In an Illinois divorce, discovery may go beyond the state. For example, one spouse may work for an employer in Indiana or keep bank accounts in Florida. Another spouse may transfer money through an out-of-state relative or company. These records can be vital in deciding maintenance, child support, property division, dissipation, attorney’s fees, or other issues in the divorce.
A divorce court may require the spouses to exchange discovery. However, the more difficult question arises when the necessary information is held by a person or company outside Illinois. An Illinois subpoena is helpful in the Illinois case, but the out-of-state witness or record holder may not have to comply with that Illinois subpoena, unless the subpoena is turned into a valid subpoena in the state where discovery is being sought.
The process is commonly called domesticating the subpoena.
Domesticating an out-of-state subpoena refers to taking a subpoena from one state and using the procedure of another state to issue a subpoena that can be served and enforced where the witness, documents, electronically stored information, business records, or other evidence is.
So, out-of-state discovery is a two-step problem. First, the Illinois divorce lawyer must identify what information is required and who truly has it. Second, the lawyer must domesticate the subpoena in the state where the witness, documents, electronically stored information, or business records are located.
Discovery In An Illinois Divorce
Discovery is where parties get the information they need to prepare their case. In Illinois, “information is obtainable” through multiple methods, such as depositions, written interrogatories, document production, inspection of real estate, requests to admit, and physical or mental examinations. Ill. S. Ct. R. 201(a). Further, “a party may obtain by discovery full disclosure” regarding matters relevant to the subject matter of the pending action. Ill. S. Ct. R. 201(b)(1).
Discovery is particularly important in a divorce, as an Illinois court cannot divide property, determine income, allocate expenses, set support, or award attorney’s fees without reliable information. Thus, a spouse’s financial affidavit must be supported by “documentary evidence including, but not limited to, income tax returns, pay stubs, and banking statements.” 750 ILCS 5/501(a)(1).
A financial affidavit is only the beginning of financial discovery, though. The other spouse may need more complete records to value assets, verify income, trace transfers, or determine whether money was spent, hidden, or moved.
Common discovery in an Illinois divorce includes requests for pay records, business records, tax returns, credit card statements, bank statements, retirement account statements, brokerage statements, real estate documents, and relevant communications about money. Some of those records certainly can be found in Illinois. Yet, others may be held by an out-of-state bank, accountant, employer, business partner, or relative.
When that information is being held by the other spouse, Illinois discovery rules generally give the starting point. When the information is being held by a nonparty outside Illinois, the party seeking discovery may need more than an Illinois discovery request. That party may need an out-of-state subpoena that has been properly domesticated in the discovery state.
Illinois Subpoenas For Nonparties
When the information is held by an individual or company other than the opposing spouse, an Illinois divorce lawyer will likely need to use a subpoena. A subpoena is not like a discovery request served on a party. A spouse may be required to produce documents, disclose information, and answer interrogatories through the Illinois discovery rules. However, a nonparty typically has to be compelled through a subpoena.
Illinois Supreme Court Rule 204 governs subpoenas for discovery depositions. Rule 204 states that “the clerk of the court shall issue subpoenas on request,” and that subpoenas may also be issued by an Illinois attorney who is counsel of record in the pending case. Ill. S. Ct. R. 204(a)(1). A subpoena can require more than testimony; it “may command” the person to produce “documents or tangible things” that contain evidence within the scope of discovery. Id.
The committee comments to Rule 204 explain that “subpoenas must be directed to individuals, not inanimate objects.” Ill. S. Ct. R. 204, Committee Comments. In other words, the subpoena is directed to a person or entity, not to the actual documents.
This is important in divorce discovery. A lawyer should not subpoena “the bank records” or “the payroll file.” The subpoena needs to be directed to the bank, accountant, employer, business, or other person who has possession, custody, or control of the documents.
Illinois law also recognizes subpoenas for documents. An Illinois attorney, “as an officer of the court, may also issue subpoenas on behalf of the court.” 735 ILCS 5/2-1101. Additionally, the statute provides that “[a]n order of court is not required” to obtain a subpoena duces tecum. Id. A subpoena duces tecum refers to a subpoena that requires the production of documents or other things.
In an Illinois divorce, subpoenas are used to obtain records from nonparties. The subpoena must identify the person or entity being subpoenaed, the documents requested, the date for compliance, and the method of production.
