Subpoena for Documents: Drafting, Service, and Enforcement

A subpoena for documents in federal court is governed by Rule 45 of the Federal Rules of Civil Procedure. You draft a written command identifying the records you want, give notice to every other party in the case, arrange proper service on the recipient, and if the recipient objects or ignores it, you work through a meet-and-confer and, if needed, a motion to compel. Each step has specific requirements, and missing one can invalidate the entire subpoena.

Who Can Issue One

An attorney admitted to practice in the court where the case is pending can issue and sign a subpoena directly. No prior court approval is required. If you are self-represented, the clerk of court will issue a signed blank subpoena for you to complete and serve.¹ Many pro se litigants assume this tool is off-limits to them. It isn’t.

The subpoena used to compel documents from a non-party is formally called a subpoena duces tecum, which commands the recipient to bring records or other tangible evidence. A subpoena that only commands a person to appear and testify is a different instrument.

Drafting the Subpoena

Every subpoena must identify the issuing court, the title of the action, and the civil action number. It must command the recipient to perform a specific act at a stated time and place: produce documents, appear to testify, permit inspection, or some combination.¹ Form AO 88B, available from the U.S. Courts website, is designed to satisfy these requirements.²

Describe what you want with precision. A demand for “all documents related to Company X” invites objection and delay. Something like “all email correspondence between John Doe and Jane Smith from January 2024 through December 2025 concerning the Alpha Project” tells the recipient exactly what to pull. For electronically stored information, specify the format you want — native files, PDFs, or something else — because otherwise the recipient will produce whatever is cheapest for them.

The subpoena must also include the full text of Rules 45(d) and 45(e), which spell out the recipient’s rights to object and the protections available for privileged or sensitive material.¹ The official form includes this language. If you draft from scratch and leave it out, the recipient has grounds to challenge the subpoena on that basis alone.

The 100-Mile Rule

Federal subpoenas have a geographic limit that catches people off guard. For document production, the subpoena can only command compliance at a place within 100 miles of where the recipient lives, works, or regularly conducts business in person. A court must quash or modify a subpoena that exceeds this limit on a timely motion.¹

If the custodian of records is in Chicago and your case is in Miami, you cannot list your Miami office as the production location. Either designate a location within 100 miles of Chicago or arrange for the recipient to ship or electronically transfer the documents. Figure this out before you draft, not after service.

Serving the Subpoena

Service must be performed by someone who is at least 18 years old and is not a party to the lawsuit. That can be a professional process server, a friend, or anyone else who meets both conditions. Delivery is made directly to the named individual or the entity’s registered agent.¹

Witness Fees at Service

If the subpoena commands anyone to appear in person, you must tender one day’s attendance fee plus mileage at the time of service. The federal attendance fee is $40 per day under 28 U.S.C. § 1821.³ Mileage follows the GSA privately owned vehicle rate, which is $0.725 per mile as of January 2026.⁴ Failing to tender these fees can invalidate service outright. Subpoenas issued on behalf of the United States government are exempt from the tender requirement.¹

For a document-only subpoena with no personal appearance required, no witness fees need to be tendered at service.

Notice to the Other Parties

Before you serve the subpoena on the third party, you must serve a notice and a copy of the subpoena on every other party in the lawsuit. This is not a courtesy. The rule requires it, and the purpose is to give opposing counsel an opportunity to object before documents change hands.¹ Skipping this step is one of the most common ways a subpoena ends up quashed.

Proof of Service

After delivery, the server files a certified statement with the court showing the date and manner of service and the names of the people served.¹ Without this proof of service in the file, enforcing compliance later becomes much harder.

Medical Records Require Extra Documentation

A subpoena to a hospital, clinic, or other HIPAA-covered healthcare provider is a boundary case. A valid Rule 45 subpoena on its own is not enough. Under the HIPAA Privacy Rule, a covered entity receiving a subpoena without a court order can release protected health information only after it receives written assurance that one of two conditions has been satisfied.

The first option is patient notice: you must show that you made a good-faith attempt to notify the individual whose records you want, that the notice described the lawsuit and the records sought, and that enough time has passed for the individual to raise an objection with the court. The second option is a qualified protective order: you must show the parties have agreed to one limiting how the health information may be used, or that you have asked the court to enter one.⁵ Written documentation of whichever path you chose has to go to the provider.⁶

Send a textbook-perfect subpoena to a hospital without this material and nothing will come back. Build it into your timeline.

If the Recipient Objects

A non-party served with a document subpoena is not required to simply comply. They can serve a written objection on the party or attorney named in the subpoena. The objection must arrive before the earlier of the compliance date or 14 days after service. Once a timely objection is on file, the recipient does not have to produce anything unless and until a court orders otherwise.¹

Common grounds you’ll see:

Privilege. Attorney-client privilege, work product doctrine, or another recognized privilege applies. A court must quash a subpoena demanding privileged material when no exception or waiver applies.¹
Undue burden. The scope or volume of the request would cause significant disruption or expense. A recipient claiming burden should be ready to document specific costs and effort rather than assert it abstractly.
Unreasonable time. The deadline does not allow enough time to locate, review, and produce the records.
Trade secrets or sensitive data. The recipient may seek a protective order limiting how information can be used or who can see it.

When a recipient withholds documents on privilege grounds, they are generally expected to produce a privilege log describing each withheld document and the basis for the claim in enough detail for the other side to evaluate it. That obligation comes from the general discovery rules.⁷

Enforcing the Subpoena

Meet and Confer First

Before filing any motion to compel, you must certify to the court that you made a good-faith effort to resolve the dispute without judicial intervention. Rule 37(a)(1) requires this certification, and judges enforce it.⁸ One demand email usually does not qualify in most courts. Some districts require a phone call or in-person meeting between lead counsel. Check the local rules for the district where compliance is required before you assume a letter is enough.

Motion to Compel

If the meet-and-confer fails, the motion to compel is filed in the district where compliance is required, which may not be the court where the main case is pending. The motion asks the judge to overrule the objection and order production. Any order granting the motion must protect a non-party from significant expense resulting from compliance.¹ In practice, that often means the requesting party pays for the third party’s document review and production.

Contempt and Sanctions

A third party who disobeys a subpoena or a related court order without adequate excuse can be held in contempt.¹ Contempt can mean fines and, in cases of willful defiance, arrest. Courts rarely go that far with non-parties, but the possibility is what gives the subpoena its force.

Sanctions run the other way too. A party or attorney who serves a subpoena imposing undue burden or expense on a non-party can be sanctioned, and the rule specifically contemplates lost earnings and reasonable attorney’s fees being awarded against whoever caused the problem.¹ Overbroad subpoenas are the fastest route to paying someone else’s lawyer.

1
Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
2
United States Courts. Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action
3
Office of the Law Revision Counsel. 28 U.S. Code 1821 – Per Diem and Mileage Generally; Subsistence
4
U.S. General Services Administration. Privately Owned Vehicle (POV) Mileage Reimbursement Rates
5
eCFR. 45 CFR 164.512 – Uses and Disclosures for Which an Authorization or Opportunity to Agree or Object Is Not Required
6
U.S. Department of Health and Human Services. What Satisfactory Assurances Must a Covered Entity Receive Before It Responds to a Subpoena
7
Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Duty to Disclose; General Provisions Governing Discovery
8
Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery