The Non-Bankruptcy Litigator vs. the Contested Matter

You, the non-bankruptcy litigator, have been asked to assist the chapter 11 lawyers with a time-sensitive dispute in bankruptcy court. Most often, the dispute will relate to a single motion and your chapter 11 colleagues are either prosecuting that motion or opposing it. They need your help because this dispute will require document discovery, depositions, and potentially even expert discovery. And all of that needs to happen fast.

What is a Contested Matter?

Whenever there is an actual dispute before the bankruptcy court, other than an adversary proceeding (i.e., a formal lawsuit within a bankruptcy case), the litigation to resolve that dispute is known as a contested matter. See, e.g., In re AMH Motorsports, LLC, No. 6:24-BK-04428-LVV, 2025 WL 1093325, at *3 (Bankr. M.D. Fla. Mar. 31, 2025) (“The term ‘contested matter’ is not defined in the Bankruptcy Code. The Advisory Committee Note (1983) to Rule 9014 provides that whenever there is an actual dispute, other than an adversary proceeding, before the bankruptcy court, the litigation to resolve that dispute is a contested matter.”) (internal quotation marks omitted). Under Rule 9014 of the Federal Rules of Bankruptcy Procedure (FRBP), certain of the Federal Rules of Civil Procedure (FRCP) apply to contested matters.

By virtue of FRBP 9014:

• FRCP 26, as incorporated by FRBP 7026, governs discovery generally, with exceptions set forth in FRBP 9014(c)—which excludes the following for purposes of contested matters: FRCP 26(a)(1) (mandatory disclosures), 26(a)(2) (disclosures regarding expert testimony), 26(a)(3) (additional pre-trial disclosures), and 26(f) (mandatory meeting before scheduling conference/discovery plan);
• FRCP 30, as incorporated by FRBP 7030, governs depositions (and under FRBP 9014(d), “Testimony of witnesses with respect to disputed material factual issues shall be taken in the same manner as testimony in an adversary proceeding.”);
• FRCP 33, as incorporated by FRBP 7033, governs interrogatories; and
• FRCP 34, as incorporated by FRBP 7034, governs document requests.

FRCP 45 is not incorporated by FRBP 9014, but FRBP 9016 makes FRCP 45 applicable in “all cases under the [Bankruptcy] Code,” including contested matters. Notwithstanding that FRBP 7004(d) authorizes nationwide service of process, the advisory committee notes to FRBP 9016 make clear that FRBP 9016, just like FRCP 45, limits the subpoena power to the judicial district and places outside the district which are within 100 miles of the place of trial or hearing.”  Thus, for the avoidance of doubt, all provisions of FRCP 45 apply in the bankruptcy context.

Note also that, in bankruptcy cases, parties are authorized to issue subpoenas under FRBP 2004. FRBP 2004 subpoenas may not, however, be used as a discovery device in connection with specific contested matters. FRBP 2004 permits a party to engage in a “fishing expedition” to explore the basis and viability of certain claims. Given the permissible breadth of the inquiry, a party must first obtain authority of the bankruptcy court to issue a subpoena under FRBP 2004, or agreement of the party to accept service of the FRBP 2004 subpoena.

So, the FRCP Apply to Contested Matters?

Yes, the FRBP incorporate the FRCP and thus generally apply with the same force and effect. But applying the FRCP to contested matters can be tricky. Contested matters are often litigated on a compressed timeline, with motions being served on either 14 or 21 days’ notice (absent a request for shortened notice). See AMH Motorsports, 2025 WL 1093325, at *3 (“Contested matters are designed to move through the court quickly allowing the bankruptcy court to address issues impacting the rights of parties in a timely manner as opposed to an adversary proceeding. While many of the rules governing adversary proceedings are incorporated into contested matters, the formalities of a complaint and answer and the time frames usually involved are not.”). So, for example, while FRCP 33 and 34 (as incorporated by FRBP 7033 and 7034, respectively) give parties 30 days to respond to written discovery requests, that timeline simply doesn't work for contested matters, particularly if parties are seeking written discovery prior to depositions--all of which generally must occur before the hearing on the motion. So, what do you do?  The answer depends on whether you are prosecuting the motion or opposing it.

If your client is seeking relief from the bankruptcy court and is served with discovery requests by a potential objector, the bankruptcy court will generally not look kindly on your efforts to enforce the 30-day response periods of FRCP 33 and 34 (including through a motion for a protective order), unless you plan to adjourn the hearing on your motion and extend the objection deadline. That is, if you want your motion heard quickly, you need to be prepared to provide relevant discovery quickly. That includes making witnesses promptly available for deposition.

On the flip side, however, the speed of bankruptcy proceedings also requires that the discovery sought be relevant and proportional in scope to the relief requested, and the limitations of FRCP 26(b) become particularly acute. Contested matters are not a means to engage in a fishing expedition; that is reserved for FRBP 2004. Requested discovery should thus be tailored to the requested relief.

So How Do I Handle Discovery Disputes in Bankruptcy Court?

Just as in traditional litigation, the onus is on the prejudiced party to seek a protective order, on the one hand, or to compel discovery, on the other. How you go about that, however, depends on the jurisdiction and bankruptcy judge you’re before; rules can vary significantly even between judges within the same jurisdiction. Be sure to consult with the local rules and the presiding bankruptcy judge’s chambers procedures. As to substance, bankruptcy courts all apply the standard of FRCP 37, subject to the timing and scope considerations set forth above.

What About the Hearing? Do the FRE Apply?

Yes. FRBP 9017 makes plain that the Federal Rules of Evidence (FRE) apply in cases under the Bankruptcy Code. In some jurisdictions, like Delaware, almost every hearing on a contested matter is set as an evidentiary hearing at which witnesses are required to testify in person with respect to any factual issues in dispute. See Del. Bankr. L.R. 9013-1(d). Other jurisdictions impose certain conditions on whether the Court will hold an evidentiary hearing on a contested matter. See S.D.N.Y. Local Bankruptcy Rule 9014-2. Either way, bankruptcy practitioners and judges interpret the FRE more loosely than say, district court practitioners and judges. This is, in part, because bankruptcy proceedings do not involve juries, and given the number of constituents who are generally impacted by bankruptcy proceedings, bankruptcy judges generally prefer to have more information before making their decision.

Another key distinction of a contested matter hearing is that direct testimony may be offered by proffer or by declaration. That is, absent objection, a party may read a summary of testimony into the record, or otherwise submit a declaration into evidence, subject to cross-examination. Opposing parties can of course object and require direct testimony from a witness (which is why the declarant must be present).

Summary

While the rules governing litigation in federal court generally apply to contested matters, their application must be modified to accommodate the speed and underlying objectives of bankruptcy proceedings—namely, preserving or generating value for the bankruptcy estate and accommodating an expeditious distribution to creditors. As a result, litigation in contested matters can, at times, feel like the Wild West. Non-bankruptcy litigators should be aware of the nuances of bankruptcy litigation and should be sure to consult with their colleagues who appear regularly in bankruptcy court and otherwise consult the presiding judge’s chambers procedures and the district’s local bankruptcy rules.

Reprinted with permission from the September 22, 2025 edition of the New York Law Journal © 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.