Delivering to the Named Person

Rule 45(b)(1) says whom a server must reach but not how the copy must get there. Serving a subpoena "requires delivering a copy to the named person," and the named person is the individual whose name appears on the subpoena.¹ The previous section asked who may carry the paper; this one asks who must receive it.

The recipient matters because a subpoena is a court order that commands a nonparty to appear and produce evidence or give testimony. A nonparty is not yet under the court's authority and must be ordered to appear, which is what the subpoena does.²

The phrase "delivering a copy to the named person" suggests personal, in-hand service, yet it does not say "in hand," and courts have not read it uniformly.³ One line of cases treats literal delivery to the witness as the only safe course. The other accepts different methods that reach the named person. Both construe the same phrase; they differ over how much it requires.

Hand Delivery to the Witness

The conservative reading takes the rule at its word. Because serving a subpoena "requires delivering a copy to the named person," the only proper recipient is the individual the subpoena names, and the server should place the copy in that person's hands.⁴ The text says nothing about leaving papers with a coworker, an assistant, or a lawyer, and the phrase is commonly read to suggest personal, in-hand service.⁵

The strictness has a reason. If delivery to someone else counted, the witness would receive the court's order only if a receptionist, mail clerk, or assistant chose to pass it along, and no one could confirm that the handoff occurred. A nonparty is outside the court's authority until ordered to appear,⁶ so a delivery that may never have reached him is a weak foundation for holding him to the order. A server who puts the copy into the witness's own hands can later certify the delivery from personal knowledge.

United States v. Philip Morris Inc. shows the strict reading at work. The opinion faulted the lawyers who issued deposition subpoenas to Department of Justice attorneys on three counts: the subpoenas gave three business days' notice or less, no prior notice preceded the document-production subpoenas, and several deposition subpoenas were left at the DOJ mail room or with support staff and never personally served on the attorneys they named.⁷ The court read Rule 45(b)(1) to require personal service of deposition subpoenas and called the violation clear.⁸ The delivery defect stood as its own violation, listed beside the notice defects that a later section takes up. Repairing the notice would not have made a subpoena left with staff effective.

The witness's own lawyer tempts a server for a different reason: a lawyer is easy to find and often willing to accept papers. The federal text gives no footing for treating the lawyer as the named person, and state practice shows how much depends on that text. In Jolly v. General Elec. Co., a South Carolina appellate court declined to follow federal authorities that treat service on a corporation's lawyer as ineffective. It reasoned that federal Rule 45(b)(1) limits service to the named person only, while South Carolina's rule is more flexible and allows service on the persons designated in its Rule 4(d), the named person or a corporation's authorized agent or officer, or in its Rule 4(j), the named person or counsel.⁹ A state court's account of its own rule is not a federal holding. It does isolate the hinge, though: under the federal wording, delivery to the lawyer is delivery to someone other than the named person.

An exam stem in which the server gives the subpoena to anyone but the witness is asking whether the named person received the copy.

If the stem adds that Lee found the papers that afternoon, it is testing whether you will let actual knowledge stand in for delivery. Under the conservative reading it does not, because the rule asks who received the copy, not whether the witness found out afterward.

Hand delivery is also the sensible default because courts divide on the question.¹⁰ A court that insists on in-hand service gets exactly what it requires, and a court that accepts other methods should accept hand delivery too. A server working under the conservative reading can follow a short sequence.

The first two steps are the subject of this section; the later sections take up fees and proof of service.

Courts Accepting Other Methods

The rule says that serving a subpoena "requires delivering a copy to the named person," and those words do not say the copy must go into the person's hand.¹³ Not every court reads the phrase to demand in-hand service. In Hall v. Sullivan, a 2005 decision of the District of Maryland, the court approved service of a subpoena by Federal Express.¹⁴

The flexible reading holds the recipient fixed and opens the method. "Delivering" describes getting something to someone without saying how, so a court reading the rule this way will naturally ask whether the chosen method put the copy before the named person. A package addressed to the witness and received by the witness meets that test. A package signed for by a stranger invites attack.

The convenience of a courier also makes the service easier to contest. No server stands before the witness, so no one can say from personal knowledge that the named person received the copy, and a witness who wants to resist can claim that the package never arrived or that someone else signed for it. Hall is one decision, and it does not show that courier service is generally accepted or that the court hearing your case will follow it. A court that insists on personal service has no room for the courier route, while a court that accepts alternatives will accept hand delivery as well, so personal service works in both.

Hypothetical Illustration

A paralegal at the plaintiff's firm ships a deposition subpoena and an attendance-fee check by overnight courier to a nonparty witness at his home. The witness opens the package himself and signs the carrier's receipt. In a court following the flexible approach, the receipt and the witness's own signature show that the copy reached the named person, and service likely holds. A court that insists on personal service rejects the same shipment, because no one handed the copy to the witness.

A second shipment goes to another nonparty witness at her office, where the receptionist signs for the package and leaves it in a mail tray. The court that insists on personal service holds that delivery was not made to the named person. Even a court open to alternatives would ask whether the shipment reliably reached her, and a stranger's signature leaves exactly the gap the strict reading fears, so the serving party faces a much harder argument.

Both scenes turn on one question: does the record show the copy reaching the named person? The carrier's identity and the speed of the shipment answer a different question. A student who writes that courier delivery is valid has overstated the law, and one who writes that it is always invalid has ignored the courts that approve it. The accurate answer says that the courts divide, explains what the flexible courts check, and names hand delivery as the method no court is likely to reject.