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Castleberry v. Camden County

United States District Court, S.D. Georgia, Brunswick Division

May 14, 2019




         The above-styled action is set for trial on June 4, 2019. Doc. 61. This Order concerns Defendant's Motion to Compel. Doc. 71. For the following reasons, the Court DENIES Defendant's Motion to Compel, doc. 71, and DENIES Plaintiff's request for attorney's fees. Doc. 78 at 6.


         Multimedia Holdings Corporation (“Multimedia”), a non-party to this action, does business under the tradename First Coast News (“FCN”).[1] Doc. 77 at 1-2, 9-10. On June 29, 2017, FCN aired an interview between Shelby Danielsen, a reporter employed by Multimedia, and Plaintiff. Id. at 3-4; Doc. 77-2. The interview “focused on” Plaintiff's claim that Defendant terminated Plaintiff from his job after he disclosed his autism diagnosis. Doc. 71 at 1-2.

         On August 2, 2017, Defendant mailed a subpoena duces tecum to Multimedia. Doc. 71 at 2. This subpoena requested, among other things, that Multimedia provide Defendant: (1) a written transcript of the interview broadcast; (2) all e-mail correspondences between the reporter and Plaintiff; (3) any documents Plaintiff provided to the reporter; and (4) copies of “any and all” videotape and audio recordings made “prior to or during” Plaintiff's interview “which resulted in the footage that aired on June 29, 2017 on WLTV.” Doc. 71 at 2; Doc. 71-1 at 1, 4.

         On August 16, 2017, Multimedia's in-house counsel spoke with Defendant's attorney about the subpoena and objected to producing anything more than a copy of the footage broadcast and the related online written news article. Doc. 77-2 at 3-4. Around this time, Multimedia provided Defendant with “a DVD containing a copy of the videotape of the broadcast” (described by Defendant as a “slightly extended cut” of the interview), as well as “online written materials” already made public. Doc. 71 at 2-3; Doc. 77 at 5-6. Multimedia did not produce any raw footage, transcripts, e-mail correspondence, or documents it received from Plaintiff. Doc. 71 at 2.

         On October 3, 2017, counsel for Multimedia called Defendant's counsel to discuss the sufficiency of the documents provided as well as the subpoena as a whole. Doc. 77 at 6; Doc. 77-1 at 1-2. Counsel for Multimedia left a voicemail message. Doc. 77-1 at 1-2. Defendant's counsel did not respond. Id. Multimedia's counsel understood that discovery in this case had closed on September 15, 2017 and no party had filed a motion to extend discovery. Id. Based on those facts, Multimedia's counsel assumed the “lack of a return call” indicated Defendant found the produced documents sufficient and had “decided not to pursue the matter further.” Id.; Doc. 23 at 2; Doc. 77 at 6. Based on the circumstances, Multimedia elected not to move for a protective order or move to quash the subpoena. Doc. 77 at 6, Doc. 77-1 at 1-2.

         In its opposition to Defendant's Motion to Compel, Multimedia explains that by the time it received Defendant's subpoena the unused footage from Plaintiff's interview had already been deleted. Doc. 77-2 at 3-4. In support of this claim, Plaintiff filed submitted a declaration under 28 U.S.C. § 1746 from Multimedia reporter Shelby Danielsen in which Danielsen states under oath that unused footage is both automatically and manually deleted from Multimedia's storage systems on a frequent and regular basis, and that Multimedia conducted a search for unused footage responsive to the subpoena, but found none. Id.


         I. Service of the Subpoena and the Entity to Whom the Subpoena was Directed

         Multimedia first argues Defendant's Motion to Compel should be denied because: (1) service by mail is insufficient because Rule 45 subpoenas must be personally served; and (2) Defendant incorrectly named First Coast News-which is not a corporate entity-as the target of the subpoena, rather than Multimedia. Doc. 77 at 9-10. The Court addresses each argument.

