NRCP and FRCP 45 both concern the use of subpoenas. Subpoenas are used to obtain documents from non-parties and secure their attendance at depositions. Several of the CLE handouts on this site have noted a continuing problem of proper service subpoenas.
One of these common problems arose in Aevoe Corp. v. AE Tech Co., 2013 U.S. Dist. LEXIS 124593 (D. Nev. Aug. 30, 2013). Plaintiff served a subpoena upon a non-party to secure a 30(b)(6) deposition. The non-party objected because the subpoena “failed to properly tender the fees required by Rule 45(b)(1) at the time it served the subpoena.” “Plaintiff then responded by providing the proof of service and receipt of copy regarding the witness fee.” The non-party still moved to quash.
The threshold issue before the Court is whether Plaintiff’s subpoena is invalid. Where a party subpoenas a non-party to appear, the rules require the party to tender fees for the attendance and for mileage. Rule 45(b)(1). The Ninth Circuit has long made clear that Rule 45 requires that the payment be tendered simultaneously with the delivery of the subpoena. See CF & I Steel Corp. v. Mitsui & Co., 713 F.2d 494, 496 (9th Cir. 1983) (“we hold that the plain meaning of Rule 45(c) requires simultaneous tendering of witness fees and the reasonably estimated mileage allowed by law with service of a subpoena”); Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 1989) (“Fees must be tendered concurrently with the subpoena”); see also In re Stratosphere Corp. Sec. Litig., 183 F.R.D. 684, 687 (D. Nev. 1999). “A failure to tender fees at the time of service invalidates the subpoena and the deposition testimony will not be compelled.” Wallis v. Centennial Ins. Co., 2013 U.S. Dist. Lexis 14181, *10 (E.D. Cal. Feb. 1, 2013). The invalidity of the subpoena is not altered by the fact that a party realizes its mistake and tenders the fees prior to the scheduled deposition. See CF & I Steel, 713 F.2d at 495 (recognizing that fees were tendered two months prior to the scheduled deposition); Wallis, 2013 U.S. Dist. Lexis 14181, at *10 (recognizing fees were tendered as soon as counsel became aware of issue); Tourgeman v. Collins Fin. Servs., 2009 U.S. Dist. Lexis 92230, *3-4 (S.D. Cal. May 4, 2009) (recognizing fees were “promptly tendered” upon notice of deficiency).