Document Type
Research Memorandum
Publication Date
2024
Abstract
(Excerpt)
Service of a subpoena via a means besides personal service, i.e., "alternative service," has been "routinely authorized" under Rule 45 of the Federal Rules. The functional purpose of requiring delivery is to "ensure receipt," which then allows the enforcement of a subpoena to be consistent with due process. With the development of new means of communication, however, an emerging issue has become whether service of a subpoena via social media may provide similar "evidence of actual receipt." Many courts have read Rule 45 broadly to allow for service of a subpoena through social media if certain fundamental requirements are met. However, some jurisdictions remain hesitant in reading out the express personal service requirement.
Part I of this memorandum addresses how service of a subpoena through alternative means is consistent with Rule 45 and due process if a plaintiff (1) shows a diligent effort to personally serve and (2) the alternative method of service is reasonably calculated to ensure actual receipt. Part two of this memorandum expands on the first and analyzes how less-traditional alternative means (i.e., certified mail, email, and social media) are reasonably calculated to provide proper notice. Part III of this memorandum offers a countervailing position, noting how some courts apply a more stringent interpretation of Rule 45 and only find personal in-hand service sufficient.