Bonnie Verburg v. Scholastic Inc.
- John Koeltl
- 1:19-cv-10837
- U.S. District Court · Southern District of New York
- 2
In Bonnie Verburg v. Scholastic Inc., Magistrate Judge Gorenstein authorized alternative service of a deposition subpoena on Dav Pilkey, limited to testimony.
Bonnie Verburg, Dav Pilkey, Scholastic Inc., and the attorneys and employees directed to deliver the subpoena.
What happened
In Bonnie Verburg v. Scholastic Inc., Plaintiff asked the court to allow alternative service of a deposition subpoena on Dav Pilkey.
The court found that Pilkey’s testimony was relevant, necessary to the interests of justice, and apparently unavailable through any method other than a deposition. It also found that the ordered service method was likely to give him notice.
Magistrate Judge Gorenstein authorized alternative service by mail and email through R. Jamison Coghill, Scholastic’s attorney, and Scholastic employees who regularly contact Pilkey. The subpoena may require testimony only, not documents.
The detailed version
- Bonnie Verburg v. Scholastic Inc. · No. 1:19-cv-10837
- John Koeltl
- Mar. 31, 2021
Background
Bonnie Verburg asked the court for permission to use alternative service for a deposition subpoena directed to Dav Pilkey. The opinion states that Pilkey is a United States national. The subpoena was issued under Federal Rule of Civil Procedure 45, which governs subpoenas, and the court applied the related provisions governing service on a witness.
Court’s reasoning
The court applied 28 U.S.C. § 1783, which allows service of a subpoena on a witness when the testimony is necessary in the interests of justice and cannot be obtained in admissible form without the witness’s personal appearance. Based on the record then before it, the court found both conditions satisfied because Pilkey’s testimony was relevant to Verburg’s claims and there appeared to be no way to obtain it other than through a deposition.
The court also applied Federal Rule of Civil Procedure 4(f)(3), which permits service by an alternative method ordered by the court. It found the proposed method appropriate and virtually certain to give Pilkey notice, satisfying constitutional due-process requirements. The court stated that Pilkey could object to the subpoena on any legally permitted ground.
Order
The court authorized alternative service as follows:
- Verburg must mail the subpoena and the order to R. Jamison Coghill at the address listed in the order. - Verburg must email the subpoena and order to Coghill using the email address previously provided by defense counsel. - Verburg must email the subpoena and order to Scholastic’s attorney, Aaron Warshaw, and promptly confirm that he received them. - Warshaw must take all reasonable steps to ensure that Scholastic provides the subpoena to Pilkey through the communication method regularly used by Scholastic employees who are in contact with him. - Warshaw must file an affidavit by April 16, 2021, describing his compliance. - Under the All Writs Act, the court ordered Coghill to provide Pilkey with the subpoena and order through Coghill’s usual means of communicating with Pilkey.
The subpoena may require Pilkey to provide testimony only; it may not require him to produce documents. The order was issued by United States Magistrate Judge Gabriel W. Gorenstein.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.