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TARTER KRINSKY & DROGIN LLP Attorneys for The Christian Brothers Institute, et al. Debtors and Debtors-in-Possession 1350 Broadway, 11th Floor New York, New York 10018 (212) 216-8000 Scott S. Markowitz, Esq. Eric H. Horn, Esq. UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------- x In re: : : THE CHRISTIAN BROTHERS INSTITUTE, et al. : : Debtors. : ------------------------------------------------------------------- x

Chapter 11 Case No.: 11-22820 (RDD) (Jointly Administered)

DEBTORS MOTION FOR ENTRY OF AN ORDER PURSUANT TO FED. R. BANKR. P. 2004 DIRECTING PRODUCTION OF DOCUMENTS AND AUTHORIZING ISSUANCE OF SUBPOENAS TO OBTAIN ALUMNI DIRECTORIES TO: THE HONORABLE ROBERT D. DRAIN UNITED STATES BANKRUPTCY JUDGE The Christian Brothers Institute (CBI) and The Christian Brothers of Ireland, Inc. (CBOI), debtors and debtors-in-possession (collectively, the Debtors), hereby move this Court (the Motion) for entry of an order pursuant to Fed. R. Bankr. P. 2004, directing the schools and institutions annexed hereto as Exhibit A, (as may be supplemented) to produce, as described more fully below, their alumni directories for the dates specified in the respective Subpoena (as defined below). In support of the Motion, the Debtors respectfully state the following: PRELIMINARY STATEMENT 1. The Debtors are diligently working to provide actual notice of the Sexual Abuse

Bar Date (as defined below) to potential sexual abuse victims. Other than claims asserted by

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individuals who had commenced or asserted a claim against the Debtors prior to the Petition Date (as defined below), the Debtors have no other means to determine who should receive actual notice of the date in which victims of sexual abuse are required to file a claim in these cases. Absent obtaining alumni directories, the Debtors will be unable to provide actual notice to every potential alumnus of institutions where credibly accused abusers were located, and the Debtors will be forced to rely upon publication notice of the Sexual Abuse Bar Date (as defined below). The Debtors are filing this Motion in order to obtain directories for the sole purpose of noticing the Sexual Abuse Bar Date. JURISDICTION 2. This Court has jurisdiction to hear this matter pursuant to 28 U.S.C. 157 and

1334. This matter is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(O) and (P). Venue is proper before this Court pursuant to 28 U.S.C. 1408 and 1409. The statutory predicates for the relief sought herein are 11 U.S.C. 105 and Rule 2004 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules). GENERAL BACKGROUND 3. On April 28, 2011 (the Petition Date), the Debtors each commenced their

respective Chapter 11 case by filing a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code (the Bankruptcy Code). Pursuant to 1107(a) and 1108 of the Bankruptcy Code, the Debtors continue to operate as debtors-in-possession. No trustee has been appointed. 4. The Debtors cases were consolidated for administrative purposes only, by order

dated May 2, 2011. Thereafter, by order dated May 18, 2011, the Debtors were authorized to retain Tarter Krinsky & Drogin LLP as bankruptcy counsel.

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5.

On May 11, 2011, the United States Trustee appointed an Official Committee of

Unsecured Creditors (the Committee). The Committee retained Pachulski Stang Ziehl & Jones LLP as its counsel which was approved by an order of this Court dated July 14, 2011. 6. CBI is a domestic not-for-profit 501(c)(3) corporation organized under

102(a)(5) of the New York Not-for-Profit Corporation Law. CBI was formed in 1906 pursuant to Section 57 of the then existing New York Membership Law. The Not-for-Profit Corporation Law replaced the Membership Law effective September 1, 1970. According to its governance documents, the purpose for which CBI was, and continues to be, formed was to establish, conduct and support Catholic elementary and secondary schools principally throughout New York State. As a not-for-profit corporation, the assets, and/or income are not distributable to, and do not inure to, the benefit of its directors or officers. CBI depends upon grants and donations to fund a portion of its operating expenses. 7. CBOI is a domestic not-for-profit 501(c)(3) corporation organized under the Not-

for-Profit Corporation Law of the State of Illinois. According to its governance documents, the purpose for which CBOI was, and continues to be, formed was to establish, conduct and support Catholic elementary and secondary schools principally throughout the State of Illinois, as well as other spiritual and temporal affairs of the former Brother Rice Province of the Congregation of Christian Brothers. As a not-for-profit corporation, the assets, and/or income are not

distributable to, and do not inure to the benefit of its members, or officers. CBOI depends upon grants and donations to fund a portion of its operating expenses. 8. The cause for the filing of these cases has been extensively detailed in the affidavit

pursuant to Local Bankruptcy Rule 1007-2 filed with the original petitions, and is referred to as if

