A deposition subpoena for a non-party witness is a court-authorized command that forces someone who is not a party to a lawsuit to appear for testimony, produce documents, or both. Under Federal Rule of Civil Procedure 45, an attorney in the case issues and signs it, a process server delivers it in person along with the statutory witness fee, and the witness can be sanctioned for ignoring it. The same rule sets real limits on how far the witness must travel, what the subpoena can demand, and how the witness can object.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
Who Issues and Signs the Subpoena
You do not need a judge’s signature. Under Rule 45(a)(3), any attorney authorized to practice in the issuing court can issue and sign a subpoena on their own authority. The clerk will also hand out a signed but blank form to any party who asks, and most federal courts post fillable versions online.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
The subpoena issues from the court where the case is pending. If the witness lives elsewhere and compliance is required in a different district, the subpoena still comes out of the case court, but enforcement runs through the court in the district where the witness must appear or produce.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
What the Subpoena Must Say
Every subpoena must state the issuing court, the title of the action, and the civil-action number. It must give the date, time, and location of the deposition. Errors in any of those fields hand the witness grounds to challenge it.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
A single subpoena can command testimony, document production, or both. When documents or electronically stored information are demanded, the request must describe each item specifically enough for the witness to know what to produce. A blanket demand for “all records” will not survive an objection. The requesting party can specify a format for electronic files, such as native files with metadata; if no format is specified, the witness produces the information in the form they ordinarily keep it.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
The 100-Mile Limit on What You Can Compel
Rule 45(c) caps the geographic reach of a subpoena over a non-party. A witness can only be compelled to attend a deposition within 100 miles of where they live, work, or regularly do business in person. A subpoena demanding a longer trip is subject to being quashed. The same limit applies to commands requiring document production.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
If the witness lives across the country, you generally have to arrange a deposition in their home district rather than bringing them to yours.
Remote Depositions Do Not Erase the Limit
Video depositions are routine, but they do not automatically dissolve the geographic restriction. Under Rule 30(b)(4), a telephonic or video deposition takes place where the witness answers the questions, so the 100-mile limit still controls the court’s subpoena power over a non-party.2Cornell Law School. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination The Ninth Circuit has held that the 100-mile limit applies even when testimony is given remotely. If both sides stipulate to a remote deposition, the distance question goes away. If the witness objects, offering a video link does not extend your reach.
Serving the Subpoena and Paying the Fee
Service requires delivering a physical copy to the named witness. Rule 45(b)(1) says “delivering a copy to the named person,” which courts generally read as personal hand delivery. Mailing a subpoena to a non-party is not adequate in most circumstances. Anyone at least 18 years old who is not a party to the case can serve it, though most attorneys hire a professional process server.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
After delivery, the server completes a proof of service showing the date, time, and location. That document is filed with the court and is the evidence a judge needs to sanction a witness who fails to appear.
Tender the Witness Fee at Service
This is the detail that voids subpoenas. Under federal law, you must tender the witness’s attendance fee and mileage reimbursement at the same time you serve the subpoena. Skip it and the subpoena can be unenforceable.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
The federal attendance fee is $40 per day, set by 28 U.S.C. ยง 1821.3Office of the Law Revision Counsel. 28 USC 1821 – Per Diem and Mileage Generally Mileage is reimbursed at the General Services Administration’s privately owned vehicle rate, which is $0.725 per mile as of January 1, 2026.4General Services Administration. Privately Owned Vehicle (POV) Mileage Reimbursement Rates State courts set their own witness fees, some of which run only a few dollars per day.
Subpoenaing an Organization Rather Than a Person
When the non-party is a company, government agency, or other organization, Rule 30(b)(6) applies. You name the organization as the deponent and describe the topics you want covered with reasonable particularity. The organization then designates one or more people to testify on its behalf about those topics.2Cornell Law School. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination
A subpoena directed at a non-party organization must tell the organization it has a duty to confer with the serving party about the topics and to designate witnesses. The designated witnesses must be prepared to testify about information known or reasonably available to the organization, not just their own personal knowledge. The organization cannot send whoever happens to be free; the designee has to be briefed.2Cornell Law School. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination
How the Witness Can Push Back
A subpoena is not the last word. Rule 45 gives non-party witnesses several ways to resist.
Written Objections to Document Requests
When the subpoena demands documents or electronically stored information, the witness can serve written objections on the requesting party. The deadline is the earlier of 14 days after service or the date set for compliance. Once objections are served, the requesting party cannot inspect or copy anything without a court order, which means filing a motion to compel and persuading a judge.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
Motions to Quash or Modify
For broader challenges, the witness can file a motion to quash or modify in the court for the district where compliance is required. Under Rule 45(d)(3)(A), the court must quash or modify a subpoena that:
- Fails to allow a reasonable time to comply.
- Requires compliance beyond the 100-mile limit in Rule 45(c).
- Demands disclosure of privileged or otherwise protected matter, if no exception or waiver applies.
- Subjects the witness to undue burden.
The court also has discretion to quash or modify a subpoena that demands trade secrets, confidential commercial information, or an unretained expert’s opinions. Even then, production can be allowed if the requesting party shows a substantial need that cannot be met another way and ensures the witness is reasonably compensated.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
Fifth Amendment Privilege
A non-party witness at a civil deposition can invoke the Fifth Amendment and refuse to answer specific questions if truthful answers could expose them to criminal liability. The privilege operates question by question, not as a blanket refusal to testify. A court will generally uphold it where the risk of criminal exposure is real rather than speculative.
Cost Protection for the Non-Party
Complying with a subpoena can be expensive, especially when large document sets or electronically stored information are involved. When a court orders compliance over the witness’s objection, the order must protect a non-party from significant expense resulting from that compliance.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena In practice, courts often shift the cost of collection, review, and production to the party demanding the material. The $40 daily attendance fee barely covers lunch, so cost-shifting on production is the more meaningful protection when the numbers get real.
What Happens If the Witness Ignores the Subpoena
If a properly served witness fails to appear or refuses to hand over documents, the requesting party files a motion to compel. The court will typically schedule a hearing where the witness can explain the non-compliance.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
If the witness then defies a court order, Rule 45(g) lets the court hold the witness in contempt for failing to obey the subpoena without adequate excuse. Contempt sanctions usually start with monetary penalties, including paying the attorney fees the requesting party incurred during enforcement. Judges can also impose daily fines that keep accruing until the witness complies.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
Arrest is available for a persistently non-compliant witness but is rare. The practical leverage is financial: most witnesses comply once a contempt motion is on file, because paying the other side’s legal bills on top of their own is a worse outcome than showing up.