Federal Subpoena Duces Tecum (Testimony and Documents)

FEDERAL SUBPOENA DUCES TECUM

(Deposition Testimony and Document Production — Non-Party)

Pursuant to Fed. R. Civ. P. 45 / Official Form AO 88A

Instructions for Use

What Is a Subpoena Duces Tecum? A subpoena duces tecum combines a command to appear and testify at a deposition with a command to produce documents, electronically stored information, or other tangible things. It compels both attendance and document production from a non-party.

Official Form Required: The official AO 88A form ("Subpoena to Testify at a Deposition in a Civil Action") is the appropriate form for compelling deposition testimony in federal civil actions. When combined with a document schedule (Exhibit A), it operates as a subpoena duces tecum. The AO 88A is available at uscourts.gov. This template is a drafting worksheet for preparing the document schedule and ensuring compliance with Rule 45.

Subpoena vs. Deposition Notice:

• A deposition notice under Rule 30(b)(1) is sufficient to compel a party to appear and, if combined with a Rule 34 request, to produce documents.
• A Rule 45 subpoena is required to compel a non-party to attend a deposition and produce documents.
• For Rule 30(b)(6) corporate designee depositions of non-party entities, the subpoena should identify the organization and list the examination topics in the subpoena or an attachment.

Geographic Limits (Rule 45(c)(1)):

• A subpoena may command attendance at a deposition 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, if the person is a party or a party's officer and would not incur substantial expense.

Witness Fees (28 U.S.C. § 1821 / Rule 45(b)(1)): Service of a subpoena requiring attendance at a deposition must be accompanied by a tender of the daily witness fee ($40/day under 28 U.S.C. § 1821(b)) plus the mileage fee ($[current mileage rate]/mile). Failure to tender fees may be grounds for the witness to decline to appear.

Advance Notice to Parties (Rule 45(a)(4)): Before serving a subpoena requiring production of documents, you must serve prior notice and a copy of the subpoena on each party. This allows parties to object or move to quash.

14-Day Objection Period: Served person may object in writing within 14 days of service, or before the compliance date if sooner. Written objections suspend the production obligation but do not excuse appearance for deposition unless a motion to quash is filed and granted.

Service: Personal delivery to the named person (or an authorized agent for a corporation). Cannot be served by mail for deposition testimony. Serve anywhere in the United States.

Duty to Avoid Undue Burden (Rule 45(d)(1)): The issuing attorney has an affirmative duty to avoid imposing undue burden or expense. Courts may sanction attorneys who violate this duty.

Drafting Worksheet — Subpoena Duces Tecum

Complete this worksheet, then transfer information to official AO 88A form with Exhibit A attached.

Section 1: Court Information

Court: United States District Court for the [________________________________] District of [________________________________]
Division: [________________________________]
Case Name: [________________________________] v. [________________________________]
Case Number: [____________________]

Section 2: Issuing Attorney Information

Issuing Attorney Name: [________________________________]
State Bar Number: [____]
Law Firm: [________________________________]
Address: [________________________________]
City, State, ZIP: [________________________________]
Phone: [________________________________]
Email: [________________________________]
Representing: ☐ Plaintiff ☐ Defendant ☐ Other: [____]
Party Represented: [________________________________]

Section 3: Non-Party Witness Information

Witness Name: [________________________________]
Type: ☐ Individual ☐ Corporation (designate Rule 30(b)(6) witness) ☐ LLC ☐ Partnership ☐ Government Entity
Registered Agent / Authorized Agent (for entities): [________________________________]
Address for Service: [________________________________]
City, State, ZIP: [________________________________]

If Rule 30(b)(6) organizational deponent:
☐ This subpoena commands [Organization Name] to designate one or more officers, directors, managing agents, or other consenting persons to testify on its behalf about the topics listed in Exhibit B attached hereto, pursuant to Fed. R. Civ. P. 30(b)(6).

(For non-party organizations, the subpoena should notify the organization of the Rule 30(b)(6) duty to confer in good faith per the 2020 amendment.)

Section 4: Deposition Details

Date of Deposition: [__/__/____]
Time: [____] a.m./p.m. [Time Zone: ____]
Location:
[________________________________]
[________________________________]
[________________________________]

(Must be within 100 miles of witness's residence, employment, or regular place of business — verify compliance before serving.)