Importantly, a subpoena should also be narrow enough to survive objection. Section 2-1101 allows the court, “[f]or good cause shown,” to “quash or modify any subpoena.” 735 ILCS 5/2-1101. So, an overbroad subpoena in an Illinois divorce may cause delay rather than produce any useful information.
Why An Illinois Subpoena May Not Be Enough Outside Illinois
Just because an Illinois subpoena is powerful in Illinois does not mean it is automatically powerful everywhere. Usually, it is not.
Subpoenas may issue for witnesses and “to those counties in the State” as required by either party. 735 ILCS 5/2-1101. That phrase matters. An Illinois divorce case may be pending in Cook County, DuPage County, Lake County, Will County, or another Illinois county, yet the person with the relevant records may be in another state.
Imagine that Spouse A works for a Missouri employer, owns property in Florida, and starts a business in Massachusetts. The Illinois divorce court has power over the divorce case and the parties before it. However, an out-of-state nonparty does not have to respond to an Illinois subpoena unless the subpoena is issued properly and served under the law of the state where discovery is being sought.
Consequently, the first practical step in out-of-state discovery should be identifying the correct person or entity to serve. Remember that serving the wrong employee, branch, office, or address can give the recipient an easy reason not to comply. If the record holder is a corporation, bank, employer, or other business, the lawyer might have to locate a registered agent or other agent authorized to accept service in the state where the subpoena will be issued.
Illinois Supreme Court Rule 204 recognizes how important proper service is. Rule 204 explains that “[a] deponent shall respond to any lawful subpoena of which the deponent has actual knowledge, if payment of the fee and mileage has been tendered.” Ill. S. Ct. R. 204(a)(2). Service by certified or registered mail may be proved by “a return receipt showing delivery to the deponent or his authorized agent” at least seven days before the required appearance date. Id.
The same idea applies in out-of-state discovery. The subpoena must reach the correct person or authorized agent. Yet, Illinois Rule 204 does not control how service must operate in another state. When the witness or record holder is outside Illinois, the lawyer has to follow the subpoena and service rules of the state where discovery is being conducted.
If you are an Illinois lawyer, you should not assume that an Illinois subpoena by itself will force an out-of-state nonparty to produce documents. The subpoena may need to be domesticated in the state where the documents, electronically stored information, testimony, or business records are located.
What Does It Mean To Domesticate An Out-Of-State Subpoena?
To domesticate a subpoena means to take a subpoena issued in one state and use the procedure of another state to obtain a subpoena that is valid in that other state.
According to Illinois’s Uniform Interstate Depositions and Discovery Act, a “foreign jurisdiction” is “a state other than this State.” 735 ILCS 35/2. A “foreign subpoena” is “a subpoena issued under authority of a court of record of a foreign jurisdiction.” Id.
So, a subpoena issued by an Indiana court, Wisconsin court, Missouri court, or other non-Illinois court is considered a “foreign subpoena” when it is being used to seek discovery in Illinois.
Further, an Illinois subpoena is a foreign subpoena when an Illinois lawyer is using it to obtain records or testimony in another state.
Domesticating the subpoena is not relitigating the divorce case in the discovery state. It also does not mean the discovery state turns into the court that decides maintenance, child support, property division, or parenting issues. It just means the discovery state’s procedure is used to issue a subpoena that can be served and enforced where the witness or records are located.
Divorce litigation often involves people and companies who are not parties to the Illinois divorce, so this distinction is important. An Illinois court may have authority over the spouses, but that does not mean the Illinois court automatically has practical subpoena power over an out-of-state bank, employer, accountant, business, or record custodian.
Domesticating A Foreign Subpoena In Illinois Under Supreme Court Rule 17
Illinois has adopted the Uniform Interstate Depositions and Discovery Act. 735 ILCS 35/1. However, Illinois lawyers and out-of-state lawyers who seek discovery in Illinois should not stop with the statute. Illinois Supreme Court Rule 17 is the central rule governing foreign subpoenas.
Rule 17 applies to “any request for subpoena pursuant to the Uniform Interstate Depositions and Discovery Act.” Ill. S. Ct. R. 17(a).
