For Georgia state courts, subpoenas cannot be served using substituted service. But not all federal district courts in Georgia have addressed whether substituted service is valid service under Rule 45. Courts have detailed the split among courts and there are valid arguments for both sides. But, without getting into the debate of whether personal service is an antiquated rule, personally serving subpoenas will result in fewer objections to the technicalities of service. This should result in lower costs and quicker resolution of any dispute over the information sought in a subpoena.
N.D. Ga: personal service required. For subpoenas in the Atlanta area, the district court in the Northern District of Georgia has held that personal service of a subpoena is required under Rule 45. In Klockner Namasco Holdings Corp v. Daily Access.com, Inc., 211 F.R.D. 685 (N.D. Ga. 2002), the district court refused to grant sanctions against a nonparty for failing to appear at deposition when the subpoena was not personally served. The court recognized there is a split in authority, but found that the Eleventh Circuit authority suggests that personal service on the witness is required.
Split within the Eleventh Circuit. On the other hand, another district court in the Eleventh Circuit rejected Klockner Namasco Holdings Corp., finding that substituted service of a subpoena is permitted under Rule 45. In In re Falcon Air Express, Inc., No. 06-11877-BKC-AJC, 2008 WL 2038799 (S.D. Fla. May 8, 2008), the bankruptcy court denied the motion to quash the subpoena, finding that the substituted service of a subpoena can be effective under Rule 45. The district court addressed the split in authority among courts, but rejected “as antiquated the so-called majority position interpreting Rule 45 as requiring personal service, and instead [chose] to adopt the better-reasoned, modern, emerging minority position, which holds that substitute service of a subpoena is effective on a nonparty witness under Rule 45.” And, yet, another Southern District of Florida district court found that it was powerless to enforce nonparty subpoenas that were served by mail because personal service is required. MAC Funding Corp. v. ASAP Graphics, Inc., No. 08-61785-MC, 2009 WL 1564236 (S.D. Fla. June 3, 2009) (quoting 9A Wright & Miller, Federal Practice and Procedure: Civil 3d § 2454 (2008)).
Personal service should decrease costs, but weigh the risks. Given the conflicting authority, know the service rules of the federal district court that you will ask to enforce any subpoena. But if that district court hasn’t addressed the issue or rulings conflict, personally serving the subpoena under Rule 45 will give the nonparty witness you are subpoenaing one less objection–if the witness is inclined to object to this technicality. So weigh the risks and likelihood of any objection against the costs of personal service. But, generally, personally serving the subpoena on the witness will allow you to focus on the merits of the subpoena quicker.
If you have been served with a subpoena, you can hire an attorney to represent you in responding to the subpoena and raise any appropriate objections, including invalid service. See information on my Nonparty Subpoena services for more information.