Delaware Subpoena
Delaware still pays a witness $2.00 each day and 3 cents per mile going and returning, from a fee schedule whose history line starts at Code 1852. Attorney review available.
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Introduction
Delaware pays its witnesses out of a schedule that has barely been touched since the nineteenth century. Section 8903(a) of Title 10 of the Delaware Code allows a witness $2.00 each day for attendance in any court, plus 3 cents per mile going and returning, and drops that to 50 cents plus 2 cents per mile for attendance before a justice of the peace in cases not otherwise provided for. The section's history line begins at Code 1852, which explains the arithmetic. Two companion details matter in practice: Section 8903(d) denies witness fees and mileage entirely to a government employee serving in an official capacity, and Section 8904 sets a separate $1.00 figure for the Court of Common Pleas for Kent County. Issuance is also distinctively Delaware. Under Superior Court Civil Rule 45(a)(3) the Prothonotary hands a party a subpoena signed but otherwise in blank, which the party completes before service, and a Delaware attorney, as an officer of the Court, may issue and sign one directly. The subpoena has to come out of the right county: it issues from the county where the action is pending, or where the deposition or the production is to happen if the case sits in another court. Rule 45(a)(1)(D) then requires the subpoena to carry the text of subdivisions (c), (d) and (e) of the rule on its face, so a Delaware subpoena is a longer document than most. One thing Rule 45(b) does not require is tender of the fee at service: it asks only that a copy be delivered, with Rule 5(b) notice to each party where pretrial production is commanded. DocDraft prepares your Delaware subpoena from your facts, with attorney review available before service.
Key Things to Know
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A Delaware subpoena is a Superior Court order commanding a person to attend and give testimony, to produce and permit inspection and copying of designated books, documents or tangible things, or to permit inspection of premises, at a stated time and place (Del. Super. Ct. Civ. R. 45(a)(1)).
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The Delaware witness fee is $2.00 each day, plus 3 cents per mile going and returning, for attendance in any court or before referees, a Commissioner, the Register in Chancery or the prothonotary taking depositions (10 Del. C. Section 8903(a)).
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Attendance before a justice of the peace, or before two justices, in cases not otherwise provided for pays 50 cents plus 2 cents per mile going and returning, and the Court of Common Pleas for Kent County has its own $1.00 figure (10 Del. C. Sections 8903(a) and 8904).
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No government employee is entitled to Delaware witness fees or mileage if that employee is serving in an official capacity (10 Del. C. Section 8903(d)).
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The Prothonotary issues a Delaware subpoena signed but otherwise in blank to the party requesting it, who completes it before service, and a Delaware attorney, as an officer of the Court, may also issue and sign one (Del. Super. Ct. Civ. R. 45(a)(3)).
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A Delaware subpoena must set forth the text of subdivisions (c), (d) and (e) of Rule 45 on its face, and must issue from the county where the action is pending, or where the deposition or production is to occur if the action is pending in another court.
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A person commanded to produce may serve written objection within 14 days after service, or before the compliance time if that is less than 14 days, after which the serving party cannot inspect or copy except by order of the Court (Del. Super. Ct. Civ. R. 45(c)(2)(B)).
Key decisions before you file
Before you file a Subpoena in Delaware, a few decisions shape the document: which option to choose and what each one means. The Subpoena guide walks through them.
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Delaware Requirements for Subpoena
Witness Fee of $2.00 Each Day
Delaware allows a witness $2.00 each day for attendance in any court, before referees under a rule of court, a county governing body, a Commissioner, the Register in Chancery or the prothonotary taking depositions, or before either House of the General Assembly (10 Del. C. Section 8903(a)). The section's history line begins at Code 1852.
Mileage of 3 Cents Going and Returning
Mileage is 3 cents per mile going and returning for attendance in any court, so it is computed on the round trip (10 Del. C. Section 8903(a)). It is a statewide statutory figure, not a county-set rate, and carries no cap.
Lower Rates Before a Justice of the Peace
Attendance before a justice of the peace, or before 2 justices, in cases not otherwise provided for pays 50 cents plus 2 cents per mile going and returning, and the Court of Common Pleas for Kent County has its own $1.00 figure plus 3 cents per mile (10 Del. C. Sections 8903(a) and 8904). No government employee gets fees or mileage while serving in an official capacity (Section 8903(d)).
Prothonotary Issues It Signed But Blank
The Prothonotary shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who completes it before service. A Delaware attorney, as an officer of the Court, may also issue and sign a subpoena (Del. Super. Ct. Civ. R. 45(a)(3)).
It Must Issue From the Right County
A subpoena issues from the county in which the action is pending. If the action is pending in another court, a deposition-attendance subpoena issues from the county where the deposition is to be taken, and a standalone production or inspection subpoena from the county where that is to be made (Del. Super. Ct. Civ. R. 45(a)(2)).
Rule 45(c), (d) and (e) Printed on Its Face
Every Delaware subpoena must set forth the text of subdivisions (c), (d) and (e) of Rule 45, so the recipient reads the protection provisions, the response duties and the contempt warning off the paper itself (Del. Super. Ct. Civ. R. 45(a)(1)(D)). Delaware uses no single numbered statewide civil subpoena form.
No Tender Required at Service
Rule 45(b)(1) requires only that a copy be delivered to the person named, by the Sheriff or any nonparty at least 18 years of age, plus Rule 5(b) notice to each party for pretrial production. The published rule attaches no requirement to tender fees or mileage at service, which is unusual. Confirm with counsel for your court.
14 Days to Object, and the Out-of-State Limit
A person commanded to produce may serve written objection within 14 days after service, or before the compliance time if that is shorter, after which the serving party needs a Court order (Del. Super. Ct. Civ. R. 45(c)(2)(B)). The Delaware Family Court's subpoena FAQ adds the reach limit: any person can be subpoenaed, but the Court cannot enforce subpoenas on persons who live outside of Delaware.