Issuing Nonparty Subpoenas

A party who needs evidence from someone outside the lawsuit reaches that person with a subpoena under Rule 45. The subpoena commands each person to whom it is directed to do one of three things at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises.¹ The three commands match the three places a nonparty's evidence can sit: the person's knowledge, the person's files and objects, and the property the person controls. The first command is what compels a deponent to attend. A party may depose any person, party or not, by oral questions, and the deponent's attendance may be compelled by subpoena under Rule 45.² The other two commands may ride inside a subpoena for attendance at a deposition, hearing, or trial, or stand alone in a separate subpoena.³

The subpoena is the court's command, but the lawyers draw it up. The court issues the subpoena and may enforce compliance with it, yet the attorneys carry the laboring oar in filling it out and serving it. In most cases the court will not even know the subpoena has been served unless discovery runs into trouble.⁴ Because the recipient is often a nonparty without a lawyer, Rule 45 polices the paper at the front end: what it must say, who may deliver it, and how far it may reach. The recipient's own remedies come in the next section.

The three subsections below follow the order in which a lawyer works. The first covers building and issuing the paper, the second covers delivering it and notifying the other parties, and the third covers where the subpoena may require the person to go. Each stage has its own requirements, and a subpoena that skips one invites an objection under Rule 45(d).

Contents and Issuance

Every subpoena must tie its command to a specified time and place. The command may be to attend and testify, to produce designated documents, electronically stored information, or tangible things in the person's possession, custody, or control, or to permit inspection of premises.⁵ A subpoena that names the act but leaves out the date or the location gives a nonparty nothing to obey and nothing to object to.

A production command asks for more than a handover of paper. It requires the responding person to permit inspection, copying, testing, or sampling of the materials.⁶ A lawyer may want a copy of a ledger, an engineer may want to test a part, and an analyst may want to sample a database. One subpoena can reach all three.

The production command can be packaged in two ways. It may be included in a subpoena commanding attendance at a deposition, hearing, or trial, or it may be set out in a separate subpoena, and either way the subpoena may specify the form or forms in which electronically stored information is to be produced.⁷ The combined form suits a witness whose testimony and files go together, because the materials arrive at the session and the examiner can question about them. The separate form suits a lawyer who wants only the files. Naming a form for electronic data is optional, but a lawyer who plans to search or sort the data has a reason to name one.

The second subpoena in that example carries a requirement the first does not. A subpoena commanding attendance at a deposition must state the method for recording the testimony.⁸ Stating the method tells the nonparty what kind of record the appearance will produce. The standalone production subpoena commands no attendance, so it needs no such statement, while any subpoena that includes a deposition attendance command must carry one.

The subpoena must also set out in full the text of Rules 45(c) and (d), which explain the rights of witnesses and the means of raising objections.⁹ Many subpoenas go to people who are not parties and have no lawyer, and attaching the rule text assures that the person served learns of her rights and obligations. The substance of those protections belongs to the later sections on responding to a subpoena.

The treatise reproduces a sample subpoena drafted to comply with Rule 45; it commands attendance at 3 First Avenue, Badlands, West Dakota, at 10:00 a.m. on April 6, 2017.¹⁰

The next question is which court the paper comes from. A subpoena must issue from the court where the action is pending.¹¹ Where the deposition will be held does not change the issuing court. Rule 45 authorizes the court where the action is pending to issue the subpoena and permits nationwide service, while a person who objects seeks relief in the court for the district where compliance is sought.¹²

The clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it, and that party must complete it before service.¹³ An attorney authorized to practice in the issuing court may also issue and sign a subpoena.¹⁴ The split is sensible. The clerk's signature supplies the court's authority, and the requesting party supplies the content, since only the party knows whom to command, to do what, and when. A party with no lawyer, or whose lawyer is not authorized to practice in the issuing court, takes the signed blank from the clerk. The result is that the court issues the subpoena and may enforce it, while the attorneys do the filling in and the serving.¹⁵ A lawyer-signed subpoena needs no judge's countersignature, and an answer that rejects one for want of a judge's signature misreads the rule.

