Federal subpoena Form AO 88 is the standard document used to compel a witness to appear and give live testimony at a civil trial or hearing in United States District Court. It is issued under Federal Rule of Civil Procedure 45 and can be signed either by the Clerk of Court or by any attorney licensed to practice in the issuing district.1Office of the Law Revision Counsel. Federal Rules of Civil Procedure Rule 45 – Subpoena Getting the form and the service right matters, because a defective subpoena gives the witness grounds to ignore it.
Before you download anything, confirm you actually need AO 88. It covers only live testimony at a trial or hearing. If the testimony is for a deposition during discovery, the correct form is AO 88A. If you want documents, electronically stored information, or inspection of premises, use AO 88B.2United States Courts. Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action All three are available on the United States Courts website under civil case forms.
What Goes on the Form
The form is short, but every field needs to be accurate. Mistakes in the caption or the witness’s identifying information are the easiest openings for a motion to quash.
- Court and case caption. Enter the full name of the United States District Court and the district where the case is pending. Below that, fill in the plaintiff’s name, the defendant’s name, and the civil action number the court assigned.
- Witness identification. Write the witness’s full legal name and current residential or business address so the process server can find them.
- Testimony details. Specify the exact place of testimony (courthouse address and, if you have it, the courtroom), along with the date and time the witness must appear.
Use the official PDF from the courts website. It already prints excerpts of Rule 45(c), (d), (e), and (g) on the form, which are the witness protections and duties every subpoena must include.2United States Courts. Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action If you retype or modify the form and drop those provisions, the subpoena is deficient and the witness can challenge it on that basis alone.3Legal Information Institute. Rule 45 – Subpoena
Who Signs It
Rule 45 recognizes two issuers. An attorney authorized to practice in the issuing court can sign and issue the subpoena directly as an officer of that court. A party who is not represented by counsel asks the Clerk of Court to sign a blank subpoena, which the party then fills in before service.1Office of the Law Revision Counsel. Federal Rules of Civil Procedure Rule 45 – Subpoena
Check the Geographic Limits Before You Serve
You cannot subpoena someone to travel across the country. Rule 45(c) allows a trial subpoena to command attendance only in two situations:
- Anywhere within 100 miles of where the witness resides, is employed, or regularly transacts business in person.
- Anywhere within the state where the witness resides, is employed, or regularly transacts business in person, if the witness is a party or a party’s officer, or if attendance would not impose substantial expense on a non-party.
If the subpoena reaches past those boundaries and no exception fits, the court must quash or modify it on a timely motion.3Legal Information Institute. Rule 45 – Subpoena Measure the distance from the witness’s home or workplace to the courthouse before you fill in the form. When the number is close to the 100-mile line, a deposition on Form AO 88A near the witness is often the cleaner path.
Serving the Subpoena
A completed subpoena has no legal effect until it is properly served. Service has three moving parts, and all three have to line up at the moment of delivery.
Personal Delivery
Rule 45(b)(1) requires “delivering a copy to the named person.”1Office of the Law Revision Counsel. Federal Rules of Civil Procedure Rule 45 – Subpoena In practice, that means physically handing the subpoena to the witness. Mailing it, leaving it on a doorstep, or handing it to a family member generally will not satisfy the rule. The server can be any adult who is at least 18 and is not a party to the case, whether a professional process server, an off-duty officer, or a willing friend. A party cannot serve their own subpoena.
Tender the Witness Fee at Delivery
Service is incomplete unless the server also tenders one day’s attendance fee and mileage to the witness when the form changes hands. Under 28 U.S.C. § 1821, the attendance fee is $40 per day.4Office of the Law Revision Counsel. 28 USC 1821 – Per Diem and Mileage Generally; Subsistence The mileage allowance uses the rate the General Services Administration sets for federal employee travel, not the IRS business mileage rate, which is a separate and usually higher figure.5Office of the Law Revision Counsel. 28 USC 1821 – Per Diem and Mileage Generally; Subsistence A check or money order for the combined fee and estimated mileage is normally clipped to the front of the subpoena. Skip this step and the witness has no legal obligation to appear.
Serve Early Enough to Be Reasonable
Rule 45 does not set a fixed number of days’ notice. The standard is “reasonable time to comply,” and a subpoena that fails that test must be quashed.3Legal Information Institute. Rule 45 – Subpoena Reasonableness depends on how far the witness has to travel, whether they need to arrange time off work, and how complicated the appearance is. A trial subpoena served the day before a hearing almost never survives a challenge. Serve as early as you practically can. A week or more of lead time is common sense, even without a bright-line rule.
Proof of Service
After delivery, the server completes the Proof of Service section printed on the form, recording the date of service, printing their name, and signing a declaration under penalty of perjury that the information is true.2United States Courts. Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action Whether you have to file the proof of service with the court depends on local practice; the form itself notes it need not be filed unless Rule 45 requires it. Filed or not, keep the completed proof. If the witness fails to appear and you need contempt, that document is your evidence that service was valid.
Extra Pay When Overnight Travel Is Required
When the courthouse is far enough from the witness’s home that a daily round trip is impractical, the witness is entitled to a subsistence allowance covering lodging and meals. The daily amount cannot exceed the GSA per diem rate for the area where the witness must attend, which is the same rate the federal government uses for its own employees on official travel.5Office of the Law Revision Counsel. 28 USC 1821 – Per Diem and Mileage Generally; Subsistence GSA designates certain cities as high-cost areas with elevated rates, and those figures change annually, so check before you calculate what you owe. The $40 daily attendance fee applies on top of the subsistence allowance for every day the witness must be present, travel days included.
If the Witness Moves to Quash
A witness or any affected party can challenge the subpoena by filing a motion to quash or modify in the district where compliance is required. Rule 45(d)(3)(A) lists four grounds on which the court has no discretion and must grant the motion: the subpoena allows unreasonable time to comply; it demands attendance outside the geographic limits; it requires disclosure of privileged or protected matter with no exception or waiver; or compliance would impose an undue burden.3Legal Information Institute. Rule 45 – Subpoena
The motion has to be “timely,” though Rule 45 does not fix a specific deadline for trial subpoenas the way it does for document subpoenas, which carry a 14-day objection window. When the court finds compliance would impose significant expense on a non-party, it can shift costs to the party that issued the subpoena, so a subpoena aimed at a reluctant non-party witness can end up costing the issuing side money.
If the Witness Simply Ignores It
A properly served subpoena is a court order. Under Rule 45(g), a court may hold a person in contempt if they were properly served and fail to comply without an adequate excuse.3Legal Information Institute. Rule 45 – Subpoena The federal contempt power itself comes from 18 U.S.C. § 401, which authorizes courts to punish disobedience of any lawful court order by fine, imprisonment, or both.6Office of the Law Revision Counsel. 18 USC 401 – Power of Court
The word that matters is “willful.” A witness who was genuinely unable to comply, because of a medical emergency, because they never received the subpoena, or because compliance was physically impossible, has a defense. A witness who simply decided not to show up does not. Beyond contempt sanctions, a witness who fails to appear can be liable for damages caused by the delay or disruption to the trial. That downstream exposure is worth mentioning to any reluctant witness before the trial date arrives.