To request issuance of a subpoena under the UIDDA, a person is required to submit the following to the clerk of the circuit court in the county where discovery is sought: “(1) a foreign subpoena; (2) an attestation form fully completed under penalty of perjury in the form authorized by the Supreme Court and found in the Article I Forms Appendix; (3) any other documentation required by local circuit court rule; and (4) any other document required by the Uniform Interstate Depositions and Discovery Act.” Ill. S. Ct. R. 17(b).
Domesticating an out-of-state subpoena is not just a matter of mailing the foreign subpoena to the witness. The subpoena must go through the Illinois procedure. The foreign subpoena, the Supreme Court-approved attestation form, local circuit court documentation, and any other UIDDA-required document are all necessary.
Rule 17 also states that, after receiving the required documentation and in accordance with the circuit court’s procedure, “the clerk of the circuit court shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed” unless issuance is prohibited. Ill. S. Ct. R. 17(b).
The clerk cannot issue the Illinois subpoena where the person requesting it does not submit all documents required by Rule 17(b). Ill. S. Ct. R. 17(c). The clerk also cannot issue the subpoena if the request does not comply with section 3.5 of the Uniform Interstate Depositions and Discovery Act. Id.; 735 ILCS 35/3.5.
A subpoena issued under Rule 17 must “incorporate the terms used in the foreign subpoena.” Ill. S. Ct. R. 17(d)(1). It needs to also contain or be accompanied by the names, addresses, email addresses, and phone numbers of counsel of record and any unrepresented party in the proceeding. Ill. S. Ct. R. 17(d)(2).
The Illinois subpoena is not meant to become a new and different subpoena. Rather, it should incorporate the terms of the foreign subpoena while also following Illinois law, local circuit court requirements, and the UIDDA.
The Illinois Supreme Court Foreign Subpoena Attestation Form
The person seeking an Illinois subpoena must use the Foreign Subpoena Attestation form approved by the Illinois Supreme Court to domesticate the out-of-state subpoena. A person requesting issuance of a subpoena under the UIDDA must submit “an attestation form fully completed under penalty of perjury in the form authorized by the Supreme Court.” Ill. S. Ct. R. 17(b)(2). Rule 17 further requires that person to submit the foreign subpoena, any documentation required by local circuit court rule, and any other document required by the UIDDA. Ill. S. Ct. R. 17(b).
The form instructs the person seeking enforcement in Illinois to attach the out-of-state subpoena. By doing so, the person certifies that the subpoena was lawfully issued and that no contradictory certifications were made in support of obtaining the subpoena as required by 735 ILCS 35/3.5.
The attestation needs information about the foreign court of record and the foreign court case number. The form also asks whether the out-of-state subpoena requests documents, information, or testimony related to lawful health care activity, rights under the Illinois Reproductive Health Act, or another state’s law that would interfere with rights under the Illinois Reproductive Health Act. If these issues are implicated, additional certifications might be required under 735 ILCS 35/3.5.
In an ordinary Illinois divorce discovery dispute that involves employment records, business records, bank records, or financial records, these health-care-related questions may not be the main issue. However, the form is nonetheless important since Rule 17 requires the attestation form before the clerk may issue an Illinois subpoena based on a foreign subpoena. Absent the required Rule 17 materials, the foreign subpoena has not been domesticated in Illinois properly.
Cook County Procedure For Domesticating A Foreign Subpoena In Illinois
Many Illinois divorce cases are filed in Cook County, and many out-of-state lawyers also need records from entities located in Cook County.
Domesticating a foreign subpoena is form-driven in Cook County. Regardless of the underlying dispute, the Cook County foreign subpoena process uses Law Division forms. The Cook County Subpoena for a Foreign Action Cover Sheet itself identifies the filing as being in the “County Department, Law Division.” CCL 0015.
This local procedure fits within Illinois Supreme Court Rule 17. Rule 17 requires the person requesting issuance of an Illinois subpoena under the UIDDA to submit the foreign subpoena, the Supreme Court-approved attestation form, “any other documentation required by local circuit court rule,” and any other document required by the UIDDA. Ill. S. Ct. R. 17(b).
A party who wants to domesticate a foreign subpoena in Cook County should expect to need the following:
- The foreign subpoena issued from the out-of-state court of record.
- The Foreign Subpoena Attestation form approved by the Illinois Supreme Court and required in Illinois circuit courts.
- The Cook County Civil Action Cover Sheet, Law Division, CCL 0520.
