Securities and Exchange Commission v. Farber
- John Koeltl
- 1:24-cv-00273
- U.S. District Court · Southern District of New York
- 2
In Securities and Exchange Commission v. Farber, Magistrate Judge Stein ordered nonparty Anne Flocco to appear for a deposition after granting the Commission’s motion to compel.
The order directly affects nonparty witness Anne Flocco, who must appear for a deposition, and the Securities and Exchange Commission, which must serve the order and file proof of service. It also concerns the defendants because the deposition is part of the Commission’s discovery in the action.
What happened
In Securities and Exchange Commission v. Farber, the Securities and Exchange Commission asked the court to require nonparty witness Anne Flocco to comply with a subpoena for her deposition. The Commission said it had tried to serve her personally and had also sent notices by overnight mail, hand delivery to her doorman, telephone, voicemail, and email.
The court found that these efforts effectively notified Flocco of the subpoena, particularly because she lives with defendant Jonathan Farber and the Commission had made several attempts to serve her at that residence. The court granted the request to compel and ordered Flocco to appear for a deposition within three weeks, or later with the Commission’s agreement but before April 16, 2025. The Commission must also promptly send her the order by email and certified mail and file proof of service.
Magistrate Judge Gary Stein issued the order on January 28, 2025. The order concerns subpoena service and deposition discovery; it does not decide the underlying claims against the defendants.
The detailed version
- Securities and Exchange Commission v. Farber · No. 1:24-cv-00273
- John Koeltl
- Jan. 28, 2025
Background
The Securities and Exchange Commission asked the court to compel nonparty witness Anne Flocco to comply with a Federal Rule of Civil Procedure 45 subpoena requiring her to appear for a deposition. The request was discussed at a January 21, 2025 conference and was filed at Docket No. 56.
The Commission represented that it had repeatedly notified Flocco by overnight mail, hand delivery to her doorman, telephone calls, voicemails, and emails. It also represented, without opposition from Flocco, that it had made several attempts to personally serve her at her residence. The order states that Flocco shares that residence with defendant Jonathan Farber.
Court’s analysis
The court held that the Commission’s repeated notices constituted effective service. It relied on the Commission’s attempts at personal service and the other methods used to provide notice. The court stated that courts in the district had authorized alternative service of subpoenas after diligent attempts at personal service and had interpreted Rule 45’s personal-service requirement liberally when the method used was calculated to provide timely actual notice.
Order and effect
The court granted the Commission’s request to compel Flocco to comply with the subpoena. Flocco must appear for a deposition within three weeks from the date of the order, unless the Commission consents to a later mutually agreeable date before the April 16, 2025 deadline for fact discovery.
The Commission must promptly serve Flocco with a copy of the order by email and certified mail at her last known address or addresses, and it must file proof of service. The order addresses discovery enforcement and does not resolve the merits of the Commission’s claims against the defendants. Magistrate Judge Gary Stein signed the order.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.