Summary. A subpoena is the only discovery device that reaches someone who is not in the lawsuit, and that fact drives every rule governing it. The recipient has no stake in the case, did not choose to be involved, and is entitled to protection from significant expense — which is why Rule 45 has a compliance geography, a fourteen-day objection window, a mandatory duty on the issuing lawyer to avoid undue burden, and a sanctions provision that gets used. This article covers issuance and service, the place-of-compliance rules that trip up experienced practitioners, how to object and when objecting alone suffices, motions to quash and compel and where they must be filed, cost-shifting, privilege assertions, and the special regimes for banks, providers, and communications services.

Two mistakes account for most Rule 45 disputes, and both are made by lawyers who have practiced for years.

The first is treating a nonparty like a party. A nonparty did not choose this fight, has no discovery obligations at all until served, and gets protections that no party enjoys — including a right to have significant expenses paid by the party that wanted the documents. A subpoena drafted by copying the requests for production served on the opposing party is the archetype of this error, and it is the reason so many subpoenas produce a motion instead of documents.

The second is getting the geography wrong. Rule 45 was amended in 2013 to separate the court that issues a subpoena from the place where compliance is required, and to relocate motion practice to the court where compliance is required rather than the issuing court. Practitioners who learned the rule before 2013, or who learned it from a form file, routinely command production in the wrong place and then file a motion in the wrong court.

Get those two things right and most of the rest follows.

Issuance and form

Who issues. Fed. R. Civ. P. 45(a)(3) permits the clerk to issue a signed but otherwise blank subpoena, and permits an attorney authorized to practice in the issuing court to issue and sign one as an officer of that court. In practice, lawyers issue their own.

Which court issues. The subpoena issues from the court where the action is pending — for all subpoenas, including those commanding compliance in another district. That was the central 2013 change. There is no longer any need to obtain a subpoena from the district where the witness sits.

What a subpoena may command. Attendance at a deposition, at a hearing or trial, production of documents, electronically stored information, or tangible things, or inspection of premises. A subpoena may command production without an accompanying deposition — Rule 45(a)(1)(C) — and it usually should, because most nonparty subpoenas want documents rather than testimony.

Required contents. The court name, the caption and civil action number, the command with time and place, the text of Rule 45(d) and (e) (the protections), and, for testimony, a description of the matters if the recipient is an organization designating a witness under Rule 30(b)(6) principles.

Notice to the parties. Rule 45(a)(4) requires that if the subpoena commands production of documents before trial, a notice and a copy must be served on each party before it is served on the person commanded. Before, not simultaneously. Courts have quashed subpoenas for violation of this requirement, and the point of it is to give other parties a chance to object before the nonparty produces. Build the sequence into your practice: serve the notice, wait a short interval, then serve the subpoena.

Place of compliance: the rule that gets missed

Rule 45(c) is short and controls a great deal.

For a deposition, hearing, or trial, a subpoena may command attendance only:

  • within 100 miles of where the person resides, is employed, or regularly transacts business in person; or
  • within the state where the person resides, is employed, or regularly transacts business in person, if the person is a party or a party's officer, or if the person is commanded to attend trial and would not incur substantial expense.

For production or inspection, compliance may be commanded only at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person.

Practical consequences.

  • The 100 miles runs from the witness, not from the courthouse. A subpoena commanding a Denver witness to produce documents in Chicago because the case is pending there is facially defective and must be quashed on motion under Rule 45(d)(3)(A)(ii).
  • You cannot cure this by noticing production "at the offices of counsel." Name a place within 100 miles of the witness. In practice, most document subpoenas designate production by mail, courier, or secure file transfer to counsel's office and no one objects — but if the recipient does object, the geography controls.
  • Trial subpoenas for distant witnesses do not work. A nonparty more than 100 miles away and outside the state cannot be compelled to trial. This is why deposition designations and Rule 32(a)(4) unavailability matter, and why a plaintiff choosing a forum should think about where the key nonparty witnesses live.
  • An organization's records custodian is generally treated by reference to where the organization regularly transacts business in person.

Service

Rule 45(b)(1) requires delivering a copy to the named person and, if attendance is commanded, tendering the fees for one day's attendance and the mileage allowed by law.

