Tendering Fees and Mileage

A subpoena that commands a nonparty to attend is not served by the paper alone. Rule 45(b)(1) says that service 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 mileage allowed by law."¹ To tender is to offer payment by actually presenting it, and the offer is made at the moment of service. A server who hands a nonparty a deposition subpoena must therefore hand over the fee and mileage in the same encounter. The rule joins delivery and payment in one sentence because they make up a single act of service. The payment is not a matter to be sorted out after the deposition.

The design makes sense once you ask who is being commanded. A nonparty witness did not start the lawsuit and has no stake in its outcome, yet the subpoena orders that person to give up a day and often to travel to a place someone else chose. If payment could wait until the witness had complied, the witness would front the cost of obeying an order the witness never invited. Requiring the money to arrive with the order puts that cost on the side that wants the testimony. It also gives the server and the court something concrete to check, because service happened only if both the copy and the payment reached the witness.

Students often misread the requirement as a reimbursement provision. A promise to pay the witness once the deposition is over is an assurance about the future, and the rule asks for an offer of payment made during service. Two questions follow. The first is when the tender is required at all, which depends on what the subpoena commands the person to do and which also leads to how the amount is found. The second is the single stated exception for subpoenas issued on behalf of the United States. The subsections below take them in that order.

When Tender Is Required

Rule 45(b)(1) attaches a payment obligation to service, but only to some subpoenas. The opening condition of the clause controls the rest: the money is owed "if the subpoena requires that person's attendance," as it does at a deposition or a trial.² Attendance is the trigger. The witness's identity and the importance of the case do not matter. A fee, in this setting, is the daily payment the law gives a witness for the time given up to attend, and mileage is the payment for the distance traveled to the place of attendance. To tender is to present that payment with the subpoena, so a server who arrives with the paper and no check has done only part of what the rule asks.

The rule leaves the arithmetic to other law, because the phrase "allowed by law" points outside Rule 45. The federal witness-fee statute, 28 U.S.C. § 1821, provides a per diem and mileage for witnesses in actions pending in a federal court, and the party looks there to work out the check.³ This chapter states no dollar figures for that reason: the rule fixes the unit, one day's fee plus mileage, and the statute fixes the numbers. Because mileage tracks travel to the place of attendance, a distant deposition site makes for a larger check.

Two features of the clause have separate reasons. Tying the duty to attendance follows from what the payment is for. A command to appear takes the witness away from work and onto the road, while a subpoena that asks for no appearance imposes no attendance cost for a fee to cover. Requiring the tender at the moment of service adds a check on the party who wants the testimony, who must have the money in hand when issuing the demand and cannot leave the witness to chase reimbursement. The witness, a stranger to the dispute, can then comply without paying anything out of pocket.

The tender is part of service itself, so a subpoena delivered into the witness's own hands by a qualified adult is still not fully served if the check is missing. A witness who receives the subpoena without the fee and mileage may therefore argue that no enforceable duty to obey ever arose, because contempt reaches only a person who has been served.⁴ The hedge is deliberate. How a court treats a particular defective subpoena depends on the circumstances, and the closing section on defective service returns to the question. For now, the working habit is to assemble the subpoena and the check together before the server leaves the office.

On an exam, a stem in which a qualified server hand-delivers a deposition subpoena and says nothing about payment is usually testing this element.

The tender duty has a boundary, and the text draws it at attendance.

A deposition subpoena that also asks the witness to bring documents still commands an appearance. The form first commands the person to appear and give testimony and then adds the production request, so it falls on the attendance side of the line.⁵ The documents-only subpoena is where the rule's own phrase does the work. The question is whether the subpoena requires the person's attendance, and a subpoena that asks for no appearance does not. Read the command on the face of the subpoena instead of assuming that every subpoena carries a fee.

The tender is a condition of service, and a neighboring provision imposes a separate duty on the party or attorney who issues and serves the subpoena. That person must take reasonable steps to avoid imposing undue burden or expense on the person subject to the subpoena. The court for the district where compliance is required must enforce the duty and impose an appropriate sanction, which may include lost earnings and reasonable attorney's fees, on a party or attorney who fails to comply.⁶ Paying the day's fee and mileage satisfies the service requirement and answers nothing about that duty. A subpoena can come with a proper tender and still make demands on the witness that are heavy enough to raise the burden question.

The Federal Government Exception

Rule 45(b)(1) ends its service provision with one sentence of relief: "Fees and mileage need not be tendered when the subpoena issues on behalf of the United States or any of its officers or agencies."⁸ The sentence qualifies the duty described above, under which a subpoena that requires a person's attendance must come with one day's fee and the mileage allowed by law. The exception turns on a single fact, the identity of the party on whose behalf the subpoena issues. When that party is the United States or one of its officers or agencies, the server may deliver the subpoena without a check. When it is anyone else, the tender duty applies as the rule otherwise states it. The exception matters only for subpoenas that command attendance, since a subpoena that requires no appearance carried no attendance tender in the first place.

The text names the United States and its officers and agencies, and it names no one else. A private litigant, a corporation, a state government, and a city all fall outside the sentence, because the rule offers no general exemption for litigants who happen to be public bodies. A subpoena issued on behalf of a federal agency is covered as readily as one issued in the name of the United States itself, since the rule lists officers and agencies beside the United States. The usual exam error is to ask whether the case involves federal law, or whether some government is a party. The exception asks on whose behalf the subpoena issues, and the source of the underlying claim does not change the answer.

The exception reaches only so far even for the subpoenas it covers. The sentence speaks only of fees and mileage, so it removes one item from the list of things service requires and leaves the others where they were. The server must still be at least 18 years old and not a party, and the copy must still be delivered to the named person.⁹ An exemption from payment says nothing about who may serve or how delivery is made.

A careful answer therefore separates the elements of service and tests each one. The federal government gets relief from one of them, the up-front payment, and has to satisfy the rest like any other party that issues a subpoena.