This post uses hypothetical scenarios for illustrative purposes only. It does not describe any actual client, transaction, or representation, and is not legal advice.
A common 2026 pattern for any Florida company that holds customer accounts looks like this: an envelope arrives from the registered agent — or, worse, from a former registered agent whose forwarding instructions were never updated. Inside is a Rule 45 subpoena from a lawsuit the company has never heard of, between parties it has never dealt with, demanding “all KYC information,” account records, and transaction histories for a handful of names, account numbers, or wallet addresses. The subpoena is dated six weeks ago. The production date passed two weeks ago. A follow-up letter from the issuing lawyer, politely mentioning a motion to compel, is clipped to the front. And when the compliance team runs every name and identifier through every system the company has, the result is nothing. No accounts. No transactions. No records at all.
The two instincts that follow are both wrong. The first is relief: nothing to produce, nothing to do. The second is panic: the deadline is blown, the word “compel” is on the page, and someone starts drafting a five-page letter about the registered-agent mix-up. The right response sits between them, and it is short.
A subpoena you have nothing for is still a subpoena
Rule 45 governs subpoenas in federal civil cases and, through Bankruptcy Rule 9016, in bankruptcy cases and adversary proceedings — where a surprising share of records subpoenas to financial and technology companies now originate, as creditors chase a debtor’s assets through every platform the debtor might have touched. Rule 45(g) lets the court hold a person in contempt for failing “without adequate excuse” to obey a served subpoena. A subpoena that went to a stale registered agent is, in the eyes of the rule, served: service on the agent is service on the company, and the company’s failure to update its agent is the company’s problem. The late arrival is still the honest explanation for the delay, and issuing counsel will usually accept it in exchange for a firm commitment to respond by a date certain. But it is an explanation, not an excuse, and it should be offered as one — a short email requesting a brief extension and reserving all rights, not a brief.
Two deadlines matter, and by the time a late subpoena surfaces one of them is usually gone. Written objections under Rule 45(d)(2)(B) must be served before the earlier of the compliance date or fourteen days after service. Miss it and the objections are generally waived. For a company that has nothing to produce, that loss is smaller than it sounds — objections protect material being withheld, and a company with no records is withholding nothing. The compliance date is what governs the response, and it is what the extension request should reset. The third item on the calendar is housekeeping: the registered-agent record in every state where the company is qualified gets updated that week, so the next subpoena arrives at a desk that reads it.
“Nothing” has to be sworn
A court cannot compel the production of documents that do not exist. Bethea v. Comcast Corp., 218 F.R.D. 238 (D.D.C. 2003), says so in as many words, and courts repeat it routinely. What the requesting party is entitled to is not documents but a truthful answer after a reasonable inquiry — and the way a company gives that answer, in a form that ends the conversation, is a declaration under 28 U.S.C. § 1746 from a custodian of records. Section 1746 lets an unsworn written declaration carry the same force as a notarized affidavit on four conditions: it is in writing, signed, dated, and closes with the words “I declare under penalty of perjury that the foregoing is true and correct.” A false statement in it is perjury under 18 U.S.C. § 1621(2), which is exactly why opposing counsel and courts accept it.
The declaration works best when it is short and says only what the declarant actually knows. The custodian identifies himself and his authority, states that he directed and reviewed the search, describes what was searched — the systems reasonably likely to hold responsive records, run against each name and identifier in the subpoena — and states the result: the search identified no responsive records within the company’s possession, custody, or control, and the company therefore has nothing to produce. That last formulation matters. “The company has no records” is an absolute the declarant usually cannot know; “the search identified none, and the company therefore has none to produce” is what he knows, and it is what he swears to. Argument, objections, reservations of rights, and explanations for the delay do not belong in a sworn instrument; they belong in correspondence, or nowhere. One drafting trap: the penalty-of-perjury language changes with where the declarant signs. Inside the United States, the short form works. Outside it, § 1746(1) requires the words “under the laws of the United States of America,” and a declaration signed abroad without them is defective. Ask where the custodian will be sitting before the document goes out.
