One of the more curious discovery requests has the latin name “subpoena duces tecum” which in English means “under penalty you shall bring with you.”
What is a subpoena duces tecum in an Illinois divorce court and how does it differ from other subpoenas?
“The process by which the attendance of a witness is required is called a “subpoena.” It is a writ or order directed to a person, and requiring his attendance at a particular time and place to testify as a witness. It may also require him to bring with him any books, documents, or other filings under his control which ho is bound by law to produce in evidence.” Black’s Law Dictionary (10th ed. 2014)
Subpoenas have two purposes: to get documents or to get a witness to appear at a place or time to testify.
A “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” Ill. Sup. Ct. R. 204
“Any witness shall respond to any lawful subpoena of which he or she has actual knowledge, if payment of the fee and mileage has been tendered.” Ill. Sup. Ct. R. 237
The subpoena duces tecum is the best of both worlds. A subpoena duces tecum tells a person to produce these documents…and if they do not, to show up at this place and time to explain why they have not produced those documents.
The place and time to appear upon failing to produce the documents can be in court or (more commonly) at the attorney’s office where a court reporter will take the subpoenaed person’s testimony under oath.
This prospect of the deposition under oath is automatically excused…if the documents are tendered.
“Production of Documents in Lieu of Appearance of Deponent. The notice, order or stipulation to take a deposition may specify that the appearance of the deponent is excused, and that no deposition will be taken, if copies of specified documents or tangible things are served on the party or attorney requesting the same by a date certain.” Ill. Sup. Ct. R. 204(a)(1)
If a subpoena duces tecum includes deposition language, the requester must use rule 201(k) before demanding enforcement of the subpoena duces tecum. Without the deposition language, the subpoena issuer can go straight to court to enforce their subpoena.
“The subpoena duces tecum when used alone is independent of the discovery rules and therefore can be classified as a nondiscovery device. Because this form of a subpoena duces tecum is a nondiscovery device, any objections to its issuance need not contain a Rule 201(k) statement. The materials sought in such a subpoena technically must be returned to the court. However, a subpoena duces tecum when coupled with a notice to take the deposition of the person to whom it is directed under Rule 204(a) ( 134 Ill.2d 204(a)) is clearly a discovery procedure requiring any objections to it to contain a Rule 201(k) statement.” In re Marriage of Riemann, 217 Ill. App. 3d 270, 272 (Ill. App. Ct. 1991) (Citations Omitted)
A subpoena duces tecum served will contain language that essentially says “under penalty you shall bring with you” including what to bring, where and when.
“You are directed to produce the designated documents, objects or tangible things: ______________at least five (5) days prior to the following due date: ______________________, 20____, ________ a.m./p.m. YOUR FAILURE TO RESPOND TO THIS SUBPOENA OR TO COMPLY WITH COURT RULES MAY SUBJECT YOU TO PUNISHMENT FOR CONTEMPT OF THIS COURT. You may comply with this subpoena by appearing in person on the return date with subpoenaed materials. You also may comply by mailing legible and complete copies of all specified documents, objects, or tangible things requested in this subpoena at least five (5) days before the due date to Law Office of Russell D. Knight, 1165 N. Clark St. # 700, Chicago, IL 60610”
At that point, the recipient of the subpoena duces tecum needs to provide the documents to the requesting attorney, object to the subpoena duces tecum or face possible penalties for failure to answer the subpoena duces tecum or appear as ordered.
How To Object To A Subpoena Duces Tecum
In general, a party litigating in Illinois can ask for almost anything they want from anyone else in Illinois.
“[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)
An attorney doesn’t even need to ask a judge’s permission to issue a subpoena duces tecum and threaten to enforce compliance with penalties.
“An order of court is not required to obtain the issuance by the clerk or by an attorney of a subpoena duces tecum. For good cause shown, the court on motion may quash or modify any subpoena or, in the case of a subpoena duces tecum, condition the denial of the motion upon payment in advance by the person in whose behalf the subpoena is issued of the reasonable expense of producing any item therein specified.” 735 ILCS 5/2-1101
Once the subpoena duces tecum is issued, it must be complied with or objected to before the listed return date.
