Non-Party Civil Discovery Subpoenas: Service, Compliance, and Objections

A non-party subpoena is a court-backed command, issued under Federal Rule of Civil Procedure 45, that forces someone who is not a plaintiff or defendant to produce documents, give testimony, or allow inspection of a location in connection with someone else’s lawsuit. The rule gives litigants real power to reach outside the case for evidence, but it also builds in content requirements, distance limits, fee obligations, and protections that let the recipient fight back when the request goes too far.

What the Subpoena Itself Must Say

A subpoena issues from the court clerk, signed but blank for the requesting party to complete, or directly from an attorney as an officer of the court.¹ Either way, the document in your hands has to carry four things on its face:

The name of the court where the lawsuit is pending.
The title of the action and the civil action number.
A specific command to attend and testify, produce documents or electronically stored information, or permit inspection, at a stated time and place.
The full text of Rule 45(d) and (e), which set out your protections and your obligations.

That last item matters. The rights language has to be printed on the subpoena, not merely referenced.¹ A subpoena missing any required element is vulnerable to a motion to quash.

What It Can Demand

Rule 45 recognizes three categories. A subpoena duces tecum commands production of documents, electronically stored information, or tangible items. The recipient does not have to appear in person for a document-only subpoena; the materials can be shipped to the designated location.¹ A subpoena ad testificandum compels a person to appear for a deposition or at trial. And a third form commands the recipient to permit inspection of premises, which has to happen at the location itself.

The 100-Mile Rule

A non-party subpoena cannot pull you across the country. Rule 45(c) sets hard geographic limits on where you can be required to appear:

For a deposition or hearing, within 100 miles of where you live, work, or regularly do business in person.¹
For trial, the same 100 miles, with a broader exception allowing attendance anywhere in the state where you live, work, or regularly do business if you would not incur substantial expense.
For document production, within 100 miles of where you reside, are employed, or regularly transact business.

Courts treat a subpoena that breaks these limits as mandatorily quashable when the recipient challenges it, not merely discretionary.¹ Remote video depositions have become routine, but the limit still governs where the witness physically sits during testimony.

Service and Notice

Delivery has to be personal. Any adult who is not a party to the lawsuit can serve the subpoena.¹ The server prepares a proof of service, typically an affidavit describing when, how, and to whom delivery was made.

There is also a step that happens before you ever see the subpoena. Rule 45(a)(4) requires the issuing party to serve a copy and a notice on every other party in the lawsuit before serving the non-party. The point is to let opposing counsel review the request and object if needed. Skipping this notice is one of the more common procedural errors, and it can get the subpoena quashed.

Witness Fees and Mileage, Paid Up Front

If a non-party subpoena requires you to appear in person, the issuing party has to pay for it, and the money has to be tendered at the time of service. A subpoena handed over without the fee attached can be ignored.¹

In federal court the attendance fee is $40 per day under 28 U.S.C. § 1821, which also covers the days you spend traveling to and from.² Driving witnesses are reimbursed at the GSA rate for privately owned vehicles used on official government travel, which is $0.725 per mile as of January 2026.³ Public-transportation riders are reimbursed for actual costs. Tolls, parking, and taxi fares between lodging and a transit terminal are reimbursable too. If an overnight stay is necessary, a subsistence allowance for lodging and meals is owed up to the GSA per diem rate for that area. One exception: when the United States or its agencies issue the subpoena, fees and mileage do not need to be tendered at service.

State courts set their own numbers, and the range is wide. Daily attendance fees run from nothing in a few states up to about $50, with most falling between $10 and $30. Check the local rules for the court where compliance is required before tendering payment.

How to Comply

If you are producing documents, you must deliver them as they are kept in the ordinary course of business, or organize and label them to match the categories the subpoena identified.¹ A pile of unsorted files does not satisfy a categorized request.

Electronically stored information goes out in the format the requesting party specified. Without a specified format, you can produce it as ordinarily maintained or in any reasonably usable form. You are not required to produce ESI from sources that are not reasonably accessible because of undue burden or cost, though a court can override that on a showing of good cause.¹

Privileged material cannot simply be left out quietly. If something falls under attorney-client privilege, the work product doctrine, or another recognized privilege, you must expressly claim the privilege and provide a log describing each withheld item in enough detail that the other side can evaluate the claim, without exposing the protected content.¹

The federal rules do not pin compliance to a set number of days. The subpoena states a compliance date, and that date has to allow a reasonable time to gather and produce what was asked for. A demand for thousands of documents in three days would likely fail that test. The deadline for written objections, by contrast, is explicit: before the earlier of the compliance date or 14 days after service.¹

Medical Records Are Different

A subpoena to a healthcare provider does not override HIPAA. Without a court order, a covered provider cannot release protected health information on a subpoena alone. The provider needs satisfactory assurance that one of two things has happened:⁴

The requesting party made a good-faith effort to notify the patient in writing, with enough information about the litigation to permit an objection, and the time to object has run with no unresolved objections.
The parties agreed to a qualified protective order restricting how the health information can be used, or the requesting party asked the court to issue one.

Attorneys who skip these steps find the provider refuses to comply.

Pushing Back

You are not stuck complying with a subpoena you believe is overbroad, oppressive, or defective. Rule 45 gives a non-party two main tools.

Written Objections

For a document subpoena, you can serve a written objection on the issuing party before the compliance deadline or within 14 days of service, whichever comes first.¹ Once your objection is served, your obligation to produce is suspended. The issuing party now has to go to court and win a motion to compel. If the court grants that motion, it must protect you from significant expense resulting from compliance.

Motion to Quash or Modify

For more serious problems, file a motion asking the court to quash or modify the subpoena. The court must quash or narrow a subpoena that:

Fails to allow reasonable time to comply.
Exceeds the geographic limits of Rule 45(c).
Requires disclosure of privileged or otherwise protected material with no applicable exception.
Subjects the recipient to undue burden.

The court also has discretion to quash or modify a subpoena that would force disclosure of a trade secret, other confidential research or commercial information, or an unretained expert’s opinion on matters not directly at issue.¹

The Undue Burden Standard

Undue burden is the most litigated of these grounds, and the rule puts the weight on the attorney who issued the subpoena. Rule 45(d)(1) places an affirmative duty on the issuing attorney to take reasonable steps to avoid imposing undue burden or expense on a non-party. Courts can sanction attorneys who ignore that duty, and the available sanctions include the non-party’s lost earnings and reasonable attorney’s fees.¹ A small business hit with a sprawling document request from a stranger’s lawsuit has real leverage here.

Subpoena disputes are handled first by the court in the district where compliance is required. If the non-party consents, or in exceptional circumstances, that court can transfer the motion to the court where the case is pending.¹

What Happens If You Ignore It

A non-party who has been properly served and fails to obey without adequate excuse can be held in contempt by the court in the district where compliance is required, and by the issuing court after a transfer.¹ Contempt sanctions range from fines to, in extreme cases, incarceration until the person complies. Most non-parties fall in line once a court order is in place.

The phrase that matters is “without adequate excuse.” A non-party who never received witness fees, who was given an unreasonably short compliance window, or who faced an undue burden has defenses that defeat a contempt motion. The protections in Rule 45 are there to be used, and using them is far better than ignoring the paper and hoping it goes away.

1
Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
2
Office of the Law Revision Counsel. 28 USC 1821 – Per Diem and Mileage Generally; Subsistence
3
U.S. General Services Administration. Privately Owned Vehicle (POV) Mileage Reimbursement Rates
4
eCFR. 45 CFR 164.512 – Uses and Disclosures for Which an Authorization or Opportunity to Agree or Object Is Not Required