Posted on November 24, 2024

Do I Have To Share The Subpoena Responses I Received In My Illinois Divorce?

Lawyers have the enormous and independent power of subpoena. Lawyers can issue subpoenas and those subpoenas have the authority of the court. The subpoena must be answered under the penalty of contempt of court.

“[S]ubpoenas may be issued by an attorney admitted to practice in the State of Illinois who is currently counsel of record in the pending action. The subpoena may command the person to whom it is directed to produce documents or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted under these rules” Ill. Sup. Ct. R. 204(a)(1)

When someone receives a subpoena, they can be called a deponent. The deponent must provide the documents requested unless someone (not necessarily the subpoena receiver) file a motion to quash that subpoena.

If the subpoena is uncontested, the subpoena answerer (the deponent) can get in big trouble (i.e. at least be ordered to pay attorney’s fees). “If a party or other deponent refuses…to comply with a request for the production of documents or tangible things or inspection of real property…the party serving the request may on like notice move for an order compelling an answer or compliance with the request. If the court finds that the refusal or failure was without substantial justification, the court shall require the offending party or deponent, or the party whose attorney advised the conduct complained of, or either of them, to pay to the aggrieved party the amount of the reasonable expenses incurred in obtaining the order, including reasonable attorney’s fees.” Ill. Sup. Ct. R. 219

Deponents already received a subpoena. Deponents do NOT want any more problems. So, deponents usually and quickly provide the requested documents to the party that issued the subpoena.

In theory, the deponent should file a certificate of compliance with the court…but I’ve never seen a third-party deponent do that in my 18 years of practice.

“That party or attorney shall serve all requesting parties of record at least three days prior to the scheduled deposition, with true and complete copies of all documents, and shall make available for inspection tangible things, or other materials furnished, and shall file a certificate of compliance with the court.” Ill. Sup. Ct. R. 204(a)(4)

The deponent does NOT have to give the requested documents to all parties, just the party that requested the documents. The party that requested the documents is under no obligation to then share those documents with the opposing side. The opposing side must file their own notice to produce to get copies of the received subpoenaed documents.

In reality, the opposing side almost never issues a notice to produce for the received subpoenaed documents. Instead, the other side writes a polite letter vaguely referencing the Illinois Supreme Court Rule that governs subpoenas, 204(a), requesting copies of the received subpoenaed documents.

Even more common, the party that received the subpoenaed documents shares those documents immediately…and to their advantage. If a party was asking for the documents, those documents probably help their case and, therefore, that party would want to share those helpful (to them) documents immediately with the opposing side.

Furthermore, a subpoenaed document receiver could file a “Notice of Service of Subpoenaed Documents” alerting their opponent to how, exactly, they intend to use the documents at trial.

Certain documents (usually the kind that a deponent actually has kept) can be introduced in court without using a witness to authenticate the document as being genuine.

“The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), unless the opposing party shows that the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.” Ill. R. Evid. 803(6).

Illinois Supreme Court Rule 902(11) then describes how the these “records of regularly conducted activity” can come into court without a witness to authenticate them.

“The original or a duplicate of a record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written certification of its custodian or other qualified person that the record(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of these matters;(B) was kept in the course of the regularly conducted activity; and(C) was made by the regularly conducted activity as a regular practice.

The word “certification” as used in this subsection means with respect to a domestic record, a written declaration under oath subject to the penalty of perjury and, with respect to a record maintained or located in a foreign country, a written declaration signed in a country which, if falsely made, would subject the maker to criminal penalty under the laws of the country. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and certification available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them, Ill. R. Evid. 902(11)

The 803(6)-902(11) analysis might not even be necessary to get business records into evidence if someone can establish that the business record’s are collected in a legitimate fashion under Illinois Supreme Court Rule 236.

“Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility. The term “business,” as used in this rule, includes business, profession, occupation, and calling of every kind.” Ill. Sup. Ct. R. 236

“In sum, we hold that print-out sheets of business records stored on electronic computing equipment are admissible in evidence if relevant and material, without the necessity of identifying, locating and producing as witnesses the individuals who made the entries in the regular course of business if it is shown (1) that the electronic computing equipment is recognized as standard equipment, (2) the entries are made in the regular course of business at or reasonably near the time of the happening of the event recorded, and (3) the foundation testimony satisfies the court that the sources of information, method and time of preparation were such as to indicate its trustworthiness and justify its admission.” Grand Liquor Co. v. Dept. of Revenue, 367 NE 2d 1238 – Ill: Supreme Court 1977 (quoting King v. State ex rel. Murdock Acceptance Corp. (Miss. 1969), 222 So.2d 393, 398)

Sharing the received subpoenaed records with notice of your intent to introduce the records under these three rules should have two effects: 1) Letting the opposing side know you are prepared to go to trial and 2) Keep them from objecting to the received subpoenaed documents by showing the judge the notice of service.

Overall, it’s a very smart strategy that I gladly stole from a very smart opposing counsel. As Picasso said, “Good artists copy. Great artists steal.”

If you’re struggling with how to navigate the maze of discovery rules both written and unwritten in Illinois family law, contact my Chicago, Illinois divorce and family law office to speak with an experienced Illinois divorce lawyer.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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