Consequences of Defective Service

Consequences of Defective Service

Rule 45(g) gives service its practical force. The court for the district where compliance is required, and the issuing court as well once a motion has been transferred, may hold in contempt "a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it."¹ Contempt is the court's power to punish disobedience of its own orders, and this provision attaches that power to two conditions: the person was served, and the person had no adequate excuse. The first condition carries everything the earlier sections taught into the enforcement stage. A server who was a party or a minor, a copy that never reached the named person, or a missing fee-and-mileage check each raises the question whether the witness was ever served in the sense contempt requires.²

Contempt depends on service because of where a nonparty stands. A nonparty is a stranger to the lawsuit, may not know one is pending, and is not yet under the court's authority until a subpoena orders an appearance.³ Delivery is the act that brings that person within the court's reach. Punishing someone for ignoring an order that was never validly delivered would impose a penalty for breach of a duty the court could not enforce, and tying contempt to service keeps the penalty in proportion to the care taken in delivering the order. It also gives a party who followed each step a record the court can act on. The fee requirement shows the same logic: a subpoena delivered without the required fee and mileage may fall short of service, and contempt reaches only a person who has been served.⁴ The word "may" is deliberate. How a court treats a particular omission depends on the circumstances, and nothing in the contempt provision declares every omission fatal by itself.

An exam question about a witness who skips a deposition and then faces a contempt motion is really asking whether that witness was served. The answer lies in the facts of the delivery.

The two scenes differ in one fact, the check, and that fact decides how secure the first contempt condition is. A court that sees complete service can move straight to the second condition: whether the witness had an adequate excuse.

A witness who suspects a defect need not wait for contempt. A person subject to a subpoena may resist on the ground that the rule's limitations were not honored by filing a motion to quash in the district where compliance is required.⁵ The motion asks the court to void the subpoena, so the witness can put a service problem before a judge ahead of the deposition date instead of staking everything on a later contempt hearing. Gonzales v. Google, Inc. shows the setting. The Government served subpoenas on Google, America Online, Yahoo, and Microsoft to gather data for a study; the other three appeared to be producing it, while Google objected.⁶ Google was a nonparty to the underlying litigation, the same position as every witness in this chapter.⁷

Philip Morris shows what a successful challenge looks like. Department of Justice attorneys received deposition subpoenas on three business days' notice or less, and several of those subpoenas were left in the department's mail room or with support staff and never personally served on three of the attorneys they named.⁸ The document subpoenas also issued without the prior notice the rules required.⁹ The court called each of these a clear violation, added breaches of a local rule and two case management orders, found that counsel served the subpoenas knowing they broke those rules, and granted the motion to quash.¹⁰

Because the court listed these violations side by side, the opinion supports quashing a subpoena that is defective in several ways at once. It does not sort the violations to say whether any single one would have sufficed, so it cannot fairly be cited for the proposition that a lone defect always defeats a subpoena. The delivery defect still deserves separate attention. Under the conservative reading taught earlier, a copy left with staff fails the named-person requirement of Rule 45(b)(1) itself, while the short notice and the missing prior notice arise under other rules and orders that govern how a subpoena may be used.¹¹

The same rules protect a nonparty against a party who gets every step of service right. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on the person subject to it. The court for the district where compliance is required must enforce that duty and impose an appropriate sanction, which may include lost earnings and reasonable attorney's fees.¹² The duty exists because a nonparty bears the cost of a dispute it did not start, and without a sanction the expense of a sweeping demand would fall on the person least able to push back. The duty runs separately from service. A subpoena can satisfy every element of Rule 45(b)(1) and still expose the lawyer who issued it to sanctions, while a subpoena served defectively may impose no unusual burden at all. Valid service settles whether the command can be enforced; the burden duty addresses how heavy the command is.

The first three steps ask about the people, the delivery, and the money; the fourth turns the answers into a remedy. The housekeeping steps taught earlier, prior notice to the parties for production subpoenas and a certified statement of service, sit outside the check. A lapse there can still be raised against the subpoena, as the prior-notice violation in Philip Morris shows.