By: Akanksha A. Panicker
Calling witnesses to deposition is a long process that needs to check quite a few boxes, particularly the fee that has to be paid for these witnesses’ production. Individuals are required to be paid for their time and mileage to the office or courthouse.
However, not all witness fees are created equal, and not all states actually require witness fees. The rules surrounding them are also exceedingly different based on the state. Consequently, it can get difficult for attorneys to determine when a witness fee must be sent and how much it should be.
[1.0] FEDERAL CASES
When a subpoena’s service compelling the witness’s attendance has been conducted, a fee for one day’s attendance and the accompanying mileage fee must be put forth unless the Federal Government itself is subpoenaing the witness. A subpoena generally can demand a witness’s attendance, or the production of documentary or other tangible evidence in the possession or under the control of the person served, or both. Furthermore, the individual whose insistence at which the subpoena was served must furnish the fees’ payment. However, this might be taken over by the FRA if [A.]the presence of the subpoenaed witness or evidence will materially advance the proceedings and [B.] the party at whose instance the subpoena was issued would suffer a serious financial hardship if required to pay the witness fees and mileage
All witnesses in Federal Cases or before a US Magistrate Judge must be paid a per diem fee. Witness fees are usually around USD 40 per day, with mileage for transportation being covered at 57.5 per mile. However, if the witness takes a common carrier instead, the actual expense reimbursed will be the most economical means of travel. Thus, the round trip begins from the witness residence to the destination and must be supplanted with a subpoena. Furthermore, if an overnight stay is necessitated, the witness is paid a subsistence allowance if they cannot return to the location. However, there is no fixed fee attached, and the amount payable can differ based on the year and location.
Travel compensation is most often calculated after the costs have been incurred. So, what if the individual uses their own means of transport? If the witness uses their own private automobile, they can still avail themselves of the same mileage. The statute authorized a rate per mile as capped by the IRS. However, the administrator  of General Services may establish the rate itself upon reviewing their ‘uniformed table of distances.’ If the witness’s residence is unknown, the calculation may be done from an alternate or business address. Further, the witness is entitled to [A.] parking fees, [B.] ferry fees, [C.] bridge, road and tunnel costs, and [C.] airplane landing costs.
It must be considered herein that the witness compensation kicks in when physical attendance is mandated. In situations where subpoenaing records does not require attendance, no witness fee must be paid. However, the witness can recover reasonable copying costs for the documents.
What happens when the person served is not a natural person? Companies usually see the service of the subpoena handed over to a designated agent or representative. This could be an officer, director, or even an agent in charge of the person’s office. Once handed over, the delivery of the subpoena and tender of the fees is complete. If personal service can’t be enacted, the subpoena can be mailed by certified mail to the agent or representative, with the fees being made available before the return date.
[2.0] SUBPOENA FEES IN NEW YORK
New York’s CPLR dictates that attendance compelled by a subpoena requires compensation of USD 15 per day’s attendance. This is not dependant on whether actual testimony has been taken. Furthermore, travel expenses are covered at twenty-three cents mileage to the destination of attendance and cover the return trip. However, this does not cover the mileage fee if it is only within a city.
However, if a witness is not a party or agent or employee of a party, they receive an additional three dollars per day as compensation. This holds for whether they are subpoenaed to give testimony or produce books, papers, and other things at an examination before trial. If preparation of a transcript of records is also necessitated, the person subpoenas are further eligible for ten cents per folio upon demand in addition to the fee they have already received.
[3.0] REQUIREMENTS OF THE PROCESS SERVER
Firstly, it must be established that the fees and mileage need not be tendered at the time of service if a subpoena is issued at the instance of an officer or agency of the United States. However, as a general rule, the delivery of a copy of the subpoena and tendering of the fees is mostly done by handing them physically to the individual. If this cannot be achieved, alternate routes like handing the documents at the person’s office with an individual authorized to accept the same or providing a person of suitable age and discretion at the subpoenaed individual’s house can be adopted. Mailing the individual by certified mail at their last known address or any other method for actual notice can be adopted as long as the fees are made available before the return date. However, the original subpoena bearing a certificate of service needs to be filed with the official responsible for the proceeding in connection with which the subpoena was issued.
