Indiana subpoenas: you can serve it yourself, but then you cannot charge for it

Indiana's subpoena rule is generous about who may hand the document over and strict about who pays for it. The two provisions sit a few lines apart and are best read together before deciding how to serve.

A party may serve it — and that choice has a price

Trial Rule 45(B) allows service by almost anyone:

A subpoena may be served by the sheriff or his deputy, a party or any person.

A party. Not a disinterested adult, not a professional server — the litigant. Indiana is unusual in permitting that, and for a self-represented party it removes a real obstacle.

Service may be made "in the same manner as provided in Rule 4.1, Rule 4.16 and Rule 5(B)," so the process methods are available. Where the sheriff serves, "his return shall be proof of service."

Then the cost provision, at the end of the same subsection:

No fees or costs for the service of a subpoena shall be collected or charged as costs except when service is made by the sheriff or his deputy.

So the choice is a trade. Serve it yourself or through a private server and the cost is yours to absorb; use the sheriff and it is recoverable as costs. In a case with many witnesses that adds up, and it is worth deciding deliberately rather than by habit.

Forty miles for a non-resident

Trial Rule 45(C)(2) sets the attendance limits, and the figure for out-of-state witnesses is lower than most states use:

An individual may be required to attend an examination only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of court. A nonresident of the state may be required to attend only in the state and county wherein he is served with a subpoena, or within forty [40] miles from the place of service, or at such other convenient place as is fixed by an order of court.

Residents are tied to a county — where they live, work, or transact business in person. Non-residents get a forty-mile radius from the place of service, or the county of service.

There is a separate rule for one category of litigant:

A nonresident plaintiff may be required to attend at his own expense an examination in the county of this state where the action is commenced or in a county fixed by the court.

A plaintiff who has chosen an Indiana forum from out of state can be brought to that county — and pays their own way there.

Tender, and the people you need not pay

Trial Rule 45(B) requires the fee where the witness is being taken out of their home county:

Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person who shall be required to attend outside his county of residence as provided in section (C), and by so tendering to him the fees for one [1] day's attendance and the mileage allowed by law.

And then names the exceptions:

Such tender shall not be required to be made to a party who is subpoenaed or to an officer, employee, agent or representative of a party which is an organization, including the estate or any governmental organization, who is being examined upon any matter connected in any way with his employment.

Two exempt categories: a party, and a person connected to an organizational party who is being examined on anything connected with their employment. The second is broad — "connected in any way with his employment" — and covers most examinations of a company's own people.

The tender matters at the enforcement stage. Trial Rule 45(E):

The attendance of all witnesses when duly subpoenaed, and to whom fees have been paid or tendered as required by law may be enforced by attachment.

Attachment is available only where the fees were paid or tendered as required. A subpoena served without the fee where the fee was due is not one the court will enforce by that route.

Who issues it, and for which court

Trial Rule 45(A)(2) puts the clerk first: "The clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it or his or her attorney, who shall fill it in before service."

The attorney route has two branches, and the second is broader than most states allow:

An attorney admitted to practice law in this state, as an officer of the court, may also issue and sign such subpoena on behalf of (a) a court in which the attorney has appeared for a party; or (b) a court in which a deposition or production is compelled by the subpoena, if the deposition or production pertains to an action pending in a court where the attorney has appeared for a party in that case.

Branch (b) matters where the witness is in a different county from the case. Counsel can issue on behalf of the court where the deposition or production will happen, without appearing there.

The same structure appears in Trial Rule 45(D) for hearing and trial subpoenas: the clerk of the county where the action is pending issues them, or for a deposition, the clerk of the county where the deposition is to be taken.

On contents, Trial Rule 45(A)(1) contains a small drafting convenience: the subpoena must state the title of the action "without naming more than the first named plaintiffs and defendants in the complaint and the case number." In a multi-party case, the caption can be short.

The deposition notice authorizes the subpoena

Trial Rule 45(C)(1):

Proof of service of a notice to take a deposition as provided in Rules 30(B) and 31(A) constitutes a sufficient authorization for the issuance by the clerk of court for the county in which the deposition is to be taken of subpoenas for the persons named or described therein.

No separate application. And the subpoena may go further than attendance: it "may command the person to whom it is directed to produce designated books, papers, documents, or tangible things which constitute or contain matters within the scope of the examination permitted by Rule 26(B)."

Reaching outside the state

Trial Rule 45(D) allows statewide service and contemplates more:

A subpoena may be served at any place within the state; and when permitted by the laws of the United States, this or another state or foreign country, the court upon proper application and cause shown may authorize the service of a subpoena outside the state in accordance with and as permitted by such law.

Two conditions: the other jurisdiction's law must permit it, and the Indiana court must authorize it "upon proper application and cause shown." The service itself then follows the law of the place where it is made.

Contempt in either county

Trial Rule 45(F):

Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued, or court of the county where the witness was required thereunder to appear or act.

Two available forums. Where a subpoena issued from the clerk of the deposition county — as Rule 45(C)(1) permits — that county's court can deal with disobedience without the matter going back to the court hearing the case.

A short checklist

If you are issuing one:

1. Decide who serves it deliberately. Only sheriff service can be charged as costs.
2. Tender the fee where the witness must attend outside their county of residence.
3. Do not tender to a party, or to an organizational party's people being examined about their employment.
4. Use the county clerk where the deposition will be taken if that is more convenient than the trial court.
5. Keep the caption short — the rule permits naming only the first plaintiffs and defendants.
6. Apply to the court before attempting service outside Indiana.

If you have been served:

1. Check the distance. Residents attend in their own county; non-residents within forty miles of where they were served.
2. Check whether fees were tendered if you are being taken outside your county — attachment requires it.
3. A party or an organization's employee should not expect a fee for examination about their own employment.
4. Contempt can be raised in your county, not only in the court hearing the case.

Where these rules live

• Ind. Trial Rule 45 — Subpoena
• Indiana discovery deadlines
• Indiana motion to compel discovery
• Responding to an Indiana complaint
• Indiana TROs and injunctions

This page explains what the rules say. It isn't legal advice, and the witness fee statutes referred to in Trial Rule 45(B) are not carried on this site.