In federal civil cases, three people can put a subpoena into a litigant’s hands: an attorney admitted to practice in the issuing court, the clerk of court, and, indirectly, a self-represented party who obtains a signed form from that clerk. Federal Rule of Civil Procedure 45 sets the rule. An attorney authorized to practice in the court where the action is pending can sign and issue a subpoena on their own authority, and the clerk must issue a signed but otherwise blank subpoena to any party who asks.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena Who signs depends on who is asking.
Attorneys Admitted in the Court
Attorneys hold the broadest issuing power under Rule 45. A lawyer authorized to practice in the issuing court can draft a subpoena, sign it, and have it served without any court employee reviewing the document first.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena The signature itself is what gives the subpoena legal effect. There is no second desk the paper has to cross.
The authority is wider than the court where the case sits. Under the advisory committee notes to Rule 45, any attorney permitted to represent a client in a federal case can issue a subpoena from any federal court for the district where the subpoena will be served. That gives counsel nationwide reach for gathering evidence, subject to Rule 45’s separate geographic limits on where a witness can be made to appear.
That power comes with accountability. By signing, the attorney certifies that the subpoena is issued in good faith and reasonably tied to the case. If the subpoena imposes an undue burden or is used to harass, Rule 45 requires the court to impose sanctions, which can include the recipient’s lost earnings and attorney’s fees.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena State bar discipline is a separate risk on top of that. Recipients should treat an attorney-signed subpoena with the same seriousness as one bearing a judge’s signature, because it carries the same force.
The Clerk of Court
The clerk is the issuing authority for everyone who is not an attorney admitted in the court. Rule 45 directs the clerk to issue a subpoena, signed but otherwise blank, to any party who requests one.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena The requesting party fills in the specifics before service.
This role is ministerial. The clerk does not weigh whether the testimony or documents you are after are relevant, proportional, or likely to draw an objection. That evaluation, if it happens at all, happens later when someone moves to quash. The clerk’s job runs to checking that the form matches the correct case number and court, applying the court’s seal, and signing. Some courts charge a modest administrative fee, and the amount varies by district.
Most federal courts publish the standard blank forms online, so a trip to the courthouse counter is not always necessary. Form AO 88A covers subpoenas to appear and testify; form AO 88B covers subpoenas to produce documents, electronically stored information, or tangible items, or to permit inspection of premises.2United States Courts. AO 88B – Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action
Self-Represented Parties
A pro se litigant cannot sign a subpoena the way an attorney can. The officer-of-the-court status that lets a lawyer issue a subpoena independently does not extend to parties who represent themselves. The route is the clerk’s office. You request the subpoena, the clerk signs and seals a blank form, and you fill in the details before service.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena Some courts handle this entirely at the counter, where a deputy clerk prints and hand-signs the form.3United States Bankruptcy Court Southern District of Indiana. Issuing a Subpoena
In some situations, particularly in criminal matters or administrative hearings involving sensitive records, a judge may need to review the subpoena before it issues. Certain jurisdictions use what is called a “so ordered” subpoena, where a judge signs the document before it becomes effective. The purpose is to protect witnesses from harassment and to guard against disclosure of confidential information. If a judge reviews your request, be ready to explain why the testimony or documents matter to the case.
Fee Waivers Do Not Cover Witness Fees
Pro se litigants granted in forma pauperis status sometimes assume every cost connected to a subpoena falls away. It does not. Under 28 U.S.C. § 1915, the U.S. Marshals may serve a subpoena without prepayment of service costs, but multiple federal circuits have held that the statute does not authorize courts to waive the attendance fees owed to non-party witnesses. The federal attendance fee of $40 per day, set by 28 U.S.C. § 1821, still has to be tendered at service even when filing fees were waived.4Office of the Law Revision Counsel. 28 USC 1821 – Per Diem and Mileage Generally
What a Valid Subpoena Must Contain
Whoever signs it, a subpoena is only enforceable if it contains the information Rule 45 requires. Every subpoena has to identify the court that issued it, state the title of the case and the civil action number, and command the recipient to do something specific at a stated time and place.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
There are two basic forms. A subpoena commanding testimony is sometimes called a subpoena ad testificandum. One commanding the production of documents, electronically stored information, or tangible items is a subpoena duces tecum. For document subpoenas, precision is what makes them hold up. A sweeping command for “all records relating to the matter” invites a motion to quash. Describing the categories with enough specificity that the recipient knows what to pull is what keeps the subpoena intact.
When the request covers electronically stored information, the subpoena can specify the format, such as native file format or searchable PDF. Without a specification, the recipient can produce the material in the form it is ordinarily kept or in any reasonably usable form, and is never required to produce the same information in more than one format.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena If metadata or native formatting matters, that belongs on the face of the subpoena.
Issuance Is Not the End of the Process
A signed subpoena still has to be served, and before serving a document or inspection subpoena, the issuing party must give notice and a copy to every other party in the case.1Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena That notice requirement is tied to issuance in practice, because the paper is not ready to go out the door until the other side has had its copy. The notice rule applies to document and inspection subpoenas, not to subpoenas that only command testimony.
The short version of who can issue a subpoena in federal court: an attorney admitted in the court signs their own, a party without counsel gets a signed blank from the clerk, and the clerk is required to provide it. The signature controls, and the certification that goes with it is enforceable through sanctions if the power is misused.