2. Deposit of security

None is required.

The First Circuit does not have any specific rules requiring that the subpoenaing party deposit any security in order to procure a reporter’s testimony or materials.

There is no rule in the Second Circuit that any security be deposited in order to procure testimony or materials. Under Federal Rule of Civil Procedure 45(b)(1), witness and mileage fees must accompany service of a subpoena that requires attendance at a trial or deposition. Whether subsequent tender of fees perfects service is unsettled in the Second Circuit. 9 James Wm. Moore et al., Moore's Federal Practice § 45.21 (2007); 1 James Wm. Moore et al., Moore's Federal Rules Pamphlet 2007 § 45.6 (Lexis 2007).

Neither the applicable rules nor case law in the Third Circuit appear to address this point.

The federal rules, as well as the local rules for the district courts in the Fourth Circuit, do not explicitly require that the subpoenaing party deposit security to procure the testimony or materials of the reporter.

No reported decision of the Fifth Circuit addresses whether a subpoenaing party must deposit any security in order to procure testimony or materials from a reporter.

No security deposit is required to procure testimony or materials pursuant to subpoena.

There are no special requirements concerning a member of the news media and security deposits. The normal procedures under Federal Rule of Civil Procedure 45 or Federal Rule of Criminal Procedure 17 would apply. There are no Seventh Circuit Rules or Local Rules that apply.

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

There is no statutory or case law addressing this issue.

Under Alabama law, there is no requirement that a subpoenaing party deposit any security to procure the reporter's testimony or materials.

Court rules do not contain any special rules or procedures with respect to subpoenaing members of the news media. No law requires a subpoenaing party to deposit any security to procure testimony or materials from a reporter. Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and neither they nor the trial courts have had occasion to address this issue.

Likewise, there are no special security requirements for media subpoenas. Instead, such subpoenas are subject to the rules regarding witness fees and mileage that apply to subpoenas generally. See Ariz. R. Civ. P. 45(d)(1).

Arkansas does not require any security deposit, per se, to procure the testimony of a witness, but court rules state that a subpoena must be accompanied by a tender of a witness fee of thirty dollars ($30.00) per day for attendance at trial or a deposition, plus a travel allowance of twenty-five cents ($0.25) per mile. Ark. R. Civ. P. 45 (d)-(e). If property is ordered to be kept with the court, the sheriff of the county where the action is pending is charged with the responsibility of safe-keeping. Ark. Code Ann. § 16-63-102.

California law permits the issuance of a subpoena without deposit of any security. See Cal. Code Civ. Proc. § 2020.220. However, the party issuing the subpoena must pay a witness fee and mileage. Id. § 2020.230. If the subpoena seeks testimony, that fee can be paid either when the subpoena is served or at the time of the testimony. Id. If the subpoena only seeks documents, the fee must be paid when the subpoena is served. Id.

There is no requirement of a security deposit.

There is no requirement that the subpoenaing party deposit any security in order to procure the testimony or materials of the reporter.

No statutory or case law addressing this issue exists.  As a general matter, the issuing party must serve along with a civil subpoena a check sufficient to compensate the witness for one day’s attendance and the statutory mileage allowance.  Fed. R. Civ. P. 45(b)(1).  The same amounts must be provided along with a criminal subpoena unless a sufficient showing is made that the defendant cannot pay.  Fed. R. Crim. P. 17(b) & (d).

No deposits are required under Delaware law.

The District does not require that the subpoenaing party deposit any security in order to procure the testimony or materials of the reporter.  However, the subpoenaing party must provide with the subpoena, unless a sufficient showing is made that the defendant cannot pay, a check sufficient to compensate the witness for one day’s travel expenses and testimony fee.  See SCR-Civ. 45(b)(1); SCR-Crim. 17(b)(3) & (d).

Florida does not require that the subpoenaing party deposit any security in order to procure the testimony or materials of the reporter.

A party issuing a subpoena commanding the attendance of a witness at a hearing or trial that is not in the witness's county of residence must include with the subpoena one day's witness fee ($25) plus mileage of 45 cents per mile for going from and returning to witness's residence. O.C.G.A. § 24-13-25. However, when the subpoena is issued on behalf of the state, or an officer, agency, or political subdivision of the state, or a defendant in a criminal trial, then fees and mileage need not be tendered. Id.