Remote Deposition (if applicable):
☐ By stipulation of parties / ☐ By court order dated [__/__/____]
Platform: [________________________________]
Access Instructions: [________________________________]

Recording Method:
☐ Stenographic — before a certified court reporter
☐ Audiovisual (video) — by certified videographer
☐ Both stenographic and video
☐ Remote platform: [________________________________]

Court Reporter / Reporting Service:
[________________________________]
Contact: [________________________________] / Phone: [________________________________]

Videographer (if applicable):
[________________________________]

Section 5: Witness Fees Tendered (Required for Testimony Subpoenas)

Witness Fee: $[____] (daily rate at $40.00 per day pursuant to 28 U.S.C. § 1821(b))
Mileage Fee: $[____] ([____] miles x $[____]/mile per IRS federal mileage rate)
Total Tendered: $[____]
☐ Fees tendered with service ☐ Fees tendered separately on [__/__/____]

Section 6: Prior Notice to Parties Certification (Rule 45(a)(4))

Prior notice and a copy of this subpoena were served on all parties to the action on [__/__/____] by the following method:
☐ CM/ECF electronic filing
☐ Email to all counsel of record
☐ U.S. Mail
☐ Other: [________________________________]

Section 7: Definitions (Exhibit A — Document Schedule)

The following definitions apply to all document requests:

1. "Document" has the meaning in Fed. R. Civ. P. 34(a)(1), including writings, drawings, charts, photographs, recordings, and all electronically stored information of any kind.

2. "ESI" means any data stored in electronic form, including emails, text messages, instant messages, databases, spreadsheets, and all associated metadata.

3. "Communication" means any oral, written, or electronic transmission of information, regardless of medium or form.

4. "Concerning," "Relating to," or "Regarding" means directly or indirectly referring to, describing, evidencing, constituting, supporting, contradicting, or otherwise pertaining to.

5. "You" or "Your" means [Witness/Recipient Name] and all agents, employees, and representatives.

6. "[Plaintiff]" means [Plaintiff Full Name] and its agents, employees, and representatives.

7. "[Defendant]" means [Defendant Full Name] and its agents, employees, and representatives.

8. "Relevant Period" means [__/__/____] through [__/__/____] unless otherwise specified.

9. "Agreement" means [describe the specific agreement or transaction at issue].

Section 8: Documents to Be Produced (Exhibit A)

Witness is commanded to produce the following documents at the deposition or in advance as specified below.

Production Date:
☐ At the deposition on [__/__/____]
☐ In advance: no later than [__/__/____] (at least [____] days before the deposition)
☐ Via [secure upload / email / mail] to: [________________________________]

REQUEST NO. 1: All Documents and Communications between You and [Plaintiff / Defendant / [Party Name]] concerning [describe the core subject matter of the litigation] from [__/__/____] through [__/__/____].

REQUEST NO. 2: All Documents concerning the Agreement, including all drafts, executed copies, amendments, extensions, and correspondence relating to the formation, performance, or alleged breach of the Agreement.

REQUEST NO. 3: All emails and attachments sent to or from the following persons or email addresses concerning [the subject matter of this litigation]:

• [________________________________]
• [________________________________]
• [________________________________]

REQUEST NO. 4: All financial records, invoices, purchase orders, payment records, or accounting records reflecting any transactions between You and [Party Name] from [__/__/____] through [__/__/____].

REQUEST NO. 5: All notes, memoranda, or records of meetings, calls, or conversations You participated in with [Party Name / Third Party] concerning [________________________________].

REQUEST NO. 6: All reports, analyses, studies, assessments, or opinions prepared by You or on Your behalf concerning [________________________________].

REQUEST NO. 7: All Documents You reviewed or relied upon in preparing to testify at this deposition or that support Your anticipated testimony.

REQUEST NO. 8: All agreements, contracts, or arrangements between You and any party to this litigation or any third party concerning [________________________________].

REQUEST NO. 9: All Documents concerning Your knowledge of or involvement in [describe the incident, transaction, or event at issue].

REQUEST NO. 10: All photographs, videos, recordings, or physical evidence in Your possession relating to [________________________________].

REQUEST NO. 11: [________________________________]

REQUEST NO. 12: [________________________________]

(Add additional requests as needed. Ensure requests are proportional to the needs of the case and impose no undue burden on the non-party under Rule 45(d)(1).)

Section 9: ESI Production Format

Produce ESI in the following format:
☐ Native format with all metadata intact
☐ Text-searchable PDF
☐ Single-page TIFF with load files (Bates numbered with OCR text and metadata)
☐ As maintained in ordinary course of business
☐ As agreed: [________________________________]

Section 10: Rule 30(b)(6) Examination Topics (Exhibit B — for Organizational Witnesses)

Complete only if witness is a corporation or other organization commanded to designate a Rule 30(b)(6) witness.

