Full Text of SB2739 94th General Assembly
SB2739enr 94TH GENERAL ASSEMBLY
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| AN ACT concerning civil liabilities.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Whistleblower Reward and Protection Act is | 5 |
| amended by changing Section 6 as follows:
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| (740 ILCS 175/6) (from Ch. 127, par. 4106)
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| Sec. 6. Subpoenas.
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| (a) In general.
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| (1) Issuance and service. Whenever the Attorney
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| General has reason to believe that any person may be in | 11 |
| possession,
custody, or control of any documentary | 12 |
| material or information relevant to
an investigation, the | 13 |
| Attorney General may, before commencing a civil
proceeding | 14 |
| under this Act, issue in writing and cause to be served | 15 |
| upon
such person, a subpoena requiring such
person:
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| (A) to produce such documentary material for | 17 |
| inspection and copying,
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| (B) to answer, in writing, written interrogatories | 19 |
| with respect to such
documentary material or | 20 |
| information,
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| (C) to give oral testimony concerning such | 22 |
| documentary material
or information, or
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| (D) to furnish any combination of such material, | 24 |
| answers, or testimony.
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| The Attorney General may delegate the authority to issue
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| subpoenas under this subsection (a) to the Department of | 27 |
| State
Police subject to conditions as the Attorney General | 28 |
| deems appropriate.
Whenever a subpoena is an express demand | 29 |
| for
any
product of discovery, the Attorney General or his | 30 |
| or her delegate shall cause to be served,
in any manner | 31 |
| authorized by this Section, a copy of such demand upon the
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| person from whom the discovery was obtained and shall |
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| notify the person to
whom such demand is issued of the date | 2 |
| on which such copy was served.
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| (1.5) Where a subpoena requires the production of | 4 |
| documentary material, the respondent shall produce the | 5 |
| original of the documentary material, provided, however, | 6 |
| that the Attorney General may agree that copies may be | 7 |
| substituted for the originals. All documentary material | 8 |
| kept or stored in electronic form, including electronic | 9 |
| mail, shall be produced in hard copy, unless the Attorney | 10 |
| General agrees that electronic versions may be substituted | 11 |
| for the hard copy. The production of documentary material | 12 |
| shall be made at the respondent's expense.
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| (2) Contents and deadlines. Each subpoena
issued under | 14 |
| paragraph (1):
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| (A) Shall state the nature of the conduct | 16 |
| constituting an alleged
violation that is under | 17 |
| investigation and the applicable provision of
law | 18 |
| alleged to be violated.
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| (B) Shall identify the individual causing the | 20 |
| subpoena to be
served and to whom communications | 21 |
| regarding the subpoena should be
directed.
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| (C) Shall state the date, place, and time at which | 23 |
| the person is
required to appear, produce written | 24 |
| answers to interrogatories, produce
documentary | 25 |
| material or give oral testimony. The date shall not be
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| less than 10 days from the date of service of the | 27 |
| subpoena. Compliance
with the subpoena shall be at the | 28 |
| Office of the Attorney General in
either the | 29 |
| Springfield or Chicago location or at other location by
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| agreement.
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| (D) If the subpoena is for documentary material or | 32 |
| interrogatories,
shall
describe the documents or | 33 |
| information requested with specificity.
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| (E) Shall notify the person of the right to be | 35 |
| assisted by
counsel.
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| (F) Shall advise that the person has 20 days from |
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| the date of
service or up until the return date | 2 |
| specified in the demand, whichever
date is earlier, to | 3 |
| move, modify, or set aside the subpoena pursuant to
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| subparagraph (j)(2)(A) of this Section.
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| (b) Protected material or information.
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| (1) In general. A subpoena issued
under subsection
(a) | 7 |
| may not require the production of any documentary material, | 8 |
| the
submission of any answers to written interrogatories, | 9 |
| or the giving of any
oral testimony if such material, | 10 |
| answers, or testimony would be protected
from disclosure | 11 |
| under:
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| (A) the standards applicable to subpoenas or | 13 |
| subpoenas duces tecum
issued by a court of this State | 14 |
| to aid in a grand jury
investigation; or
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| (B) the standards applicable to discovery requests | 16 |
| under the Code of
Civil Procedure, to the extent that | 17 |
| the application of such standards to
any such subpoena | 18 |
| is appropriate and consistent with the
provisions and
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| purposes of this Section.
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| (2) Effect on other orders, rules, and laws. Any such | 21 |
| subpoena which is
an express demand for any product of | 22 |
| discovery supersedes any inconsistent
order, rule, or | 23 |
| provision of law (other than this Section) preventing or
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| restraining disclosure of such product of discovery to any | 25 |
| person.
