Question 1

Does an Illinois subpoena bind a witness who was never paid?

Accepted Answer

Illinois Supreme Court Rule 237(a) ties the two together: 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. Read the two halves as a pair. Actual knowledge of the subpoena is enough to create the duty even without formal personal service, and tender of the fee and mileage is the condition attached to it. That is why Illinois practice treats the check as part of the service package rather than an afterthought.

Question 2

How much are the witness fee and mileage for an Illinois subpoena?

Accepted Answer

Under 705 ILCS 35/4.3(a), every witness attending in any county upon trials in the courts, except for actions arising under Article II of the Juvenile Court Act of 1987, is entitled to receive $20 for each day's attendance and $0.20 per mile each way for necessary travel. A person attending for the purpose of having a deposition taken receives the same per diem and mileage. For attending in a foreign county, each day's travel constitutes a day of attendance.

Question 3

Can an Illinois subpoena be served by mail?

Accepted Answer

Yes, and the rules tell you how to prove it. Under Ill. S. Ct. R. 204(a)(2) for depositions and R. 237(a) for trial witnesses, service of a subpoena by mail may be proved prima facie by a return receipt showing delivery to the witness or an authorized agent by certified or registered mail at least seven days before the date on which appearance is required, together with an affidavit showing the mailing was prepaid, addressed to the witness, restricted delivery, return receipt requested, and with a check or money order for the fee and mileage enclosed.

Question 4

Who may issue an Illinois subpoena?

Accepted Answer

Both the clerk and counsel. Ill. S. Ct. R. 204(a)(1) provides that the clerk of the court shall issue subpoenas on request, or subpoenas 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 statute adds an unusual nudge: 735 ILCS 5/2-1101 says every clerk who refuses to issue a subpoena shall be guilty of a petty offense and fined any sum not to exceed $100, and that no order of court is required to obtain issuance of a subpoena duces tecum.

Question 5

How does an Illinois subpoena get records without taking a deposition?

Accepted Answer

Through Ill. S. Ct. R. 204(a)(4). The notice, order, or stipulation to take a deposition may specify that the deponent's appearance is excused and no deposition will be taken if copies of specified documents or tangible things are served by a date certain. A copy of any subpoena issued in connection with such a deposition must be attached to the notice and immediately filed with the court, not less than 14 days prior to the scheduled deposition. Reasonable charges for the production are paid by the requesting party unless the court orders or the parties agree otherwise.

Question 6

What happens when a nonparty ignores an Illinois subpoena?

Accepted Answer

Illinois escalates through contempt to body attachment, with a guard on the last step. Ill. S. Ct. R. 204(d) provides that 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 that nonparty. The service of that rule or order must also include a copy of the petition for rule and the discovery order or subpoena that is the basis for the petition, served in the same manner as a summons.

Question 7

Can an Illinois subpoena compel a treating physician's discovery deposition?

Accepted Answer

Only on agreement or a court order. Ill. S. Ct. R. 204(c) provides that the discovery depositions of nonparty physicians being deposed in their professional capacity may be taken only with the agreement of the parties and the subsequent consent of the deponent, or under a subpoena issued upon order of court. The rule also requires a party to pay a reasonable fee to a physician for the time spent testifying, normally the party at whose instance the deposition is taken unless the physician was retained to render a trial opinion or the court orders otherwise.

Question 8

Do I need an Illinois subpoena to bring the other side's employee to trial?

Accepted Answer

Often not. Ill. S. Ct. R. 237(b) lets you require the trial appearance of a party, or of an officer, director, or employee of a party, by serving the party with a notice designating the person required to appear and whether that person shall appear in person or remotely, including by telephone or video conference. The notice may also require production of originals of documents. If the party does not comply, the court may enter any order that is just, including any sanction or remedy provided for in Rule 219(c).

Illinois Subpoena

Find out where you stand in Illinois

Introduction

Key Things to Know

Key decisions before you file

Customize your Subpoena Template with DocDraft

Illinois Requirements for Subpoena

Witness Fee of $20 for Each Day of Attendance

Mileage at 20 Cents a Mile Each Way

Tender Is What Creates the Duty to Appear

Affidavit to Claim the Allowance

Mail Service Provable With the Fee Check Enclosed

Clerk Issues on Request, Counsel of Record May Issue

Records in Lieu of Appearance, Filed 14 Days Ahead

Body Attachment Needs Personal Service First

Frequently Asked Questions