The definitions try to make the company bigger than it is
Records subpoenas arrive with an attachment of definitions, and the definition of “You” almost always sweeps in parents, subsidiaries, and affiliates. The purpose is obvious — the requesting party suspects the customer it is chasing may sit with a sister entity — but a definition in an attachment cannot enlarge Rule 45. A subpoena reaches documents in the served person’s possession, custody, or control, and nothing else. In the Eleventh Circuit, “control” means the legal right to obtain the documents on demand. Searock v. Stripling, 736 F.2d 650 (11th Cir. 1984). Sibling companies that share an owner but keep separate books, systems, and personnel do not control each other’s records; the owner’s power to direct both companies is the owner’s, not the served entity’s. Shared systems change the analysis — if the compliance team can pull an affiliate’s customer file in the ordinary course, those records are arguably within the company’s custody, and the search should cover them. The right posture is to certify the served entity’s own records and say nothing in the declaration about anyone else. If the requesting party wants an affiliate’s records, it can serve the affiliate.
The other recurring drafting defect is the request that forgot its anchor. A typical schedule ties every request to “accounts identified above” — except one, usually the transaction request, which asks for all deposits and withdrawals to or from any external account with no reference to whose accounts it means. Read literally, that is every customer’s transaction history — facially invalid against a non-party under Rule 45(d)(1), which obligates the issuing party to avoid imposing undue burden, and Rule 45(d)(3)(A)(iv), under which a court on timely motion must quash or modify a subpoena that imposes one. The company does not need to litigate that. It construes the request the only way it can sensibly be read — as directed to the accounts the subpoena actually identifies — searches on that basis, and records the construction and its reasoning in a memorandum to the file. A sworn statement that is true under a reasonable construction of an ambiguous demand is true; Bronston v. United States, 409 U.S. 352 (1973), and the cases following it hold that a fundamentally ambiguous question cannot ground a perjury charge. The declaration itself stays silent on the point. Whether to serve a formal objection instead is a judgment call, and for a company withholding nothing the answer is usually no.
Email is enough, and less is more
Rule 45 prescribes no method for delivering a response. The place-and-time box on the form fixes where production may be commanded, and Rule 45(d)(2)(A) says a person commanded to produce documents “need not appear in person at the place of production.” When there are no documents, there is nothing to tender at the address at all; what remains is a written response to the attorney the subpoena itself designates as the contact. Many subpoenas expressly invite the recipient to arrange electronic production with issuing counsel, and the 2013 advisory committee note to Rule 45 blesses that arrangement. When the subpoena is silent, email is still the ordinary custom of the bar, and one clause in the transmittal — “please let me know if you prefer delivery in another form” — creates the agreement the rules contemplate and forecloses any later quibble. Nothing is filed with the court. The response runs to counsel, and the file closes when it lands.
The transmittal email should be one sentence: counsel represents the company, attached is the executed declaration responding to the subpoena, contact me with any questions. Every additional sentence is a second, informal version of the sworn statement, and any daylight between the two is something a hostile reader can probe. Reservations of rights, supplementation promises, and requests for confirmation of receipt add nothing the rules do not already supply — the duty to supplement is usually written into the subpoena’s own instructions, and the email thread proves delivery. The place for the company’s reasoning is a memorandum to the file — the delivery basis, the construction of any defective request, the affiliate analysis, and the decision not to object — written while the facts are fresh, so that if a motion ever comes, the position was on the record months earlier rather than reconstructed under deadline.
What to do the day it arrives
First, calendar three dates — the compliance date, fourteen days from service for objections, and the date the extension request will propose — and note honestly which have already passed. Second, email issuing counsel the same day: the company received the subpoena late, is reviewing it, requests a short extension, and reserves all rights; three sentences. Third, run the search properly and document it — every name and identifier in the schedule, across every system where responsive records would live, with the results in writing, because the custodian will swear to them. Fourth, draft the shortest declaration that says what was searched and what was found, and get it signed by someone with authority who actually reviewed the results, in the correct jurat form for where he signs. Fifth, send it by email to the designated attorney with a one-sentence cover and the alternative-delivery offer, comfortably before the extended date. Sixth, write the memo to file, and while the file is open, fix the registered agent.
Handled this way, a records subpoena for information the company does not have is a two-week matter that ends in a one-page declaration and a one-sentence email. Handled the other way — ignored because there is nothing to give, or answered with a letter that argues every point — it becomes a motion to compel over a response the company could have delivered for free.
If you are a Florida company that has received a subpoena for records you may not have, feel free to reach out to our firm manager, Magda, at Magda@montague.law, or fill out our contact form. Mention you read this post.
