Case No. 01-16034 (AJG), Jointly AdministeredUnited States Bankruptcy Court, S.D. New York
September 16, 2003
CADWALADER, WICKERSHAM TAFTLLP, New York, N.Y. Barry J. Dichte, Joseph E. Field, for Special Counsel to the Debtors
ORDER PURSUANT TO FEDERAL RULE OF BANKRUPTCY PROCEDURE 2004 DIRECTING EXAMINATION OF AND PRODUCTION OF DOCUMENTS BY SIMONE FRUIT CO., INC.
ARTHUR GONZALEZ, Bankruptcy Judge
Upon the motion of Enron Energy Services, Inc., as a debtor and debtor in possession in the above-captioned case (“EES”) for an order pursuant to Rule 2004 of the Federal Rules of Bankruptcy Procedure, directing Simone Fruit Co., Inc. (“Simone Fruit”) to designate a corporate representative to submit to an oral examination and to produce documents (the “Motion”); and adequate and sufficient notice of the Motion having been provided to all parties in interest; and objections, if any, to the Motion having been overruled, settled or withdrawn; and sufficient cause appearing therefore, it is hereby
ORDERED that the Motion is granted in its entirety; and it is further
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ORDERED that EES is hereby authorized to issue a subpoena or other process to compel the production of documents and the attendance of Simone Fruit, by its corporate representative, Mauro Simone, to an oral examination and to such other examinations as may be necessary; and it is further
ORDERED that Simone Fruit is directed to produce all responsive documents described in the subpoena and schedule attached hereto in Schedule A (the “Subpoena”), and that, in any event, Simone Fruit is directed to produce all responsive documents within twenty (20) days of service of the Subpoena by overnight mail with proof of delivery, subject to any documents withheld under a claim of privilege; and it is further
ORDERED that Simone Fruit shall produce all responsive documents (or copies thereof) by delivery via overnight courier to Cadwalader, Wickersham Taft LLP, 100 Maiden Lane, New York, New York 10038, Attention: Barry Dichter to be received not later than 21 days after service of the Subpoena; and it is further
ORDERED that Simone Fruit is directed to provide a privilege log in accordance with Rule 7026 of the Federal Rules of Bankruptcy Procedure within thirty (30) days of the date of service of the Subpoena; and it is further
ORDERED that Simone Fruit, by Mauro Simone, is directed to submit to oral examination upon 10 days notice, and in no event less than thirty (30) days from the date of service of the Subpoena, such examination to be conducted within 100 miles of Fresno, California; and it is further
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ORDERED that this Order shall be effective and enforceable immediately upon entry; and it is further
ORDERED that this Court retains sole jurisdiction to resolve any disputes arising under or related to this Order, including any discovery disputes that may arise between or among the parties, and to interpret, implement and enforce the provisions of this Order; and it is further
ORDERED that the Order is without prejudice to the rights of EES to apply for further discovery of Simone Fruit, or of any other entity.
IT IS SO ORDERED.
ATTACHMENT A
Barry J. Dichter, Esq., Cadwalader, Wickersham Taft LLP, New York, for Debtors
SUBPOENA FOR RULE 2004 EXAMINATION
[EDITORS’ NOTE: THIS FORM IS ELECTRONICALLY NON-TRANSFERRABLE.]
(c) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS.
(1) A party or an attorney responsible for the issuance and service of a subpoena shall take responsible 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 and copying of designated 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 and copying 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 inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy 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 parting serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying 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, or
(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 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.
(2) 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.
SCHEDULE A DEFINITIONS
As used herein, the following terms shall have the meanings set forth below:
1.”And” and “or” shall be construed either disjunctively or conjunctively as necessary to bring within the scope of the subpoena all responses that might otherwise be construed to be outside its scope.
2.”All” includes “any” and vice versa.
3 “Communications” shall mean the transmittal of information in the form of facts, ideas, inquiries or otherwise, whether orally or in writing or by any other means or medium.
4 “Concerning” means relating to, referring to, describing, evidencing or constituting.
