Who Pays for Subpoena Documents: Witness Fees and Reimbursement

When documents are subpoenaed in a federal civil case, who pays for subpoena documents depends on one thing: whether the recipient is a party to the lawsuit or a non-party. Parties generally absorb their own production costs. Non-parties are entitled to protection from significant expense under Federal Rule of Civil Procedure 45, but only if they object in writing within 14 days instead of quietly complying. Miss that window and the right to reimbursement usually disappears.

Parties Pay Their Own Costs; Non-Parties Get Protection

Each side of a lawsuit is expected to fund its own discovery. When one party serves a document request on the opposing party, the responding party pays to search for, collect, review, and produce the materials. Courts rarely disturb this expectation for routine exchanges between the parties.

A non-party sits in a different position. Someone who has no stake in the lawsuit shouldn’t have to subsidize it. Rule 45(d)(1) places an affirmative duty on the party and attorney issuing a subpoena to take reasonable steps to avoid imposing undue burden or expense on the person it’s directed to. The court where compliance is required must enforce that duty, and sanctions for violating it can include the non-party’s lost earnings and reasonable attorney’s fees.¹

When a non-party objects and the court nonetheless orders production, the order itself must protect the non-party from significant expense resulting from compliance.¹ In practice, that means the requesting party ends up paying enough of the production cost so that whatever remains on the non-party is not a meaningful financial burden. Courts make that call case by case.

Even between parties, cost-shifting is possible when the burden is grossly disproportionate to the value of the information. Rule 26 lets a court issue a protective order limiting discovery or requiring the requesting party to shoulder some of the expense, weighing the stakes of the case, each side’s access to the information, the parties’ resources, and whether the expense is justified by the likely benefit.² These fights come up most often with electronically stored information, where production can run into six figures.

Witness and Mileage Fees Must Be Tendered Up Front

If the subpoena requires attendance, the serving party has to hand over witness fees at the time of service. Rule 45(b)(1) makes this a condition of valid service.¹ Skip the step and the recipient can challenge the subpoena as improperly served.

The attendance fee is $40 per day, a number Congress set in 1990 and hasn’t changed since. The same $40 covers travel time to and from the place of attendance.³ A witness who drives is reimbursed at the mileage rate the General Services Administration sets for federal employee travel.⁴ One exception: when the subpoena is issued on behalf of the United States or a federal agency, no fee tender is required at service.¹

What Production Costs Are Actually Reimbursable

Reimbursable costs are the direct, tangible expenses of producing the documents. Courts separate the physical work of compliance from the ordinary cost of doing business. The following are generally recoverable:

Copying and printing, including oversize or specially processed documents.
Converting electronically stored information into a usable format, such as exporting database records to searchable files.
Reasonable hourly wages for clerical or non-legal staff who locate, gather, and prepare documents.
Technical costs of searching for and extracting electronic data from servers, archives, or backup systems.

Overhead is treated differently. Costs for maintaining an in-house e-discovery database, general IT infrastructure, or an existing document management system are not recoverable, because courts view them as the price of doing business rather than expense caused by the subpoena.

Several states also set statutory per-page copying rates for subpoenaed records, especially medical and business files. Rates range widely, from a quarter per page in some states to $2.00 or more for an initial batch of pages in others. Where a state statute sets a rate, that rate controls regardless of what copying actually cost the non-party.

Attorney Review Is Usually Not Shifted

The costliest piece of responding to a document subpoena is typically the legal review for relevance and privilege. In federal court, those attorney review costs are generally not shifted to the requesting party. The reasoning is that privilege review protects the producing party’s own interests. Some state courts reach the opposite result for non-parties forced to retain counsel to screen privilege. The split matters because attorney review often dwarfs every other cost combined.

Object First, Produce Later

This is where most non-parties lose their leverage. The sequence is counterintuitive. A non-party who complies first and asks for reimbursement afterward has almost always forfeited the right to recover. Courts have consistently treated voluntary compliance before a court order as a waiver.⁵ Object first. Produce only after the court orders you to.

The 14-Day Window

Under Rule 45(d)(2)(B), a non-party served with a document subpoena may serve a written objection on the requesting party. The objection has to be served before the earlier of the compliance date or 14 days after service.¹ Missing that deadline is treated as waiver, and a non-party who fails to timely object is not entitled to reimbursement.⁵

The Sequence That Preserves Reimbursement

A non-party who wants cost protection should move through these steps:

Estimate the cost immediately on receiving the subpoena and prepare an itemized breakdown.
Serve written objections within 14 days (or before the compliance date if earlier) that specifically identify the financial burden.
Try to reach agreement with the requesting party on cost-sharing, scope limits, or both. Most of these disputes resolve here.
If negotiation fails, file a motion for a protective order or motion to quash. Do not produce documents before the court rules.
Comply only under a court order. The order will include cost protections, and those protections are enforceable.

The mistake to avoid is producing out of a sense of urgency and then asking for money. Once the documents are already out the door, the court has little reason to award costs after the fact.⁵

Expert Witnesses Follow a Different Rule

If the person being subpoenaed is an expert witness, the cost regime shifts. Rule 26(b)(4)(E) requires the party seeking discovery from the other side’s expert to pay the expert a reasonable fee for time spent responding, unless doing so would result in manifest injustice.² What counts as reasonable is heavily litigated. Courts look at the expert’s field, prevailing rates for comparable experts, the complexity of the discovery, and whether the expert’s deposition rate matches what the retaining party is being charged. An expert who bills $800 an hour for depositions but $400 an hour for work done for the retaining party will usually see the deposition rate reduced.

Electronic Data Can Shift the Analysis

Electronically stored information has made document production much more expensive, and courts have adjusted. When a subpoena targets archived emails, legacy database exports, or backup tapes, the restoration and search costs can swamp any paper production. The general pattern: data that’s readily accessible on live systems stays with the producing party, while inaccessible data on disaster recovery tapes or decommissioned systems is a much stronger candidate for cost-shifting to the requesting party. The factors courts weigh track the Rule 26 proportionality analysis: how tailored the request is, whether the information exists in a more accessible form, the total cost against the amount in controversy, and the importance of the data to the case.

Ignoring a Subpoena Is Not an Option

Silence is never a safe response to a subpoena, even an overbroad one. A person who neither complies nor objects can be held in contempt. Contempt sanctions can include fines and, in extreme cases, incarceration until compliance occurs.

Rule 45(d)(1) runs in both directions. It sanctions issuing parties who impose undue burden, and it gives courts power to compel compliance and impose costs on a non-party who stonewalls without a valid objection. On top of contempt fines, the requesting party can recover attorney’s fees spent on a motion to compel. If the real concern is cost, the right move is a written objection inside the 14-day window and letting the court decide who pays.¹

1
Cornell Law School. Federal Rules of Civil Procedure Rule 45
2
Cornell Law School. Federal Rules of Civil Procedure Rule 26
3
Office of the Law Revision Counsel. 28 USC 1821 – Per Diem and Mileage Generally; Subsistence
4
Office of the Law Revision Counsel. 28 USC 1821 – Per Diem and Mileage Generally; Subsistence
5
United States Courts. Survey of Issues Regarding Federal Rule of Civil Procedure 45