A divorce is a total breakdown of trust between two parties to a marriage. Because of that breakdown in trust, the parties to a divorce must verify information from third parties. The information in need of verification might the parties’ income, the parties’ assets…even the parties’ late night activities.
The requests for information are allowable so long as they have some relevancy to the divorce.
“[A] party may obtain by discovery full disclosure regarding any matter relevant to the subject matter involved in the pending action” Ill. Sup. Ct. R. 201(b)(1)
In order to get a third party’s cooperation in providing documents to a litigant in an Illinois divorce, any Illinois lawyer can issue a subpoena at any time.
“An attorney admitted to practice in the State of Illinois, as an officer of the court, may also issue subpoenas on behalf of the court for witnesses and to counties in a pending action.” 735 ILCS 5/2-1101
“[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)
While the other party in the divorce is not receiving the subpoena, they must receive notice of the subpoena via a “Notice of Filing.”
“[A] copy of any discovery request under these rules to any nonparty shall be filed with the clerk in accord with Rule 104(b)” Ill. Sup. Ct. R. 201(o)
“Filing of Documents and Proof of Service. Pleadings subsequent to the complaint, written motions, and other documents required to be filed shall be filed with the clerk with a certificate of counsel or other proof that the documents have been served on all parties who have appeared and have not theretofore been found by the court to be in default for failure to plead.” Ill. Sup. Ct. R. 104(b)
The other party may not want the third party to disclose the requested information. However, the other party to an Illinois divorce does not control the third party and the third party’s ability or desire to produce the requested documents. In order to stop a third party from complying with a subpoena’s request, a motion to quash must be filed.
“For good cause shown, the court on motion may quash or modify any subpoena.” 735 ILCS 5/2-1101
Quash is a funny word. To quash is “to annul or make void; to terminate.” Black’s Law Dictionary (11th ed. 2019)
“The Court may order that information obtained through abuse of discovery procedures be suppressed. If a party willfully obtains or attempts to obtain information by an improper discovery method, willfully obtains or attempts to obtain information to which that party is not entitled, or otherwise abuses these discovery rules, the court may enter an order provided in paragraph (c) of this rule.” Ill. Sup. Ct. R. 219(d)
After filing a motion to quash, the person seeking that the subpoena be stopped should send a polite letter to the subpoenaed party explaining that they do not have to produce the requested items until the court has ruled on the attached motion to quash. This should be sufficient to delay production until a ruling on the motion to quash occurs.
If instead it is the subpoeanaed person themselves who wishes to not cooperate with the subpoena, they must file a motion to quash themselves and they must do so in a timely manner. Mistler v. Mancini, 443 NE 2d 1125 – Ill: Appellate Court, 2nd Dist. 1982
Subpoenas are part of the discovery process. Discovery is almost always allowed.
“The purposes of litigation are best served when each party knows as much about the controversy as is reasonably practicable. The objectives of pretrial discovery are to enhance the truth-seeking process, making good faith compliance with such procedures both desirable and necessary to enable attorneys to better prepare and evaluate their cases to eliminate surprises as far as possible so that judgments will rest upon the merits and not upon the skillful maneuvering of counsel and to promote an expeditious and final determination of controveries in accordance with the substantive rights of the parties. Discovery is not a tactical game to be used to obstruct or harass the opposing litigant. The rules make it clear that discovery procedures were designed to be flexible and adaptable to the infinite variety of cases and circumstances appearing in the trial court. Furthermore, the increasing complexity and volume of litigation involves frequent recourse to discovery procedures. To unduly limit their scope would inhibit pretrial settlements, increase the burden of already crowded court calendars, and thwart the efficient and expeditious administration of justice. Discovery before trial presupposes a range of relevance and materiality which includes not only what is admissible at trial but also that which leads to what is admissible at trial. Thus, great latitude is allowed in the scope of discovery.” Mistler v. Mancini, 111 Ill. App. 3d 228, 231-32 (Ill. App. Ct. 1982)
Subpoenas can be quashed under three circumstances: 1) the subpoena requests privileged information, 2) the subpoena’s purpose is harassment or 3) the subpoena is unnecessary.
Privileged information is any kind of communication between the party and a third-party that has been designated as “privileged.” This is usually private communication between a trusted professional and the person they are helping. The fact that these communications are privileged encourages everyone to be frank, open and honest in the most sensitive of situations.
Communication with attorneys, doctors, therapists, spiritual advisers and even accountants are privileged and therefore subject to a motion to quash should that communication be subpoenaed.
“All matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure.” Ill. Sup. Ct. R. 201
“No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient” 735 ILCS 5/8-802
“[A] recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communications.” 740 ILCS 110/10
“A clergyman or practitioner of any religious denomination accredited by the religious body to which he or she belongs, shall not be compelled to disclose in any court, or to any administrative board or agency, or to any public officer, a confession or admission made to him or her in his or her professional character or as a spiritual advisor in the course of the discipline enjoined by the rules or practices of such religious body or of the religion which he or she professes, nor be compelled to divulge any information which has been obtained by him or her in such professional character or as such spiritual advisor.” 735 ILCS 5/8-803
“A licensed or registered CPA shall not be required by any court to divulge information or evidence which has been obtained by him in his confidential capacity as a licensed or registered CPA.” 225 ILCS 450/27
Beyond quashing a subpoena for privilege, a party can always try to quash a subpoena by claiming that subpoena is, on balance, harassment.