Exam Analysis Steps

Because a subpoena can be defective at the issuing stage before anyone resists it, the drafting is best run as a short audit of the paper. The steps are these:

Identify the court where the action is pending, and confirm that the subpoena issues from that court, whatever the district in which the person will be served.¹⁶
State each command the subpoena carries (attend and testify, produce, or permit inspection of premises) and specify the time and place for it.¹⁷
Decide whether a production command rides in a subpoena to attend a deposition, hearing, or trial or stands in a separate subpoena, and name a form for electronically stored information if the form matters.¹⁸
If the subpoena commands attendance at a deposition, state the method for recording the testimony.¹⁹
Obtain the clerk's signed blank or sign as an attorney authorized to practice in the issuing court, complete the paper before service, and set out the text of Rules 45(c) and (d).²⁰

Key Exam Rule

Contents and issuance of a subpoena

A Rule 45 subpoena must command each person to whom it is directed, at a specified time and place, to attend and testify, to produce designated documents, electronically stored information, or tangible things in the person's possession, custody, or control, or to permit inspection of premises. A production command may be included in a subpoena to attend a deposition, hearing, or trial or set out in a separate subpoena, and the subpoena may specify the form for electronically stored information.²¹ A subpoena commanding attendance at a deposition must state the recording method. Every subpoena must issue from the court where the action is pending, through the clerk's signed blank completed by the requesting party or through an attorney authorized to practice in that court.²²

Service and Notice

A completed subpoena commands nothing until someone puts it in the named person's hands. Any person at least 18 years old who is not a party may serve it. Service requires delivering a copy to the named person and, if the subpoena requires that person's attendance, tendering the fees for one day's attendance and the mileage allowed by law.²³ The rule thus answers three questions: who may deliver the paper, what must be delivered, and what must travel with a command to appear. A fourth requirement, a duty to notify the other parties, runs to the litigants and not to the witness.

The server must clear two bars, age and status. The server must be at least 18, and the server must not be a party. The text excludes parties and no one else who is 18, so a commercial process server or any other adult who is not a litigant qualifies, and the lawyer's own client does not. The server also becomes the source of the proof of service, which the last part of this subsection takes up.

A copy must be delivered to the named person. When the subpoena requires attendance, the server must also tender one day's fee and the mileage allowed by law, which means the money accompanies the paper and is not promised for later. The text carves out one exception: fees and mileage need not be tendered when the subpoena issues on behalf of the United States or any of its officers or agencies.²⁴ A private litigant cannot invoke that exception, so its server must tender whenever attendance is required.

The two scenes turn on one fact, whether the subpoena requires attendance. Students commonly treat a qualified server as enough, or demand a witness fee for a subpoena that commands only the production of papers.

Where the paper may be delivered is a separate question from where the witness may be commanded to go. A subpoena may be served at any place within the United States,²⁵ so a lawyer litigating in one district can have a witness in a distant state served with a subpoena issued by the court where the action is pending.²⁶ Nationwide service does not carry a nationwide command, because the subpoena can compel compliance only within 100 miles of where the person resides, is employed, or regularly transacts business in person.²⁷ The next subsection takes up that limit. A subpoena directed to a United States national or resident who is in a foreign country falls outside the domestic service rule and is governed by 28 U.S.C. § 1783.²⁸

Proof of service completes the sequence when proof becomes necessary. The server files with the issuing court a statement showing the date and manner of service and the names of the persons served, and the server certifies the statement.²⁹ The rule asks for proof only when necessary, as when a served witness fails to appear and the issuing party must show that the paper was delivered. The certification attaches to the server, who is the one person who knows when and how the paper changed hands, and the nonparty requirement means that person has no stake in the case.

Service on the witness is only half the preparation when the subpoena seeks materials. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.³⁰ The duty runs to the litigants, and the word before sets the timing. The other parties see the demand before the recipient does, which lets them object while objection can still matter. Notice sent after service reports an event that has already happened.