Disclosure of any product of discovery pursuant to | 26 |
| any such
subpoena
does not constitute a waiver of any right | 27 |
| or privilege which the person
making such disclosure may be | 28 |
| entitled to invoke to resist
discovery of trial preparation | 29 |
| materials.
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| (c) Service in general. Any
subpoena issued under
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| subsection (a) may be served by any person so authorized by the | 32 |
| Attorney
General or by any person authorized
to serve process | 33 |
| on individuals within Illinois, through any method
prescribed | 34 |
| in the Code of Civil Procedure or as otherwise set forth in | 35 |
| this
Act.
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| (d) Service upon legal entities and natural persons.
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| (1) Legal entities. Service of any subpoena issued
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| under subsection (a) or of any petition filed under | 3 |
| subsection (j) may be
made upon a partnership, corporation, | 4 |
| association, or other legal entity by:
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| (A) delivering an executed copy of such subpoena or
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| petition to any
partner, executive officer, managing | 7 |
| agent, general agent, or registered
agent of the | 8 |
| partnership, corporation, association or entity;
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| (B) delivering an executed copy of such subpoena or
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| petition to the
principal office or place of business | 11 |
| of the partnership, corporation,
association, or | 12 |
| entity; or
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| (C) depositing an executed copy of such subpoena or
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| petition in the
United States mails by registered or | 15 |
| certified mail, with a return receipt
requested, | 16 |
| addressed to such partnership, corporation, | 17 |
| association, or
entity as its principal office or place | 18 |
| of business.
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| (2) Natural person. Service of any such subpoena or
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| petition may be made
upon any natural person by:
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| (A) delivering an executed copy of such subpoena or
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| petition to the
person; or
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| (B) depositing an executed copy of such subpoena or
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| petition in the
United States mails by registered or | 25 |
| certified mail, with a return receipt
requested, | 26 |
| addressed to the person at the person's residence or | 27 |
| principal
office or place of business.
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| (e) Proof of service. A verified return by the individual | 29 |
| serving any
subpoena issued under subsection (a) or any
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| petition
filed under subsection (j) setting forth the manner of | 31 |
| such service shall
be proof of such service. In the case of | 32 |
| service by registered or certified
mail, such return shall be | 33 |
| accompanied by the return post office receipt of
delivery of | 34 |
| such subpoena.
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| (f) Documentary material.
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| (1) Sworn certificates. The production of documentary |
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| material in
response to a subpoena served under this
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| Section shall be
made under a sworn certificate, in such | 3 |
| form as the subpoena
designates, by:
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| (A) in the case of a natural person, the person to | 5 |
| whom the subpoena is
directed, or
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| (B) in the case of a person other than a natural | 7 |
| person, a person
having knowledge of the facts and | 8 |
| circumstances relating to such
production and | 9 |
| authorized to act on behalf of such person.
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| The certificate shall state that all of the documentary | 11 |
| material required
by the demand and in the possession, | 12 |
| custody, or control of the person to
whom the subpoena is | 13 |
| directed has been produced and made
available to the
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| Attorney General.
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| (2) Production of materials. Any person upon whom any | 16 |
| subpoena for the production of documentary material has | 17 |
| been
served under this Section shall make such material | 18 |
| available for inspection
and copying to the Attorney | 19 |
| General at
the place designated in the subpoena, or at such | 20 |
| other place as the
Attorney General and the person | 21 |
| thereafter may agree and
prescribe in writing,
or as the | 22 |
| court may direct under subsection (j)(1). Such material | 23 |
| shall be
made so available on the return date specified in | 24 |
| such subpoena,
or on such
later date as the Attorney | 25 |
| General may prescribe in
writing. Such person may,
upon | 26 |
| written agreement between the person and the Attorney | 27 |
| General, substitute
copies for originals of all or any part | 28 |
| of such material.
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| (g) Interrogatories. Each interrogatory in a subpoena
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| served under this Section shall be answered separately and | 31 |
| fully in writing
under oath and shall be submitted under a | 32 |
| sworn certificate, in such form
as the subpoena designates by:
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| (1) in the case of a natural person, the person to whom | 34 |
| the subpoena is
directed, or
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| (2) in the case of a person other than a natural | 36 |
| person, the person or
persons responsible for answering |
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| each interrogatory.
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| If any interrogatory is objected to, the reasons for the | 3 |
| objection shall
be stated in the certificate instead of an | 4 |
| answer. The certificate shall state
that all information | 5 |
| required by the subpoena and in the
possession, custody,
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| control, or knowledge of the person to whom the demand is | 7 |
| directed has been
submitted. To the extent that any information | 8 |
| is not furnished, the
information shall be identified and | 9 |
| reasons set forth with particularity
regarding the reasons why | 10 |
| the information was not furnished.
