Resources · Subpoenas
Witness Fees: California vs. Federal, Appearance vs. Records
If you forget the witness fee — or tender the wrong amount — the witness doesn't have to show up. Here's a plain-English breakdown of what to pay, when to pay it, and how California and federal rules diverge.
A subpoena commands a person or business to do something — appear and testify, produce documents, or both. The party that issues the subpoena generally has to put money in the witness's hand at the time of service. That money is called the witness fee, and the rules for what counts depend on (a) which court system you're in, and (b) what the subpoena actually demands.
California State Court
California: appearance vs. records
Personal appearance subpoenas
Governed by California Government Code § 68093. A subpoenaed witness who actually attends is entitled to:
- $35 per day of attendance, and
- $0.20 per mile, both ways, for travel to and from the place of attendance.
The fee and mileage must be tendered at the time the subpoena is served if the witness demands it (Code of Civil Procedure § 1986.5). Most practitioners simply tender the fee with service to avoid the issue entirely.
Peace officers and other public employees subpoenaed for testimony about events within the scope of their duties are handled under Government Code §§ 68097.1–68097.2, which require an estimated deposit (often $275 or more) paid to the public entity in advance — not to the individual employee. Check the local rule for the agency.
Subpoenas for production of business records (records-only)
California Evidence Code § 1563 sets two distinct fee paths depending on how the custodian actually produces the records. Picking the right one matters — the commonly quoted "flat $15" only covers one of them.
Path 1 — On-site inspection or photocopying (§ 1563(b)(6))
If the custodian makes the records available for inspection or photocopying at the witness's place of business, the total witness fee is capped at $15, plus the actual cost paid to a third party for retrieving records the custodian had stored offsite. Important caveat: this $15 cap does not apply when the records are produced from microfilm.
Path 2 — Custodian copies and mails records in (§ 1563(b)(1))
The more common deposition-subpoena-for-records route — custodian copies the records and mails them in with a sworn declaration — is not subject to the $15 cap. Instead, the custodian may recover reasonable costs, which the statute defines as:
- $0.10 per page for standard documents (no larger than 8.5 × 14)
- $0.20 per page for copies produced from microfilm
- Clerical time at up to $24 per hour
- Actual postage charges
- Actual third-party offsite-retrieval costs
For consumer or employee records, you must also serve the consumer (or employee) with a Notice to Consumer and Proof of Service before the records custodian is permitted to produce — see CCP §§ 1985.3 and 1985.6.
In practice: under Path 1 you can pre-tender the $15. Under Path 2 the custodian typically invoices reasonable costs after production rather than collecting a fixed fee at service.
Federal Court
Federal: one statute, two rule sets
Appearance subpoenas (FRCP 45)
28 U.S.C. § 1821 sets witness fees in federal civil and criminal proceedings. A witness commanded to attend a deposition, hearing, or trial is entitled to:
- $40 per day of attendance,
- Mileage at the GSA POV rate in effect on the date of travel (updated annually — check gsa.gov), and
- Reasonable subsistence (lodging and meals) when an overnight stay away from home is required, at the GSA per diem for the location.
Under Fed. R. Civ. P. 45(b)(1), service is only effective if fees for one day's attendance and mileage are tendered with the subpoena. The only exception: when the United States, its officer, or its agency serves the subpoena.
Records-only subpoenas duces tecum
Federal courts are split on whether a Rule 45 subpoena commanding the production of documents only (no personal appearance) requires tender of the § 1821 attendance fee. The majority view in many districts is that no attendance fee is required for a records-only production, but reasonable costs of compliance can be shifted to the issuing party under Rule 45(d)(2)(B)(ii).
Practice tip: when in doubt, tender the $40 plus a mileage estimate. The cost is trivial compared to a motion to quash for defective service.
At-a-glance
Quick reference
| Subpoena type | California | Federal |
|---|---|---|
| Personal appearance | $35/day + $0.20/mile both ways (Gov. Code § 68093) | $40/day + GSA mileage (28 U.S.C. § 1821) |
| Records production only | $15 cap if records delivered for on-site inspection/copying (§ 1563(b)(6), not for microfilm); otherwise reasonable costs apply when the custodian copies and mails records — $0.10/page ($0.20/page microfilm), clerical up to $24/hr, postage, and offsite retrieval (§ 1563(b)(1)) | No attendance fee in most districts; reasonable costs shiftable under FRCP 45(d)(2)(B)(ii) |
| When tendered | At service if demanded (CCP § 1986.5) | With service (FRCP 45(b)(1)) — required |
| Form of payment | Cash or check, attached to copy served | Cash or check, attached to copy served |
Statutory amounts and rules current as of publication; verify before relying on them.
Common mistakes
What gets service blown
- Forgetting tender entirely. A federal Rule 45 subpoena served without the day's attendance fee and mileage is defective on its face.
- Tendering the appearance fee on a records subpoena. California records-only subpoenas are governed by Evidence Code § 1563, not § 68093 — and § 1563 itself has two paths: a $15 cap for on-site inspection/copying (§ 1563(b)(6)), or reasonable per-page, clerical, and postage costs when the custodian copies and mails records in (§ 1563(b)(1)). Don't conflate the two.
- Skipping the consumer notice. CCP § 1985.3 / § 1985.6 require advance notice and proof of service on the consumer before records can be produced.
- Using last year's GSA mileage rate. Federal mileage updates annually — check before serving.