- The Cook County Subpoena for a Foreign Action Cover Sheet, CCL 0015.
- The Illinois Subpoena in a Civil Matter, CCG 0106, incorporating the terms of the foreign subpoena.
The Cook County Clerk’s form search identifies CCL 0520 as the Civil Action Cover Sheet for the Law Division. It identifies CCL 0015 as the Subpoena for a Foreign Action Cover Sheet for the Law Division. This form search identifies CCG 0106 as the Subpoena in a Civil Matter.
Thus, an out-of-state lawyer may have a divorce subpoena from Florida, Wisconsin, Missouri, or another state. Yet, if the discovery is sought in Cook County, Illinois, the subpoena must be domesticated through the Cook County process. The lawyer cannot just send the out-of-state subpoena to an Illinois nonparty and assume the nonparty is forced to comply.
The foreign subpoena has to be converted into an Illinois subpoena that can be served in Illinois. In Cook County, that means using the required Illinois Supreme Court and Cook County forms. Once all required documents are submitted, the clerk of the circuit court will promptly issue a subpoena for service on the person to whom the foreign subpoena is directed, unless issuance is prohibited. Ill. S. Ct. R. 17(b).
A subpoena issued under Rule 17 needs to also “incorporate the terms used in the foreign subpoena.” Ill. S. Ct. R. 17(d)(1). In sum, the Cook County subpoena is not a new discovery request. Instead, it is the domestic instrument that makes the foreign subpoena enforceable in Illinois, incorporating the terms of the subpoena issued by the out-of-state court of record.
Serving A Domesticated Foreign Subpoena In Illinois
Once the Illinois subpoena is issued, Rule 17 governs service, as well.
Rule 17 states that an individual serving a subpoena issued under the UIDDA must file a certificate of service with the clerk of the circuit court. Ill. S. Ct. R. 17(e). That individual must further serve the recipient with the certificate of service, the subpoena issued by the clerk, and a copy of all documents submitted to the clerk. Id.
Service must follow Illinois Supreme Court Rules 204 and 237 and section 2-1101 of the Illinois Code of Civil Procedure. Ill. S. Ct. R. 17(e); 735 ILCS 35/4.
So, the subpoena recipient should receive the Illinois subpoena issued by the clerk, not just the out-of-state subpoena. The recipient needs to also receive the supporting documents required by Rule 17.
What If You Receive An Out-Of-State Subpoena But Have No Contacts With That State?
In some cases, an Illinois entity receives a subpoena from another state even though that entity has no contacts with that state.
The recipient should not ignore the subpoena. A subpoena is a legal document, so ignoring it may create unnecessary risk. The recipient is wise to take action: respond, object, ask for clarification, or speak with counsel.
Still, there may be a serious enforcement problem if the out-of-state subpoena has not been domesticated in Illinois. An out-of-state court may have authority over the case pending in that state, but that does not necessarily mean the out-of-state court has practical subpoena power over an Illinois nonparty with no contacts with that state. Where the subpoena has not been domesticated in Illinois, there may be no Illinois subpoena to enforce against the Illinois recipient.
If the party who seeks discovery wants to compel an Illinois nonparty to comply, the typical path is to domesticate the foreign subpoena in Illinois under the UIDDA, Illinois Supreme Court Rule 17, and the applicable local circuit court procedure.
After the subpoena is domesticated in Illinois, Illinois procedure governs service, production, inspection, and other disputes over enforcement, quashing, or modifying the subpoena. An application “for a protective order or to enforce, quash, or modify a subpoena” issued by an Illinois clerk under the Act must comply with Illinois rules or statutes and be submitted to the court in the county where discovery is to be conducted. 735 ILCS 35/6.
Find The Out-Of-State Witness Or Record Holder
The first step an Illinois divorce lawyer must take before issuing an out-of-state subpoena is determining who actually possesses the records. Illinois Supreme Court Rule 201 allows discovery into the “existence, description, nature, custody, condition, and location of any documents or tangible things.” Ill. S. Ct. R. 201(b)(1). Rule 201 also allows discovery of the “identity and location” of people who have “knowledge of relevant facts.” Id.
The lawyer must identify the state and county where the witness or record holder is located. If it is a business, that likely means the lawyer must find the company’s registered agent or another individual authorized to accept service in that state.