HRCP 45 does not require that the subpoenaing party deposit any security in order to procure the testimony or materials of a reporter. HRPP 17 requires the subpoenaing party to tender to the person named in the subpoena the fee of 1 day's attendance and the mileage allowed by law, except that no such tender is necessary when the subpoena is issued on behalf of the prosecution or a defendant who is unable to pay for the fee.

Idaho Rule of Civil Procedure 45(b)(1) requires a person serving a subpoena to also tender the fees for 1 days’ attendance and the mileage allowed by law.  Rule 45(h) provides that “witness fees and expenses must be in the amounts provided for under Rule 54(d)(1).” Idaho Rule of Civil Procedure 54(d)(1)(C) provides that witnesses are entitled to $20 per day plus their travel expenses, calculated at $.30 per mile, one way, from the place of residence. Idaho Rule of Civil Procedure 45(b)(2)(C) provides that “[w]hen the subpoena is issued by the Attorney General or any prosecuting attorney or on behalf of the State or any of its officers or agencies” fees and mileage need not be tendered.

Although there is no Illinois statutory or case law addressing the issue of deposit of security to procure the testimony or materials of the reporter, the Illinois Code of Civil Procedure provides that the court, in a case of subpoena duces tecum, may condition the denial of a motion to quash or modify a subpoena upon payment in advance of the reasonable expense of producing any item therein specified by the person in whose behalf the subpoena is issued. 735 ILCS 5/2-1101.

Special Procedures and Defenses Available to a Reporter When Production of Tapes or Documents are Required in State Courts (Subpoena Duces Tecum):

Indiana Rules of Trial Procedure 34 and 45 govern subpoenas duces tecum and other discovery request for documents.

Ind. R. Trial P. 34(C)(3) entitles the subpoenaed nonparty to security in the form of prepayment of damages that are to be incurred and a variety of other alternative securities from the party issuing the subpoena. Examples of alternative securities include “an adequate surety bond or other indemnity conditioned against such damages.” Id.

Ind. R. Trial P. 45(B)(2) allows a court to order payment ”of the reasonable cost of producing the books, papers, documents, or tangible things.” Id.

The party serving the subpoena is not required to deposit any security. However, the subpoenaed party is entitled to receive, upon demand, his/her traveling fees to and from the court and the witness fee for one day. Iowa Code § 622.74 (2019). If these fees are demanded at the time of service but not paid by the subpoenaing party, the subpoenaed party is not obligated to accept service. Id. The fees rule, in practice, is used by some journalists to decline acceptance of a state court subpoena where fees are not contemporaneously tendered. This practice requires the journalist to ask for the fees and not receive them. It applies only to state court subpoenas.

State law does not require the litigant issuing a subpoena to deposit security, although the payment of a modest witness fee and mileage, by way of check served with the subpoena, is required in civil cases. K.S.A. 60-245(b).

Kentucky law does not require that the subpoenaing party deposit security to procure the testimony or materials of the reporter. See Ky. R. Civ. P. 45.01, 45.02; Ky. R. Crim. P. 7.02.

Upon receipt of a subpoena, the news media party must notify the party requesting the subpoena of the "reasonable cost of compliance with the subpoena and the method of calculating the cost." La. R.S. 45:1457. After receiving notification of the cost, the party requesting the subpoena must deposit money into the court's registry to cover the costs not less than two days prior to the return date specified in the subpoena. If the money is not timely deposited, the subpoenaed party may file an affidavit explaining that fact and the party will be excused from further compliance with the subpoena. Id.

The cost of compliance calculated by the subpoenaed party shall be presumed reasonable unless the party requesting the subpoena requests a hearing. If the court finds after the hearing that the cost is not reasonable, the court shall make the necessary adjustment. The court also may grant attorneys' fees and expenses to the prevailing party in this hearing. La. R.S. 45:1457.

There is no requirement for a deposit of security.

There is no rule or case law requiring a deposit of security.

For rules relating to service of subpoenas, see Mass. R. Civ. P. 45; Mass. R. Crim. P. 17.

