A subpoena duces tecum is a court-backed command requiring you to produce specific documents, electronically stored information, or physical objects for use in a legal case. The Latin phrase roughly translates to “bring with you,” and unlike a subpoena that only compels testimony, this one demands tangible evidence: emails, financial records, hard-copy files, text messages, or anything else relevant to the proceeding. In federal civil cases, Federal Rule of Civil Procedure 45 governs how it works.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena If you’ve been served with one, you have three real choices: produce what’s asked, serve timely written objections, or move the court to quash or modify it. Ignoring the subpoena is not among them.
What You Have to Produce
The reach of a subpoena duces tecum extends to anything in your “possession, custody, or control.” That phrase does more work than it looks like it does. You must produce documents you have the legal right to access, even if the physical files sit with your accountant, your cloud storage provider, or a third-party warehouse. If you can pick up the phone and get the records, they’re within your control.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
When you produce the records, you have two options for organization. You can arrange and label them to match the categories listed in the subpoena, or you can hand them over exactly as they’re kept in the ordinary course of business. One or the other. Dumping unsorted boxes on the requesting party in hopes of burying the needle will not sit well with a judge.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
When the Clock Starts and Where It Can Reach
A subpoena only binds you if it was properly served. Rule 45 requires hand-delivery of a copy to the named recipient by anyone at least 18 years old who is not a party to the case. If the subpoena also requires your attendance at a deposition, hearing, or trial, the server must tender the one-day attendance fee and mileage reimbursement at the time of delivery. A subpoena served without those fees when attendance is required is defective.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
Federal subpoenas also have geographic limits. For document production alone, the subpoena can only compel production at a location within 100 miles of where you live, work, or regularly do business in person. For testimony at a trial, hearing, or deposition, the same 100-mile limit applies to non-parties, though parties and their officers can sometimes be required to appear anywhere within the state. A subpoena that exceeds these limits must be quashed or modified on a timely motion.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
The Objection Deadline
Timing is strict. Under Rule 45(d)(2)(B), you must serve written objections before the earlier of two dates: the compliance date stated in the subpoena, or 14 days after the subpoena was served. If the subpoena gives you 10 days to produce, your objection deadline is day 10, not day 14. The objections go to the party or attorney who issued the subpoena, not the court. Once you serve timely objections, your obligation to produce the contested materials is paused until the requesting party obtains a court order compelling production.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
What You Can Withhold, and How
Not everything requested has to be turned over. If you withhold documents based on attorney-client privilege, work-product protection, or another recognized privilege, you must prepare a privilege log. The log is a formal inventory of every document you’re holding back, typically listing the date, the author, every recipient, and a general description of the subject matter. It needs enough detail for the other side and the court to evaluate your claim, but not so much that it reveals the protected content itself.
Getting the privilege log right is not optional. Courts have repeatedly held that an inadequate or missing log can waive the privilege entirely. A party that submits no log at all faces the greatest risk. Even when a log is submitted but lacks detail, courts have ordered the documents produced on the theory that the withholding party failed to carry its burden. Some courts offer a second chance to submit a better log; counting on that grace is a gamble.2United States District Court District of Nebraska. The Dreaded Privilege Log – Rules and Practical Tips
Attorney-Client Privilege and Work Product
Communications between you and your attorney made for the purpose of getting legal advice are protected by attorney-client privilege. The Supreme Court confirmed in Upjohn Co. v. United States that this protection covers internal corporate communications with counsel when employees are supplying information for legal advice.3Legal Information Institute. Upjohn Co. v. United States
Separately, the work-product doctrine protects materials prepared by or for an attorney in anticipation of litigation. Investigative reports, legal memos, and strategy documents fall under this umbrella. Unlike attorney-client privilege, work-product protection can extend to materials prepared by non-attorneys, such as a consultant’s analysis or an investigator’s report, as long as the work was done to prepare for litigation.4Legal Information Institute. Attorney Work Product Privilege
When a document contains both privileged and non-privileged information, courts routinely require redaction of the protected portions rather than withholding the entire file. You produce the redacted version and log the withheld portions.
Trade Secrets and Confidential Business Information
Rule 45 specifically addresses subpoenas seeking trade secrets or other confidential research, development, or commercial information. A court may quash or modify the subpoena on this basis, or allow production under a protective order that restricts who can view the material. In some cases, courts issue “attorney’s eyes only” designations preventing even the opposing party from seeing the most sensitive documents; only their lawyer can review them.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
HIPAA-Protected Medical Records
Medical records carry their own layer of protection. A healthcare provider or health plan covered by HIPAA cannot simply hand over patient records in response to a subpoena. Before disclosing protected health information, the covered entity must receive satisfactory assurance that the requesting party took one of two steps: notified the patient about the request and gave them a chance to object, or sought a qualified protective order from the court. A subpoena alone, without a court order, does not override HIPAA’s privacy requirements.5eCFR. 45 CFR 164.512 – Uses and Disclosures for Which an Authorization or Opportunity to Agree or Object Is Not Required
Objecting on Undue Burden
The most common objection is that the subpoena imposes an undue burden: the cost, time, or disruption of complying outweighs the likely value of the information. Courts weigh the relevance of the requested material against the expense and effort of production. A subpoena demanding every email your company has sent over the past decade to find one relevant conversation is the kind of request judges routinely trim. The party or attorney who issued the subpoena has an affirmative duty to avoid imposing unreasonable burdens, and a court can sanction them for failing to do so, including awarding lost earnings and attorney’s fees to the recipient.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
Motions to Quash or Modify
A motion to quash asks the court to cancel the subpoena entirely. A motion to modify asks the court to narrow it, limiting the time period, the number of custodians searched, or the categories of documents. Either must be filed promptly in the court where compliance is required. In practice, courts expect you to have attempted an informal resolution first. Many districts require a certificate of conference proving you contacted the requesting party and tried to negotiate in good faith.
