3 Factors to Consider Before Moving to Compel re a Subpoena

“The court denies Defendants’ motion without prejudice because of what the court perceives as procedural irregularities with regard to Defendants’ underlying subpoena and motion.”[1]  Want to avoid the frustration that comes with reading that sentence in an order concerning your motion to compel?  Adding these factors from USSC Holdings Corp. v. TK Prods., LLC to your pre-motion checklist may help avoid it.

  1. Was the motion properly served?

“[D]ue process requires that the individual or company against whom contempt is sought receive notice and have an opportunity to be heard.”  However, the motion was served only through CM/ECF on the parties.  By definition, the person being subpoenaed was not a party.  “The failure to serve Defendants’ motion for sanctions/motion to compel upon Livespark – or even upon its resident agent upon which the subject subpoena was served – is problematic for the court.”

  1. Was the subpoena valid and properly served?

If not, the motion will probably be denied.  USSC Holdings Corp. took this one step further though.  The subpoena was apparently for deposition testimony from a corporate entity and was served upon the entity’s resident agent.  The court wrote “Rule 45(b)(1) requires a Rule 45 subpoena for testimony to be delivered to the named person….”  The subpoena was served on the resident agent, but “was not personally served on the custodian of records or any corporate representative of Livespark who would testify at the deposition. The viability of the service of a subpoena upon a corporation’s resident agent for deposition testimony is problematic to the court.”

I do not understand this aspect of the ruling on validity and service, but have not researched it.  As I understand it, this would require a party seeking deposition from a corporate entity to serve it personally on a representative who would testify.  However, how does the party know who will testify?  Is that not the point of Rule 30(b)(6)?  The party seeking to depose a corporate entity needs to reasonably describe the testimony sought and then the entity gets to select a witness.

  1. Is the subpoena actually enforceable?

The subpoena designated Las Vegas as the place for compliance because the entity’s resident agent was there.  However, the court noted the pre-motion meet and confer declaration indicated counsel “unsuccessfully attempted to contact a ‘Brett Bond at 415-613-3872’ to discuss the ‘next day’s deposition.’”  However, there was no explanation of who that was.  So the court itself Googled Mr. Bond/Livespark.  “Bloomberg reports Mr. Bond is President of Livespark, the corporate headquarters being at 60 29th Street, San Francisco, California 94110. Bloomberg lists the same telephone number for Mr. Bond as is contained in” counsel’s declaration.

This was problematic because “Rule 45(c) authorizes a subpoena if within 100 miles of the deponent’s residence or place of business.”  San Francisco is > 100 miles from Las Vegas.

Again, the motion to compel was denied, without prejudice.

[1] No. 3:16-cv-00398, 2017 U.S. Dist. LEXIS 13504 (D. Nev. Jan. 26, 2017).