Sparrow Fund Management LP v. Mimedx Group, Inc.

Background

Sparrow Fund Management LP sued MiMedx Group, Inc. for defamation and malicious prosecution. The claims arose from an earlier related lawsuit in which MiMedx alleged that Sparrow or its principals had made defamatory statements about MiMedx through anonymous blog posts. In this proceeding, Sparrow moved to compel The Cockrell Group USA, Inc., a nonparty, to produce documents in response to a subpoena for documents.

Rule 45 and service

Federal Rule of Civil Procedure 45 requires delivery of a subpoena to the named person. The court explained that courts often interpret this requirement as calling for personal service, but that Rule 45 does not expressly require hand delivery or prohibit alternative service. Courts may authorize another method when it is reasonably designed to ensure that the recipient actually receives the subpoena, provides notice and an opportunity to object, and complies with due process. Courts also commonly require a prior diligent attempt at personal service.

Court’s analysis

The court found that representatives of Cockrell Group had acknowledged receiving the subpoena. Sparrow represented that Cockrell Group’s counsel demanded personal service but refused to accept personal service on the company’s behalf. Sparrow had also previously sent a process server to Cockrell Group’s facility without success, and the facility appeared to be inaccessible because of the COVID-19 pandemic. The court therefore found that certified mail was an appropriate method of serving the subpoena. It also noted decisions suggesting that alternative service under Rule 45 should comply with Federal Rule of Civil Procedure 4 and relied on a New York law provision allowing alternative service when other methods are impracticable.

Disposition

The court retroactively granted Sparrow permission to serve the subpoena on Cockrell Group by certified mail. Because Cockrell Group had already received the subpoena, the court allowed it until August 2, 2021, to file objections or responses. The court also directed Sparrow to serve Cockrell Group with a copy of the order and file proof of service on the public docket. The conclusion states that Sparrow’s motion was granted, but only to the extent set forth in the order. Sparrow had to complete the order’s service and docket-filing requirements by July 8, 2021.