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Witness and Mileage fees California non-party depositions

Jul 10th, 2015 | By | Category: Litigation Warrior

Litigation Warrior – how to respond to a deposition subpoena as a non-party

federal court witness fees


Can a “non-party” to a lawsuit (ex. a federal copyright infringement, breach of contract of financial elder abuse lawsuit) be dragged into a lawsuit and forced to testify as a witness in a deposition?  The answer is YES, non-parties can be sent or served a subpoena compelling them to appear at a deposition and provide testimony relevant to the case.  This blog discusses witness and mileage fees, and general responses when you are served a subpoena for either a deposition, or a trial subpoena.

California law dealing with witness fees

If you are called as a witness in a “state court’ action (ex. San Francisco Superior Court, Orange County, or Los Angeles Superior Court), the controlling law is Cal. Government Code Section 68093 which states the fees owed to the witness:

“Except as otherwise provided by law, witness’ fees for each day’s actual attendance, when legally required to attend a civil action or proceeding in the superior courts, are thirty-five dollars ($35) a day and mileage actually traveled, both ways, twenty cents ($0.20) a mile.”

As a witness, you should ask for this money to be paid, up front, or at the deposition.

Federal law dealing with witness fees

In federal court cases (ex. a trademark litigation case, or software infringement lawsuit) a different rule applies.  The relevant code section is 28 U.S.C. § 1821. This section states:

“(b) A witness shall be paid an attendance fee of $40 per day for each day’s attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.

(c) (1) A witness who travels by common carrier shall be paid for the actual expenses of travel on the basis of the means of transportation reasonably utilized and the distance necessarily traveled to and from such witness’s residence by the shortest practical route in going to and returning from the place of attendance. Such a witness shall utilize a common carrier at the most economical rate reasonably available. A receipt or other evidence of actual cost shall be furnished.”

Under this code section, as you can see you get an extra $5 (not to be outdone by the state court witness fees)!

Am I entitled to be paid witness fees if I have to sit through a long federal court trial waiting to be called?

In federal court, yes.  In Humphries v. Starns, 87 F. Supp. 374, 377 (D. Alaska 1949) the federal court judge noted:

“If it is necessary for a witness to be in attendance throughout a long trial he is entitled to witness fees even though the trial was an extended one. Donato v. Parker Pen Co., 1945, 7 F.R.D. 148. In the case of Qualley v. Aitken, supra, the cost bill contained an item charging witness fees for 30 days attendance; however, this witness had not been subpoenaed and there was no showing in the cost bill as to the number of days he was in attendance, although court records show that he was only called to testify one day. The court allowed witness fees for only one day. If a material witness who testifies is required to remain in attendance throughout the trial such attendance is presumed necessary in the absence of a showing to the contrary, and the per diem may be allowed for each day he was in attendance whether he testified or not. United States v. Hoxie, 1930, 8 Alaska, 210. It has also been held that where plaintiff’s affidavit that witness was in attendance in court for six days was the only proof offered, allowance of witness fees for six days was proper.”
Now most attorneys and most non-attorneys realize the amount offered does not normally equal what you would get paid on your job, but something is better than nothing, and you might as well just try to enjoy the show while you are waiting to be called as a witness.  Be patient, and understand being called as a witness in a Court case is probably something that will happen to most people at least once in their lifetime.

Do the fees have to be tendered with the service of the subpoena?

In federal Court, one case (See Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 1989) noted that the Federal Rules of Civil Procedure provide:

Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to him the fees for one day’s attendance and the mileage allowed by law. When the subpoena is issued on behalf of the United States or an officer or agency thereof, fees and mileage need not be tendered.

See also Fed.R.Civ.P. 45(c). Fees must be tendered concurrently with the subpoena. CF & I Steel Corp. v. Mitsui & Co., 713 F.2d 494, 496 (9th Cir.1983).

FRCP Rule 45 requirements

“(b) Service. (1) By Whom and How; Tendering Fees. Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person’s attendance, tendering the fees for 1 day’s attendance and the mileage allowed by law. Fees and mileage need not be tendered when the subpoena issues on behalf of the United States or any of its officers or agencies.”

State Court – timing of witness fees and mileage

In California state court actions, often the deponent will be paid AT THE DEPOSITION in the form of a check.

Should you have a lawyer represent you at a deposition if you are not a party to the lawsuit?

You can always represent yourself.  But keep in mind, the deposition room may be filled with other lawyers and parties, and you never know when your testimony will raise legal liability issues to yourself, or to your company.  That’s why it is always best that if you are served with a deposition subpoena, to discuss your case with a business, real estate, insurance, or intellectual property lawyer.  You need to know what your role is in the case, and possibly to rehearse your testimony to make sure you are fully prepared for the deposition.

Contact a Deposition Attorney

If you are served a subpoena in the state of California (we also handle cases in the general Phoenix/Scottsdale/ Maricopa County areas) contact us when you are served with a deposition subpoena.  We can help determine whether or not you have any legal liability, or whether it makes sense to hire a litigation counsel to help you in your case, whether a state or federal court case, and whether the setting is Superior Court, an administrative proceeding (such as a real estate accusation), or an arbitration case (ex. real estate arbitration matter).  We have flexible legal fees, including flat rate fees in some cases.  We can be reached at (877) 276-5084 or by filling out the contact form below.


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We are a business and civil litigation firm with a focus on copyright infringement cases involving illegal movie downloads (torrent cases such as London Has Fallen and Malibu Media defense), software audits (ex. Microsoft audits, SPLA, Autodesk audit notification letter, Siemens PLM defense, SIIA, Adobe and Business Software Alliance defense) and other software vendors threatening piracy and infringement. We also handle cases involving internet law, anti-SLAPP, media law, right of publicity, trademarks & domain name infringement, and we have a niche practice area handling California BRE licensing disputes, accusations, subpoena response, statement of issues and investigations. We have offices in San Francisco, Beverly Hills, Newport Beach, San Diego & Phoenix, Arizona and accept federal copyright and trademark cases nationwide. All content on our website is general legal information only and not a substitute for legal advice, and should not be relied upon. Decisions to hire counsel should not be based on advertising alone. Blogs, videos and podcasts are authored by Steve Vondran, Esq. unless otherwise noted. We can be reached at (877) 276-5084.

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