  • Personal delivery. The text says "delivering," and a substantial body of authority requires personal service. A meaningful and growing minority of courts permit alternative service — certified mail, email, or service on counsel — where the method is reasonably calculated to provide actual notice and the party has made diligent efforts. The safe practice is personal service; the fallback is a motion for alternative service before the deadline, not an argument afterward.
  • Tender the fee at service. The statutory attendance fee under 28 U.S.C. § 1821 plus mileage at the GSA rate. It is a small amount and failure to tender it is a clean basis to quash a testimonial subpoena. No fee is required for a documents-only subpoena.
  • Anywhere in the United States. Rule 45(b)(2) permits service anywhere within the United States, which is why the geography of compliance rather than of service is what constrains.
  • Proof of service must be filed if required, showing the date, manner, and fees tendered — Rule 45(b)(4).
  • Reasonable time to comply. No fixed number, but a subpoena giving a nonparty five days to gather years of records is a candidate for quashing under Rule 45(d)(3)(A)(i). Fourteen days is the informal floor, because that is the objection period; thirty is more defensible for anything substantial.

The issuing lawyer's affirmative duty

Rule 45(d)(1) states that "a party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena," and directs the court to enforce this duty and impose an appropriate sanction — which may include lost earnings and reasonable attorney's fees.

This is not decorative. Courts have imposed sanctions for subpoenas that were facially overbroad, that sought documents already available from a party, that were issued for an improper purpose, or that were served on a nonparty adversary in an unrelated dispute. Legal Voice v. Stormans Inc., 738 F.3d 1178 (9th Cir. 2013), affirmed the availability of Rule 45 sanctions while reversing on the facts, and Mount Hope Church v. Bash Back!, 705 F.3d 418 (6th Cir. 2012), confirmed that the duty is mandatory but that sanctions require an undue burden actually imposed.

Before serving, ask three questions:

  1. Can I get this from a party? Courts routinely quash nonparty subpoenas seeking documents obtainable from the opposing party, and this is the most common basis for a successful motion. If the party has the documents and is being difficult, the answer is a motion to compel against the party, not a subpoena to a stranger.
  2. Is the request proportional? Rule 26(b)(1)'s proportionality limits apply to Rule 45, and courts apply them more strictly for nonparties. "All documents relating to" is a formulation to abandon here.
  3. Have I tailored the time period, the custodians, and the format? Specificity buys cooperation, and cooperation is far cheaper than motion practice.

Responding: the fourteen-day objection

This is the recipient's most powerful and most underused tool.

Rule 45(d)(2)(B): a person commanded to produce documents or permit inspection may serve a written objection on the party or attorney designated in the subpoena. The objection must be served before the earlier of the time specified for compliance or 14 days after service.

What a timely objection accomplishes: the serving party may not inspect or copy the materials except pursuant to a court order. In other words, a written objection shifts the burden of going forward to the party that issued the subpoena. No motion to quash is necessary. The nonparty can simply object and wait.

This is a genuinely different posture from party discovery, where objections must be accompanied by production of unobjected-to material and where the objecting party remains exposed to a motion. A nonparty that objects has done everything required until a court says otherwise.

How to object well:

  • In writing, timely, and served on the designated party or attorney. Calendar the fourteen days on receipt.
  • State grounds specifically. Undue burden, overbreadth, availability from a party, privilege, confidentiality or trade secret, geography, insufficient time, and — where applicable — that compliance would require creating documents that do not exist.
  • Preserve everything by stating that the objection applies to each request, then addressing individual requests where the objections differ.
  • Offer a path. "We object to Request 4 as overbroad; we would produce the monthly summaries for the 2022–2023 period upon entry of a protective order and agreement on cost-sharing." That sentence resolves more subpoenas than any brief.
  • Do not simply ignore the subpoena. Failure to object and failure to comply exposes the recipient to contempt under Rule 45(g).

Note the asymmetry: the objection procedure applies to document subpoenas. A person commanded to appear for a deposition or trial must move to quash or move for a protective order; a letter is not enough, and non-appearance without relief is contempt.

