Why Service Matters

Serving a Subpoena

Why Service Matters

A subpoena is a court order directed to someone who is not a party to the litigation, commanding that person to appear and testify or to produce documents.¹ That status is why service gets its own rule. A nonparty witness such as a deponent is not yet under the court's authority and must be ordered to appear and give evidence.² The order does nothing until it reaches the witness, and service is how it gets there.

Rule 45(b)(1) sets the terms. Any person who is at least 18 years old and not a party may serve a subpoena. Service means 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. A subpoena issued on behalf of the United States or any of its officers or agencies is excepted from the fee and mileage requirement.³

The rule matters most where the ordinary discovery tools stop. The rules providing for interrogatories and physical examinations may not be used to obtain information from nonparties, but Rule 45 permits nonparties to be subjected to depositions and document inspection through subpoenas.⁴ For a nonparty, then, the subpoena is the means of compelling testimony or documents, and service is the step that puts it in the witness's hands.

The lawyers do most of the work. A subpoena must issue from the court where the action is pending.⁵ The clerk issues it, signed but otherwise in blank, to a party who asks for it, and that party completes it before service; an attorney authorized to practice in the issuing court may instead issue and sign it personally.⁶ Counsel fill in the names, places, and documents requested and then serve the subpoena, and as long as discovery proceeds without incident the court may never learn that it was served.⁷ Because no judicial officer watches the delivery, the rule's terms on who serves, what is delivered, and what money accompanies it are what the order's validity rests on.

Service also lays the groundwork for enforcement. The court for the district where compliance is required, and the issuing court after a motion is transferred, may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.⁸ The contempt power is phrased in terms of a person who has been served, so service comes first. What follows when service is defective is taken up in the section on consequences. A telephone call from a party's lawyer shows the gap between hearing about a deposition and being served with a subpoena.

The first witness has information, and the second has an order. The telephone call carried knowledge of the deposition, but the rule defines service as delivering a copy to the named person, with the tender when attendance is required, so knowledge alone is not service. In the second scene a qualifying server delivered the court's order itself, together with the money the rule requires.⁹

The rule imposes three requirements, and the rest of this chapter takes them in order. The first concerns the server, who must be a nonparty adult. The second is delivery of a copy to the named person. That phrase suggests personal, in-hand delivery, but not all courts read it to require it; one federal court approved service by Federal Express.¹⁰ The third is money: when the subpoena requires attendance, one day's fee and mileage must accompany it, except for subpoenas issued on behalf of the United States.¹¹ The later sections then turn to where service may occur and what happens when a step fails.