A subpoena that commands only testimony at a deposition involves no pretrial production, so this notice duty does not reach it. In practice the notice of deposition and the subpoena are routinely sent to all parties and to the deponent, and sending a copy of the subpoena to other counsel shows that the witness has been subpoenaed, as the law requires.³¹ A deposition subpoena that also commands the witness to bring documents is a production subpoena as well, and the duty to notify the parties before service applies to it.

The tempting shortcut is to serve the nonparty first and tell the other side the same day, on the thought that an objection can still be raised afterward. The text asks for a particular order and not merely for eventual notice.

Exam Analysis Steps

Because the service rules and the notice duty are separate requirements, a contested subpoena is best audited one requirement at a time. The steps are these:

Identify who delivered the subpoena, and confirm that the person is at least 18 years old and not a party.³²
Confirm that a copy was delivered to the named person.
Ask whether the subpoena requires the person's attendance, and if so whether one day's fee and the mileage allowed by law were tendered, remembering that a subpoena issued on behalf of the United States or its officers or agencies is excused from the tender.
If the subpoena commands pretrial production or inspection, ask whether notice and a copy went to each party before the subpoena was served on the recipient.³³
Check that, when proof is needed, the server filed with the issuing court a certified statement of the date and manner of service and the names of the persons served.³⁴

Place of Compliance

A subpoena may command a person to attend a trial, hearing, or deposition only as the rule provides.³⁶ The first option governs most nonparties: attendance within 100 miles of where the person resides, is employed, or regularly transacts business in person.³⁷ The three anchors are alternatives, so a person who lives in one place, works in another, and regularly does business in person in a third can be commanded to attend within 100 miles of any of them. The words in person tie the third anchor to physical presence. A statewide alternative also exists for a person who meets further conditions the rule lists: attendance within the state where the person resides, is employed, or regularly transacts business in person.³⁸ For a party or a party's officer, the state is the relevant unit.³⁹ This subsection works with the 100-mile radius, the limit that protects an ordinary nonparty witness.

Service and compliance obey different limits. The subpoena issues from the court where the action is pending and may be served anywhere in the country, but it can command compliance only within the radius measured from the person's residence, workplace, or regular in-person business.⁴⁰ Because the anchor is the witness and not the forum, the issuing party cannot lengthen the witness's trip by choosing a distant court. A person who objects to the command seeks relief in the court for the district where compliance is sought, a procedure the next sections take up from the recipient's side.⁴¹

Paying the witness's way does not enlarge the radius.

The offer fails because the rule's list controls and payment is not on it. The subpoena may command attendance only as the rule provides, so any place outside the 100-mile radius, or outside the statewide alternative for a person who qualifies, lies beyond the command.⁴² Fee and mileage accompany a valid command to attend, but they cannot stand in for one placed outside the radius. The offer still has practical value, because a witness who agrees to travel needs no compulsion. A witness who declines cannot be made to go, and the lawyer's remedy is to bring the deposition to the witness by setting it within the radius. A later section on using depositions at trial takes up what happens to testimony from a witness who cannot be brought to the courtroom.

Production follows the same pattern, and inspection departs from it. A subpoena may command production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person.⁴³ Papers and objects can be carried to a conference room. Land and buildings cannot, so a subpoena may command inspection of premises at the premises to be inspected.⁴⁴ The inspection happens where the property sits, and no radius applies.

These are federal rules. In state court actions, depositions of nonresident nonparties must often be taken under the rules of the deponent's home state and then used by rule or reciprocity agreement in the state where the action is pending.⁴⁵

The usual error is to treat nationwide service as nationwide compulsion, or to treat an offer of travel money as a cure for distance. The analysis runs in the same order each time: find where the person resides, is employed, or regularly transacts business in person; identify the command and the place the subpoena names; and compare the two, remembering that an inspection of premises is measured by the premises themselves.