Tennessee subpoenas: twenty-one days, and silence waives everything but your costs

Most states give a subpoena recipient ten or fourteen days and treat a missed objection as a problem to be argued about later. Tennessee gives three weeks and then closes the door.

Twenty-one days, and what happens if you miss them

Rule 45.07(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 non-party witness subject to the subpoena and shall provide the non-party witness at least twenty-one (21) days after service of the subpoena to respond, absent agreement of the non-party witness or a court order.

Twenty-one days is a floor on the issuing party, not merely a window for the recipient. A Tennessee subpoena that demands production in ten days is non-compliant unless the witness has agreed or the court has ordered otherwise.

The objection runs on the same clock, and Rule 45.07(2) requires it to be served "within twenty-one days after the subpoena is served."

What it buys is immediate:

The timely service of an objection obviates the need for compliance with the deposition subpoena pending further order of the court.

And what happens without it is unusually stark:

The failure to serve an objection within the time period specified herein waives all objections to the subpoena except the right to seek the reasonable costs for the producing books, papers, documents, electronically stored information, or tangible things.

All objections waived — burden, scope, relevance, and the rest — with one survivor: the right to be paid the reasonable costs of production.

Twenty-one days is generous, but the price of using them badly is high. A non-party who intends to raise anything should serve something inside the window even if the detail follows.

A records-only subpoena carries its own oath

Rule 45.02 lets a subpoena command production without an appearance, and then attaches a requirement that most states leave to a separate affidavit:

When appearance is not required, such a subpoena shall also require the person to whom it is directed to swear or affirm that the books, papers, documents, electronically stored information, or tangible things are authentic to the best of that person's knowledge, information, and belief and to state whether or not all books, papers, documents, electronically stored information or tangible things responsive to the subpoena have been produced for copying, inspection, testing, or sampling.

Two sworn statements: authenticity to the best of the person's knowledge, information and belief, and completeness — whether everything responsive has been produced.

The completeness statement is the more useful of the two in practice. It converts "here is what we found" into a sworn answer about whether anything is missing, which is difficult to walk back later.

For the issuing party, this means a records subpoena should be drafted to require the oath, because the rule makes it part of the command. For the recipient, it means production is not a purely administrative act.

Everything produced is shared

The same rule makes the results common property:

Copies of the subpoena must be served pursuant to Rule 5 on all parties, and all material produced must be made available for inspection, copying, testing or sampling by all parties.

Two obligations. The subpoena goes to every party when it is issued, and whatever comes back is available to everyone — not merely reported, but made available for inspection and copying.

There is no side channel in Tennessee practice. A party that subpoenas records is obtaining them for the case, not for itself.

Paper or electronic, with a ten-day payment rule

Rule 45.09 addresses issuance in a way few states do:

For purposes of issuance of any subpoena under Rule 45, the clerk of the court in which the action is pending may issue the subpoena in either written paper or electronic form.

The fee for the electronic route has its own deadline:

Payment for the issuance of an electronic subpoena shall be received by the trial court clerk not later than 10 calendar days after the issuance of the electronic subpoena and shall be paid by the party requesting said electronic issuance, subject to the following exception

And the exception is a fairness provision worth knowing:

If the requesting party is either a party who has been allowed to proceed on a pauper's oath or an attorney for such a party, then payment of the fee shall be taxed as a court cost.

So a party proceeding on a pauper's oath is not shut out of electronic issuance; the fee follows the case as a cost.

Who issues, and how it is served

Rule 45.01 keeps issuance with the clerk: "Every subpoena shall be issued by the clerk, shall state the name of the court and the title of the action, and [shall] command each person to whom it is directed to attend and give testimony at the time and place and for the party therein specified." The clerk issues one "signed but otherwise in blank, to a party requesting it, who shall fill it in before service."

Service is flexible at both ends:

A subpoena may be served by any person authorized to serve process, or the witness may acknowledge service in writing on the subpoena.

Service of the subpoena shall be made by delivering or offering to deliver a copy thereof to the person to whom it is directed.

Offering to deliver counts. A witness who refuses to take the paper has still been served, which removes the usual argument about a document left on a doorstep or pushed away at a door.

For hearings and trials, Rule 45.05(1) provides that subpoenas "shall be issued by the clerk of the court in which the action is pending, and such a subpoena may be served at any place within the state."

Compelling personal attendance instead of a deposition

Rule 45.05(2) gives a party a route to insist on live testimony:

Upon the affidavit of a party or the party's attorney that the testimony of a witness is important, and that the just and proper effect of the testimony cannot in a reasonable degree be obtained without an oral examination in court, the court may, in its discretion, order the personal attendance of the witness.

Two things must be sworn to: that the testimony is important, and that its "just and proper effect" cannot reasonably be obtained without oral examination in court. It is a discretionary order, so the affidavit should say why a transcript or a deposition would not do.

What the court can do about an objection

Once an objection is served, Rule 45.07(3) leaves the next move with the issuing party: "At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling testimony, production or inspection."

The court's options under Rule 45.07(4) pair a high standard with a cost alternative:

The Court may: (1) grant the motion to compel testimony or production or inspection, or modify the subpoena if it is unreasonable and oppressive; or (2) condition the grant of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable costs of producing the books, papers, documents, electronically stored information, or tangible things.

"Unreasonable and oppressive" — both, which is a demanding standard. Option (2) is therefore the realistic request for a non-party facing a large production: not that the subpoena falls, but that the costs are advanced.

Whatever the court orders, the protection continues:

An order of the court requiring compliance with a subpoena issued under this rule must provide protection to a person that is neither a party nor a party's officer from undue burden or expense resulting from compliance.

Read that with the waiver provision above. Even a non-party who missed the objection window keeps the costs point, and this sentence is what backs it.

There is a specific duty for electronic material: "A party serving a subpoena requiring production of electronically stored information shall take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena."

Responding, and inaccessible material

Rule 45.08 carries the ordinary production duties, including that "A person responding to a subpoena need not produce the same electronically stored information in more than one form."

Where sources are said to be inaccessible, the burden of showing it sits with the responding person: "On motion to compel discovery or to quash, the person from whom discovery is sought must show that the information sought is not reasonably accessible because of undue burden or cost."

And where privileged material goes out by mistake, the receiving party's duties include retrieval: "If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it."

A short checklist

If you are issuing one:

1. Give the non-party at least 21 days unless they agree or the court orders otherwise.
2. Require the oath on a records-only subpoena — authenticity and completeness.
3. Serve copies on all parties, and make everything produced available to all of them.
4. Use the affidavit route if you need the witness in person rather than by deposition.
5. Pay the electronic issuance fee within 10 days, or have it taxed as a cost if you are on a pauper's oath.
6. Expect to advance production costs rather than have the subpoena quashed.

If you have been served:

1. Object within 21 days. Missing it waives everything except your costs.
2. Serving the objection suspends compliance until the court says otherwise.
3. Take the oath seriously — you are swearing to completeness as well as authenticity.
4. Ask for your reasonable costs in any event; that right survives even a missed objection.

Where these rules live

• Tenn. R. Civ. P. 45 — Subpoena
• Tennessee depositions
• Tennessee discovery deadlines
• Tennessee motion to compel discovery
• Responding to a Tennessee complaint

This page explains what the rules say. It isn't legal advice, and the witness fee statutes are not carried on this site.