Pursuant to Fed. R. Civ. P. 30(b)(6), [Organization Name] is commanded to designate one or more persons to testify on its behalf about information known or reasonably available to the organization regarding the following topics:

TOPIC NO. 1: [Describe examination topic with reasonable particularity — e.g., "The corporate structure and ownership of [Organization], including all officers, directors, and persons with authority over [subject matter], from [date] through the present."]

TOPIC NO. 2: [Describe examination topic — e.g., "All facts and circumstances relating to [Organization]'s communications with [Party Name] concerning [subject matter] from [date] through [date]."]

TOPIC NO. 3: [Describe examination topic — e.g., "The identity, contents, and location of all Documents maintained by [Organization] responsive to the Document Requests in Exhibit A."]

TOPIC NO. 4: [________________________________]

TOPIC NO. 5: [________________________________]

Good Faith Meet and Confer (Rule 30(b)(6) 2020 Amendment): Pursuant to the 2020 amendment to Rule 30(b)(6), the issuing party is prepared to confer in good faith with [Organization Name] about these examination topics. Please contact [Attorney Name] at [________________________________] within [____] days of service of this subpoena to schedule a conference.

Section 11: Recipient's Rights and Obligations

The recipient of this subpoena is advised:

1. Objections (Rule 45(d)(2)): You may serve written objections to the document requests within 14 days of service of this subpoena. Written objections must be served on the issuing attorney. Written objections to documents do not relieve you of the obligation to appear and testify unless you file and obtain a successful motion to quash.

2. Motion to Quash (Rule 45(d)(3)): You may move the issuing court to quash or modify this subpoena if it: (a) does not allow reasonable compliance time; (b) requires compliance at a location more than 100 miles away; (c) requires disclosure of privileged information; or (d) subjects you to undue burden.

3. Privilege Log (Rule 45(e)(2)): If you withhold any documents on grounds of privilege, you must provide a privilege log identifying each document by date, type, author, recipient, subject matter, and privilege claimed.

4. Cost Reimbursement: If compliance will impose significant expense, you may seek an order from the court requiring the issuing party to pay reasonable compliance costs under Rule 45(d)(2)(B)(ii).

5. Non-Compliance / Contempt (Rule 45(g)): Failure to comply with a valid subpoena without adequate justification may subject you to contempt of court.

6. Undue Burden: Contact the issuing attorney immediately if you believe compliance would impose undue burden or expense; the issuing attorney has a duty under Rule 45(d)(1) to take reasonable steps to avoid imposing undue burden.

Proof of Service

I declare under penalty of perjury that I personally served the attached subpoena, Exhibit A (Document Schedule), and Exhibit B (Examination Topics, if applicable) on the witness named below, together with the required witness fee and mileage allowance:

Witness Served: [________________________________]
Date of Service: [__/__/____]
Time: [____] a.m./p.m.
Location of Service: [________________________________]
Person Served (if entity): [________________________________], [Title: ________________________________]
Witness Fees Tendered: $[____] (daily fee: $[____] + mileage: $[____])

[________________________________]
Server's Signature

[________________________________]
Server's Name (Print)

[________________________________]
Server's Address

Date: [__/__/____]

Attorney Signature Block

[________________________________]
[Attorney Name]
[Bar Number: ____]
[Law Firm: ________________________________]
[Address: ________________________________]
[City, State, ZIP: ________________________________]
[Phone: ________________________________]
[Email: ________________________________]

Issued as an officer of the court pursuant to Fed. R. Civ. P. 45(a)(3)
Date: [__/__/____]

Certificate of Prior Notice to Parties

I hereby certify that before serving this subpoena on [Witness Name], I served prior notice and a copy of the subpoena on all parties to the action on [__/__/____] by the following method:
☐ CM/ECF electronic filing (automatic service on registered counsel)
☐ Email to all counsel of record:

• [Attorney Name], [Law Firm], Counsel for [________________________________]
• [Attorney Name], [Law Firm], Counsel for [________________________________]
  ☐ U.S. Mail
  ☐ Other: [________________________________]

[________________________________]
[Attorney Name]
Date: [__/__/____]

Sources and References

• Fed. R. Civ. P. 45 – LII/Legal Information Institute
• Official AO 88A Form – uscourts.gov (Rev. 12/20)
• Official AO 88B Form – uscourts.gov
• 2024 Federal Rules of Civil Procedure – Rule 45
• Venio Systems: FRCP Rule 45 Reference Guide
• Potter Anderson: Third-Party Subpoenas in Federal Court
• 28 U.S.C. § 1821 – Witness Fees