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fully set forth herein. In short, the Debtors Chapter 11 cases were filed in an effort to resolve in one forum, litigation and claims asserted by sexual abuse plaintiffs against the Debtors. RELEVANT BACKGROUND 9. A major issue in these cases is the establishment of a bar date for the filing of

claims and determining who are known creditors entitled to actual notice of the Sexual Abuse Bar Date. It is critical that the Debtors make reasonable efforts to notify sexual abuse victims of the importance and the need to file a proof of claim. Other than parties who have made a complaint or commenced suit against the Debtors, the Debtors have no way of knowing who may in fact assert a claim for sexual abuse. 10. The Debtors have made substantial progress with the Committee with respect to

the terms of the proposed bar date order, a specialized notice to sexual abuse claimants, and a specialized sexual abuse proof of claim form, which all parties believe will afford sexual abuse claimants reasonable notice and a sufficient period of time to file proofs of claim. Such

negotiations culminated with the Debtors drafting of a motion (the Bar Date Motion) to approve claims bar dates, including claims for sexual abuse, which the Debtors anticipate filing in the next week or so.1 11. The Debtors Chapter 11 cases are somewhat unique in that the Debtors, over a

period of many decades, either operated or were significantly involved in teaching and ministry with numerous schools, orphanages, and other institutions (collectively, the Institutions) across the United States and Canada; many of which have been closed for a number of years. 12. Noticing and advertising the bar date will be a significant undertaking in these

Chapter 11 cases. This is complicated by the fact that the Debtors do not have access to alumni

The primary open issue pertains to the efforts that the Debtors are required to undertake to notify potential claimants of the Sexual Abuse Bar Date.

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directories (the Directories) for the vast majority of the Institutions, as most of the schools have been separately incorporated for years and operate independently from the Debtors. 13. Other than claims asserted by individuals who had commenced suit or asserted a

claim against the Debtors prior to the Petition Date, the Debtors have no other means to determine who should receive actual notice of the date in which victims of sexual abuse are required to file a claim in these cases (the Sexual Abuse Bar Date). Absent obtaining the Directories, the Debtors will be unable to provide actual notice to every alumnus of Institutions where credibly accused abusers were located. The Debtors have made written requests to the Institutions for copies of the respective Directories. While some have indicated that they will willingly provide, and have in fact provided such directory, some have sought advice from counsel. Many of the Institutions have not responded to the Debtors written request for

production of Directories. 14. As such, the Debtors are filing this Motion in order to obtain the Directories for

the sole purpose of providing victims of sexual abuse with actual notice of the Sexual Abuse Bar Date. The Debtors believe they are required to make reasonable efforts to obtain such

Directories in order to provide actual notice of the Sexual Abuse Bar Date, especially to alumni of Institutions where known abusers were located.2 RELIEF REQUESTED 15. By this Motion, the Debtors seek entry of an order of this Court, pursuant to Rule

2004, authorizing the Debtors to serve the subpoenas a sample of which is annexed hereto as Exhibit B (each a Subpoena and collectively, the Subpoenas) directing that the Institutions produce their Directories for the years set forth in each respective Subpoena.

Neither the Debtors nor the Committee believe that it is necessary to send notice of the Sexual Abuse Bar Date to every alumni of every Institution upon which the Debtors Brothers taught or performed ministry.

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BASIS FOR RELIEF 16. Bankruptcy Rule 2004 provides, in relevant part, as follows: (a) Examination on Motion. On motion of any party in interest, the court may order the examination of any entity. (b) Scope of Examination. The examination of an entity under this rule or of the debtor under 343 of the Code 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 debtors estate, or to the debtors right to a discharge . . . [T]he examination may also relate 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 therefor, and any other matter relevant to the case or to the formulation of a plan. (c) Compelling Attendance and Production of Documents. The attendance of an entity for examination and for the production of documents, whether the examination is to be conducted within or without the district in which the case is pending, may be compelled as provided in Rule 9016 for the attendance of a witness at a hearing or trial. As an officer of the court, an attorney may issue and sign a subpoena on behalf of the court for the district in which the examination is to be held if the attorney is admitted to practice in that court or in the court in which the case is pending. Fed. R. Bankr. P. 2004(a), (b) and (c). 17. There is no question that the Debtors are parties in interest entitled to seek

discovery under Rule 2004. See 11 U.S.C. 1109(b). 18. Examinations under Bankruptcy Rule 2004 include within their scope, inter alia,

any matter that may relate to the property and assets of the estate, the financial condition of the debtor, and any matter that may affect the administration of a debtors estate. See Fed. R. Bankr. P. 2004(b). Here, providing good notice of the Sexual Abuse Bar Date is critical so that any discharge granted by this Court would serve as a bar to any sexual abuse claim asserted post confirmation.