         Rule 45(b)(1) provides that “[s]erving a subpoena requires delivering a copy to the named person . . . . ” Fed.R.Civ.P. 45(b)(1). The Eleventh Circuit Court of Appeals has not fully resolved the need for personal service of a Rule 45 subpoenas, and district courts have reached different conclusions. See TracFone Wireless, Inc. v. Nektova Grp., LLC, 328 F.R.D. 664, 667 (S.D. Fla. 2019); In re Falcon Air Exp., Inc., No. 06-11877, 2008 WL 2038799, at *1 (Bankr. S.D. Fla. May 8, 2008) (noting a “split of authority among courts” in resolving the requirements of Rule 45 service and rejecting “as antiquated” interpretations that Rule 45 requires personal service); Klockner Namasco Holdings Corp. v. Daily Access.Com, Inc., 211 F.R.D. 685, 687 (N.D.Ga. 2002) (collecting cases); Rainey v. Taylor, No. 18-24802, 2019 WL 1922000, at *2 (S.D. Fla. Apr. 30, 2019) (“Rule 45 itself does not require service to be accomplished” any particular way; “rather, it only requires “deliver[y]” of the subpoena.” (quoting Fed.R.Civ.P. 45)).

         The courts which “support the position that Rule 45 does not require personal service” generally find Rule 45 “requires service reasonably calculated to ensure receipt of the subpoena by the witness.” TracFone, 328 F.R.D. at 667 (collecting cases) (“[S]ervice of the third party subpoenas permitted . . . may be made by FedEx or UPS, as such methods are reasonably calculated to ensure receipt of the subpoena by the witness which . . . is the appropriate standard [for service of a subpoena] under Rule 45.”); see also Rainey, 2019 WL 1922000, at *2 (finding service which is “reasonably calculated to ensure actual receipt of the subpoena” and which results in “actual notice” to the non-party “is sufficient”); In re MTS Bank, 2018 WL 1718685, at *3 (holding that “service of the subpoena [was] properly effectuated” because the non-party received the subpoena); SEC v. Rex Venture Grp., LLC, No. 5:13-MC-4, 2013 WL 1278088, at *2 (M.D. Fla. Mar. 28, 2013) (finding proper service when the subpoena was served to the non-party by FedEx and certified mail). Thus, “service of a subpoena can be proper under Rule 45, absent personal service, because there is no explicit requirement in the rule itself on the method of delivery.” In re MTS Bank, No. 17-21545, 2018 WL 1718685, at *3 (S.D. Fla. Mar. 16, 2018). Moreover, sending the subpoena by certified mail is “reasonably calculated to ensure receipt of the subpoena by the witness.” TracFone, 328 F.R.D. at 667; see Rainey, 2019 WL 1922000, at *2-3. The undersigned finds this reasoning most persuasive and agrees that personal service is not required for service of Rule 45 subpoenas.

         Multimedia also argues that the subpoena did not name a proper party. Defendant named “First Coast News” as the party “to whom the subpoena is directed.” Doc. 71-1 at 1. However, First Coast News is not an independent entity but rather a registered tradename owned by Multimedia. Doc. 77 at 2-4. In this case, the distinction between First Coast News and Multimedia is inconsequential. It is indisputable that Multimedia received the subpoena even though Defendant addressed the subpoena to First Coast News. It does not appear that Multimedia originally challenged the subpoena on these grounds, or refused to respond, and Multimedia did not elect to seek a protective order or move to quash the subpoena. Moreover, after receiving the subpoena, Multimedia communicated with Defendant's counsel about the subpoena, raised other objections to the subpoena, and ultimately mailed responsive documents to Defendant's counsel. Doc. 77 at 3-6. Multimedia's conduct in responding to the subpoena, demonstrate that Multimedia accepted and responded to the subpoena as the controlling entity of First Coast News and for all intents and purposes treated the subpoena as one that named Multimedia. Finally, Multimedia has now appeared through counsel and challenged the propriety of the subpoena on other grounds. Multimedia cannot now raise a technical challenge to the named entity after its extensive conduct responding to the subpoena, which was indisputably directed to the public name used for its news agency.

         II. Defendant's ...

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