Where Service May Occur

Where Service May Occur

Rule 45(b)(1) says who may serve a subpoena, what the server must deliver, and what money must travel with it. It never says where. A nonparty adult who hands the named person a copy, and tenders a day’s fee and mileage when attendance is required, has done everything that provision asks, whether the handoff happens across the street from the courthouse or across the country.¹ Place comes from other parts of Rule 45, and the rule treats it as a question separate from where the witness can later be made to appear.

Three questions follow, and each is easier to answer on its own. Can a subpoena be served wherever the witness is found in the United States? What changes when the witness is abroad? And how do the rule’s geographic limits on attendance sit alongside service that was perfectly valid? Students confuse the first and third most often, because both turn on distance. Service puts the court’s command in the witness’s hands. Compliance concerns where the witness must go to obey it. Merge the two and you will conclude either that a distant witness cannot be served or that a served witness must travel wherever the subpoena points. Both conclusions are wrong.

One research hazard deserves mention now. Some opinions quote an earlier version of Rule 45(b)(2), so a case may recite limits on service that the current text does not contain. The first subsection shows how to read those opinions.

Service Within the United States

Rule 45(b)(2) supplies the missing term: a subpoena “may be served at any place within the United States.”² The sentence refers to no issuing district, no home state, and no distance from the courthouse. The server’s only geographic question is whether the named person can be found somewhere in the country.

A narrower rule would burden the party who needs the testimony. If service stopped at the district line, or at a radius around it, a party whose witness lived or worked elsewhere would have to find another route before the command could reach the witness at all. Nationwide reach removes that obstacle, and protection against distance moves to two other places. One is the tender: a witness whose attendance is required receives one day’s fee and the mileage allowed by law when served.³ The other is the set of limits on where a witness can be made to attend, covered in the third subsection. Being served far from the court costs the witness nothing by itself, and it does not by itself force the witness to travel anywhere.

Some published opinions quote a different text, and a student who borrows from them can reach the opposite answer. Dynegy Midstream Services v. Trammochem, reading the federal subpoena rules through Section 7, recited Rule 45(b)(2) as allowing service within the issuing court’s district; outside the district but within 100 miles of the place specified for the deposition, hearing, trial, production, or inspection; or anywhere in a state where a state statute or court rule permits service of a subpoena issued by a state court of general jurisdiction sitting in that place. The recited text called this the default rule and let a court authorize service at any other place only when a statute of the United States so provided.⁴ From that wording the court concluded that the federal rules “do not contemplate nationwide service of process or enforcement,” so both service and enforcement have clear territorial limits.⁵ The conclusion tracked the text the court was quoting. It does not describe the sentence now in the rule, which contains no district reference and no 100-mile radius. Use the opinion for what it says about its own question, and answer a place-of-service problem from the current text.

The criminal rule offers a useful comparison, though the civil text controls. Federal Rule of Criminal Procedure 17(e) provides for personal service “at any place within the United States.” Under it, the witness’s location in the country is the key fact. Residence and citizenship do not matter, and a foreign national on an airport stopover during international travel can be served there despite a fleeting presence.⁶ If the civil sentence reads the same way, the witness’s presence in the country when the subpoena is delivered is what counts. That reading is a reasoned parallel. An answer that uses it should present it as one and should not attribute it to the words of Rule 45(b)(2).

Rule 45(b)(2) answers only the place question. Every other requirement of Rule 45(b)(1) still applies. The server must be an adult nonparty, the copy must reach the named person, and one day’s fee and mileage must be tendered when attendance is required, unless the subpoena issues on behalf of the United States or one of its officers or agencies.⁷ Valid service also leaves open where the witness may be made to attend. A fact pattern that stresses how far the witness lives from the courthouse tempts you to invent a limit on service that the current text lacks, or to treat nationwide service as a nationwide duty to travel.

Service in a Foreign Country

Rule 45(b)(3) disposes of the witness abroad in one sentence: 28 U.S.C. § 1783 governs issuing and serving a subpoena directed to a United States national or resident who is in a foreign country.⁹ Rule 45 supplies no service procedure of its own here. The domestic sentence cannot fill the gap, because it speaks of places within the United States and gives a lawyer no footing for reaching a witness outside it.

The contrast with domestic service explains the separate route. At home, any adult nonparty may deliver the subpoena, and no judge approves the handoff.¹⁰ Delivery inside another country is a different act. A criminal-practice guide notes that seeking evidence abroad risks offending the foreign nation’s sovereignty, and it reports that Justice Department guidelines require a prosecutor to consult the Office of International Affairs before using a grand jury subpoena to obtain evidence located in a foreign country.¹¹ The court-order requirement in the statute fits that caution. It keeps a judge in control of when a subpoena is asserted across a border, and the limit to nationals and residents confines the assertion to people with a recognized tie to the United States.

