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Federal Rule 45(b)(1) requires witness-fee tender at the time of subpoena service. Current amounts under 28 U.S.C. § 1821, how tender works, exemptions, state variations, and UIDDA interaction.
Witness fees are the cash tender that accompanies a federal subpoena and makes it enforceable. Without the fee, the subpoena is paper. With it, the witness is legally obligated to appear. This guide covers the federal witness fee structure under 28 U.S.C. § 1821, how mileage is calculated, how proper tender protects your subpoena, and where state rules diverge from federal practice.
Federal witness fee essentials:
The foundational statute is 28 U.S.C. § 1821, titled "Per diem and mileage generally; subsistence." Subsection (b) establishes the $40 per day attendance fee, a number that has not changed since Congress set it in 1991. The statute also provides for:
Fed. R. Civ. P. 45(b)(1) is the operative service rule. It reads, in relevant part, that serving a subpoena requires delivering a copy of it "and, if the subpoena requires that person's attendance, tendering the fees for 1 day's attendance and the mileage allowed by law." Two key points:
Failure to tender means the witness is not required to comply, and a motion to quash on this ground is routinely granted.
Mileage is computed from the witness's residence to the place of attendance by the shortest practical route. The applicable rate is the GSA privately owned vehicle rate, which is updated periodically — check the General Services Administration's current schedule before calculating. Round-trip mileage is reimbursed for each day of attendance.
For long-distance witnesses who must travel by air, actual reasonable travel costs may be reimbursed in lieu of mileage under § 1821(c)(1), though the witness usually bears the upfront cost and submits for reimbursement later.
The party issuing the subpoena pays the witness fee and tender. Later, if the issuing party prevails on the underlying claim, witness fees may be recoverable as taxable costs under 28 U.S.C. § 1920(3). But the up-front obligation rests with the issuing party — the witness does not have to chase payment.
Every state sets its own witness fee schedule. Selected examples:
For a comprehensive state-by-state breakdown, see our subpoena witness fee guide.
Federal practice and most states accept tender in cash, certified check, or money order. Some jurisdictions accept a personal or law firm check. Digital payment (Venmo, Zelle) is generally not accepted — the tender must be a negotiable instrument the witness can convert to cash on the spot.
Practical tip: many process servers carry money orders pre-filled for anticipated amounts. If the witness is uncooperative, the server can still document that proper tender was offered and refused, which preserves the enforceability of the subpoena.
The affidavit of service must document the tender: amount, form (cash, check, money order), and any refusal by the witness. A properly documented tender is the bulwark that defeats later attacks on the subpoena's enforceability.
Yes. Congress has not updated 28 U.S.C. § 1821(b) despite decades of calls to adjust for inflation. Proposals have circulated in Congress but none have passed as of this writing.
Yes, a witness may waive the fee — but the waiver must be voluntary and unambiguous, and most attorneys still tender to eliminate doubt about enforceability. Friendly witnesses sometimes waive; hostile witnesses should always receive tender.
Writs of habeas corpus ad testificandum are used to produce incarcerated witnesses in federal court. Standard § 1821 tender rules generally do not apply to inmates being produced by writ, but always confirm with the governing court's local rules.
Federal grand jury witnesses are compensated under § 1821 on the same terms as trial witnesses. State grand jury practice varies.
We calculate the proper tender amount for every subpoena we serve — federal or state — and coordinate pre-loaded money orders for your review. Our affidavits document tender amount, form, and any refusal, ensuring the subpoena remains enforceable even if the witness later claims defective service. For interstate subpoenas, we handle the full domestication process under the UIDDA before service.
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