Motions to quash, modify, and compel

Where. Rule 45(d)(3) directs motions to quash or modify to "the court for the district where compliance is required." Not the issuing court. A motion filed in the court where the case is pending, when compliance was required elsewhere, will be denied for lack of authority — a genuinely common and avoidable error.

Transfer under Rule 45(f). The compliance court may transfer a subpoena-related motion to the issuing court if the person subject to the subpoena consents, or if the court finds exceptional circumstances. Exceptional circumstances usually means that the issuing court has already ruled on the same issue, that the dispute implicates the case's management, or that inconsistent rulings would result. Transfer is common in multi-district or complex cases and is worth requesting where the issuing judge has already resolved the underlying scope dispute.

Grounds the court MUST quash or modify — Rule 45(d)(3)(A):

  • fails to allow a reasonable time to comply;
  • requires a person to comply beyond the geographical limits of Rule 45(c);
  • requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
  • subjects a person to undue burden.

Grounds the court MAY quash or modify — Rule 45(d)(3)(B) — where the subpoena requires:

  • disclosing a trade secret or other confidential research, development, or commercial information; or
  • disclosing an unretained expert's opinion or information not describing specific occurrences in dispute and resulting from the expert's study not requested by a party.

For these discretionary grounds, Rule 45(d)(3)(C) offers a middle path: instead of quashing, the court may order appearance or production under specified conditions if the serving party shows a substantial need that cannot be otherwise met without undue hardship and ensures that the subpoenaed person will be reasonably compensated.

Standing. The recipient always has standing. A party generally has standing to move to quash a subpoena to a nonparty only where the party claims a personal right or privilege in the material — for example, its own privileged communications in a former employee's possession, or its own confidential business information held by a vendor. A party without such an interest should raise its concerns through Rule 26(c) instead.

Motions to compel. The party that served the subpoena moves in the compliance court to compel after a timely objection. The moving party bears the burden of showing relevance and proportionality; the responding nonparty bears the burden on privilege and on the specifics of any claimed burden. Burden must be shown with evidence — a declaration quantifying the hours, the systems, the custodians, and the cost. Assertions of burden without numbers routinely fail.

Meet and confer. Required by local rules in most districts and by ordinary good practice. Courts are notably unsympathetic to either side in a nonparty dispute that reaches the bench without a genuine attempt to narrow.

Cost-shifting

Rule 45(d)(2)(B)(ii) provides that an order compelling production "must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance."

This is mandatory language, and it is the most valuable provision in the rule for a nonparty. Points that matter in practice:

  • "Significant" is contextual. Courts weigh the nonparty's resources, whether it has an interest in the outcome, and whether the requesting party's need justifies the cost. A large bank producing routine account records is often expected to absorb it; a small business asked to run a forensic collection across three custodians usually is not.
  • The obligation attaches to an order compelling production, so a nonparty that produces voluntarily without an order may have waived the argument. Raise cost-shifting in the objection, before producing.
  • Recoverable categories typically include vendor collection and processing costs, hosting, and attorney time for review, though courts differ on whether privilege review time is recoverable and some limit fees to the review necessary to comply rather than to the nonparty's own protective interests.
  • Negotiate it up front. A written agreement on cost allocation, format, and scope avoids the entire dispute and is standard practice with sophisticated recipients.

Privilege and confidentiality

Asserting privilege. Rule 45(e)(2)(A) requires that a person withholding subpoenaed information under a claim of privilege or work product must expressly make the claim and describe the nature of the withheld materials in a manner that enables the parties to assess it — a privilege log, in substance, though the rule does not use the word.

Clawback. Rule 45(e)(2)(B) supplies the same snap-back procedure as Rule 26(b)(5)(B) for inadvertently produced privileged material, and a nonparty should ask to be covered by any Federal Rule of Evidence 502(d) order entered in the case.

Confidentiality. A nonparty is entitled to protection for trade secrets and competitively sensitive information. The standard mechanism is production subject to the case's protective order, with the nonparty as an intended beneficiary and with the right to designate. Ask to review the protective order before producing; many were negotiated between parties with no thought for third parties, and an "attorneys' eyes only" tier may be necessary for a competitor's records.