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| (h) Oral examinations.
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| (1) Procedures. The examination of any person pursuant | 13 |
| to a subpoena for oral testimony served under this Section | 14 |
| shall be
taken before an officer authorized to administer | 15 |
| oaths and affirmations by
the laws of this State or of the | 16 |
| place where the examination is held. The
officer before | 17 |
| whom the testimony is to be taken shall put the witness on
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| oath or affirmation and shall, personally or by someone | 19 |
| acting under the
direction of the officer and in the | 20 |
| officer's presence, record the testimony
of the witness. | 21 |
| The testimony shall be taken stenographically and shall be
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| transcribed. When the testimony is fully transcribed, the | 23 |
| officer before
whom the testimony is taken shall promptly | 24 |
| transmit a certified copy of the
transcript of the | 25 |
| testimony in accordance with the instructions of the
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| Attorney General. This subsection shall not
preclude the | 27 |
| taking of testimony by any means authorized by, and in a
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| manner consistent with, the Code of Civil Procedure.
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| (2) Persons present. The investigator conducting the | 30 |
| examination shall
exclude from the place where the | 31 |
| examination is held all persons except the
person giving | 32 |
| the testimony, the attorney for and any other | 33 |
| representative of
the person giving the testimony, the | 34 |
| attorney for the State, any person who may
be agreed upon | 35 |
| by the attorney for the State and the person giving the
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| testimony, the officer before whom the testimony is to be |
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| taken, and any
stenographer taking such testimony.
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| (3) Where testimony taken. The oral testimony of any | 3 |
| person taken
pursuant to a subpoena served under this
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| Section shall be
taken in the county within which such | 5 |
| person resides, is found, or transacts
business, or in such | 6 |
| other place as may be
agreed upon by the
Attorney General | 7 |
| and such
person.
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| (4) Transcript of testimony. When the testimony is | 9 |
| fully transcribed,
the Attorney General or the officer | 10 |
| before whom the
testimony is taken shall
afford the | 11 |
| witness, who may be accompanied by counsel, a reasonable
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| opportunity to review and correct the transcript, in
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| accordance with the rules applicable to deposition | 14 |
| witnesses in
civil cases. Upon payment of reasonable | 15 |
| charges, the Attorney General
shall furnish a copy of the | 16 |
| transcript to the witness, except that the
Attorney General | 17 |
| may, for good cause, limit the witness to inspection
of the | 18 |
| official transcript of the witness' testimony.
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| (5) Conduct of oral testimony.
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| (A) Any person compelled to appear for oral | 21 |
| testimony under a
subpoena issued under subsection (a) | 22 |
| may be accompanied,
represented, and advised by | 23 |
| counsel, who may raise objections based on
matters of | 24 |
| privilege in accordance with the rules applicable to | 25 |
| depositions in
civil cases. If such person refuses
to | 26 |
| answer any question, a petition may be filed in circuit | 27 |
| court under
subsection (j)(1) for an order compelling | 28 |
| such person to answer such question.
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| (B) If such person refuses any question on the | 30 |
| grounds of the
privilege against self-incrimination, | 31 |
| the testimony of such person may be
compelled in | 32 |
| accordance with Article 106 of the Code of Criminal | 33 |
| Procedure of
1963.
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| (6) Witness fees and allowances. Any person appearing | 35 |
| for oral
testimony under a subpoena issued under
subsection | 36 |
| (a)
shall be entitled to the same fees and allowances which |
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| are paid to
witnesses in the circuit court.
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| (i) Custodians of documents, answers, and transcripts.
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| (1) Designation. The Attorney General or his or her | 4 |
| delegate shall serve as custodian of documentary material, | 5 |
| answers to
interrogatories, and transcripts of oral | 6 |
| testimony received under this
Section.
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| (2) Except as otherwise provided in this Section, no
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| documentary
material, answers to interrogatories, or | 9 |
| transcripts of oral testimony, or
copies thereof, while in | 10 |
| the possession of the custodian, shall be
available for | 11 |
| examination by any individual, except as determined | 12 |
| necessary
by
the Attorney General and subject to the | 13 |
| conditions imposed by him or her for
effective enforcement | 14 |
| of the laws of this State, or as otherwise provided by
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| court order.