Out-of-state records can raise a practical discovery problem. In Price v. Grefco, Inc., an Illinois appellate court considered discovery that involved records held by out-of-state medical providers; it explained that “[w]here, as here, the entity having possession of the documents is not subject to process in this State, obtaining such documents is dependent upon legislation or rules of court in that other State.” 187 Ill. App. 3d 514, 516 (1989).
The court in Price further recognized the “difficulties of obtaining inspection of documents in the possession of out-of-State third parties.” Id. This is the common problem that may arise in an Illinois divorce.
The first step is not just to draft a long subpoena. The first step is to figure out who must be served, where that person or entity is located, and whether that person or entity has an agent authorized to accept service.
Draft The Illinois Subpoena Before Using The Other State’s Procedure
Once the Illinois divorce lawyer has identified the out-of-state witness or record holder, the lawyer should draft the Illinois subpoena. The subpoena should identify the Illinois divorce case, the issuing court, the parties, the person or entity being subpoenaed, the documents requested, and the date for compliance.
A subpoena often requires production of “documents or tangible things” that contain evidence within the scope of discovery. Ill. S. Ct. R. 204(a)(1). A subpoena can also be used only for records. Rule 204 states, the “appearance of the deponent is excused” if the specified documents or tangible things are produced “by a date certain.” Ill. S. Ct. R. 204(a)(4). This is particularly helpful if the lawyer does not actually need to depose the bank, accountant, or employer. The lawyer may only need records.
The subpoena must be specific. Illinois discovery is broad, but it is not unlimited. The Illinois Supreme Court has explained that the concept of relevance “facilitates trial preparation while safeguarding against improper and abusive discovery.” Kunkel v. Walton, 179 Ill. 2d 519, 531 (1997). It also has explained that “the relevance requirement is an independent constraint on discovery.” Id. at 533.
Put simply, information does not become discoverable just because a spouse asks for it. The requested records still need to connect to the issues in the divorce. A subpoena for out-of-state records needs to identify the records that matter. These documents may show assets, income, expenses, debts, and other financial problems.
Under Illinois Supreme Court Rule 201, proportionality is also required. Rule 201(c)(3) allows the court to determine whether “the likely burden or expense of the proposed discovery, including electronically stored information, outweighs the likely benefit.” Ill. S. Ct. R. 201(c)(3). The court should consider “the amount in controversy, the resources of the parties, the importance of the issues in the litigation, and the importance of the requested discovery in resolving the issues.” Id.
In Carlson v. Jerousek, the appellate court explained, “[p]roportionality imposes a second limitation on what is discoverable: even if it is relevant, information need not be produced if the benefits of producing it do not outweigh the burdens.” 2016 IL App (2d) 151248, ¶ 39. Further, the “legitimate privacy concerns of the responding party” are part of the burden the court may consider. Id.
When discovery is sought from a nonparty, that point is very important. The Carlson court noted that “[a]nother potentially relevant factor is whether the discovery is sought from a nonparty without any direct stake in the outcome of the litigation.” Id. ¶ 41. A nonparty is not a spouse in the divorce, so the subpoena should be targeted enough to obtain the records needed without creating unnecessary delay, expense, or privacy concerns.
The Illinois subpoena must be drafted in a targeted and proportional way. That way, the lawyer can decide how to have that subpoena issued or domesticated in the state where discovery will happen. That is where the Uniform Interstate Depositions and Discovery Act becomes important.
Domesticating An Illinois Subpoena In Another State
When an Illinois divorce lawyer needs documents or testimony from another state, the lawyer typically begins with the Illinois subpoena. The lawyer must then use the discovery-state procedure to domesticate the subpoena. For instance, if the records are in California, the Illinois lawyer must use California’s process.
The Illinois court is deciding the divorce, has jurisdiction over the spouses, and is likely deciding support, maintenance, property division, dissipation, attorney’s fees, or parenting issues. However, the out-of-state nonparty is often reached through the court or clerk procedure of the state where the discovery will be conducted.
Domesticating Illinois Subpoenas In Florida And Florida Subpoenas In Illinois
Out-of-state discovery usually runs in both directions. An Illinois divorce lawyer may need records from a Florida business, employer, accountant, bank, or another related entity. A Florida divorce lawyer may need records from an Illinois entity.