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19.

Courts have consistently recognized that the scope of discovery under Rule 2004

is extraordinarily broad. See, e.g., In re Ionosphere Clubs, Inc., 156 B.R. 414, 432 (S.D.N.Y. 1993) (likening the scope of a Rule 2004 examination to a fishing expedition); In re Bakalis, 199 B.R. 443, 447 (Bankr. E.D.N.Y. 1996) (same); In re The Bennett Funding Group, Inc., 203 B.R. 24, 28 (Bankr. N.D.N.Y. 1996) (holding that scope of a Rule 2004 examination is admittedly unfettered and broad.). Third parties are also subject to examination under this rule if they possess knowledge of the debtors acts, conduct or financial affairs which relate to the bankruptcy proceeding. In re Dinubilo, 177 B.R. 932, 940 (E.D. Cal. 1993); In re Ecam Publications, Inc., 131 B.R. 556, 559 (Bankr. S.D.N.Y. 1991). 20. As this Court has indicated, and is hornbook bankruptcy law, the Debtors have an

obligation to give actual notice to known creditors. See, e.g., Grant v. U.S. Home Corp. (In re U.S.H. Corp of NY), 223 B.R. 654, 658 (Bankr. S.D.N.Y. 1998). A known creditor is one whose identity is either known or reasonably ascertainable by the debtor. Chemetron Corp. v. Jones, 72 F.3d 341, 346 (3d Cir. 1995) (citing Tulsa Professional Collection Serv., Inc. v. Pope, 485 U.S. 478 (1988)). In identifying known creditors, due process requires debtors to perform reasonable diligence of their books and records but it does not require that debtors engage in impracticable and extended searches. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 317 (1950); see also Chemetron Corp., 72 F.3d at 346. 21. The discovery of the Directories sought by this Motion should assist the Debtors

in providing actual notice of the Sexual Abuse Bar Date to potential victims of sexual abuse. Absent obtaining the Directories, the Debtors will have no other way to send notice to alumni of the various Institutions and the Debtors will have to rely upon publication notice and targeted advertising via the internet and/or local media to provide notice of the Sexual Abuse Bar Date.

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22.

The Debtors submit that such discovery is appropriate under Bankruptcy Rule

2004 and is a proper exercise of the Debtors rights and therefore should be granted. NOTICE 23. The Debtors submit that Bankruptcy Rule 2004 permits them to submit a 2004

motion on an ex parte basis. Notwithstanding such, notice of this Motion will be given to: (i) the office of the United States Trustee for the Southern District of New York; and (ii) counsel to the Committee. In light of the nature of the relief requested, the Debtors submit that no other or further notice need be provided. CONCLUSION WHEREFORE, the Debtors respectfully request entry of an Order, substantially similar to the proposed form of Order annexed hereto as Exhibit C, authorizing the Debtors to serve the Subpoenas pursuant to Bankruptcy Rule 2004. Dated: New York, New York November 22, 2011 TARTER KRINSKY & DROGIN LLP Attorneys for The Christian Brothers Institute, et al. Debtors and Debtors-in-Possession By: /s/ Scott S. Markowitz Scott S. Markowitz Eric H. Horn 1350 Broadway, 11th Floor New York, New York 10018 (212) 216-8000