5.”Document” shall have the broadest meaning permitted by the Federal Rules of Civil Procedure, the Federal Rules of Bankruptcy Procedure and the rules of this Court, and includes, without limitation, all originals, copies (if the originals are not available), non-identical copies (whether different from the original because of underlining, editing marks, notes made on or attached to such copy, or otherwise) and drafts of the following items, whether printed or recorded (through sound, video or other electronic, magnetic or digital recording system) or reproduced by hand, including, but not limited to, letters, correspondence, telegrams, telexes, memoranda, records, summaries of personal conversations or interviews, minutes or records or notes of meetings or conferences, note pads, notebooks, postcards, “Post-It” notes, stenographic notes, opinions or reports of financial advisors or consultants, opinions or reports of experts, projections, financial or statistical statements or compilations, contracts, agreements, appraisals, analyses, purchase orders, confirmations, publications, articles, books, pamphlets, circulars, microfilm, microfiche, reports, studies, logs, surveys, diaries, calendars, appointment books, maps, charts, graphs, bulletins, photostats, speeches, data sheets, pictures, photographs, illustrations, blueprints, films, drawings, plans, tape recordings, videotapes, disks, diskettes, compact disks, data tapes or readable computer-produced interpretations or transcriptions thereof, electronically transmitted messages (“e-mail”), voice mail messages, interoffice communications, advertising, packaging and promotional materials and any other writings, papers and
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tangible things of whatever description whatsoever, including, but not limited to any information contained in any computer, even if not yet printed out, within your possession, custody or control.
6.”EES” shall mean Enron Energy Services, Inc. and its current or former subsidiaries, affiliates, subcontractors, agents, attorneys, advisors, directors, officers, employees, representatives, successors and assigns or any person or entity acting on its behalf.
7.”Simone Fruit” shall mean Simone Fruit Co., Inc. and its current or former subsidiaries, affiliates, subcontractors, agents, attorneys, advisors, directors, officers, employees, representatives, successors and assigns or any person or entity acting on its behalf.
8.”Gas” shall mean the natural gas sold by EES to Simone Fruit during the period from July 1, 1999 to June 30, 2000.
9.”Invoices” shall mean any of the 19 invoices for the sale of the Gas issued by EES to Simone Fruit.
10. “Person” shall mean any natural person or any business, legal or governmental entity or association.
11. All references to the singular in these definitions and requests shall be deemed to include the plural, and all references to the plural shall be deemed to include the singular.
INSTRUCTIONS
A. The Documents requested herein are to be produced as they are kept in the usual course of business or organized and labeled to correspond to the numbered paragraphs and/or categories of particular requests. If there are no Documents responsive to a particular numbered paragraph and/or category, so state in writing.
B. For each Document responsive to the Requests, but withheld under a claim of privilege, the following information shall be provided:
(1) the nature of the privilege (including work product) which is being claimed and, if applicable, the state rule or law governing such claim;
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(2) the identity of all Persons who have or have had access, or purport to have or have had access, to said Document;
(3) the type of Document;
(4) the general subject matter of the Document;
(5) the date of the Document;
(6) such information as is sufficient to identify the Document, including, where appropriate, the Document author(s), addressee(s), and where not apparent, the relationship between the author(s) and addressee(s).
C. All Documents produced in response to the Requests shall be provided in their entirety notwithstanding the fact that portions thereof may contain information not requested. All interim as well as final versions of the Document shall be produced, and all versions or copies that are not identical to the original or other produced copy of the Document, whether due to handwritten notations, modifications, changes, amendments, revisions or otherwise, shall be produced.
D. If any requested Document has been destroyed or discarded, or is no longer in existence, that Document is to be identified by stating:
(1) the information called for in Instruction “B” above;
(2) its date of destruction or discard;
(3) the manner and reason for its destruction or discard; and
(4) the identity of the Document’s last custodian and of each person responsible for the Document’s destruction or unavailability.
E. If any requested Document was, but no longer is in Simone Fruit’s possession, state all circumstances of its disposition and whether any copy is in the possession, custody or control of some other person and indicate why the Document or a copy cannot be produced.
F. Where anything has been deleted from a Document produced:
(1) specify the nature of the material deleted;
(2) specify the reason(s) for the deletion; and
(3) identify the person(s) responsible for the deletion.
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G. If any request herein cannot be complied with in full, it shall be complied with to the extent possible with an explanation as to why full compliance is not possible.
DOCUMENTS REQUESTED
1. All Documents Concerning Simone Fruit’s purchase of the Gas.
2. All Documents Concerning any of Simone Fruit’s defenses to EES’s claim for payment.
3. All Invoices received by Simone Fruit or other request for payment by EES.
4. All Documents constituting or referring to Communications between Simone Fruit and any other person concerning purchase of the Gas or EES’s claim for payment.
5. All Documents constituting or referring to Communications between or among officers, directors or employees of Simone Fruit concerning purchase of the Gas or EES’s claim for payment.
6. Simone Fruit’s quarterly and annual financial statements, whether audited or unaudited, covering the period from January 1, 2000 to the present.
7. All bank or brokerage statements of Simone Fruit covering the period from January 1, 2000 to the present.
8. All federal and state income tax returns filed by Simone Fruit for the tax years 2000, 2001 and 2002.
9. The most current listing maintained by Simone Fruit of any accounts receivable due and owing to Simone Fruit and of Simone Fruit’s accounts payable.
10. Simone Fruit’s most recent cash flow statement.
11. Simone Fruit’s most recent profit and loss statement.
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