Because federal subpoenas for any district can be issued by an attorney in the pending litigation and one rule governs, obtaining documents and testimony from across the country can be smoother than in state court cases. If your case calls for a subpoena to be served to get the documents or testimony, there are technicalities to follow so that you end up with an enforceable subpoena. Below is the overview of my process. This list does not answer every question, but it does provide the big picture.
1. Research the person or company that you need to subpoena.
For companies, check the appropriate Secretary of State office to find where the company is located and where it has a registered agent. The National Association of Secretaries of State has a link to each state’s Secretary of State website.
2. Identify the issuing court.
Read Rule 45. Rule 45(a)(2), (b)(2), and (c)(3) need to be read together to determine where a deposition or production can take place and which district can issue the subpoena.
3. Draft the subpoena.
Federal subpoena forms are available from the United States Court website. Use the Subpoena to Testify at a Deposition in a Civil Action (Form AO088A) if you need a deposition, with or without documents. If you only need documents or an inspection, then use the Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Form AO088B). Once you save these forms, they have drop-down boxes to fill in the right district for the issuing court and for the district where the action is pending.
If you are taking a deposition, include the method of recording the deposition in accordance with Rule 45(a)(1)(B). Rule 30(b)(3) expands on the methods of recording a deposition.
If you are asking for documents, consider whether you want to specify the method of production. See Rule 45(a)(1(C).
4. Provide notice of the subpoena to the parties in the action.
Serve a notice of the deposition as required by Rule 30(b)(1) and 30(b)(2).
If you are asking for documents, then Rule 45(b)(1) requires that you serve a notice of subpoena or notice of the production of documents before the subpoena is served. I use a one-sentence Notice of Subpoena, attaching the (unsigned) subpoenas.
5. Research the proper type of service for the district court that the subpoena will issue out of.
Although Rule 45 states that “[s]erving a subpoena requires delivery a copy to the named person,” different federal courts have interpreted this rule in different ways. See my post Subpoena service in federal court: Courts are split, but personal is best. In fact, one federal district court has suggested that the type of service may depend on whether the person is being asked to appear or only being asked for documents. See Hall v. Sullivan, 229 F.R.D. 501, 506 (D. Md. 2005). The court held that service by Federal Express for a subpoena that only requested documents was sufficient when done “in a manner that reasonably ensures actual receipt of the subpoena by the witness.” Id. In that case the nonparty admitted that it actually received notice. Id. at 505. This case also has a good discussion of other courts’ rulings on the service requirement of Rule 45.
The majority of courts require personal service, but you may be in a district that will allow another, cheaper, method. So research the service required for the district court that the subpoena will issue out of. And make research available to other attorneys in your firm so that you can save their time later.
6. Determine whether witness and mileage fees need to accompany the subpoena.
Rule 45(b)(1) provides that service of a subpoena that “requires that person’s attendance” is valid only if the proper witness and mileage fees are included. See 28 U.S.C. § 1821 for federal witness and mileage fees. If the subpoena only requests production of documents, then no fees are required.
7. Serve the subpoena.
Finally. You can serve the subpoena. Of course, if you received any objections or a motion to quash in response to the Notice of Subpoena, then those objections should be addressed first. If you need to personally serve the subpoena, hire a reputable process server. Include the check for witness and mileage fees if you need to.
8. Keep the proof of service.
Proof of service is not required to be filed for every subpoena. Filing is only required “when necessary.” Rule 45(b)(4). Rule 45 does not outline when it is necessary, but if you have to file something to enforce the subpoena, then you would need to file the proof of service.
Update: Based on this popular post, I created a chart that you can download to serve as a checklist for these steps, with the links embedded.