United States District Court, N.D. California
ORDER DENYING DEFENDANT'S MOTION FOR LEAVE TO
SERVE SUBPOENA RE: DKT. NO. 282
S. HIXSON, UNITED STATES MAGISTRATE JUDGE
Zscaler, Inc. requests permission to serve a Rule 45 subpoena
via certified mail on third-party Greg Clark, Plaintiff
Symantec Corporation's former CEO. ECF No. 282. Symantec
opposes the motion. ECF No. 284. For the reasons set forth
below, the Court DENIES Zscaler's motion
alleges that Zscaler's cloud-based security products
infringe seven of its patents. First Am. Compl., ECF No. 139.
Zscaler seeks permission to subpoena Clark, who was the CEO
of Blue Coat until it was acquired by Symantec in 2016, at
which time he became CEO of Symantec. Mot. at 2. Zscaler
alleges Clark has relevant knowledge because, while Symantec
alleges lost profits for both Blue Coat and Symantec products
based on Zscaler's infringement, Zscaler maintains Clark
has made statements regarding network security and
cloud-based technology that directly rebut these claims.
Id. (citing Porto Decl., Ex. B (tr. of a Feb. 14,
2018 presentation by Clark at the Goldman Sachs Technology
& Internet Conference), ECF No. 282-1).
April 9, 2019, Zscaler's counsel emailed Symantec
requesting a deposition date for Clark, while he was still
acting CEO of Symantec. Mot. at 3; Porto Decl. ¶ 2. On
May 15, after Zscaler learned that Clark had departed from
Symantec, it asked counsel for Symantec whether they
continued to represent him, whether he would require a
subpoena for his deposition, and whether they would accept
service of a subpoena on his behalf. Porto Decl. ¶ 2. On
meet and confer calls between May 15 and May 30, 3019,
counsel for Symantec indicated they did not know if they
represented Clark and stated that they were unable to accept
service of a subpoena on his behalf. Id. ¶ 4.
Zscaler subsequently informed Symantec that it would proceed
with subpoenaing Clark. Id., Ex. C.
first attempted to serve Clark at an address in Hillsborough
on June 6, 2019. Porto Decl., Ex. D (Aff. of Due Diligence
received from Nationwide Legal, LLC detailing the service
attempts). The process server rang the call button a few
times to no avail. Id. Eventually, a woman answered
the call and asked what the process server wanted.
Id. The process server heard a male voice in the
background “having a coaching conversation.”
Id. The woman stated that Clark did not live there
and hung up. Id. The process server tried again on
June 9, 2019. Id. He rang the bell a few times and
heard no answer. Id. The process server tried again
on June 11, 2019, serving the subpoena on Alicia Torres,
described by the process server as a
“co-occupant.” Id.; see also
Porto Decl., Ex. E (Proof of Service).
June 19, 2019 meet and confer call, counsel for Symantec
stated that they did not believe Clark was properly served
and reiterated that they did not represent him. Id.
¶ 10. Zscaler attempted to serve Clark again at the
Hillsborough address and a new address in San Francisco but
was unable to do so. Id., Exs. F (Aff. of Due
Diligence from Nationwide Legal, LLC detailing service
attempt at same Hillsborough address on June 21, 2019) &
G (Aff. of Due Diligence received from Nationwide Legal, LLC
detailing the service attempt at San Francisco address on
June 21, 2019).
filed the present motion on June 21, 2019, arguing that Clark
and Symantec's counsel are employing “improper and
tenuous measures” to avoid Clark's deposition. Mot.
at 4. It notes that fact discovery closes June 28,
and that it “cannot continue expending time and
resources on failed service attempts where a witness appears
to have purposely evaded contact with process servers, and
will presumably continue to do so.” Mot. at 4. Zscaler
maintains that service by certified mail will not violate the
principles of due process because it is reasonably calculated
to provide timely notice. Id.
opposition, Symantec argues Clark does not have unique
knowledge because, as former CEO, he is a
“quintessential apex witness, ” and it did not
list him in its initial disclosures or designate him as a
Rule 30(b)(6) deponent. Opp'n at 1-2. Symantec further
argues Clark did not evade service; rather, Zscaler knowingly
served the wrong address multiple times. Id. at 2.
Finally, Symantec argues Zscaler's motion is an improper
attempt to request that the Court rewrite Rule 45(b).
Id. at 3-4.
Rule of Civil Procedure 45 governs subpoenas issued to third
parties. Rule 45(b) provides that “[s]erving a subpoena
requires delivering a copy to the named person[.]”
Fed.R.Civ.P. 45(b)(1). The majority rule is that Rule 45
requires personal service, as opposed to service by mail.
Chima v. U.S. Dep't of Def., 23 Fed.Appx. 721,
724 (9th Cir. 2001) (“service by mail rather than by
personal service” of subpoena duces tecum on defense
witnesses held improper); In re: Ex Parte Appl. of
Pro-Sys Consultants & Neil Godfrey, 2016 WL 6025155,
at *1 (N.D. Cal. Oct. 14, 2016) (collecting cases). However,
a growing but still minority trend among courts has been to
allow substitute service of a Rule 45 subpoena via
alternative methods, such as mail delivery pursuant to a
court order. In re Pro-Sys Consultants, 2016 WL
6025155, at *2 (collecting cases); Khan v. Rogers,
2018 WL 5849010, at *4 (N.D. Cal. Nov. 6, 2018) (recognizing
trend permitting service by mail pursuant to court order).
“Courts are more inclined to grant such alternative
service where the serving party has provided sufficient
evidence of its earlier diligence in attempting to effectuate
personal service.” Fujikura Ltd. v. Finisar
Corp., 2015 WL 5782351, at *5 (N.D. Cal. Oct. 5, 2015)
(citing Toni Brattin & Co. v. Mosaic Int'l,
LLC, 2015 WL 1844056, at *4 (N.D. Cal. Apr. 9, 2015).
the Court is not inclined to follow the recent trend of
permitting alternate service at this time because Zscaler has
not provided sufficient evidence of its diligence in its
efforts to serve Clark. Although Zscaler attempted service at
a residence in Hillsborough, it provides no evidence the
Hillsborough address is Clark's residence. In fact, a
woman at the home informed the process server that Clark did
not live there, but Zscaler's process server did not ask
her whether she knew Clark or for help locating him, nor did
the process server conduct surveillance in an attempt to
determine if he did. Porto Decl., Ex. D. Zscaler then tried
serving Clark at the same address three more times but,
again, there is no indication the process server asked for
help locating him or conducted surveillance (other than
waiting a “few minutes” on June 9). Id.
The process server ultimately gave service papers to Alicia
Torres, who the process server states is a
“co-occupant” at the Hillsborough address,
id., but Zscaler presents no evidence that Torres
and Clark are, in fact, co-occupants or that the process
server confirmed Torres lives at the house. Other than the
Hillsborough address, Zscaler's only other service