In re Great Lakes Comnet, Inc.

558 B.R. 194, 2016 Bankr. LEXIS 3939, 63 Bankr. Ct. Dec. (CRR) 71, 2016 WL 6081100
CourtUnited States Bankruptcy Court, W.D. Michigan
DecidedOctober 17, 2016
DocketCase No. GL 16-00290-jtg
StatusPublished

This text of 558 B.R. 194 (In re Great Lakes Comnet, Inc.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Great Lakes Comnet, Inc., 558 B.R. 194, 2016 Bankr. LEXIS 3939, 63 Bankr. Ct. Dec. (CRR) 71, 2016 WL 6081100 (Mich. 2016).

Opinion

OPINION REGARDING MOTION TO CONDUCT EXAMINATION UNDER FED. R. BANKR. P. 2004

John T. Gregg, United States Bankruptcy Judge

This matter comes before the court on a motion requesting authority to conduct an examination under Fed. R. Bankr. P. 2004 [Dkt. No. 563] (the “Motion”) filed by the Official Committee of Unsecured Creditors in the above-captioned case (the “Committee”). Local Exchange Carriers of Michigan, Inc., a/k/a 123.net (“LEC-MI”) filed an objection to the Motion [Dkt. No. 580] (the “Objection”), which LEC-MI asserts is designed to circumvent the discovery rules, Fed. R. Bankr. P. 7026-7037, in a yet to be commenced adversary proceeding against LEC-MI. For the following reasons, the court shall grant the Motion.

JURISDICTION

The court has jurisdiction pursuant to 28 U.S.C. §§ 1334(a) and 157(a). This is a core proceeding under 28 U.S.C. § 157(b)(2)(A).

BACKGROUND

Great Lakes Comnet, Inc. and Comlink L.L.C., the debtors in these jointly administered cases (collectively, the “Debtors”), provided telecommunication services to various third-party carriers. From October 2003 through September 2014, LEC-MI conducted business with the Debtors, the nature of which is unimportant to this matter. At some point, the Debtors became the subject of scrutiny by the Federal Communications Commission. In a complaint filed with the FCC, AT & T made certain allegations against the Debtors, which also implicated, whether directly or indirectly, LEC-MI. According to the Motion, the Debtors made certain payments to LEC-MI pursuant to an access revenue sharing agreement. The inference is that these payments were likely improper in one respect or another.

On January 26, 2016, the Debtors filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code, Less than [196]*196six months later and after an expeditious sale process, the Debtors sold substantially all of their assets. In the months leading up to consummation of the sale, the Committee undertook an investigation with respect to potential causes of action against various parties, including LEC-MI. LEC-MI appears to have voluntarily provided information to the Committee without the need for an examination under Fed. R. Bankr. P. 2004. To date, no contested matter or adversary proceeding has been commenced against LEC-MI.

The Committee’s informal but ambitious requests for information, and LEC-MI’s responses, continued for several months. However, according to the Committee, at some point, LEC-MI stopped providing additional information or even responding to the Committee’s communications. In August 2016, LEC-MI informed the Committee that LEC-MI had acted in good faith by producing all of the information requested by the Committee.2 The Committee persisted with its requests, including for electronically stored information, the production of which can, of course, be unduly burdensome and expensive. The responses the Committee subsequently received from LEC-MI were apparently unsatisfactory, because, after seeking consent from LEC-MI for an examination in accordance with the Local Bankruptcy Rules, the Committee filed the .Motion on September 23, 2016.

LEC-MI timely filed its Objection in which it argues that relief under Fed. R. Bankr. P. 2004 is inappropriate under the circumstances. LEC-MI contends that it has already produced all discoverable documents in its possession, custody and control. LEC-MI also notes that a significant portion of the documentation requested is already in the possession, custody and control of the Debtors. Finally, LEC-MI asserts that the Motion is essentially nothing more than premature discovery.

The court held a hearing regarding the Motion on October 14, 2016. After careful consideration, the court shall grant the Motion and overrule the Objection.

DISCUSSION

Rule 2004 of the Federal Rules of Bankruptcy Procedure provides that on a motion of any party in interest, the court may order the examination of any entity. Fed. R. Bankr. P. 2004(a). Any such examination is limited to “the acts, conduct, or property, or to the liabilities and financial condition of the debtor, or to any matter which may affect the administration of the debtor’s estate ...all of which may be obtained through a request for production of documents or depositions. Fed. R. Bankr. P. 2004(b)-(c).

Without question, the scope of any examination under Fed. R. Bankr. P. 2004 is extremely broad. See, e.g., In re Davis, 452 B.R. 610, 618 (Bankr. E.D. Mich. 2011); In re DeShetler, 453 B.R. 295, 302 (Bankr. S.D. Ohio 2011) (citation omitted). In Chapter 11, the scope of an examination may be further expanded to “the operation of any business and the desirability of its continuance, the source-of any money or property acquired or to be acquired by the debtor for purposes of consummating a plan and the. consideration given or offered therefor, and any other matter relevant to the case or to the formulation of a plan.” Fed. R. Bankr. P. 2004(b). The Sixth Circuit Court of Appeals has stated as follows with respect to the predecessor to Fed. R. Bankr. P. 2004:

Examination of a designated person under this section may be as broad in [197]*197scope as that permitted of the bankrupt himself. The examination is in the nature of a discovery proceeding. It provides the means for a thorough investigation into the affairs of the bankrupt calculated to lead to the discovery and recovery of his assets and a determination of the amount of his indebtedness. The relevancy of questions propounded is not to be determined by standards applied to the trial of issues, but by the broader test of relevancy applied under Rule 26 of the Federal Rules of Civil Procedure... The trustee may inquire at large and without limit except in eases of plain abuse, to be determined in the Court’s discretion. The inquiry may even be a fishing expedition. It is no objection that it leads to the prosecution of an action against the witness.

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Cite This Page — Counsel Stack

Bluebook (online)
558 B.R. 194, 2016 Bankr. LEXIS 3939, 63 Bankr. Ct. Dec. (CRR) 71, 2016 WL 6081100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-great-lakes-comnet-inc-miwb-2016.