Posted on May 18, 2025

How To Issue A Subpoena Outside of Illinois For An Illinois Divorce Case

A subpoena is “[a] writ or order commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply.” Black’s Law Dictionary (11th ed. 2019)

Before email subpoenas really would make people come into court (or the lawyer’s office) with all the documents requested and then the lawyer who issued the subpoena would question the producer under oath.

Today, most subpoena’s just request documents to be emailed with a certification by the custodian of records.

People respond to subpoenas because if they do not reply to the subpoena as requested, the subpoena issuer can ask that the deponent (person who got the subpoena) be held in contempt of court.

“The service of the rule to show cause or order of contempt upon the nonparty, except when the rule or order is initiated by the court, shall include a copy of the petition for rule and the discovery order or subpoena which is the basis for the petition for rule.

The service of the rule to show cause or order of contempt upon the nonparty shall be made in the same manner as service of summons provided for under sections 2-202, 2-203(a)(1) and 2-203.1 of the Code of Civil Procedure.” Ill. Sup. Ct. R. 204(d)(2,3)

If the deponent does not live in Illinois and doesn’t plan on visiting Illinois any time soon, then they might not care about getting held in contempt of court by an Illinois court.

You will recall on the Dukes of Hazzard that the Duke boys would simply cross the state lines to avoid the Sheriff as the Sheriff had no jurisdiction to enforce the law in the other state. Illinois contempt orders are similarly toothless in other states.

Therefore, in order to ensure cooperation from an out-of-state deponent, an Illinois subpoena issuer must hire local counsel in the deponent’s state to register the Illinois subpoena in the county where the deponent lives under the Uniform Interstate Depositions and Discovery Act.

The Uniform Interstate Depositions and Discovery Act is a statute that 47 states have enacted. I’ll be citing the Act under the Act’s Uniform Illinois citation for clarity. Obviously, you’ll need to refer to the citation of whatever state you’re registering your subpoena in.

“To request issuance of a subpoena under this Section, a party must submit a foreign subpoena to a clerk of court in the county in which discovery is sought to be conducted in this State.” 735 ILCS 35/3(a)

Just because a subpoena is issued does not mean the subpoena MUST be answered. A deponent can ask the local court to quash the subpoena under local rules.

“An application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of court under Section 3 must comply with the rules or statutes of this State and be submitted to the court in the county in which discovery is to be conducted.” 735 ILCS 35/6

The foreign deponent may claim that your subpoena is overly broad, for the purposes of harassment, contains privileged information or any other basis that the deponent’s state allows as a basis to quash a subpoena.

Different states have different discovery rules. You will not, initially, be allowed to rely on Illinois’ discovery rules to enforce your subpoena.

The committee comments to the Act provided by the National Conference of Commissioners on Uniform State Laws elaborate on this point.

“The act requires that any application to the court for a protective order, or to enforce, quash, or modify a subpoena, or for any other dispute relating to discovery under this Act, must comply with the law of the discovery state. Those laws include the discovery state’s procedural, evidentiary, and conflict of laws rules. Again, the discovery state has a significant interest in protecting its residents who become non-party witnesses in an action pending in a foreign jurisdiction from any unreasonable or unduly burdensome discovery requests, and this is easily accomplished by requiring that any discovery motions must be decided under the laws of the discovery state. This protects the deponent by requiring that all applications to the court that directly affect the deponent must be made in the discovery state.

***

Evidentiary issues that may arise, such as objections based on grounds such as relevance or privilege, are best decided in the discovery state under the laws of the discovery state (including its conflict of laws principles).” (Emphases added.) Nat’l Conference of Comm’rs on Unif. State Laws, supra, § 6, cmt. at 9.

If a motion to quash in the other state is filed, all is not lost. You can frame the differences between Illinois’ laws and the deponent’s state’s laws as a conflict of laws issue.

“[B]y isolating the issue and defining the conflict.’ A choice-of-law determination is required only when a difference in law will make a difference in the outcome. The party seeking the choice-of-law determination bears the burden of demonstrating a conflict, i.e., that there exists a difference in the law that will make a difference in the outcome. Once a conflict between laws is established, the analysis turns to which law should be applied.” Bridgeview Health Care Center, Ltd. v. State Farm Fire & Casualty Co., 2014 IL 116389, ¶ 14, 381 Ill.Dec. 493, 10 N.E.3d 902 (citations omitted)

If the two states discovery laws are not that different and the difference would not have a real impact, then the local court can just use its own state’s discovery laws.

 “A choice-of-law analysis is not a purely academic exercise, as to meet its initial burden [the subpoena issuer] must demonstrate not just a conflict of law but one that will actually make a difference in the outcome.” Cascade Builders Corp. v. Rugar, 183 NE 3d 206 – Ill: Appellate Court, 1st Dist., 5th Div. 2021

If there is a difference then the local court will apply its state’s particular conflicts of laws policy to the motion to quash. For example, “Colorado has adopted the general rule, as set forth in the restatement (Second) of Conflicts of Law, that the law of the state with the most “significant relationship” with the occurrence and the parties governs.  Once the state having the most significant relationship is identified, the law of that state is then applied to resolve the issue.” BlueMountain Credit Alternatives Master Fund LP v. Regal Entertainment Group, 2020 COA 67 – Colo: Court of Appeals, Div. A 2020 (citations omitted)

States that use this principle can expect to apply Illinois’ law because an Illinois will have the most “significant relationship” with the parties to an Illinois divorce.

Discovery is imperfect and is only supervised by a judge after you file a motion to compel. You must enforce your discovery requests properly or they will be denied and you will not have the evidence necessary to succeed in negotiations or at trial.

To speak with an experienced Illinois family law attorney, contact my Chicago, Illinois office to schedule a free consultation.

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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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