Drafting and Issuing Discovery Subpoenas: Illinois

1 2020 Thomson Reuters. All rights the Resource ID numbers in blue on Westlaw for more. Resource ID: 4-570-0122 MEGAN CUNNIFF CHURCH, MOLOLAMKEN LLP, WITH PRACTICAL LAW LITIGATIOND rafting and Issuing Discovery Subpoenas: IllinoisA Q&A guide to Drafting , Issuing , serving, and enforcing a Discovery subpoena in an Illinois civil proceeding. This Q&A addresses the state statutes and rules governing Discovery subpoenas, the types of Discovery subpoenas available, the requirements for Drafting and serving a Discovery subpoena, and the methods of enforcing a Discovery subpoena. Answers to questions can be compared across a number of jurisdictions (see Drafting and Issuing Discovery Subpoenas: State Q&A Tool).Due to public health concerns relating to the 2019 novel coronavirus disease (COVID-19), the Illinois Supreme court has issued orders allowing circuit courts to continue trials, extending filing deadlines for the appellate court and Supreme court , and giving parties extra time to file paper copies of certain e-filed documents.

2 The Illinois appellate Districts and the circuit courts have also issued orders that affect court operations and procedures. For more information, see Illinois Courts: COVID-19 Information and additional information and updates, see Practice Note, Impact of COVID-19 on Illinois Practice: Overview (W-024-8124).OVERVIEW OF Discovery SUBPOENAS1. What are the laws or rules in your jurisdiction that generally govern subpoenas to non-party witnesses in Discovery ?The procedures for Drafting and serving subpoenas in Illinois are primarily governed by: The Illinois Civil Practice Law. The Illinois Supreme court of the Illinois Civil Practice Law (ILCS) on subpoenas include: 735 ILCS 5/2-1101 (subpoenas for trials and evidentiary hearings).

3 705 ILCS 35 (witness fees). 735 ILCS 35/1 to 35 (Uniform Interstate Depositions and Discovery Act).Provisions of the Illinois Supreme court Rules (Ill. S. Ct. R.) on subpoenas include: Ill. S. Ct. R. 12 (proof of service in the trial and reviewing courts; effective date of service). Ill. S. Ct. R. 201 (general Discovery provisions). Ill. S. Ct. R. 202 (purposes for which depositions may be taken in a pending action). Ill. S. Ct. R. 203 (where depositions may be taken). Ill. S. Ct. R. 204 (compelling appearance of deponent). Ill. S. Ct. R. 206 (temporarily amended Apr. 29, 2020; for more information, see Practice Note, Impact of COVID-19 on Illinois Practice: Overview: COVID-19 s Effect on Discovery : Remote Depositions (W-024-8124)) (method of taking depositions on oral examination).

4 Ill. S. Ct. R. 208 (fees and charges; copies). Ill. S. Ct. R. 219 (consequences of refusal to comply with rules or orders relating to Discovery or pretrial conferences). Ill. S. Ct. R. 237 (service of subpoenas). Ill. S. Ct. R. 303 (timing of appeals). Ill. S. Ct. R. 304 (appealability).Local rules in the circuit courts may also govern subpoenas. 2020 Thomson Reuters. All rights reserved. 2 Drafting and Issuing Discovery Subpoenas: Illinois2. Please identify and describe the different types of Discovery subpoenas available in your jurisdiction (for example, document subpoenas, subpoenas for deposition only, or combined deposition and document subpoenas).DEPOSITION SUBPOENAA deposition subpoena requires the recipient to testify at a deposition.

5 A deposition subpoena may also require the deponent to bring documents or tangible things containing or constituting evidence relating to matters within the scope of the examination. (Ill. S. Ct. R. 204(a)(1).) A deposition subpoena may require a non-party to designate one or more officers, directors, managing agents, or other persons to appear to testify on its behalf if the non-party is: A public or private corporation. A partnership. An association. A government agency.(Ill. S. Ct. R. 206(a)(1) (temporarily amended Apr. 29, 2020).)DOCUMENT SUBPOENA (SUBPOENA DUCES TECUM)A document subpoena requires a non-party to produce documents or other tangible things relevant to the facts at issue in a pending action for Discovery purposes. In Illinois , a subpoena seeking documents and other tangible things during Discovery must be included as part of a deposition subpoena, even if the party seeking the documents or tangible things has no intention of deposing the recipient of the subpoena (Ill.)

