United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones United States District Judge
matter comes before the Court on Defendants WhoToo, Inc. and
Matthew Rowlen's motion to compel third party Elisha
Gilboa's compliance with a Rule 45 subpoena duces
tecum. Dkt. # 86. For the reasons that follow,
the Court DENIES Defendants' motion.
facts giving rise to this lawsuit are well-known to the
parties. After being sued by Plaintiffs Michael Kantor and
SLM Holdings Limited, LLC, for a variety of securities
violations and business torts, Defendants countersued SLM for
breach of contract, alleging that it failed to pay Defendants
$500, 000 pursuant to a convertible note purchase agreement.
Defs' Am. Ans., Dkt. # 61 at 14. On February 14, 2017,
Defendants issued a notice of subpoena to Elisha Gilboa, who
Defendants contend is SLM's alter ego and sole member.
Defendants requested that Gilboa produce “any and all
Documents . . . referring to, regarding or pertaining to any
checking, savings, money market, personal, business,
custodial, brokerage, trust, investment and other accounts in
the name or for the benefit of Elisha Gilboa.” Cohen
Decl., Dkt. # 87-5, Ex. 5 ¶ 7. Gilboa has not produced
the requested documents. As a result, Defendants have moved
to compel Gilboa to produce the documents requested in the
subpoena. Gilboa opposes Defendants' motion, arguing: (1)
the subpoena was not properly served on him; (2) the parties
never met and conferred regarding the motion to compel; (3)
this Court does not have jurisdiction to enforce the
subpoena; (4) the subpoena lists an improper place of
compliance; and (5) the subpoena is overbroad.
litigants are entitled to discovery of “any
nonprivileged matter that is relevant to any party's
claim or defense.” Fed.R.Civ.P. 26(b)(1). A discovery
request need not call for evidence that would be admissible
at trial, so long as the request “appears reasonably
calculated to lead to the discovery of admissible
evidence.” Id. These general discovery
limitations apply with equal force to subpoenas to third
parties. Gonzales v. Google, Inc., 234 F.R.D. 674,
679-80 (N.D. Cal. 2006). Federal Rule of Civil Procedure
45(a)(1)(D) allows a party to issue a subpoena commanding an
individual “to produce documents, electronically stored
information, or tangible things” and to
“require the responding person to permit inspection,
copying, testing, or sampling of the materials.” If the
subpoena commands such production, “then before it is
served on the person to whom it is directed, a notice and a
copy of the subpoena must be served on each party.”
threshold matter, Gilboa contends that Defendants'
subpoena is invalid because it was not personally served on
him. Federal Rule of Civil Procedure 45(b)(1) provides that
“[s]erving a subpoena requires delivering a copy to the
named person.” Defendants argue that Rule 45 does not
require personal service; rather, the party may serve the
subpoena via certified mail. District courts are split on
whether Rule 45(b)(1) requires personal service of a subpoena
or whether delivery via certified mail is sufficient. See
Hall v. Sullivan, 229 F.R.D. 501, 503-04 (D. Md. 2005)
(surveying various district courts' interpretations of
Rule 45). This Court agrees with Judge Coughenour, who has
previously concluded that “[b]ecause the plain language
of Rule 45 does not require personal service, such is not
required.” Tubar v. Clift, No. C05-1154-JCC,
2007 WL 214260, at *5 (Jan. 25, 2007); but see Chima v.
U.S. Dept. of Defense, 23 Fed.Appx. 721, 724 (9th Cir.
2001) (unpublished decision asserting without explanation
that Rule 45 requires personal service for subpoenas). But
while Rule 45 may not require personal service, it does
require “delivery, ” and “ensuring such
delivery is necessarily a part thereof.” Id.
assert that delivery of the subpoena was accomplished here
and note that a return receipt with signature was provided to
them. Dkt. # 95 at 4. Gilboa does not dispute that the return
receipt was provided, but notes that it was not he who signed
the receipt because notice of the subpoena was delivered to
an address at which he does not reside. Gilboa avers that he
lives in Los Angeles. Indeed, the subpoena was delivered to
an address in Las Vegas, and the return receipt was signed by
a person named Eric Power. Dkt. # 93 at 3. None of the
parties have explained to the Court who Power is or whether
his signature could fairly be assumed to indicate that the
subpoena was delivered to Gilboa.
argue, however, that Gilboa “clearly has actual notice
of the subpoena” since his counsel appeared in this
matter on his behalf. Defendants' point is well-taken,
but Rule 45 does not require mere notice, it requires
service. “Rule 45 subpoenas are not
sufficiently served whenever there is mere notice to the
third party witnesses.” Fujikura Ltd. v. Finisar
Corp., No. 15-mc-80110-HRL (JSC), 2015 WL 5782351, at *7
(N.D. Cal. Oct. 5, 2015). While the Court is of the opinion
that certified mail may suffice under Rule 45, it does not
appear from this record that certified mail to an address at
which there is no indication Gilboa resides “reasonably
insures actual receipt of the subpoena.” King v.
Crown Plastering, 170 F.R.D. 355, 356 (E.D.N.Y. 1997).
The Court therefore declines to enforce the subpoena.
the foregoing reasons, the Court DENIES Defendants'
motion to compel.