Can a Subpoena be Served via Substitute Service?

Assume you want to depose a non-party but the non-party is represented by counsel and will not appear voluntarily. You attempt to subpoena the non-party but service is unsuccessful. Can you force the non-party’s counsel to service? Rules 30 and 45 certainly allow for compelled depositions of non-parties, but do they go that far? Nice try, but no.

The foregoing “authority” in no way supports the notion that a Rule 45 subpoena directed toward a non-party may be served on the non-party’s attorney whether by agreement or otherwise. The overwhelming authority of case law within the Ninth Circuit establishes that personal service of a Rule 45 subpoena is required.

Federal Rule of Civil Procedure 45 governs subpoenas issued to third parties. A Rule 45 subpoena is required to obtain testimony or documents from one who is not a party to the action or controlled by a party to the action. Rule 45, in pertinent part, provides: “Serving a subpoena requires delivering a copy to the named person[.]” Fed. R. Civ. P. 45(b). “Service of a subpoena must be made by personally delivering a copy of the subpoena to the person being served and there is no substitute service.” Newell v. County of San Diego, 2013 WL 4774767 *2 (S.D. Cal). Most courts interpret the term “delivering” in Rule 45 to require personal service. Prescott v. County of Stanislaus, 2012 WL 10617 (E.D. Cal.). In Prescott, the court noted that “[t]hough the Ninth Circuit has not issued a published opinion on this topic, more than a decade ago, in Chima v. United States Dept. of Defense, 23 Fed. Appx. 721 at *6-7 (9th Cir. 2001), the Court issued an unpublished decision affirming a trial court’s refusal to compel compliance with subpoena that was served by mail.” Prescott, 2012 WL 10617 at *3; see also Alexander v. California Dept. of Corrections, 2011 WL 104767 (E.D. Cal.) (the requirement for personal service under Rule 45 is based on a “longstanding interpretation of Rule 45”); Edwards v. Las Vegas Metropolitan Police Dept., 2014 WL 7012436 (D. Nev.) (personal service of a Rule 45 is required under Rule 45(b)); Johnson v. Cheryl, 2013 WL 129383 (D. Nev.) (same).

Millenium Drilling Co. v. House-Meyers Trust, 2015 U.S. Dist. LEXIS 2117 (D. Nev. Jan. 8, 2015).