Rule 2004 Examination and Subpoena Duces Tecum – What are they?

The Rule 2004 Examination is named for the Federal Bankruptcy Rule of Procedure that sets out the procedure for the Trustee or other interested party to obtain additional disclosure of documents or testimony from the Debtor in a bankruptcy case. A debtor who receives an order from the court for a Rule 2004 exam has not necessarily done anything wrong; this is simply the procedure that the parties must follow to obtain the additional information that they want.

A Rule 2004 Examination can be stressful for a Debtor but it does not have to be if you can focus on the two goals of the exam:

1. Documents: In most 2004 Exams the primary component is the “Subpoena Duces Tecum.” This is a legal term of art that basically means “produce these documents.” A Debtor should work with their attorney, if they have one, to produce the requested documents well in advance of the scheduled examination. Often, the production of the documents will eliminate the need for the in person examination.
2. Explanation: Communication with the examiner prior to the meeting is crucial to the quick and painless resolution of the 2004 Examination. The Debtor or their attorney should speak to the examiner in advance of the exam to see what they really want and then answer those things prior to the scheduled date. The examiner will appreciate the time saved and the cooperation that allows them to do their job efficiently.

You can eliminate the stress and fear related to a 2004 Exam by communicating with the other party and showing your good faith effort to comply. Now, these principles may not apply in a situation where the examining party is truly adversarial and may be building a case for an allegation of fraud or other misconduct. In those instances a Debtor should seek counsel from an attorney to guide them through compliance while shielding the Debtor from harsh litigation tactics.

If you have questions about a Rule 2004 Examination, a Subpoena Duces Tecum or disclosure in bankruptcy in general, schedule your free consultation by calling (480) 888-7111 or submit a web request here.

By: Levi S. Hatch