Rules for witness fees and mileage for nonparty depositions

Short answer: A party who subpoenas a nonparty to attend a deposition must pay the statutory one‑day witness fee and mileage. In California state cases, the amount equals the court‑appearance rate ($35 per day plus $0.20 per mile one way). In federal cases, it is $40 per day plus mileage at the GSA rate; the tender must accompany the subpoena. If only business records are demanded without personal attendance, the producing nonparty is entitled instead to the “reasonable costs” schedule in Evidence Code § 1563. Cal. Civ. Proc. Code § 1986.5 [1]; Cal. Gov’t Code § 68093 [5]; Fed. R. Civ. P. 45(b)(1) [4]; 28 U.S.C. § 1821 [3]; Cal. Evid. Code § 1563 [2].

IRAC

Issue

What fees and mileage must a party pay a nonparty witness who is commanded by subpoena to attend a deposition in a civil proceeding?

Rule

• California state proceedings: A deponent “is entitled to receive the same witness fees and mileage as if the subpoena required him or her to attend and testify before a court in which the action or proceeding is pending.” Cal. Civ. Proc. Code § 1986.5. Those court‑appearance fees are $35 for each day’s actual attendance and $0.20 per mile for each mile actually traveled, one way. Cal. Gov’t Code § 68093. [1][5]
• Federal proceedings: Service of a subpoena requiring attendance must be accompanied by “the fees for one day’s attendance and the mileage allowed by law.” Fed. R. Civ. P. 45(b)(1). The statutory witness fee is $40 per day; mileage is paid at the federal mileage allowance set by the GSA (or actual common‑carrier cost), with possible subsistence if an overnight stay is necessary. 28 U.S.C. § 1821(b), (c), (d). [4][3]
• Records‑only subpoenas: If the subpoena seeks business records without requiring personal attendance away from the custodian’s place of business, the only amounts owed are the “reasonable costs” prescribed in the records‑production statute (e.g., per‑page copy charges, clerical time), not attendance/mileage fees. Cal. Evid. Code § 1563; see also Cal. Civ. Proc. Code § 1986.5 (second sentence). [2][1]

Application

• California state deposition of a nonparty witness: The subpoenaing party owes, in advance, the statutory attendance fee and mileage at the court‑appearance rate ($35/day and $0.20/mile one way). Cal. Civ. Proc. Code § 1986.5; Cal. Gov’t Code § 68093. [1][5]
• Federal civil deposition of a nonparty witness: The serving party must tender with the subpoena the $40/day attendance fee and mileage at the then‑applicable GSA rate (or actual common‑carrier cost), with subsistence if an overnight stay is required under the statute. Fed. R. Civ. P. 45(b)(1); 28 U.S.C. § 1821(b), (c), (d). Courts routinely tax these statutory amounts as allowable witness fees. [4][3][6]
• Records‑only compliance: When a nonparty is only producing business records without personal attendance away from the place of business, attendance/mileage fees do not apply; the producing witness is instead entitled to the itemized “reasonable costs” under Cal. Evid. Code § 1563 (and related provisions if personal attendance is later required). Cal. Civ. Proc. Code § 1986.5. [2][1]

Conclusion

• California state actions: $35/day plus $0.20/mile one way (court‑appearance rate), for deposition attendance by a nonparty; paid by the subpoenaing party. Cal. Civ. Proc. Code § 1986.5; Cal. Gov’t Code § 68093. [1][5]
• Federal actions: $40/day plus GSA‑rate mileage; must be tendered with the subpoena. Fed. R. Civ. P. 45(b)(1); 28 U.S.C. § 1821. [4][3]
• Records‑only: Use the “reasonable costs” schedule instead of attendance/mileage. Cal. Evid. Code § 1563; Cal. Civ. Proc. Code § 1986.5. [2][1]

Note: Some courts and clerks’ offices summarize and apply these federal statutory amounts in cost‑taxation guidance (e.g., $40/day attendance fee and GSA mileage). [6].