Proposed Changes to FRCP 45: What They Mean for How Law Firms Serve Subpoenas

Significant changes have been proposed to Federal Rule of Civil Procedure (FRCP) 45, the rule that outlines requirements for properly preparing and delivering subpoenas. The changes add new ways to serve subpoenas, set a minimum notice period, change the rules for the timing of when witness fees are required to be paid, and extend a court's reach to compel remote trial testimony.

If the proposal passes, the new rules will go into effect on December 1, 2027. The current proposal is very likely to be the final form, as the Committee on Rules of Practice and Procedure has recommended that the Judicial Conference approve the changes.

Now is the time to begin thinking about what the changes may mean for your litigation practice.

Rule 45: Subpoenas

The language of Rule 45 on subpoenas states that service requires “delivering a copy to the named person.” This has largely been interpreted to mean that if the subpoena is directed to Jane Doe, then it must be left with Jane Doe only. 

There was commentary during the rule-making process that some courts have taken a more liberal view and allowed substitute service. Adherence to the stricter interpretation varies by jurisdiction.

The proposal was published for public comment in August 2025. The Judicial Conference's Committee on Rules of Practice and Procedure unanimously approved it in June 2026, and recommended it to the Judicial Conference for its September 2026 session. 

As the proceedings have not yet been posted, we cannot be 100% sure, but if the Supreme Court adopts the rule by May 1, 2027, and Congress does not intervene, it will take effect December 1, 2027. The published text survived public comment almost unchanged, so it is very likely to be the final form. 

Now is the time to think about what the proposed changes could mean for your litigation practice's internal processes.

New option 1: Substitute service at the home

Substitute service of process will be officially allowed. The amendment would allow for “leaving a copy at the person's dwelling or usual place of abode with someone of suitable age and discretion who resides there." 

That’s the same standard federal courts already apply to serving a summons and complaint under Rule 4 (e)(2)(B). The rule doesn’t define "suitable age," and "suitable discretion" will always be open to interpretation. 

As with all changes to service rules, there may eventually be precedential rulings that define what is a “suitable age” to be a conduit for service of a Federal subpoena.

Where your state defines a minimum age for substitute service, that would be a sensible starting point. All will need to watch for federal decisions that set the standard for Rule 45 subpoenas.

New option 2: Service by mail or commercial carrier (with a catch)

Service by U.S. mail or a commercial carrier will be allowed, but there is a significant caveat. The delivering entity must provide confirmation that it was delivered to the named person or someone to whom substitute service could legally be made. The rules committee moved that requirement into the rule text itself, so it is not optional.

I’ve seen my fair share of delivery confirmations from the United States Postal Service and commercial carriers over the years. Being able to read the name of the person who signed for the subpoena being delivered can be a challenge, and more so if they leave it with someone whose name you do not already know in advance. 

Many of the drivers who make these deliveries have to make very quick stops. How careful can we expect them to be to get the full name of the person they made a delivery to?

There may also be questions about whether or not a subpoena served on a business entity was done properly. Rules that govern who can accept service of process for a company vary, and the people authorized to accept are rarely the ones signing for packages. Proving that whoever signed was qualified will be difficult.

The Rules Committee concluded that this method “regularly works and is reliable,” and adopted it over objections from many process servers. It may work well for routine subpoenas to cooperative recipients. The risk is concentrated where service is most likely to be challenged.

New option 3: Court-authorized service of process alternatives

The court may authorize additional means of service for good cause.

Remote trial testimony 

New Rule 45(c)(2) responds to the Ninth Circuit’s 2023 decision in In re Kirkland, which held that the current rule didn’t allow a court to subpoena a distant witness to testify at trial remotely. Under the amendment, the place of attendance for remote testimony is where the witness is told to appear in person. 

A subpoena can therefore reach a witness anywhere in the country, as long as it doesn’t require travel beyond Rule 45(c)(1)’s existing geographic limits. The court must still approve remote testimony under Rule 43(a); that standard does not change. 

Notice period and witness fees

• A subpoena commanding attendance at a trial, hearing, or deposition must be served at least 14 days in advance, unless the court shortens the period for good cause. 

• Witness fees no longer have to be tendered at the time of service. They may instead be tendered at the time and place the witness is commanded to appear.

Come December 2, 2027, how should subpoena service be made?

The tried-and-true method for a process server to hand the subpoena directly to the named person is still the most defensible method for service of process. Depending upon the United States Postal Service or a commercial carrier cannot provide the same level of certainty.. 

Using a professional process server can give you more detailed information about who the subpoena was actually left with and they will follow your instructions regarding how you want the service made. Should a subpoenaed party challenge service of process, you can have the server attend a court hearing.

When substitute service is enacted, the professional process server will confirm that the recipient meets the requirement of “suitable age,” confirm that both the recipient and the subpoenaed person live at the address, and properly record the recipient’s full name. Without a process server, you must establish all of that yourself.

Then there’s the matter of “suitable discretion.” Professional process servers understand what this means. The definition varies by jurisdiction, but often it means that the person wasn’t under the influence of alcohol or other substances that could affect their judgment at the time of service. 

It can also mean that the person wasn’t hostile to the efforts and didn’t flat-out say that they had no plans to give the subpoena to the final recipient. People with limited mental capacity are also generally not considered to be reasonable conduits for substitute service. 

Process servers are trained to assess this at the door. Proving it later from a delivery scan is close to impossible.

The impact of personal service for subpoenas

Professional process servers also bring more attention to the matter in the mind of the subpoenaed person. A subpoena that arrives with the regular mail is easy to set aside for later. A process server hands over the papers, usually without an envelope, and tells the person they have been served. That action is much more likely to make people take the matter seriously.

Cost considerations for litigators

Obtaining evidence is incredibly important to your case. The subpoena you’re issuing isn’t an afterthought, it’s a requirement for progressing your case. 

When you consider the time it takes to prepare any subpoena, and, in the case of a deposition, line up all the resources required, and secure the necessary documentation, each act bears substantial costs. 

A professional process server is the surest way to protect that investment.

Find out how Proof can help streamline subpoena service and improve scale at your litigation practice.