testify. The address should include the name of the building, street number and name, city, state, and zip code. (If this is not a subpoena for testimony at a trial or hearing, indicate that this box is not applicable.) Courtroom Insert in this box the number or name of the courtroom in which the witness is to testify. (If this is not a subpoena for testimony at a trial or hearing, indicate that this box is not applicable.) Date and Time Insert in this box the date and time of the trial or hearing. (If this is not a subpoena for testimony at a trial or hearing, indicate that this box is not applicable.) Place Insert in this box the complete address of the place where the witness is to be deposed. The address should include the name of the building, room number, street number and name, city, state, and zip code. (If this is not a subpoena for deposition testimony, indicate that this box is not applicable.) Date and Time Insert in this box the date and time of the deposition. (If this is not a subpoena for deposition testimony, indicate that this box is not applicable.) You Are Commanded to Produce Insert in this box the exact description of any and all documents and objects the witness is required to produce. If no documents and objects are required, enter "NONE" in this box. Place Insert in this box the complete address of the place where the witness is to produce the documents and objects. The address should include the name of the building, the room number, street number and name, city, state, and zip code. If no documents and objects are to be produced, enter "Not Applicable" in this box.

B 256 continued Date and Time Insert in this box the date and time at which the witness is to produce the documents and objects. If no documents and objects are to be produced, enter "Not Applicable" in this box. Premises Insert in this box the complete description of the premises to be inspected. The address should include the name of the building and the room number (if applicable), street number and name, city, state, and zip code or other information sufficient to identify the premises with particularity. (If this is not a subpoena for inspection of premises, enter "Not Applicable" in this box .) Date and Time Insert in this box the date and time at which the premises are to be inspected. (If this is not a subpoena for inspection of premises, enter "Not Applicable" in this box .) Issuing Officer Signature and Title The person who issues the subpoena signs here, states his or her title (for example, "deputy clerk" or "attorney"), and dates the signature. Date Insert in this box the date the subpoena was issued. Issuing Officer's Name and, Address and Phone Number If an attorney issues the subpoena, insert the attorney's name, street address, city, state, zip code, and telephone number, including area code, in this box. If the subpoena is issued by the clerk, insert the information for the clerk's office. Instructions for Proof of Service The proof of service and declaration on the reverse of the form are to be completed, under penalty of perjury, by the person who serves the subpoena.

B 256 continued Served Insert the date and place the subpoena was served. Specify the street address, city, state, and zip code of the place service of the subpoena was made. Served On Insert the full (printed or typed) name of the person who received the subpoena. Manner of Service Describe the manner of service. Served By Insert the full (printed or typed) name of the person who served the subpoena and specify the person's title. Declaration of Server The declaration is to be completed as follows Date: - Insert on this line the month, day and year the certificate is signed. Signature of Server: - This must be the ORIGINAL signature of the person who served the subpoena. Address of Server: - Print or type the address of the person who signs the declaration. Protection of Persons Subject to Subpoenas In order to protect persons subject to subpoenas, Rule 45(a)(1)(D) requires that every subpoena set forth the text of subdivisions (c) and (d) of the rule. Furthermore, the rule provides that a party or attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena and that the court on behalf of which the subpoena was issued shall enforce this duty. Rule 45(c)(1). General Information for the Clerk Form B 256 is for use in a bankruptcy case. It may be used to command a witness to testify in a hearing before the bankruptcy court or at a deposition. The subpoena also may be used to compel the production of documents or other objects for inspection and copying and to command the inspection of premises.

B 256 continued Fed. R. Civ. P. 45, which is incorporated by reference by Fed. R. Bankr. P. 9016, authorizes both the clerk and attorneys to issue subpoenas. In many cases the clerk will issue subpoenas in blank. The name of the party to be served need not be filled in when the clerk issues a subpoena, but the subpoena must be completed before it is served. Fed. R. Civ. P. 30(b) and 31(a), which are incorporated by reference by Fed. R. Bankr. P. 7030 and 7031, require reasonable notice of a deposition to every party to the action. (Fed. R. Bankr. P. 1018 and 9014, in turn, incorporate Rules 7030 and 7031.) The notice is served prior to the issuance of the subpoena. Rule 45(a)(2) provides that a subpoena for attendance at a deposition shall issue from the court for the district designated by the notice of deposition as the district in which the deposition is to be taken. If separate from a subpoena commanding the attendance of a person, a subpoena for production or inspection shall issue from the court in the district in which the production or inspection is to be made. When a clerk issues a subpoena for a case which is pending in another district, the clerk should create a special file for noting the issuance of the subpoena and filing the related papers. If discovery materials are filed in the court, copies of the notice, proof of service of the notice, subpoena, and proof of service of the subpoena should be filed in the district in which the deposition is to be taken. See Rule 45(b)(3).