Subpoenas should only be requesting information relevant to the divorce at hand.
“Discovery should be denied where there is insufficient evidence that the requested discovery is relevant.” Rokeby-Johnson v. Derek Bryant Ins. Brokers, 230 Ill. App. 3d 308, 317 (Ill. App. Ct. 1992)
Almost everything is relevant. If you have not seen the requested document yet, how can you say it is irrelevant?
“Great latitude is allowed in the scope of discovery, and the concept of relevance is broader for discovery purposes than for purposes of admitting evidence at trial.” TTX Co. v. Whitley, Ill.App.3d, 556 (Ill. App. Ct. 1998)
The relevance of requested documents should also be balanced against the privacy interests of the parties referred to in the discovery. Reasonable requests are not an invasion of privacy.
“[O]ur constitution does not accord absolute protection against invasions of privacy. Rather, it is unreasonable invasions of privacy that are forbidden. In the context of civil discovery, reasonableness is a function of relevance.” Kunkel v. Walton, 689 NE 2d 1047 – Ill: Supreme Court 1997
“While courts have inherent power to order the production of books and papers, yet it is required that such order in all cases shall be a reasonable one. The constitutional protection is against unreasonable searches and seizures. It has been uniformly held that before an order can be entered for the production of books or writings by one of the parties there must be good and sufficient cause shown that the evidence sought to be obtained is pertinent to the issues in the case…Such an order cannot be used to procure a general investigation of a transaction not material to the issue.” Firebaugh v. Traff, 353 Ill. 82, 186 N.E. 526 (1933) (citation omitted)
Illinois courts do not like dozens of subpoenas that invariably slow down the entire court case.
“[Discovery] is not a tactical game to be used to obstruct or harass the opposing litigant.” Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 282 (Ill. 1982)
“The discovery requests were merely a `fishing expedition,’ which would have been conducted with the hope of finding something relevant.” Fabiano v. City of Palos Hills, 784 NE 2d 258 – Ill: Appellate Court, 1st Dist., 1st Div. 2002 (citations omitted)
“It is no justification that a fishing expedition might result in worthwhile information; the possibility of success must be sufficient to justify the inconvenience or expense to the opponent.” Yuretich v. Sole, 631 NE 2d 767 – Ill: Appellate Court, 4th Dist. 1994
The test of relevant information balanced against cost of production is not difficult to pass. The third-party is the one who has to look for and gather the subpoenaed documents. The opponent who filed the motion to quash merely needs to review the documents.
“Even after determining the pretrial discovery request is relevant, however, the circuit court must still balance the needs of truth with the burdens of production through the entry of any protective order appropriate to the action.” Brostron v. Warmann, 190 Ill. App. 3d 87, 91 (Ill. App. Ct. 1989)
If the issued subpoena is truly burdensome, the third-party itself will hire their own attorney and file an objection to the subpoena based on that burden.
“A discovery request may properly be quashed where the trial court has before it sufficient information upon which to decide…the prevailing standard with regard to pretrial and posttrial discovery requests both in Illinois and other jurisdictions is that the trial court has the discretionary power to grant or deny such requests.” Shapo v. Tires ‘N Tracks, Inc., 336 Ill. App. 3d 387, 398 (Ill. App. Ct. 2002)” Shapo v. Tires ‘N Tracks, Inc., 336 Ill. App. 3d 387, 394 (Ill. App. Ct. 2002)
Even if a subpoena gets quashed for being inappropriate or harassing, the quasher cannot request attorney’s fees because the sanctions rule only applies to documents that have been filed. Subpoenas are issued not filed.
“[T]here is no basis for the application of Rule 137 [sanctions] to the allegedly improper issuance of a subpoena to a witness. A subpoena is not a “paper of a party” because it is issued by the circuit clerk, albeit at the request of a party. Further, a subpoena is not signed by a party or a party’s attorney; it is signed by the circuit clerk.” In re CK, 573 NE 2d 378 – Ill: Appellate Court, 2nd Dist. 1991.
Subpoenas can be found to be duplicative or unnecessary if there are already enough facts before the court to make a decision.
“A discovery request may properly be quashed where the trial court has before it sufficient information upon which to decide defendant’s motion to dismiss….the prevailing standard with regard to pretrial and posttrial discovery requests both in Illinois and other jurisdictions is that the trial court has the discretionary power to grant or deny such requests.” Shapo v. Tires ‘N Tracks, Inc., 336 Ill. App. 3d 387, 398 (Ill. App. Ct. 2002)
If a subpoena gets quashed (or if it does not get quashed), do not expect a court of appeals to overturn the judge’s decision regarding that subpoena. “A court of review will not overturn a trial court’s determination on whether to quash such a subpoena absent an abuse of discretion.” People v. Paris, 692 N.E.2d 848, 852 (Ill. App. Ct. 1998)
Quashing a subpoena is like telling a teacher, “I don’t want to do the homework.” It would probably be easier to just do the homework than to fight about it…and you would not make a bad lasting impression either. But, sometimes a motion to quash is necessary and more than likely successful. If you need to file a motion to quash or respond to a motion to quash, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