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Exhibit A -

EXHIBIT A

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SUBPOENAED INSTITUTIONS 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. Trinity Catholic High School Ocala, Florida Brother Rice High School Bloomfield Hills, Michigan Brother Rice High School Chicago, Illinois Palma High School Salinas, California Damien Memorial High School Honolulu, Hawaii Bishop Hendricken High School Warwick, Rhode Island Iona Preparatory New Rochelle, New York Archbishop Curley/Notre Dame High School Miami, Florida St. Laurence High School Burbank, Illinois Bishop Kearney High School Rochester, New York Tampa Catholic High School Tampa, Florida Catholic Memorial High School West Roxbury, Massachusetts Bergen Catholic High School Oradell, New Jersey Iona Grammar School New Rochelle, New York ODea High School Seattle, Washington St. Thomas More Collegiate Burnaby, British Columbia, CA Vancouver College Vancouver, British Columbia, CA Cardinal Hayes High School Bronx, New York Msgr. Farrell High School Staten Island, New York Notre Dame/Bishop Gibbons High School Schenectady, New York St. Augustines School Highland, New York St. John Neumann High School Naples, Florida Los Hermanos Bonita Springs, Florida St. Matthew Parish Phoenix, AZ Cantwell High School Montebello, CA Christian Brothers Boys Central Butte, MT Leo High School Chicago, IL St. Patricks High School Vallejo, CA Providence High School New Lenox, IL Coleman Catholic High School Kingston, NY Seton Catholic Chandler, AZ St. Johns Indian Mission Laveen, AZ

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UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK

In re
THE CHRISTIAN BROTHERS INSTITUTE, et al.

SUBPOENA FOR RULE 2004 EXAMINATION

CASE NO. 11-22820 (RDD) (JOINTLY ADMINISTERED) CHAPTER 11

Debtors. To: [insert school]

YOU ARE COMMANDED to appear pursuant to a court order issued under Rule 2004, Fed. R. Bankr. P., at the place, date, and time specified below to testify at the taking of a deposition in the above case.
PLACE DATE AND TIME

YOU ARE COMMANDED to produce and permit inspection and copying of the following
documents or objects at the place, date, and time specified below (list documents or objects):

Copy of Alumni Directory for the following years: ____________________

PLACE Tarter Krinsky & Drogin LLP 1350 Broadway, 11th Floor New York, New York 10018
ISSUING OFFICER SIGNATURE AND TITLE

DATE AND TIME December ___, 2011

DATE

ISSUING OFFICER'S NAME, ADDRESS AND PHONE NUMBER

Scott S. Markowitz, Esq. Tarter Krinsky & Drogin LLP 1350 Broadway, 11th Floor New York, New York 10018 Telephone No. (212) 216-8000

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PROOF OF SERVICE
SERVED DATE PLACE

SERVED ON (PRINT NAME)

MANNER OF SERVICE

SERVED BY (PRINT NAME)

TITLE

DECLARATION OF SERVER
I declare under penalty of perjury under the laws of the United States of America that the foregoing information contained in the Proof of Service is true and correct. Executed on

SIGNATURE OF SERVER ADDRESS OF SERVER

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EXHIBIT C

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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------- x In re: : : THE CHRISTIAN BROTHERS INSTITUTE, et al. : : Debtors. : ------------------------------------------------------------------- x

Chapter 11 Case No.: 11-22820 (RDD) (Jointly Administered)

ORDER GRANTING MOTION OF DEBTORS FOR ENTRY OF AN ORDER, PURSUANT TO FED. R. BANKR. P. 2004,DIRECTING PRODUCTION OF DOCUMENTS Upon the motion (the Motion) of The Christian Brothers Institute (CBI) and The Christian Brothers of Ireland, Inc. (CBOI), debtors and debtors-in-possession (collectively, the Debtors), for entry of an order pursuant to Fed. R. Bankr. P. 2004, directing the schools and institutions annexed to the Motion as Exhibit A (the Institutions) to produce their alumni directories for the dates set forth in each respective Subpoena1; and no further notice of the relief requested therein need be provided, and the Court having considered the Motion, and for good cause shown, it is hereby: ORDERED that the Motion is granted; and it is further ORDERED that the Debtors are authorized to serve the Subpoenas, a form of which is annexed to the Motion as Exhibit B, on the Institutions by causing a copy of said Subpoenas and a copy of this Order to be sent by overnight mail to the applicable address for the Institution set forth on Exhibit A to the Motion; and it is further ORDERED that each respective Subpoena shall contain the dates for the Directories that the Debtors are requesting; and it is further

Capitalized terms not otherwise defined herein shall have the meaning ascribed to such term in the Motion.

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ORDERED that the Institutions shall produce the documents requested in the Subpoenas that are in their possession, custody or control to counsel for the Debtors on or before the date that is set forth in the respective Subpoena, and such documents shall include full names and addresses of alumni to the extent known. Dated: White Plains, New York November ___, 2011 _________________________________ HONORABLE ROBERT D. DRAIN UNITED STATES BANKRUPTCY JUDGE

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