[4.0] COST STATEWISE
- Alabama: $1.50 per day and 5 cents per mile and all necessary ferriage, tolls of turnpikes, and toll bridges available only on one side of the same case. AL Code § 12-19-131 (2014).
- Alaska: $12.50 for under 3 hours of the witness’s time, including travel time; $25 per day for more than 3 hours; and mileage paid at the same rates for state employees if traveling more than 30 miles. AS 24.25.050.
- Arizona: $12 per day, including travel time including the time he needed to leave his residence and go to the place of trial and his discharge as a witness. Furthermore, this includes 20 cents per mile one way as long as it is for actual distance traveled. A.R.S. § 12-303.
- Arkansas: $30 per day and 25 cents per mile from witness’ residence to the place of the trial or hearing. Ark. R. Civ. P. 45(e).
- California: $35 plus 20 cents per mile round trip. Cal. Gov. Code § 68093. If the same comprises only records, the payable fee is $15. Cal. Evid. Code 1563(b)(6).
- Colorado: $40 per day plus 58 cents per mile round trip. § 13-33-102 C.R.S.
- Connecticut: 50 cents per day subject to exceptions as under section 54-152. This includes mileage paid at the same rates for state employees furnished under section 5-141c. Connecticut General Statutes Title 52. Civil Actions § 52-260.
- Delaware: $2 per day plus round-trip mileage of 3 cents per mile. 70 Del. Laws § 8903. Mileage fees [A.]$0.575 per mile for automobiles, [B.]$0.545 per mile for motorcycle, and [C.] $1.27 per mile for airplanes.
- Florida: $5 plus 6 cents per mile. If the witness lives in the county where they are ordered to appear, the flat fee is $7.50. Fla. Stat. § 92.142.
- Georgia: $25 per day plus 45 cents per mile round trip. Execution shall be issued by the clerk upon the affidavit of the witness to enforce payment. OCGA § 24-13-25.
- Hawaii: Each witness paid a sum of $4 for each day’s attendance in court and travel expenses at the rate of 20 cents a mile each way.HRS § 607-12.
- Idaho: $20 per day plus 30 cents per mile one way. IRFLP 901.
- Illinois: Every witness attending in any county upon trials in the courts, except for actions arising under Article II of the Juvenile Court Act of 1987, shall be entitled to receive the sum of $20 for each day’s attendance and $0.20 per mile each way for necessary travel.. 705 ILCS 35/4.3.
- Indiana: Criminal cases – $5 per day or $15 per day if subpoenaed under IC 35-37-5-4 and mileage at the same rate as state employees; Other actions – $5 per day plus mileage at the same rate as state employees; School employees subpoenaed to testify – $100 per day plus mileage as paid to state employees. I.C. § 33-37-10-2 – 33-37-10-3.5.
- Iowa: Witnesses shall receive ten dollars for each full day’s attendance. Five dollars for each attendance less than a full day, and mileage expenses under section 602.1509 for each mile actually traveled. Iowa Code § 622.69.
- Kansas: the sum of $10 per day, together with the mileage at the rate prescribed by law for each mile after the first. K.S.A. § 28-125.
- Kentucky: Fees not prescribed
- Louisiana: $25 per day, $5 per day for hotel and meals. LA Rev Stat § 13:3661.
- Maine: $10 per day and 22 cents per mile round trip. 16 M.R.S. § 251.
- Maryland: No witness fee or mileage is required for fact witnesses.
- Massachusetts: $6 per day plus 10 cents per mile round trip. G. L. c. 262 § 29.
- Michigan: $12.00 per day and $6.00 per half-day plus mileage paid at the same rate as state employees. MCR 2.506(G)(1).
- Minnesota: $20 per day plus 28 cents per mile round trip counted from the state’s boundary line where the witness crossed it if outside the state, 28 cents per mile. Minn. Stat. § 357.22.
- Mississippi: Witness fees and mileage rates are set by the Board of Supervisors in each county, so rates vary. Witnesses in the county, circuit, and chancery courts typically receive $1.50 per day and $. 05 per mile for traveling from their homes to the courthouse and back again.
- Missouri: The rate for in-state witnesses is twenty-five dollars ($25.00) per day plus a mileage allowance at the state rate as provided in Section 33.095, RSMo. The mileage rate is thirty-seven cents ($0.37). § 491.280 RSMo.