Florida has adopted the Uniform Interstate Depositions and Discovery Act. Fla. Stat. § 92.251. A party from another jurisdiction must submit the foreign subpoena to the clerk of court in the Florida county where discovery is sought. Fla. Stat. § 92.251(3)(a). Then, the Florida clerk “shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.” Fla. Stat. § 92.251(3)(b).
Thus, if an Illinois divorce needs discovery from a Florida nonparty, the Illinois subpoena may have to be domesticated in Florida before it can be served and enforced under Florida law. An Illinois lawyer should not assume that an Illinois subpoena by itself will force a Florida nonparty to produce records.
This issue arises in reverse. A Florida subpoena may be valid in the Florida divorce case; yet, it does not automatically turn into an enforceable Illinois subpoena against an Illinois nonparty. The Florida subpoena must be domesticated in Illinois if the discovery is sought in Illinois.
Lawyers should not wait until the last minute. Domesticating a subpoena takes procedure, forms, service, and sometimes coordination with local counsel.
The Law Office of Russell D. Knight can assist Illinois lawyers who need to domesticate Illinois subpoenas in Florida so that Florida entities can be properly served under Florida law. The firm can further assist Florida lawyers who need to domesticate Florida subpoenas in Illinois, including in Cook County, where foreign subpoena requests usually require Illinois Supreme Court forms, Cook County Law Division forms, and an Illinois subpoena that incorporates the terms of the Florida subpoena.
This assistance can prove to be vital in divorce cases involving out-of-state employers, business records, payroll records, banks, tax records, and other financial evidence. The divorce case may be pending in Illinois or Florida, but the records may be elsewhere. When that happens, the subpoena must be enforceable where the records are located.
Enforcing, Quashing, Or Modifying An Out-Of-State Subpoena
Domesticating a subpoena does not make the subpoena safe from objection. It can be improperly served, too broad, too burdensome, disproportionate, irrelevant, or directed to the wrong person or entity.
Illinois’s UIDDA states that an application “for a protective order or to enforce, quash, or modify a subpoena” issued by an Illinois clerk under the Act has to comply with Illinois rules or statutes and needs to be submitted to the court in the county where discovery is to be conducted. 735 ILCS 35/6.
In Cascade Builders Corp. v. Rugar, the First District Appellate Court explained that the UIDDA was intended to provide a uniform interstate discovery procedure “that can be easily and efficiently followed, that has a minimum of judicial oversight and intervention, that is cost-effective for the litigants, and is fair to the deponents.” 2021 IL App (1st) 192410, ¶ 12.
The court also stated that section 6 means Illinois rules and statutes typically govern motions to quash subpoenas issued by an Illinois clerk under the UIDDA. Id. ¶ 13.
The lesson is that disputes over a domesticated subpoena often happen in the discovery state. Where a Florida subpoena is domesticated in Illinois, objections, enforcement, protective orders, and motions to quash are usually handled under Illinois procedure in the Illinois county where discovery is sought.
This is not like discovery directed to a spouse who is already a party to the Illinois divorce. If a spouse refuses to answer interrogatories, produce documents, or comply with Illinois discovery, the court can address that spouse’s noncompliance in most cases. The party who seeks discovery can “move for an order compelling an answer or compliance with the request.” Ill. S. Ct. R. 219(a).
If the court finds 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, to pay the aggrieved party’s reasonable expenses incurred in obtaining the order, which includes reasonable attorney’s fees. Id.
Illinois courts take discovery compliance seriously. The Illinois Supreme Court has stated that “[d]iscovery for all parties will not be effective unless trial courts do not countenance violations, and unhesitatingly impose sanctions proportionate to the circumstances.” Buehler v. Whalen, 70 Ill. 2d 51, 67 (1977). In a dissolution-related case, the appellate court also stated that “Illinois courts are becoming less tolerant of violations of discovery rules.” Harris v. Harris, 196 Ill. App. 3d 815, 820 (1990).
However, an out-of-state nonparty is different from a spouse who is already before the Illinois divorce court. If the nonparty is located outside Illinois, the subpoena typically must be domesticated, served, and enforced through the state where the witness, records, or electronically stored information are located.
