February 21, 2017 Practice Points

You’re Going to Need to Quash That Subpoena Somewhere Else

The Bankruptcy Court of Colorado rules in In re SBN Fog Cap II LLC, et al.

By Robert C. Maddox

A December 2016 decision issued by the United States Bankruptcy Court for the District of Colorado serves as a good reminder for practitioners seeking to quash a subpoena. In re SBN Fog Cap II LLC, et al., No. 16-13815, 2016 WL 7174057 (Bankr. D. Colo. Dec. 8, 2016). In that case, the creditors’ committee served document subpoenas in connection with a rule 2004 examination. The committee issued the subpoenas from the Colorado Bankruptcy Court (in which the bankruptcy was pending) to entities located in New York City and called for the production of documents in New York City. The entities wanted to resist the subpoenas and filed a motion to quash them in the Colorado Bankruptcy Court. Referring to the 2013 revision of Federal Rule 45 (made applicable by Bankruptcy Rule 9016), the Colorado Bankruptcy Court found that it lacked authority to quash the subpoenas. As revised, Federal Rule 45(d)(3) provides that “[o]n timely motion, the court for the district where compliance is required must quash or modify a subpoena that. . . .” Relying on the plain language of this section the court held that the “compliance court” and not the “issuing court” had the authority to modify or quash the subpoenas. Thus, the United States District Court for the Southern District of New York, rather than the Colorado Bankruptcy Court, was the proper venue for the entities to seek relief.

Keywords: bankruptcy and insolvency litigation, quash, subpoena, Rule 45, Rule 9016, issuing court, compliance court

Robert C. Maddox is an associate with Richards, Layton & Finger, P.A., in Wilmington, Delaware.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

Robert C. Maddox – February 21, 2017