Posted on August 11, 2020

What Is A Subpoena In An Illinois Divorce Case?

While most days lawyers are busy begging the court for permission to do this or do that, there are something lawyers can do with great effect and without anyone’s permission.  In Illinois, lawyers can issue subpoenas.  Subpoenas are formal requests from lawyers…and those requests must be complied with by law.  In fact, the etymology of the word for subpoena is “under penalty.”

Why Issue A Subpoena In An Illinois Divorce?

To resolve issues in a divorce, the parties will need to know that the relevant facts are as to themselves, the other party and/or third parties associated with the divorce case.

These facts may be financial in order to determine one party’s assets, debts or income. Or, the facts may be medical or school documents which better establish what are the best interests of the child. 

Usually the parties can simply gather these items by going to their bank, family doctor or school.

If a party cannot immediately access the document, they can ask the other party to access and provide the document. The exchange of information related to a lawsuit such as divorce is called “discovery.

“[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)

If neither party has access to the document, a lawyer has the power to issue a subpoena on whomever actually does have access to that information.

“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)

What Does A Subpoena Say In An Illinois Divorce?

Subpoenas are supposed to be straightforward and to the point. If the information sought can’t be explained in one single line, the party seeking information needs a deposition not a subpoena.

My office just uses the Cook County general Subpoena In A Civil Matter form. The form plainly says, “YOU ARE COMMANDED to mail the following documents in your possession or control to the Law Office of Russell D. Knight at 1 North State Street # 1500, Chicago, IL 60602 on or before (date), THIS IS FOR RECORDS ONLY. THERE WILL BE NO ORAL INTERROGATORIES. : (one line description of what I’m looking for. Usually, “all records relating to both Mr. and Mrs. divorce litigant)”

Then, the subpoena receiver usually sends you everything that they have pertaining to that request and you just have to trust that it is complete…or dig deeper via deposition.

Who Receives A Subpoena In An Illinois Divorce?

Anyone can get a subpoena in an Illinois divorce.  Subpoenas are not just a tool for extracting information from the other divorcing spouse.  In fact, when asking the other spouse for information is usually done by issuing a Notice To Produce. A Notice To Produce is a long list of items almost every divorcing person would want their spouse to tender for inspection. This is much more broad than a subpoena purpose or powers.

Subpoenas are usually for third parties who hold some kind of relevant information about a factor in a couple’s divorce.

When a third party does get a subpoena, that subpoena must be filed in the court and served upon the third party appropriately.

“[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)

“(b)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

“Service of a subpoena by mail may be proved prima facie by a return receipt showing delivery to the deponent or his authorized agent by certified or registered mail at least seven days before the date on which appearance is required and an affidavit showing that the mailing was prepaid and was addressed to the deponent” Ill. Sup. Ct. R. 204(a)(2)

The recipient of a subpoena is often referred to as a “deponent” because their production of relevant information may be in the form of documents or testimony (like in a deposition).

Subpoenas and Depositions

Subpoenas ask for documents and information.  Depositions ask that a witness come to a lawyer’s office and submit themselves to a series of questions called “examination.”

Depositions can also just ask that a witness deliver requested documents and that, if the documents are tendered, there will be no oral examination and formal deposition.  This is referred to as a “subpoena decus tecum”.

“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)(4)

How Do You Stop Someone From Replying To A Subpoena In An Illinois Divorce?

“For good cause shown, the court on motion may quash or modify any subpoena.” 735 ILCS 5/2-1101

Just as a subpoena can be issued for virtually anything, any party or subpoena recipient can file a motion to quash for any good reason.

There are various objections that the Illinois Supreme Court Rules specifically outline in regards to subpoenas.

Many issues are not permitted in a court due to attorney-client privilege, accountant-client privilege, spousal privilege, medical and religious privacy. Even asking for information covered by these privileges and privacies are not allowed.

“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(b)(2)

More frequently, subpoenas request too much information or information that is irrelevant to the case at hand. When the benefit of a subpoena’s request seems minimal compared to the actual relevant information that may be recovered from the subpoena, any party can object based on proportionality.

“[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)

So, a subpoena asking for any kind of unlimited production like “all the receipts you’ve ever been issued in your life” will surely be quashed by an Illinois divorce court.  The more specific the subpoena’s request, the better.

What Happens If Someone Won’t Reply To A Subpoena In An Illinois Divorce?

Subpoena means “under penalty” in Latin. If a party to an Illinois divorce or a third-party subpoena recipient does not respond to a subpoena properly, there are major consequences.

If someone refuses to provide a document or answer a written question, the court can force them to provide the requested information.

“If a party or other deponent refuses to answer any written question upon the taking of his or her deposition or if a party fails to answer any interrogatory served upon him or her, or to comply with a request for the production of documents or tangible things or inspection of real property, the proponent of the question or interrogatory or the party serving the request may on like notice move for an order compelling an answer or compliance with the request.” Ill. Sup. Ct. R. 219(a)

Third parties do not need to be included as parties to enforce a subpoena, but you must show that they were legitimately served with the subpoena

“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)

Additionally, the court can make the non-compliant subpoena receiver responsible for the fees incurred while finally obtaining compliance.

“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. If the motion is denied and the court finds that the motion was made without substantial justification, the court shall require the moving party to pay to the refusing party the amount of the reasonable expenses incurred in opposing the motion, including reasonable attorney’s fees” Ill. Sup. Ct. R. 219(a)

If court orders and fees don’t scare someone into answering an Illinois subpoena, maybe jail will.

A civil order of arrest can even be issued to a non-compliant subpoena receiver with one small condition, that they be personally served.

“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)

Who Pays For All Of These Subpoenas?

Unless the subpoena receiver is non-compliant, as described above, if you are asking for information from someone you should expect to pay them a reasonable cost for their time, copying fees, etc. It’s possible that your spouse can reimburse you for these litigation expenses (especially if your spouse could have just given you the relevant information themselves thus not requiring a subpoena).

If you’re struggling with subpoenas in your Illinois divorce, contact my Chicago, Illinois law firm to speak with an experienced Chicago 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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