Service of the subpoena on a non-party must be accompanied by one day’s witness fee and mileage to the site of the taking of testimony or document production. MCR 2.506(G)(1).

In criminal cases, no fees are required.

Minnesota law does not require the subpoenaing party to deposit any security to procure the testimony or materials of a reporter. Rule 45.02(a) requires that service be accompanied by tender of one day's witness fee plus mileage, and Rule 45.01 directs the subpoenaing party to advise the witness of the right to have certain expenses reimbursed under Rule 45.03(d).

There is no statutory or case law addressing this issue, other than Miss. R. Civ. P. 45(c)(1), which states that "[e]xcept when excused by the court upon a showing of indigence, the party causing the subpoena to issue shall tender to a non-party witness at the time of service the fee for one day's attendance plus mileage allowed by law."

There is no statutory or case law addressing this issue.

No security is required as a deposit for a subpoena.

Not applicable.

A deposit of security is not required before a party issues a subpoena or before a member of the media invokes the news shield statute. However, witnesses are entitled to fees of $25 per day and travel expenses based on standard mileage reimbursement rates set by the IRS or the board of county commissioners, pursuant to NRS 50.225.  Notably, a person “is not obligated to appear in a civil action or proceeding unless the person has been paid” these fees. NRS 50.225(6).

There is no case law or statute that requires that the subpoenaing party deposit any security.

A witness fee must be paid at the time of service of the subpoena, unless the person is a witness in a criminal action for the State or an indigent Defendant.  R. 1:9-3.

There is no such requirement under New Mexico law. But every subpoena must be accompanied by “the full fee for one day’s expenses provided by Section 10-8-4(A) NMSA 1978 as per diem for nonsalaried public officers attending a board or committee meeting and the mileage provided by Section 10-8-4(D) NMSA 1978,” unless it is issued “on behalf of the state or an officer or agency thereof,” Rule 1-045(B)(2)(b) NMRA, “including the public defender department,” Rule 5-511(B)(2)(b) NMRA. Thus, the witness must be paid a $95 per diem, plus “the [IRS] standard mileage rate set January 1 of the previous year.” NMSA 1978, § 10-8-4(A), (D). A private litigant's “failure to tender required expense and mileage fees shall invalidate the subpoena and justify non-compliance with the subpoena’s command.” Rule 1-045 committee cmt. 5 NMRA.

No deposit or security is required in order to compel the attendance of a witness or the production of materials through a subpoena. However, a subpoenaed person must be paid a nominal witness fee (currently $15 per day) and a mileage fee (23 cents per mile) in advance. See CPLR §§ 2303; 8001. These fees are usually tendered when the subpoena is served, and additional fees must be paid, if the witness is required to appear on more than one day. See CPLR § 2305 (a).

State law does not require that the subpoenaing party deposit any security in order to procure the testimony or materials of a reporter. However, Rule 45(c)(1) of the North Carolina Rules of Civil Procedure provides that the party or attorney responsible for issuing and serving the subpoena is required to take reasonable steps to avoid causing an undue burden or expense. If a court finds that this requirement has been violated, the court may impose an appropriate sanction, including compensation of the person subject to the subpoena for lost earnings and reasonable attorney’s fees. Additionally, a judge may, in an order to compel a deposition or production of documents, require the requesting party to advance the reasonable cost of producing the records or other tangible things. A court may also condition the discovery of inaccessible electronically stored information on the requesting party paying the costs of locating and producing the electronically stored information requested. N.C. R. Civ. P. 45(d)(4). Furthermore, if a court finds that a person objected to a subpoena or filed a motion to quash or modify the subpoena, and that objection or motion was unreasonable or for the improper purpose of causing unnecessary delay, the court may award costs and attorney’s fees to the party who issued the subpoena. N.C. R. Civ. P. 45(e)(2).

A deposit of security is not required. However, a witness fee for one day's attendance, mileage and travel expenses must be paid at the time of service of the subpoena.

No specific requirements, other than payment of attendance fee and mileage.

