5.01 Subpoena Process - Winnebago County

5.01 SUBPOENA PROCESS - WINNEBAGO COUNTY

Pursuant to statute, attorneys in the criminal (725 ILCS 5/115-17) and civil (735 5/2-1101) cases are now authorized to issue subpoenas directly, rather than going through the Circuit Clerk. The Court therefore adopts the following rules regarding the filing of issued summonses and the returns made on those summonses:

A. Civil Cases: While Supreme Court Rule 201(m) states that no discovery is to be filed with the Circuit Clerk, Supreme Court Rule 201(o) creates an exception in the case of discovery issued to third parties: copies of any discovery issued to third parties are to be filed with the clerk and notice given to parties of record pursuant to Supreme Court Rule 104(b).

B. Criminal Cases: Caselaw suggests that a subpoena issued in a criminal case may not be issued without giving notice to parties of record. See People v. Hart, 194 Ill.App.3d 997, 1002, 522 N.E.2d 1, 4 (2nd Dist. 1990). Consequently, the Court orders that any subpoenas issued in a criminal case, as well as the returns on those subpoenas, must be filed with the Clerk and notice given to parties of record.

C. Special Procedure for States Attorneys and Public Defender. The Full Case system utilized by the offices of the States Attorney and Public Defender is linked to the Full Court Enterprise ("FCE") system utilized by the Clerk and the Court. Consequently, this linkage allows for a more efficient manner of recording the issuance and return of subpoenas in cases involving these two offices. With respect to subpoenas issued by these two offices only, the procedure for recording the issuance or return of a summons shall be as follows:

1. Issuance of a summons by an attorney in the SA or PD's office will automatically trigger a suggested entry in the Clerk's FCE system. The Clerk may "accept" that entry and thereby automatically create a record of action ("ROA") in the file.

2. Similarly, where a summons issued by an attorney in the SA or PD's office is returned, the issuing office will make an entry in the SA/PD's Full Case system, and doing so will automatically suggest to the Clerk that an ROA be made in FCE; upon the Clerk's acceptance of that suggested entry, an ROA is made.

3. The physical copy of the subpoena or the return shall be maintained by the issuing office. If any dispute arises over the issuance or return of a subpoena, the issuing office must produce the original. The ROA is not conclusive proof that a subpoena was issued or returned. Where a dispute as to the issuance or return of a subpoena arises, the original should be filed of record with the Clerk.

D. Subpoenas Duces Tecum. Notwithstanding the foregoing, returns on subpoenas duces tecum are to be filed with the Clerk following the judge's review.

(Adopted 10/21/2013)

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