Whose privilege is it. A subpoena to a former employee, a vendor, an accountant, or prior counsel frequently seeks material over which the party holds the privilege. The nonparty should notify the party, and the party should assert. Failure to coordinate here is how privileged material gets produced by someone with no incentive to fight about it.

Special regimes that override Rule 45

Electronic communications providers. The Stored Communications Act, 18 U.S.C. § 2702, prohibits providers of electronic communication service and remote computing service from disclosing the contents of communications to private parties, and a civil subpoena is not an exception. Google, Microsoft, Meta, and every email provider will refuse, correctly. Non-content records — subscriber information, IP logs — may be obtainable in some circumstances, and courts differ.

The workaround is to obtain the communications from the account holder as a party, or through a court order requiring the account holder to consent to disclosure — the approach discussed in Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008), which treated the party's control over its own communications as the operative fact.

Health care providers. 45 C.F.R. § 164.512(e) permits disclosure of protected health information in response to a subpoena only with satisfactory assurances that the individual has been notified and given an opportunity to object, or that a qualified protective order has been sought — one that prohibits use outside the litigation and requires return or destruction at its conclusion. State medical-records and mental-health privacy statutes are frequently stricter, and a handful require the patient's written authorization outright.

Financial institutions. The Right to Financial Privacy Act constrains government access and does not apply to private civil subpoenas, but the Gramm-Leach-Bliley Act and state financial privacy statutes impose notice requirements, and many banks will notify the customer and wait before producing. California and a few other states impose specific procedures for subpoenas seeking consumer or employment records, including notice to the consumer and a waiting period.

Educational records. FERPA generally requires notice to the parent or eligible student before disclosure pursuant to a subpoena, with exceptions.

Government agencies. Federal agencies have Touhy regulations governing employee testimony and document production, and a Rule 45 subpoena to a federal agency in a case where the United States is not a party is generally channeled through those procedures and, where refused, reviewed under the Administrative Procedure Act rather than through a motion to compel.

Nonparty depositions

Scheduling and duration. The seven-hour, one-day limit of Rule 30(d)(1) applies. Notice must go to all parties. If the deponent is an organization, the subpoena should describe the matters for examination with the particularity Rule 30(b)(6) requires, and the organization must designate and prepare a witness — a burden that is real and that supports negotiation over scope.

Apex witnesses. A subpoena to a nonparty's chief executive attracts the same judicial skepticism as an apex deposition of a party executive. Courts generally require a showing that the executive has unique personal knowledge and that the information is not obtainable through less intrusive means. Depose the operational people first, then justify the escalation.

Documents plus testimony. Where both are commanded, seek production sufficiently in advance to review before the deposition. Fourteen days is a workable convention.

Counsel for the nonparty may attend, object, and instruct not to answer only on the grounds permitted by Rule 30(c)(2) — privilege, a court-ordered limitation, or to present a Rule 30(d)(3) motion. Nonparty witnesses frequently appear without counsel, and the examining lawyer should be scrupulous: an unrepresented nonparty is not a party opponent, and overreaching produces protective orders and, occasionally, sanctions.

State court practice and cross-border reach

State subpoenas. Most states have adopted the Uniform Interstate Depositions and Discovery Act, under which a subpoena issued in the trial state is presented to the clerk in the discovery state, who issues a local subpoena incorporating its terms. The discovery state's rules then govern service, compliance, and motion practice. This replaced the old commission-and-letters-rogatory process for domestic discovery and is fast — often same-day.

Federal-state crossover. A federal court cannot issue a subpoena in aid of a state court action. A state-court litigant needing documents from a nonparty in another state uses the UIDDA. A federal litigant needing testimony from someone abroad uses the Hague Evidence Convention or letters rogatory.

Discovery for foreign proceedings. 28 U.S.C. § 1782 permits a district court to order a person residing or found in the district to give testimony or produce documents for use in a proceeding in a foreign or international tribunal. The application may be made by an interested person and may be granted ex parte, with the respondent's objections heard on a motion to quash. ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022), held that "foreign or international tribunal" means a governmental or intergovernmental adjudicative body, and that private commercial arbitration does not qualify — closing a route that had been used extensively to obtain U.S.-style discovery for foreign arbitrations.