Out-of-state discovery in an Illinois divorce is doable, but the subpoena has to be enforceable where compliance is required. An Illinois lawyer may know what records are necessary, but the subpoena still has to reach the correct witness or record holder through the appropriate state procedure. Domesticating the subpoena may be the difference between a document request that is ignored and a subpoena that can truly be served, challenged, enforced, or complied with.
The Law Office of Russell D. Knight represents clients in Illinois divorce cases involving discovery disputes, subpoenas, financial records, business records, maintenance, child support, property division, and attorney’s fees. Russell D. Knight has practiced family law as a Chicago divorce lawyer since 2006.
The Law Office of Russell D. Knight can also assist Illinois lawyers who need to domesticate Illinois subpoenas in Florida and Florida lawyers who need to domesticate Florida subpoenas in Illinois. Out-of-state discovery often requires more than drafting a subpoena. It may require the correct court forms, the correct clerk procedure, the correct county filing, proper service, and local enforcement if the subpoena recipient objects or refuses to comply.
CASES, STATUTES, RULES, FORMS, AND OTHER SOURCES REFERENCED IN THE OUT-OF-STATE DISCOVERY IN AN ILLINOIS DIVORCE ARTICLE
Ill. S. Ct. R. 17 — Foreign Subpoenas
Ill. S. Ct. R. 201 — General Discovery Provisions
Ill. S. Ct. R. 204 — Compelling Appearance Of Deponent
Ill. S. Ct. R. 219 — Consequences Of Refusal To Comply With Discovery Rules Or Orders
750 ILCS 5/501 — Temporary Relief And Financial Affidavits In Illinois Divorce Cases
735 ILCS 5/2-1101 — Subpoenas And Subpoenas Duces Tecum
735 ILCS 35/1 et seq. — Uniform Interstate Depositions And Discovery Act
735 ILCS 35/3.5 — Unenforceable Foreign Subpoenas
Fla. Stat. § 92.251 — Florida Uniform Interstate Depositions And Discovery Act
Illinois Supreme Court Foreign Subpoena Attestation Form
Cook County Civil Action Cover Sheet, Law Division, CCL 0520
Cook County Subpoena For A Foreign Action Cover Sheet, CCL 0015
Cook County Subpoena In A Civil Matter, CCG 0106
Price v. Grefco, Inc., 187 Ill. App. 3d 514 (1989)
Kunkel v. Walton, 179 Ill. 2d 519 (1997)
Carlson v. Jerousek, 2016 IL App (2d) 151248
Buehler v. Whalen, 70 Ill. 2d 51 (1977)
Harris v. Harris, 196 Ill. App. 3d 815 (1990)
Cascade Builders Corp. v. Rugar, 2021 IL App (1st) 192410
Uniform Law Commission, Uniform Interstate Depositions And Discovery Act
FREQUENTLY ASKED QUESTIONS ABOUT OUT-OF-STATE DISCOVERY IN AN ILLINOIS DIVORCE
Can I subpoena a bank, employer, or business in another state during my Illinois divorce? Yes, if the out-of-state entity has information that is relevant to the Illinois divorce, an Illinois lawyer may be able to seek those records. Yet, an Illinois subpoena by itself may be insufficient. The subpoena may need to be domesticated in the state where the witness, records, registered agent, or record custodian is located.
Does an Illinois subpoena automatically work outside Illinois? Typically, no. An Illinois subpoena is powerful in Illinois, but an out-of-state nonparty may not have to comply with it if it is not properly issued, domesticated, served, and enforceable under the law of the state where discovery is sought.
What does it mean to domesticate a subpoena? It means to use the procedure of the discovery state to turn a subpoena from another state into a valid subpoena that can be served and enforced where the witness or records are located.
What should I do if I receive an out-of-state subpoena in Illinois? You should determine whether the subpoena has been domesticated in Illinois properly. If the subpoena has not been domesticated, the issuing party may have issues enforcing it against an Illinois nonparty. Once the subpoena is domesticated in Illinois, disputes over enforcement, objections, protective orders, or motions to quash are typically handled under Illinois procedure in the Illinois county where discovery is sought.
Can Florida subpoenas be domesticated in Illinois, and can Illinois subpoenas be domesticated in Florida? Yes, a Florida subpoena may need to be domesticated in Illinois if discovery is sought from an Illinois entity. Similarly, an Illinois subpoena may need to be domesticated in Florida if discovery is sought from a Florida entity.
