*1 Cabinets to Go, LLC (“CTG”) filed suit against Qingdao Haiyan Real Estate Group Co., LTD (“Haiyan”) and several other entities alleging that Haiyan misrepresented the country of origin of certain goods it sold to CTG.[1] Docket No. 26 (Amended Complaint). Haiyan has denied the substantive allegations and asserted affirmative defenses. Docket No. 85.

This matter is now before the Court upon a “Non-Party Motion to Quash Subpoena Directed to Jian “Philip” Jiao to Testify at Deposition and to Produce Documents” filed by Mr. Jiao. Docket No. 94. Mr. Jiao has also filed a Supporting Memorandum and other supporting documents. Docket Nos. 95, 95-1 through 95-3. CTG has filed a Response in Opposition. Docket No. 103. Mr. Jiao has filed a Reply. Docket No. 113. Mr. Jiao and CTG have also filed a Joint Discovery Dispute Statement, to which CTG has filed a Supplement. Docket Nos. 96, 104. For the reasons set forth below, Mr. Jiao's Motion (Docket No. 94) is GRANTED IN PART. The Subpoenas at issue are invalid for failure of proper service.

A. Discovery from Non-Parties by Subpoena

The Federal Rules of Civil Procedure provide that a party may depose “any person, including a party, without leave of court .... The deponent's attendance may be compelled by subpoena under Rule 45.” Fed. R. Civ. P. 30(a)(1); see Fed. R. Civ. P. 45(a)(1)(B). Documents, electronically stored information, tangible things, or inspection of premises may also be commanded from a non-party by subpoena. Fed. R. Civ. P. 45(a)(1)(C). “Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person's attendance, tendering the fees for 1 day's attendance and the milage allowed by law.” Fed. R. Civ. P. (b)(1).

B. Mr. Jiao's Motion to Quash

This Motion concerns two subpoenas issued on January 11, 2023: a Subpoena to Testify at a Deposition in a Civil Action and a Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (together, “the Subpoenas”). Docket Nos. 95-1, 95-2. Mr. Jiao and CTG agree that the Subpoenas were left with someone other than Mr. Jiao at the law office of Perez & Morris, LLC, counsel for Haiyan (and Mr. Jiao's employer). Docket No. 95, p. 8; Docket No. 103, p. 5.

Mr. Jiao requests that the Court quash the Subpoenas or alternatively, issue a protective order allowing him to avoid compliance. Docket Nos. 94, 95. He contends that the Subpoenas should be quashed because: (1) he has not been properly served with the Subpoenas; (2) he has no personal knowledge of the matters under inquiry; (3) any relevant information that he might have is protected by the attorney-client privilege or the attorney work-product doctrine; and (4) the information sought is available from other, less burdensome sources. Because the Court finds that service was not perfected as to Mr. Jiao, only the first of these arguments will be addressed.

*2 Mr. Jiao asserts that he was traveling outside the United States both on January 11, 2023, when the Subpoenas were issued and on January 13, 2023, when the Subpoenas were delivered by certified mail to Perez & Morris. Docket No. 95, p. 8. Therefore, he argues, he could not have been and indeed was not served with the Subpoenas as required by the Federal Rules of Civil Procedure. Id.

CTG concedes that Mr. Jiao was not personally served, stating that “CTG's process server delivered the subpoenas to Jiao's office at Perez Morris, where an assistant accepted and signed for them.” Docket No. 103, p. 5. CTG asserts that while the Sixth Circuit has not yet addressed the issue of whether the Rules require personal service, “[b]ecause CTG's method of service was designed to reasonably ensure actual receipt of the subpoena, Jiao has not established that he was not properly served.” Id. Further, CTG argues that “[b]ecause Jiao was able to execute a declaration in support of Haiyan's Motion to Quash, he obviously received a copy of it ....” Id.