Enforcement and contempt

Rule 45(g): the court for the district where compliance is required — and, after transfer, the issuing court — may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.

A timely objection is an adequate excuse, which is the entire point of the objection procedure. Contempt is for the person who ignored the subpoena, or who defied an order compelling compliance.

Remedies range from an order compelling compliance with fee-shifting, to coercive daily fines, to arrest in extreme cases. For an organization, the realistic exposure is fees and a compliance order, but the reputational cost of a contempt finding is meaningful, particularly for regulated entities.

Practical guidance

If you are issuing:

  • Serve the Rule 45(a)(4) notice on parties first. Document the sequence.
  • Command compliance within 100 miles of the recipient. Check the address before drafting.
  • Give thirty days unless there is a reason not to.
  • Narrow before you serve. Date range, custodians, defined categories, and format. Consider a preliminary letter asking what exists before commanding what you guessed.
  • Tender the witness fee for testimonial subpoenas, at service.
  • Offer the protective order and a cost-sharing discussion in the cover letter. It converts adversaries into vendors.
  • Do not subpoena a nonparty for material a party has. It is the fastest way to lose a motion and pay fees.

If you are receiving:

  • Calendar fourteen days immediately.
  • Determine whether anyone else's privilege or confidentiality is implicated and notify them promptly.
  • Issue a preservation hold on the responsive material while you evaluate. A nonparty that destroys documents after receiving a subpoena has a serious problem independent of the discovery dispute.
  • Object in writing, specifically, and offer a narrowed alternative.
  • Raise cost-shifting before producing, in writing, with an estimate.
  • Ask for the protective order and confirm you may designate.
  • Never simply ignore it. The rule gives you strong protections and every one of them requires a timely response.

The larger point

Rule 45 is the only place in the Federal Rules where the drafters had to balance a litigant's need for evidence against the interests of someone who has no stake in the case whatsoever. The balance they struck is unusually protective: the burden of going forward shifts to the requesting party on a mere written objection, significant expense must be shifted, and the lawyer who issues the subpoena carries an affirmative and sanctionable duty of restraint.

Practitioners who treat that structure as an obstacle end up in motion practice. Practitioners who treat it as an invitation to negotiate — scope for cost-sharing, breadth for speed, confidentiality for cooperation — get documents in weeks rather than orders in months. The nonparty, for its part, is rarely trying to hide anything. It is trying not to spend money on someone else's lawsuit, and a subpoena that acknowledges that fact usually gets answered.

Recurring scenarios and how they actually resolve

The former employee. Plaintiff subpoenas the defendant company's former sales manager, now working elsewhere, for documents and testimony. Issues: the former employee may possess the company's privileged communications and confidential information; the new employer may object to the disruption; and the company will want to attend and assert privilege. Resolution: the company sends a letter asserting its privilege and confidentiality interests, the witness produces non-privileged personal materials, the deposition proceeds with company counsel present to assert privilege on the record, and disputes over specific documents go to the compliance court. What goes wrong: the former employee, unrepresented and annoyed at the former employer, produces everything in a box without review.

The accountant. A subpoena to the debtor's or defendant's CPA firm for workpapers, tax returns, and communications. Issues: there is no federal accountant-client privilege, though 26 U.S.C. § 7525 creates a limited federally authorized tax practitioner privilege that does not extend to tax return preparation or to criminal matters, and some states recognize a statutory accountant privilege. Workpapers are ordinarily discoverable. Resolution: production subject to a protective order, with the client given notice and an opportunity to assert.

The bank. A subpoena for account records in a fraudulent transfer or collection case. Banks have well-developed compliance groups, will notify the customer, will impose a per-page and per-hour charge, and will produce on a business-records certification under Federal Rule of Evidence 902(11). Ask for the certification in the subpoena itself — it saves a custodian deposition and lays the foundation for admissibility at trial.

The competitor. A subpoena to a nonparty competitor for pricing, cost, or customer data in an antitrust or false advertising case. This is where Rule 45(d)(3)(B)(i) does the most work. Expect a motion, expect an attorneys'-eyes-only tier, and expect the court to narrow substantially. Consider whether aggregated or anonymized data would answer the question, because offering that alternative in the meet-and-confer materially improves the odds of getting something.

