Issuing a federal subpoena: the 100-mile rule, the notice requirement, and the duty to avoid undue burden
Federal procedure · Last verified August 17, 2026
A federal subpoena is the only discovery device that reaches people who are not parties, and Rule 45 puts real constraints on the party using it. Two are structural — where the subpoena issues from, and where compliance can be commanded — and one is a duty enforceable by sanctions.
This guide covers issuing one. The companion guide covers responding to one.
What every subpoena must contain
Rule 45(a)(1)(A): every subpoena must:
(i) state the court from which it issued; (ii) state the title of the action and its civil-action number; (iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises; and (iv) set out the text of Rule 45(d) and (e).
Item (iv) is the one most often botched. The subpoena must reproduce the protection and duty provisions — not cite them. A subpoena without that text is defective, and it is the first thing a recipient's lawyer checks.
Depositions — Rule 45(a)(1)(B): a subpoena commanding attendance at a deposition "must state the method for recording the testimony."
Combining commands — Rule 45(a)(1)(C): a command to produce or to permit inspection "may be included in a subpoena commanding attendance at a deposition, hearing, or trial, or may be set out in a separate subpoena." And "a subpoena may specify the form or forms in which electronically stored information is to be produced."
What production includes — Rule 45(a)(1)(D): a command to produce "requires the responding person to permit inspection, copying, testing, or sampling of the materials."
Where it issues from, and who signs it
Rule 45(a)(2): "A subpoena must issue from the court where the action is pending."
That is the 2013 change many practitioners still get wrong. Regardless of where the witness is, the subpoena issues from the court where the case is — not from the district of compliance.
Rule 45(a)(3): "The clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it before service. An attorney also may issue and sign a subpoena," as the rule provides.
Serving it
Rule 45(b)(1):
Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person's attendance, tendering the fees for 1 day's attendance and the mileage allowed by law. Fees and mileage need not be tendered when the subpoena issues on behalf of the United States or any of its officers or agencies.
Two requirements travel together for a testimonial subpoena: delivery and tender of fees and mileage. A subpoena served without the witness fee is vulnerable, and the tender must accompany service rather than follow it.
Rule 45(b)(2): "A subpoena may be served at any place within the United States."
Rule 45(b)(3): 28 U.S.C. § 1783 governs a subpoena directed to a United States national or resident who is in a foreign country.
Rule 45(b)(4) — proof of service: proving service requires filing with the issuing court a statement showing the date and manner of service and the names of the persons served, "certified by the server."
The 100-mile rule
Rule 45(c)(1) — testimony. A subpoena may command attendance at a trial, hearing or deposition only:
(A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party's officer; or (ii) is commanded to attend a trial and would not incur substantial expense.
The default is 100 miles, measured from where the person is — not from the courthouse. Subparagraph (B) extends it statewide, but only for parties and their officers, or for a trial witness who would not incur substantial expense.
Rule 45(c)(2) — other discovery. A subpoena may command:
(A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and (B) inspection of premises at the premises to be inspected.
Note that documents get no statewide extension. Production is always within 100 miles of the person.
The duty to avoid undue burden
Rule 45(d)(1):
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. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction — which may include lost earnings and reasonable attorney's fees — on a party or attorney who fails to comply.
Three features.
It is an affirmative duty, owed to a non-party who has no stake in the case.
Enforcement is mandatory — "must enforce this duty and impose an appropriate sanction."
And the sanction names lost earnings, which is unusual and reflects that the person burdened is often not represented and not a litigant.
Note also which court enforces it: the district where compliance is required, not the issuing court.
What the recipient can do, and your deadlines
No appearance for documents — Rule 45(d)(2)(A): a person commanded to produce or permit inspection "need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial."
Objections — Rule 45(d)(2)(B): a person commanded to produce or permit inspection may serve a written objection on the party or attorney designated in the subpoena — to inspecting, copying, testing or sampling any or all of the materials, to inspecting the premises, or "to producing electronically stored information in the form or forms requested."
The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.
And if an objection is made:
(i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.