- Montana: $10 per day plus 17 cents per mile round trip. § 24.11.336, MCA.
- Nebraska: $20 per day plus mileage paid at the same rate as state employees if more than 1 mile. Neb. Rev. Stat. Ann. § 33-139.
- Nevada: $25 plus mileage paid at the same rate as state employees. Travel fees are $0.17 per mile. NRS 50.255.
- New Hampshire: $30 for a police officer, $24 for everyone else. RSA 516.16.
- New Jersey: $2 per day plus $2 for every 30 miles of travel. N.J.S.A. § 22A:1-4.
- New Mexico: $95 per day. Expert witnesses usually charge an hourly rate for depositions, ranging from $200 to $500 to $1000 and up depending on the expert type. NMSA 1978 § 10-8-4.
- New York: $15 per day plus 23 cents per mile round trip. NY CPLR § 8001.
- North Carolina: Witnesses are not entitled to receive their fees in advance but are not compelled to attend more than one day if payment has not been made. $5 per day plus mileage paid at the same rate as state employees. N.C.G.S. § 7A-314.
- North Dakota: $25 per day plus mileage paid at the same rate as state employees. N.D.C.C. § 31-01-16.
- Ohio: $12 for full days and $6 for half days, plus 10 cents per mile round trip. R.C. 2335.06.
- Oklahoma: $10 per day plus mileage paid at the same rate as state employees. 28A O.S. § 28-81.
- Oregon: $30 per day plus 25 cents per mile. ORS 44.415.
- Pennsylvania: $5 per day plus 7 cents per mile round trip. Witness fees and round-trip mileage are not required for criminal subpoenas or Subpoenas Duces Tecum, which demands the production of records only with no testimony, court appearance, or travel required 42 Pa.C.S. § d5903.
- Rhode Island: $10 per day plus 10 cents per mile round trip. Furthermore, $2.00 payable for every day’s commitment in jail upon default to enter into recognizance with surety. G.L. 2013 § 9-29-7.
- South Carolina: $25 per day plus mileage paid at the same rate as state employees. Such mileage is limited to each mile actually and necessarily traveled. S.C. R. Civ. P. 45(b)(1).
- South Dakota: $20 per day plus mileage paid at the same rate as state employees. Such mileage is limited to each mile actually and necessarily traveled. SDCL § 19-5-1.
- Tennessee: Court appearances – $1 per day plus 4 cents per mile for distances greater than 10 miles; Subpoenas in civil cases – $30 per day plus mileage paid at the same rate as state employees if greater than 10 miles. T.C.A. § 24-4-101.
- Texas: $10 per day. This fee includes the entitlement for travel, and the witness is not entitled to any reimbursement for mileage traveled. TEX. CIV. PRAC. & REM. CODE § 22.001.
- Utah: $18.50 for the first day, $49 per day for each subsequent day. $1 in addition to every 4 miles for mileage that crosses 50 miles. Utah Code Ann. § 78B-1-119.
- Vermont: Witnesses are currently paid $40 a day for attendance and $.575 per mile for travel. Witnesses are responsible for the Department of Justice or counsel subpoenaing a witness and are not paid by the court.. 32 V.S.A. § 1551.
- Virginia: Mileage paid at the same rate as state employees. Code § 2.2-2823.
- Washington: $10-$25 per day, depending on the county. No witness shall be entitled to fees or mileage from the state when summoned at the instance of the public service companies affected. RCW 2.40.010.
- West Virginia: $10 per day, $5 for half a day, and 10 cents per mile round trip. W. Va. Code Ann. § 33-2-5.
- Wisconsin: $16 per day plus 20 cents per mile round trip. Interpreters, $10 per one-half day. Wis. Stat. § 814.67.
- Wyoming: $30 per day, $15 for half days plus 23 cents per mile. Expert witness fees shall be allowed at the rate of $25.00 per day. Still, if the amount allowed constitutes a higher hourly rate than$25.00 per day; this higher amount is allowable only when the expert witness actually testified. U. R. D. C. 501(a)(3)(B)(i).
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 “fees or mileage need not be tendered.” (FRCP 45(b)(1)).
 U.S. Code § 1821
 5 USC 574(a)(1)
 Windsor v. Martindale, 175 F.R.D. 665, 670
 NY CPLR § 8001.