The insurer or claims administrator. Often holds the most useful contemporaneous evaluation of a claim. Reserve information and claim-evaluation materials attract work-product objections that are strong in some circuits and weak in others; the underwriting file and the policy are ordinarily produced without much fight.

The social media platform or cloud vendor. Refused under the Stored Communications Act, as described above, with a form letter. Plan for this rather than discovering it three weeks before the discovery cutoff — the alternative route through the account holder takes time, and if the account holder is a nonparty too, it takes a second subpoena.

Timing, and the mistake that ends cases

Subpoena practice has a rhythm that does not fit inside the last month of discovery. Count backward from the cutoff:

  • Serve the Rule 45(a)(4) notice, then the subpoena: day 1.
  • Objection deadline: day 15.
  • Meet and confer: days 15–25.
  • Motion to compel, briefing, and hearing in the compliance court: 30 to 75 days, longer if transfer is sought.
  • Production and review: two to four weeks after an order.
  • Follow-on deposition, if needed: another two to four weeks.

That is three to five months from service to a usable deposition, and it assumes nothing goes badly. A subpoena served sixty days before the discovery cutoff is, realistically, a subpoena that will produce documents after the cutoff — and a court asked to extend the schedule because the party waited will often decline. Identify the nonparties whose records matter during the Rule 26(f) conference, not after the party depositions reveal a gap.

A note on subpoenas as leverage

Occasionally a subpoena is issued not to obtain evidence but to impose cost, to signal reach, or to embarrass. Subpoenas to a party's customers, lenders, or investors carry an unmistakable message even when the requests are facially reasonable, and everyone in the room understands it.

Courts understand it too. Rule 45(d)(1)'s duty to avoid undue burden, Rule 26(c)'s protective order authority, and the inherent power to sanction abusive litigation conduct all reach subpoenas issued for an improper purpose, and the pattern — a subpoena to every customer named in an interrogatory answer, timed to a settlement conference — is legible from the docket. The party whose relationships are being targeted should say so directly in a motion for protective order, with the timeline, rather than arguing only relevance. Relevance arguments about a customer's purchase records are hard to win. Purpose arguments, properly documented, are not.

Primary authority

Nonparty discovery has its own rule, its own sanctions regime, and its own body of protective case law.

  • Fed. R. Civ. P. 45 — the whole architecture: issuance from the court where the case is pending, the 100-mile limit in Rule 45(c), the fourteen-day objection window in Rule 45(d)(2)(B), the mandatory quash grounds in Rule 45(d)(3)(A), the discretionary ones in Rule 45(d)(3)(B), and the Rule 45(d)(1) duty to avoid imposing undue burden.
  • Fed. R. Civ. P. 45(f) — transfer of a subpoena-related motion to the issuing court, on consent or for exceptional circumstances.
  • Fed. R. Civ. P. 26(b)(1) — proportionality applies to nonparty discovery too, and with more force because the nonparty has no stake in the outcome.
  • Fed. R. Civ. P. 26(c) — protective orders, including cost allocation.
  • Fed. R. Civ. P. 34(c) — the cross-reference making Rule 45 the vehicle for documents from nonparties.
  • Fed. R. Evid. 502(d) — the order that makes clawback protection portable and should be in every subpoena-heavy case.
  • 18 U.S.C. § 2702 and § 2703 — the Stored Communications Act, which bars a provider from disclosing content in response to a civil subpoena regardless of how the subpoena is captioned.
  • 28 U.S.C. § 1782 — discovery in aid of a foreign proceeding, and ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022), which excludes private commercial arbitration from its reach.
  • Fed. R. Civ. P. 30(b)(6) — organizational testimony, including from nonparties.
  • Fed. R. Civ. P. 37(e) — the ESI preservation standard the nonparty's own litigation hold will eventually be measured against.

Related articles

This article is provided for general informational purposes and does not constitute legal advice. Local rules, state subpoena practice, and the sector-specific statutes discussed here vary, and courts differ on several issues addressed above. Consult qualified litigation counsel before issuing, objecting to, or moving against a subpoena.