Two consequences for the issuing party. An objection stops production until you get an order. And the order that follows must protect a non-party from significant expense — so a contested non-party production frequently ends with you paying for it.
Notice to the other parties
Rule 45(a)(4):
If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.
The sequence is fixed: notice and a copy to every party first, then service on the recipient. It exists so the other parties can object before the material leaves the recipient's hands, and it is easy to reverse and awkward to cure. Note the limit — it applies to pre-trial production and inspection subpoenas, not to a subpoena that only commands testimony.
The sequence, with the numbers
| Step | Rule | Note |
|---|---|---|
| Issue from the court where the action is pending | 45(a)(2) | not the district of compliance |
| Include Rule 45(d) and (e) text in full | 45(a)(1)(A)(iv) | reproduce, do not cite |
| State the recording method for a deposition | 45(a)(1)(B) | |
| Notice to the other parties before service | 45(a)(4) | for documents-only subpoenas |
| Serve — anyone 18+, not a party | 45(b)(1) | tender fees and mileage for attendance |
| Place of compliance | 45(c) | 100 miles; statewide only for parties, officers, and some trial witnesses |
| Recipient's objection | 45(d)(2)(B) | earlier of the compliance date or 14 days |
| Motion to compel | 45(d)(2)(B)(i) | in the district of compliance, on notice |
| Non-party expense protection | 45(d)(2)(B)(ii) | the order must protect against significant expense |
| Your standing duty | 45(d)(1) | reasonable steps to avoid undue burden — sanctionable |
For organizations
Where the subpoena is directed to an entity, Rule 30(b)(6) applies alongside Rule 45, and it adds two requirements to the subpoena itself: it "must advise a nonparty organization of its duty to confer with the serving party and to designate each person who will testify."
A Rule 45 subpoena to an entity that omits that advice is defective on the face of Rule 30(b)(6). The guide on the Rule 30(b)(6) deposition covers the conferral obligation and what a designee must know.
How the federal rule compares
| Federal | Washington | California | |
|---|---|---|---|
| Issues from | the court where the action is pending | the court | the court |
| Geographic limit | 100 miles from the person | subpoena power | 75 / 150 miles by statute for depositions |
| Statewide reach | parties, officers, some trial witnesses | — | — |
| Rule text reproduced in the subpoena | required | — | — |
| Objection deadline | earlier of compliance or 14 days | — | 3 calendar days for a deposition notice |
| Duty to avoid undue burden | express and sanctionable | CR 45 | CCP 1985 et seq. |
| Non-party expense protection | mandatory in the order | — | — |
| Where to move to compel | district of compliance | county of the deposition | court where the action is pending |
A short checklist
- Issue from the court where the case is pending, whatever district the witness is in.
- Reproduce the text of Rule 45(d) and (e) in the subpoena itself.
- Check the place of compliance before you pick one. One hundred miles from where the person lives, works, or regularly transacts business in person — statewide only in the narrow (c)(1)(B) cases.
- Give the other parties notice before serving a documents-only subpoena.
- Tender the witness fee and mileage with service where attendance is commanded.
- Use a server who is 18 or over and not a party.
- Expect an objection by the earlier of the compliance date or 14 days, and plan the schedule around a possible motion.
- Move to compel in the district of compliance, on notice to the commanded person.
- Budget for the non-party's expense. Rule 45(d)(2)(B)(ii) requires the order to protect a non-party from significant expense.
- Keep Rule 45(d)(1) in mind throughout — the duty to take reasonable steps to avoid undue burden is yours, and the sanction can include the recipient's lost earnings and fees.
Where these rules live
- FRCP 26 — Duty to disclose; general provisions governing discovery
- FRCP 30 — Depositions by oral examination
- FRCP 34 — Producing documents, electronically stored information, and tangible things
- FRCP 37 — Failure to make disclosures or to cooperate in discovery; sanctions
- FRCP 45 — Subpoena
28 U.S.C. § 1783, which governs subpoenas to United States nationals abroad, is not reproduced on this site. This page explains what the rules say. It isn't legal advice.