The return date should be at least 28 days to mirror the rule in a Notice To Produce (which is very much like a Subpoena Duces Tecum except Notices To Produce are exclusively directed to parties in the case)
“The request shall specify a reasonable time, which shall not be less than 28 days after service of the request except by agreement or by order of court, and the place and manner of making the inspection and performing the related acts.” Ill. Sup. Ct. R. 214
There are three basic objections to discovery in an Illinois divorce: 1) relevance, 2) overly burdensome and 3) privilege.
Almost everything is relevant for the purposes of discovery and therefore subject to discovery. But, if the documents requested are truly irrelevant (how would you even know), the subpoena duces tecum can be objected to on that basis.
“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)
The relevancy of the documents requested have to be balanced against the effort within which is required to obtain and turn over said documents.
“[T]he court may determine whether the likely burden or expense of the proposed discovery, including electronically stored information, outweighs the likely benefit, taking into account 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.” Ill. Sup. Ct. R. 201(c)(3)
Some documents will not be turned over no matter how relevant and easily obtainable they are if those documents contain privileged information.
“All matters that are privileged against disclosure on the trial…are privileged against disclosure through any discovery procedure.” Ill. Sup. Ct. R. 201(b)(2)
What Happens If You Don’t Comply With A Subpoena Duces Tecum?
Failure to answer a subpoena duces tecum will result in the issuer filing a motion to compel compliance regarding said subpoena duces tecum.
The person who issued the subpoena duces tecum will have to prove the subpoena receiver properly received the subpoena. This way the court can have personal jurisdiction over the person and subsequently order that person to do supply the documents.
“[P]ersonal jurisdiction refers to a court’s power to exercise authority over an individual, which can be a person or an entity, such as a corporation. personal jurisdiction may be acquired only by service of process in a manner directed by statute. Process can take the form of a summons or of a subpoena, the latter of which confers power upon the trial court to compel discovery from nonparties. Any judgment rendered against a party or a non-party, absent service of process or waiver, is void.” Grant v. Rancour, 157 NE 3d 1083 – Ill: Appellate Court, 2nd Dist. 2020 (Citations Omitted)
Parties to a divorce can be served a subpoena duces tecum (but they should get a notice to produce) via email. “Documents shall be served electronically… to the e-mail address(es) identified by the party’s appearance in the matter.” Ill. Sup. Ct. R. 11
Third parties who are not part of the divorce will have to be personally served to guarantee their production via a subpoena duces tecum.
Without a reasonable objection, the court will order that the subpoena duces tecum be answered on a date certain. You can only be arrested for not providing documents you had control or access to.
Explaining via affidavit that you don’t have the documents is sufficient for most courts (unless it can be proven otherwise)
Failure to comply with that order will result in a finding of contempt of court…which may result in a body attachment (essentially, a civil order of arrest).
“They are imprisoned only until they comply with the orders of the court, and this they may do at any time. They carry the keys of their prison in their own pockets.” In re Nevitt, 117 F. 448, 460 (8th Cir. 1902)
The court takes compliance with discovery very seriously, but will not throw someone in jail for failure to comply with discovery unless they have had proper notice.
“An order of body attachment upon a nonparty for noncompliance with a discovery order or subpoena shall not issue without proof of personal service of the rule to show cause or order of contempt upon the nonparty” Ill. Sup. Ct. R. 204(d)(1)
If you get a subpoena duces tecum you need to answer it as soon as possible to save yourself a trip to the opposing counsel’s office. They want the documents…not your testimony. Otherwise, they would have just deposed you.
If you need documents from a third party who you cannot rely on to produce those documents in a timely manner, a subpoena duces tecum may be the perfect way to emphasize that you need those documents…or else.