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| (3) Conditions for return of material. If any | 17 |
| documentary
material has
been produced by any person in the | 18 |
| course of any investigation pursuant to
a subpoena under | 19 |
| this Section and:
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| (A) any case or proceeding before the court or | 21 |
| grand jury arising out of
such investigation, or any | 22 |
| proceeding before any State agency involving
such | 23 |
| material, has been completed, or
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| (B) no case or proceeding in which such material | 25 |
| may be used has been
commenced within a reasonable time | 26 |
| after completion of the examination and
analysis of all | 27 |
| documentary material and other information assembled | 28 |
| in the
course of such investigation,
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| the custodian shall, upon written request of the person who | 30 |
| produced such
material, return to such person any such | 31 |
| material which has not passed into the
control of any | 32 |
| court, grand jury, or agency through introduction into the
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| record of such case or proceeding.
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| (j) Judicial proceedings.
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| (1) Petition for enforcement. Whenever any
person | 36 |
| fails to comply with any subpoena
issued under
subsection |
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| (a), or whenever satisfactory copying or reproduction of | 2 |
| any
material requested in such demand cannot be done and | 3 |
| such person refuses to
surrender such material, the | 4 |
| Attorney General may file, in the circuit
court of any | 5 |
| county in which such person resides, is found, or transacts
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| business, or the circuit court of the county in which an | 7 |
| action filed
pursuant to Section 4 of this Act is pending | 8 |
| if the action relates to the
subject matter of the subpoena | 9 |
| and serve upon such person a petition for an
order of such | 10 |
| court
for the enforcement of the subpoena.
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| (2) Petition to modify or set aside subpoena.
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| (A) Any person who has
received a subpoena issued | 13 |
| under subsection
(a) may
file, in the circuit court of | 14 |
| any county within which such person resides,
is found, | 15 |
| or transacts business, and serve upon the Attorney | 16 |
| General a petition for an order of the court to modify | 17 |
| or set aside
such subpoena. In the case of a petition | 18 |
| addressed to an express
demand for
any product of | 19 |
| discovery, a petition to modify or set aside such | 20 |
| demand
may be brought only in the circuit court of the | 21 |
| county in which the
proceeding in which such discovery | 22 |
| was obtained is or was last pending. Any
petition under | 23 |
| this subparagraph (A) must be filed:
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| (i) within 20 days after the date of service of | 25 |
| the subpoena, or at any time before the return date | 26 |
| specified in
the subpoena, whichever date is | 27 |
| earlier, or
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| (ii) within such longer period as may be | 29 |
| prescribed in writing by
the Attorney General.
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| (B) The petition shall specify each ground upon | 31 |
| which the petitioner
relies in seeking relief under | 32 |
| subparagraph (A), and may be based upon any
failure of | 33 |
| the subpoena to comply with the provisions of this
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| Section or upon
any constitutional or other legal right | 35 |
| or privilege of such person. During
the pendency of the | 36 |
| petition in the court, the court may stay, as it deems
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| proper, the running of the time allowed for compliance | 2 |
| with the subpoena, in
whole or in part, except that the | 3 |
| person filing the petition shall comply
with any | 4 |
| portion of the subpoena not sought to be modified or
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| set aside.
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| (3) Petition to modify or set aside demand for product | 7 |
| of
discovery. In the case of any subpoena issued under
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| subsection (a)
which is an express demand for any product | 9 |
| of discovery, the person from
whom such discovery was | 10 |
| obtained may file, in the circuit court of the
county in | 11 |
| which the proceeding in which such discovery was obtained | 12 |
| is or
was last pending, a petition for an order of such | 13 |
| court
to modify or set aside those portions of the subpoena | 14 |
| requiring
production of
any such product of discovery, | 15 |
| subject to the same terms, conditions, and
limitations set | 16 |
| forth in subparagraph (j)(2) of this Section.
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| (4) Jurisdiction. Whenever any petition is filed in any
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| circuit court
under this subsection (j), such court shall | 19 |
| have jurisdiction to hear and
determine the matter so | 20 |
| presented, and to enter such orders as may
be required to | 21 |
| carry out the provisions of this Section. Any final order | 22 |
| so
entered shall be subject to appeal in the same manner as | 23 |
| appeals of other
final orders in civil matters. Any | 24 |
| disobedience of any final order entered
under this Section | 25 |
| by any court shall be punished as a contempt of the court.
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| (k) Disclosure exemption. Any documentary material, | 27 |
| answers to written
interrogatories, or oral testimony provided | 28 |
| under any subpoena issued under subsection (a) shall be exempt | 29 |
| from disclosure under
the Illinois Administrative Procedure | 30 |
| Act.
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| (Source: P.A. 92-651, eff. 7-11-02; 93-579, eff. 1-1-04.)
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