Rule 45 says no more about how § 1783 works. The fullest account in the materials for this chapter comes from criminal practice, so what follows is background and not a holding about civil subpoenas. The statute, known as the Walsh Act, authorizes service in a foreign country on a national or resident of the United States, but only pursuant to a court order. A national includes a citizen and also a person who owes permanent allegiance to the United States, and a resident is a permanent resident alien. Foreign law may restrict service under the statute, particularly when the witness is also a citizen of the country where the witness is found. Where § 1783 is unavailable, testimony can be sought through letters rogatory, which are requests for judicial assistance issued by a U.S. court.¹²

A fact pattern that places a nonparty in another country tests whether you notice that the domestic rules stop at the border. It will often make the witness an American, which tempts you to treat citizenship as if it carried the court’s reach with it.

Both scenes involve a citizen witness at a foreign address, and they differ in whether counsel went through the court. Citizenship makes the statute available. It does not replace the court order that makes service abroad effective. Notice also how far the rule’s own words extend, because Rule 45(b)(3) speaks only of a United States national or resident. For a witness abroad who is neither, the background above points to letters rogatory when § 1783 cannot be used, and a careful answer says so and does not claim that the statute reaches everyone outside the country.

Service Versus Compliance

Rule 45(c)(1) governs where a subpoena may require a person to be. A subpoena may command a person to attend a trial, hearing, or deposition “only as follows,” and the rule then lists the permitted places.¹⁴ The earlier subsections dealt with service, which answers whether the court’s command reached the witness and which can happen anywhere in the United States. Rule 45(c)(1) answers the next question, where the court may order the witness to go once the command arrives. A witness can be validly served in one place and still be protected from an order to appear in another.

The first listed place is measured from the witness: within 100 miles of where the person resides, is employed, or regularly transacts business in person.¹⁵ The clause ends in “or,” so the rule lists other permitted places as well, and Rule 45(c) should be read in full before you answer any attendance problem. A person subpoenaed beyond the applicable limits may resist by a motion to quash, which asks the court to void the subpoena, filed in the district where compliance is required.¹⁶

Each question guards against its own danger. If service were confined to the area where the witness could be made to attend, a party seeking testimony from someone in a distant state could not deliver the command at all. If nationwide service came with unlimited power to compel attendance, a litigant could summon a nonparty from any corner of the country to wherever the case happens to be pending. Splitting the questions avoids both problems. The command reaches the witness wherever the witness is found, and the burden of obeying it is capped by a distance measured from the witness’s own residence, workplace, or business.

A federal action pending in South Dakota shows how this works. Counsel needs the testimony of a nonparty who lives and works in Arizona. The South Dakota court can issue the subpoena, and service on her in Arizona, made as Rule 45(b)(1) requires, is valid. Attendance is another matter. A deposition in South Dakota is not within 100 miles of where she lives, works, or does business, and on these facts no other listed place reaches South Dakota either, so she may resist by a motion to quash filed in the district where compliance is required.¹⁷ Counsel who needs her testimony can set the deposition within the permitted area, in her Arizona community, and travel there.

The Hawaii scene and the Arizona illustration both involve a witness far from the issuing court, and they come out differently because of where attendance is set relative to the witness. A fact pattern that stresses the witness’s distance from the court points at the wrong fact. The distance that matters runs from the place named for attendance to the witness’s own residence, workplace, or business.

A subpoena for documents calls for the same separation, though the temptation shifts from the witness’s home to the shelf. A recipient may argue that records kept far away place the subpoena beyond reach. re Automotive Refinishing Paint Antitrust Litigation drew on the advisory committee note to Rule 45(a)(2), which makes the person subject to the subpoena responsible for producing materials in that person’s control whether or not they are located within the district or within the territory where the subpoena can be served. It also drew on a federal practice treatise making the same point about records kept beyond the issuing court’s territorial reach, and it quoted Hay Group for the proposition that “production” in Rule 45(a)(2) “refers to the delivery of documents, not their retrieval.”¹⁸

The place that matters for a records subpoena is therefore where the subpoenaed party must deliver the documents, not where they sit. The duty follows control, and if storage location decided the question, any recipient could defeat a subpoena by keeping its records elsewhere. A records subpoena served on a company officer inside the issuing district, requiring delivery at counsel’s office in that district, is not undone by the company’s keeping its files abroad. An objection to the place of production, if one is available, targets the delivery point, and Rule 45(c) is where to check the limits on it.