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Just Say No: Discovery In Chapter 15 Bankruptcies Is Asymmetrical
Foreign Representatives in Chapter 15 petitions are specifically permitted to conduct discovery to locate the debtor's assets within the United States to increase estate and creditor recoveries in the overseas proceedings and to probe the debtor's affairs, rights, obligations or liabilities. In the U.S. ancillary proceeding, the Foreign Representative will encounter resistance and other entities may seek to propound subpoenas under Fed. R. Bankr. 2004. Sometimes, these entities are creditors who seek information relevant to their claim or assets available to pay the same. Other times, these entities are subpoena targets who seek to gain a peek into the Foreign Representative's search, seek to distract and/or delay the Foreign Representative from the asset search, or who seek to "punish" the Foreign Representative. The Foreign Representative may be able to avoid responding to such requests by moving for protective order or to quash the subpoena based upon 11 U.S.C. 1521(a)(4) and/or Rule 2004(a). The arguments are based upon: 1) the language of 1521(a)(4) and two canons of statutory construction, or, alternatively; 2) interpretive case law under Rule 2004 as to the requirements to show a "pecuniary interest" in a case.
Only Foreign Representative May Serve Discovery
11 U.S.C. §1521(a)(4) of the Bankruptcy Code states that, upon recognition:
… where necessary to effectuate the purpose of this chapter and to protect the assets of the debtor or the interests of the creditors, the court may, at the request of the Foreign Representative, grant any appropriate relief, including … providing for the examination of witnesses, the taking of evidence or the delivery of information concerning the debtor's assets, affairs, rights, obligations or liabilities.
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