Martin F. McMahon

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
MARTIN F. McMAHON,
Debtor.
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Case No. 07-00612
(Chapter 13)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND
ORDER GRANTING DEBTOR’S EMERGENCY MOTION TO
QUASH SUBPOENA AND DENYING MOTION FOR PROTECTIVE ORDER
The debtor has filed a motion seeking to quash a subpoena
issued by counsel for Emily Jane Phifer to PNC Bank under Rule
2004, and the entry of a protective order limiting the scope of
questions that may be asked of the debtor when he is examined at
his own Rule 2004 examination tomorrow.
I
The subpoena to PNC Bank was not authorized by order of the
court as required by Rule 2004. 	I will thus quash the subpoena
without the necessity of a hearing.
II
The subpoena to PNC Bank may signal that when Phifer’s
counsel examines the debtor tomorrow, he intends to question the
The Memorandum Decision and Order below is hereby
signed. Dated: February 11, 2008.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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debtor regarding all of the accounts named in the PNC Bank
subpoena from November 15, 2004, to the present. 	It is premature
to rule on what is the proper scope of questions that may be
posed to the debtor under Rule 2004.
A.
The debtor contends that several of the accounts are
custodial accounts maintained for the benefit of certain clients;
the debtor’s IOLTA trust account; and his attorney escrow
account. 	He alleges that “[t]he disclosure of information
regarding any of these accounts, without the consent of the
client involved, is a violation of the attorney-client privilege,
and must therefore be avoided.” 	Assuming that the privilege
exists (which the court doubts exists with the breadth asserted
by the debtor), it can be invoked by the debtor, when he is
examined, in response to any question that he contends seeks
information protected by the privilege.
B.
The debtor also challenges the propriety of examining him
regarding events that date from November 15, 2004. 	Often events
three years ago shed light on a debtor’s financial condition at
the present (as would be the case if there was a contract formed
then that still produces income for the debtor). 	Again, however,
this issue ought not be decided in advance of a record on which
specific questions are asked. 	The examination may elicit
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information shedding light on the extent to which events dating
from November 15, 2004, are a proper area of inquiry under Rule
2004. 	Moreover, because the examination is to be held tomorrow,
Phifer’s attorney will have little time to formulate a response
to the debtor’s contentions. 	If a particular question is barred
by Rule 2004(b)’s limitation that a Rule 2004 examination “may
relate only 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, or to the debtor’s right to a discharge,” the debtor may
object to the question on that basis and decline to answer the
question. 	The court will then have a concrete record on which to
rule.
III
It is thus
ORDERED that the Debtor’s Emergency Motion to Quash Subpoena
and for Entry of Protective Order is granted in part and denied
in part as follows. 	It is further
ORDERED that the Rule 2004 subpoena issued by Emily Jane
Phifer’s attorney to PNC Bank is quashed, without prejudice to
the filing of a motion to permit issuance of such a subpoena. 	It
is further
ORDERED that the request for entry of a protective order is
denied without prejudice to the debtor’s raising objections to
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4	O:\Judge Temp Docs\McMahon (Martin F.) Mem Decsn & Order re Emergency Mtn to Quash and for Protective Order.wpd
(and declining to answer) questions posed to him at his own Rule
2004 examination that inquire into matter protected by the
attorney-client privilege or that exceed the proper scope of a
Rule 2004 examination of a debtor.
[Signed and dated above.]
Copies to: Debtor; Debtor’s attorney; Chapter 13 Trustee; and
Daniel M. Kennedy, III, Esq.
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