You got a federal subpoena: the 14-day objection window, where you have to comply, and when to move to quash

Rule 45 treats a subpoena for documents and a subpoena for testimony as two different problems with two different escape routes. Confusing them is the most common way a nonparty loses ground.

First: what does the subpoena command?

Rule 45(a)(1)(A)(iii) lists three commands a subpoena can make — attend and testify; produce designated documents, electronically stored information or tangible things in the person's possession, custody or control; or permit inspection of premises. One subpoena can combine them.

Which one you got decides which mechanism applies. The written-objection route in Rule 45(d)(2)(B) is available only for a command to produce or permit inspection. A command to testify has no written-objection mechanism — the response is a motion.

Rule 45(d)(2)(A) states a consequence that surprises people: a person commanded to produce documents 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." A document subpoena is not, by itself, a command to show up anywhere.

The 14-day objection deadline

For a document or inspection subpoena, Rule 45(d)(2)(B):

The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.

The earlier of. A subpoena served on the 1st with a compliance date of the 30th has an objection deadline of the 15th, not the 30th. A subpoena with a compliance date of the 8th has an objection deadline of the 8th.

The objection is served on the party or attorney designated in the subpoena — it isn't filed with a court, and it doesn't require a motion. It may object 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 requested.

Once an objection is served, the burden shifts. Rule 45(d)(2)(B)(i): the serving party may move the court for the district where compliance is required for an order compelling production, on notice to the commanded person. Until such an order issues, the objection suspends the obligation to produce the objected-to material.

And Rule 45(d)(2)(B)(ii) carries a protection for nonparties: an order compelling production "must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance."

Where you have to comply — the 100-mile rule

Rule 45(c) is a geographic limit, and it is not a suggestion.

For a trial, hearing or deposition, 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 is commanded to attend a trial and would not incur substantial expense.

For other discovery, a subpoena may command production of documents, ESI or tangible things at a place within 100 miles of where the person resides, is employed or regularly transacts business in person — and inspection of premises at the premises to be inspected.

Two courts matter under Rule 45 and they are often different. The subpoena must issue from the court where the action is pending (Rule 45(a)(2)). But motions to compel, to quash, and for protection go to the court for the district where compliance is required. A witness in Denver subpoenaed in a case pending in Manhattan deals with the District of Colorado.

Moving to quash or modify

Rule 45(d)(3)(A) lists four grounds where, on timely motion, the compliance court must quash or modify a subpoena that:

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

Rule 45(d)(3)(B) lists two more where the court may quash or modify, to protect a person subject to or affected by the subpoena — disclosure of a trade secret or other confidential research, development or commercial information; and disclosure of an unretained expert's opinion or information that doesn't describe specific occurrences in dispute and results from study not requested by a party.

In those discretionary situations, Rule 45(d)(3)(C) lets the court specify conditions as an alternative to quashing, where the serving party shows a substantial need that can't be otherwise met without undue hardship and ensures the subpoenaed person will be reasonably compensated.

"Timely motion" is the only deadline the rule gives for quashing. It is not the 14-day objection window — that window belongs to the written-objection route — but a motion filed after the compliance date has passed is a harder motion.

The duty the issuing side owes you

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 compliance court "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."

That is a mandatory-enforcement provision, and it is one of the few places in the rules where a nonparty has an affirmative remedy rather than just a defense.

Formal defects worth checking

Rule 45(a)(1)(A) requires every subpoena to state the issuing court, state the title of the action and its civil-action number, command the specified acts at a specified time and place, and set out the text of Rule 45(d) and (e). A subpoena that omits the text of those subdivisions doesn't comply with the rule.

Rule 45(a)(1)(B): a subpoena commanding attendance at a deposition must state the method for recording the testimony.

Rule 45(a)(4) — notice before service: if the subpoena commands pretrial production or inspection, then before it is served on the recipient, a notice and a copy must be served on each party. That sequence gives other parties a chance to object first.

Rule 45(b)(1): service requires delivering a copy to the named person and, if attendance is required, tendering the fees for one 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 its officers or agencies. Any person at least 18 years old and not a party may serve it, and Rule 45(b)(2) allows service anywhere in the United States.

Privilege

Rule 45(e)(2)(A) requires a person withholding subpoenaed information under a claim of privilege or work-product protection to expressly make the claim and to describe the nature of the withheld documents, communications or tangible things in a way that — without revealing the protected information — will enable the parties to assess the claim.

Rule 45(e)(2)(B) supplies the clawback procedure for information already produced: the receiving party must promptly return, sequester or destroy the specified information and any copies, must not use or disclose it until the claim is resolved, must take reasonable steps to retrieve it if already disclosed, and may promptly present the information to the compliance court under seal for a determination.

Producing

Rule 45(e)(1)(A): documents must be produced as they are kept in the ordinary course of business, or organized and labeled to correspond to the categories in the demand.

Rule 45(e)(1)(B): if the subpoena doesn't specify a form for electronically stored information, it must be produced in the form in which it is ordinarily maintained or in a reasonably usable form. Rule 45(e)(1)(C): the person need not produce the same ESI in more than one form. Rule 45(e)(1)(D): a person need not provide discovery of ESI from sources identified as not reasonably accessible because of undue burden or cost, subject to the showing and cost-shifting the rule describes.

Ignoring it

Rule 45(g): the court for the district where compliance is required — and also, after a 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.

That is the reason the objection route matters. Serving a written objection within the window is the low-cost way to stop the clock; doing nothing is not.

Where these rules live

• Rule 26 — Duty to Disclose; General Provisions Governing Discovery
• Rule 37 — Failure to Make Disclosures or to Cooperate in Discovery
• Rule 45 — Subpoena

Witness-fee amounts are set by statute (28 U.S.C. § 1821), and the district where compliance is required may have local rules about how motions under Rule 45 are presented. This page explains what the rules say. It isn't legal advice.