I spent over six years representing United States Panel Trustees in bankruptcy cases. My work included significant fraud investigation and related litigation. During those years, I came to appreciate the expansive power of Federal Rule of Bankruptcy Procedure Rule 2004, which provides, in part, that any party-in-interest, including creditors, upon motion to the court, can examine the debtor and other parties as to any matter which may affect the administration of the bankruptcy estate.  Historically, Rule 2004 examinations have widely been described as “fishing expeditions.” However, in a recent case out of the Second Circuit, Judge Sean Lane limited the ability of a newly minted creditor in a pre-existing bankruptcy case to use the power of Rule 2004 for the improper purpose of obtaining discovery that could be used in pending state court civil litigation.[1]  

In the case at issue, the Movant, Karen Sbriglio, is a plaintiff in a derivative action brought in Delaware Chancery Court in 2018 against certain Facebook officers and directors. Neither the Debtors nor any of their affiliates are named as defendants in the Delaware derivative action. On March 13, 2019, Ms. Sbriglio purchased a claim with a face value of $650.00 initially filed by another creditor in the estate of the Cambridge Debtor with a face value of $650.00 and denominated as Claim No. 6 by the Clerk of Court. A mere eight days after purchasing this claim, Ms. Sbriglio filed a rule 2004 motion requesting access to the same documents to be provided to the so-called Data Breach Plaintiffs in the derivative, state court action[2] that the Movant was not actually a creditor in this bankruptcy when these cases were filed.

In denying Ms. Sbriglio’s motion, Judge Lane noted that courts have historically placed some limits on Rule 2004 discovery and any discovery seemingly designed to abuse or harass. Judge Lane went to say that other courts have “exhibited similar concerns . . . where the party requesting the Rule 2004 examination is to benefit in pending litigation outside of Bankruptcy Court.”

In the case at hand, Judge Lane said that the Movant: (1) was not a creditor when the bankruptcy began; and (2) filed the 2004 motion just days after purchasing a claim in the estate.  Accordingly, he found that the Movant filed the 2004 motion “for the purpose of obtaining discovery for use in the Delaware derivative action.”

In denying the motion, Judge Lane went on to state that granting such a request, given the facts at issue, “would incentivize parties to purchase nominal claims in bankruptcy cases solely to pursue their outside litigation agendas.”


[1] In re Cambridge Analytica LLC, 18-11500 (Bankr. S.D.N.Y. June 14, 2019)

[2] The Data Breach Plaintiffs filed a punitive class action in the United States District Court in Delaware against Facebook and Cambridge Analytica regarding Cambridge Analytica’s alleged obtaining of data from Facebook users. See In re Cambridge Analytica, 596 B.R. 1 (Bankr. S.D.N.Y. 2019)


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