The court must quash or modify a subpoena that fails to allow reasonable time to comply, exceeds the geographic limits of Rule 45(c), requires disclosure of privileged material with no applicable exception, or subjects the recipient to undue burden.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
Cost-Shifting for Non-Parties
If you’re not a party to the lawsuit and the court orders you to comply over your objection, the court must protect you from significant expense. This is where non-party recipients have real leverage. The rule doesn’t ask whether the expense is “unduly burdensome.” The question is simply whether it’s significant. If it is, the court must shift enough of the cost to the requesting party to bring the remainder down to a non-significant level. Recoverable costs can include copying expenses, staff time spent searching for and reviewing documents, and in some cases attorney’s fees incurred in responding.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
Preserve Records the Moment You’re Served
The moment you receive a subpoena duces tecum, treat it as a signal to stop any routine destruction of potentially responsive records. Suspend auto-delete policies on emails, pause shredding schedules, and notify anyone in your organization who controls relevant files. The goal is to prevent what courts call spoliation.
Federal Rule of Civil Procedure 37(e) lays out what happens when electronically stored information is lost because someone failed to take reasonable preservation steps. If the loss was negligent, the court can order measures to cure the harm to the other side but nothing more severe. If the court finds the destruction was intentional, meaning done with the purpose of depriving the other party of the evidence, the consequences escalate. The court can instruct the jury to presume the lost information was unfavorable, or it can enter a default judgment or dismiss the case altogether.6Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery
For non-parties, the preservation obligation is narrower but still real. If the subpoena causes you to reasonably anticipate becoming a party, your duty to preserve extends through the end of the case. If you have no reason to expect being drawn in, your obligation generally ends after you’ve taken reasonable steps to collect and produce the responsive material.
Witness Fees and Mileage
When the subpoena also requires your physical attendance at a deposition, hearing, or trial, federal law entitles you to compensation. Under 28 U.S.C. § 1821, witnesses receive an attendance fee of $40 per day, which also covers travel time to and from the proceeding.7Office of the Law Revision Counsel. 28 USC 1821 – Per Diem and Mileage Generally If you drive your own vehicle, mileage is reimbursed at the GSA rate, currently $0.725 per mile for 2026.8General Services Administration. Privately Owned Vehicle (POV) Mileage Reimbursement Rates One exception: when the subpoena is issued on behalf of the United States or a federal agency, the attendance fee and mileage do not need to be tendered at the time of service.
These amounts are modest, but they represent a legal entitlement, not a courtesy. If the subpoena requires your attendance and the issuing party fails to tender the fees at service, that procedural defect can form part of a challenge to the subpoena’s validity.
Criminal Cases Follow a Different Rule
Subpoenas duces tecum in federal criminal cases operate under Federal Rule of Criminal Procedure 17(c), not Rule 45. The basic concept is the same, but the standard for challenging one differs. In criminal proceedings, a court may quash or modify the subpoena if compliance would be “unreasonable or oppressive,” a somewhat different formulation than the civil “undue burden” standard. Criminal subpoenas also carry additional protections for victims: after charges are filed, a subpoena seeking personal or confidential information about a crime victim from a third party can only be served by court order, and the court must generally notify the victim first so they can object.9Legal Information Institute. Federal Rules of Criminal Procedure Rule 17 – Subpoena
What Happens If You Ignore It
Defying a subpoena or a court order to produce documents can result in a finding of contempt. Under 18 U.S.C. § 401, federal courts have broad discretion to punish contempt by fine, imprisonment, or both.10Office of the Law Revision Counsel. 18 USC 401 – Power of Court There is no fixed schedule of fines; the amount depends on what the court considers necessary to coerce compliance. In high-stakes cases involving corporate or foreign entities, courts have imposed daily coercive fines of $50,000 or more until the records are produced.11United States District Court for the District of Columbia. Government’s Motion to Hold the Witnesses in Civil Contempt In the most extreme cases, individuals who refuse can be jailed until they agree to produce the documents. The contempt power exists to compel obedience, not to punish, so the remedy typically ends the moment the person complies.
Parties to a lawsuit who destroy subpoenaed evidence face additional consequences under Rule 37(e), including adverse inference instructions or outright dismissal.6Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery If you have legitimate objections, the rules give you clear tools to raise them. Using those tools is always better than hoping the problem resolves itself.