Rule 45(B), Ohio Rules of Civil Procedure:

A subpoena may be served by a sheriff, bailiff, coroner, clerk of court, constable, or a deputy of any, by an attorney at law, or by any other person designated by order of court who is not a party and is not less than eighteen years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy of the subpoena to the person, by reading it to him or her in person, by leaving it at the person's usual place of residence, or by placing a sealed envelope containing the subpoena in the United States mail as certified or express mail return receipt requested with instructions to the delivering postal authority to show to whom delivered, date of delivery and address where delivered, and by tendering to the person upon demand the fees for one day's attendance and the mileage allowed by law. The person responsible for serving the subpoena shall file a return of the subpoena with the clerk. When the subpoena is served by mail delivery, the person filing the return shall attach the signed receipt to the return. If the witness being subpoenaed resides outside the county in which the court is located, the fees for one day's attendance and mileage shall be tendered without demand. The return may be forwarded through the postal service or otherwise.

Rule 17(D), Ohio Rules of Criminal Procedure:

A subpoena may be served by a sheriff, bailiff, coroner, clerk of court, constable, marshal, or a deputy of any, by a municipal or township policeman, by an attorney at law or by any person designated by order of the court who is not a party and is not less than eighteen years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person or by reading it to him in person or by leaving it at his usual place of residence, and by tendering to him upon demand the fees for one day's attendance and the mileage allowed by law. The person serving the subpoena shall file a return thereof with the clerk. If the witness being subpoenaed resides outside the county in which the court is located, the fees for one day's attendance and mileage shall be tendered without demand. The return may be forwarded through the postal service, or otherwise.

No deposit or other form of security is required by statute.

None required under the ORCP.

There is no requirement under either the Shield Law or the First Amendment privilege that the subpoenaing party deposit any security in order to procure the testimony or materials of a reporter.

There is no statutory or case law addressing this issue.

South Carolina Rules of Civil Procedure require the party serving a subpoena to compel attendance at a trial or deposition to tender $25.00 and mileage at the official rate to the person served at the time of service. Rule 45(b)(1), SCRCP.

No special rules for media subpoenas. However, if the subpoenaed party requests it, the court may require an advance for the reasonable cost of producing documents. SDCL 15-6-45(b).

The deposit of security is not required.

For all subpoenas for a witness’ testimony (whether to media or not), the subpoena must be accompanied by one day’s witness fee as required by law. Tex. R. Civ. P. 176.5. In addition, for criminal subpoenas, the subpoenaing party is required to pay a reasonable fee for the journalists’ time and costs incurred in responding to the subpoena. See Tex. Code Crim. Proc. art. 38.11, §9.

There is no statutory or case law addressing this issue.

Vermont law does not require a subpoenaing party to deposit any security in order to procure the testimony or materials of a member of the media.

There is no requirement that the subpoenaing party deposit any security in order to have a subpoena served.

There are no specific requirements regarding deposit of security in support of the issuance of a subpoena against a reporter or news organization. Generally, a witness fee is required in connection with the issuance of any civil subpoena. See, e.g., RCW 5.56.010 ("No such person shall be compelled to attend as a witness in any civil action or proceeding unless the fees be paid or tendered him which are allowed by law for one day's attendance as a witness and for traveling to and returning from the place where he is required to attend, together with any allowance for meals and lodging theretofore fixed as specified herein."). A different rule prevails for criminal trial subpoenas. RCW 10.52.040.

West Virginia law does not require that the subpoenaing party deposit any security in order to procure the testimony or materials sought from the reporter. However, for a deposition or in-court testimony, Rule 45(b)(1) of the West Virginia Rules of Civil Procedure requires that a subpoenaing party must tender "fees for one days attendance and the mileage allowed by law" if the subpoenaed party so demands. If request for such payment is made, but the payment is not presented, the subpoena is ineffective.

A party serving a subpoena in Wisconsin must provide the witness a statutory fee and mileage reimbursement with the subpoena. See Wis. Stat. § 885.06. Wisconsin statutes do not require the subpoenaing party to deposit any security in order to procure testimony or materials of the reporter.

No deposit is required. However, the issuing party must tender the one-day witness fee and mileage along with the subpoena if a person is commanded to appear. This is often overlooked by issuing parties.