6 S. Ct. R. 204(a)(1), (4).) If so, the subpoena should indicate that no deposition will be taken if copies of the specified documents or tangible things are served on the attorney requesting them by a certain date (Ill. S. Ct. R. 204(a)(4)).This type of subpoena often states THIS IS FOR RECORDS ONLY. 3. Who has the authority to issue a Discovery subpoena?A subpoena may be issued by: A court clerk. An attorney admitted to practice in Illinois who is counsel of record in the pending action.(Ill. S. Ct. R. 204(a)(1).)4. Are there any situations when a Discovery subpoena must be issued from a court ?Only courts may issue Discovery subpoenas compelling non-party physicians to give deposition testimony in their professional capacity, unless both: The parties agree to the deposition.

7 The physician consents to the deposition.(Ill. S. Ct. R. 204(c).)A subpoena compelling Discovery from an Illinois resident for an action pending in another state, territory, or country must be issued by a circuit court in the Illinois county in which the subpoenaed party either: Resides. Is located. Is employed. Transacts business in person.(Ill. S. Ct. R. 204(b); 735 ILCS 35/3; Eskandani v. Phillips, 61 Ill. 2d 183, 197 (1975).) Drafting A STATE SUBPOENA5. What information must be included in each type of Discovery subpoena?The Illinois Supreme court Rules do not specify the information that must be included in all subpoenas. Generally, a well-drafted subpoena contains: The case caption of the underlying action, which includes: zthe name of the court where the action is pending; zthe county of venue; zthe parties; zthe judge s name; and zthe case number.

8 The type of subpoena being issued (a subpoena for testimony or a subpoena for testimony and documents). The name, address, and telephone number of the party Issuing the subpoena. Sufficient information to identify the intended recipient, including name and address, if known (typically unknown if requesting a designee under Ill. S. Ct. R. 206(a)(1) (temporarily amended Apr. 29, 2020)). The time, date, and place that testimony must be given or documents or tangible things must be produced. A warning indicating that failure to comply with the subpoena may subject the recipient to punishment for contempt of court . The seal of the clerk or signature of the attorney who issued the subpoena. A notarized certificate of should also check the local circuit court rules for additional SUBPOENAIn addition to the requirements above, deposition subpoenas should contain: A proper location for the deposition of a non-party witness (Ill.)

9 S. Ct. R. 203). A proper location is the county in which the witness: zresides; zis employed; or zconducts business in person. A description of any documents or tangible items that the party is required to produce at the deposition (Ill. S. Ct. R. 204(a)(1)).3 2020 Thomson Reuters. All rights and Issuing Discovery Subpoenas: Illinois A statement indicating that the deposition is for the purposes of Discovery , evidence, or both. If the purpose is not specified, the deposition will be for Discovery purposes only. (Ill. S. Ct. R. 202.) A statement indicating the Issuing party s intent, if any, to use audio-visual recording or conduct the examination by remote electronic means (Ill. S. Ct. R. 206(a)(2), (h) (temporarily amended Apr. 29, 2020)).

10 If the deposition subpoena is issued to a non-party organization: za statement advising the non-party organization of its duty to designate one or more officers, directors, agents, or other persons to give deposition testimony; and za reasonably particular description of the matters on which examination is requested.(Ill. S. Ct. R. 206(a)(1) (temporarily amended Apr. 29, 2020).)DOCUMENT SUBPOENA (SUBPOENA DUCES TECUM)Document subpoenas for Discovery must be included as part of a deposition subpoena, although the subpoena may state that appearance at the deposition will be excused if specified documents or tangible things are produced (Ill. S. Ct. R. 204(a)(4); In re Marriage of Riemann, 217 Ill. App. 3d 270, 272-73 (1991)). This type of subpoena usually states THIS IS FOR RECORDS ONLY.