As previously mentioned, Rule 45(b) deals with service of subpoenas and instructs that “[s]erving a subpoena requires delivering a copy to the named person ....” Fed. R. Civ. P. 45(b)(1). “The longstanding interpretation of Rule 45 has been that personal service of subpoenas is required,” although “[i]n recent years a growing number of cases have departed from the view that personal service is required and alternatively have found service of a subpoena under Rule 45 proper absent personal service.” 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedures § 2454 (3d ed. updated Apr. 2021). A sister court has noted that “the Fifth, Ninth, and D.C. Circuits have held that personal service is required ... [and] “[t]he majority of lower courts also have held that Rule 45 requires personal service.” Oceanfirst Bank v. Hartford Fire Ins. Co., 794 D. Supp. 2d 752, 753 (E.D. Mich. 2011). The Sixth Circuit has not addressed the issue, and as to district courts within the Circuit, “there does appear to be a split of authority, with some courts requiring personal service of a Rule 45 subpoena to a non-party and other courts finding that personal service is not required.” Gist v. Pilot Travel Ctrs., LLC, No. 3:10-mc-0095, 2011 U.S. Dist. LEXIS 104306, 2011 WL 4055788, at *2, n.1 (M.D. Tenn. Sept. 12, 2011) (collecting cases).

Even within this District, both interpretations of Rule 45(b)(1) can be found. See, e.g., Blair v. Nelson, No. 3:13-cv-755, 2016 WL 4141151, 2016 U.S. Dist. LEXIS 102533, at *4 (M.D. Tenn. Aug. 4, 2016) (finding that service was not perfected and the witness was not under a subpoena to testify when the party did not serve the witness personally “but instead served a male over eighteen-years-old in her house”); McPherson v. Vignobles Sullivan, LLC, No. 3:20-cv-384, 2022 WL 815061, 2022 U.S. Dist. LEXIS 46525, at *5-8 (M.D. Tenn. Mar. 16, 2022) (finding that despite lack of personal service, the court would “overlook any technical deficiencies and explore the merits of the discovery request” because it appeared that the witness had actually received the subpoena and there was no indication that he had been prejudiced by the “method of service.”) (internal quotation marks and citation omitted).

This Court finds the strict interpretation of Rule 45(b)(1) to be the most persuasive. There is no indication that the Rule means anything other than what it says: “[s]erving a subpoena requires delivering a copy to the named person ....” Such an interpretation also makes sense in the context of Rule 45, which is concerned with the involvement of those who are not parties to the lawsuit. If the court is to exercise its subpoena power over such a person, it is reasonable to require actual service of the subpoena, not merely a method that is “designed to reasonably ensure” its receipt. Delivery to an assistant or other adult who happens to be present at a person's place of work may or may not result in timely (or even eventual) notice to the intended witness.

*3 As to the argument that Mr. Jiao appears to have actual knowledge of the subpoena, the Court finds instructive the Sixth Circuit's jurisprudence in the area of Rule 4, which governs service of process of the summons and complaint. It is well-established that “[a]ctual knowledge of a lawsuit does not substitute for proper service under Fed. R. Civ. P. 4.” Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376 F.3d 615, 623 (6th Cir. 2004); see also LSJ Inv. Co. v. O.L.D., Inc., 167 F.3d 320, 322 (6th Cir. 1999) (The Sixth Circuit “will not allow actual knowledge of a lawsuit to substitute for proper service under Fed. R. Civ. P. 4.”). It appears to the Court that a similar rationale should apply here, as Rule 4 also pertains to the treatment of a person who is, prior to proper service, a non-party to the suit. Therefore, the fact that Mr. Jiao is now aware of the Subpoenas and their contents does not cure the defect. As the Court found in Blair, delivery of the subpoena to another person who signs for it “does not perfect service as to [Mr. Jiao] under Federal Rule of Civil Procedure 45(b)(1). Therefore, as of this time, [Mr. Jiao] is not under a subpoena to testify ....” Blair, 2016 U.S. Dist. LEXIS 102533, at *4.

Because Mr. Jiao has not been served with the Subpoenas, he is under no obligation to sit for a deposition or to produce documents. It is therefore unnecessary for the Court to address Mr. Jiao's other arguments or CTG's responses at this time.

For the foregoing reasons, Mr. Jiao's Motion (Docket No. 94) is GRANTED IN PART. The Subpoenas are defective for lack of proper service. Mr. Jiao is under no obligation to comply with their contents.

IT IS SO ORDERED.