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Public Act 094-0940 |
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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 | ||||
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 | ||||
possession,
custody, or control of any documentary | ||||
material or information relevant to
an investigation, the | ||||
Attorney General may, before commencing a civil
proceeding | ||||
under this Act, issue in writing and cause to be served | ||||
upon
such person, a subpoena requiring such
person:
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(A) to produce such documentary material for | ||||
inspection and copying,
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(B) to answer, in writing, written interrogatories | ||||
with respect to such
documentary material or | ||||
information,
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(C) to give oral testimony concerning such | ||||
documentary material
or information, or
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(D) to furnish any combination of such material, | ||||
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 | ||||
State
Police subject to conditions as the Attorney General | ||||
deems appropriate.
Whenever a subpoena is an express demand | ||||
for
any
product of discovery, the Attorney General or his | ||||
or her delegate shall cause to be served,
in any manner | ||||
authorized by this Section, a copy of such demand upon the
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person from whom the discovery was obtained and shall |
notify the person to
whom such demand is issued of the date | ||
on which such copy was served.
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(1.5) Where a subpoena requires the production of | ||
documentary material, the respondent shall produce the | ||
original of the documentary material, provided, however, | ||
that the Attorney General may agree that copies may be | ||
substituted for the originals. All documentary material | ||
kept or stored in electronic form, including electronic | ||
mail, shall be produced in hard copy, unless the Attorney | ||
General agrees that electronic versions may be substituted | ||
for the hard copy. The production of documentary material | ||
shall be made at the respondent's expense.
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(2) Contents and deadlines. Each subpoena
issued under | ||
paragraph (1):
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(A) Shall state the nature of the conduct | ||
constituting an alleged
violation that is under | ||
investigation and the applicable provision of
law | ||
alleged to be violated.
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(B) Shall identify the individual causing the | ||
subpoena to be
served and to whom communications | ||
regarding the subpoena should be
directed.
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(C) Shall state the date, place, and time at which | ||
the person is
required to appear, produce written | ||
answers to interrogatories, produce
documentary | ||
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 | ||
subpoena. Compliance
with the subpoena shall be at the | ||
Office of the Attorney General in
either the | ||
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 | ||
interrogatories,
shall
describe the documents or | ||
information requested with specificity.
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(E) Shall notify the person of the right to be | ||
assisted by
counsel.
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(F) Shall advise that the person has 20 days from |
the date of
service or up until the return date | ||
specified in the demand, whichever
date is earlier, to | ||
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) | ||
may not require the production of any documentary material, | ||
the
submission of any answers to written interrogatories, | ||
or the giving of any
oral testimony if such material, | ||
answers, or testimony would be protected
from disclosure | ||
under:
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(A) the standards applicable to subpoenas or | ||
subpoenas duces tecum
issued by a court of this State | ||
to aid in a grand jury
investigation; or
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(B) the standards applicable to discovery requests | ||
under the Code of
Civil Procedure, to the extent that | ||
the application of such standards to
any such subpoena | ||
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 | ||
subpoena which is
an express demand for any product of | ||
discovery supersedes any inconsistent
order, rule, or | ||
provision of law (other than this Section) preventing or
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restraining disclosure of such product of discovery to any | ||
person.
Disclosure of any product of discovery pursuant to | ||
any such
subpoena
does not constitute a waiver of any right | ||
or privilege which the person
making such disclosure may be | ||
entitled to invoke to resist
discovery of trial preparation | ||
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 | ||
Attorney
General or by any person authorized
to serve process | ||
on individuals within Illinois, through any method
prescribed | ||
in the Code of Civil Procedure or as otherwise set forth in | ||
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 | ||
subsection (j) may be
made upon a partnership, corporation, | ||
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 | ||
agent, general agent, or registered
agent of the | ||
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 | ||
of the partnership, corporation,
association, or | ||
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 | ||
certified mail, with a return receipt
requested, | ||
addressed to such partnership, corporation, | ||
association, or
entity as its principal office or place | ||
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 | ||
certified mail, with a return receipt
requested, | ||
addressed to the person at the person's residence or | ||
principal
office or place of business.
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(e) Proof of service. A verified return by the individual | ||
serving any
subpoena issued under subsection (a) or any
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petition
filed under subsection (j) setting forth the manner of | ||
such service shall
be proof of such service. In the case of | ||
service by registered or certified
mail, such return shall be | ||
accompanied by the return post office receipt of
delivery of | ||
such subpoena.
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(f) Documentary material.
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(1) Sworn certificates. The production of documentary |
material in
response to a subpoena served under this
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Section shall be
made under a sworn certificate, in such | ||
form as the subpoena
designates, by:
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(A) in the case of a natural person, the person to | ||
whom the subpoena is
directed, or
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(B) in the case of a person other than a natural | ||
person, a person
having knowledge of the facts and | ||
circumstances relating to such
production and | ||
authorized to act on behalf of such person.
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The certificate shall state that all of the documentary | ||
material required
by the demand and in the possession, | ||
custody, or control of the person to
whom the subpoena is | ||
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 | ||
subpoena for the production of documentary material has | ||
been
served under this Section shall make such material | ||
available for inspection
and copying to the Attorney | ||
General at
the place designated in the subpoena, or at such | ||
other place as the
Attorney General and the person | ||
thereafter may agree and
prescribe in writing,
or as the | ||
court may direct under subsection (j)(1). Such material | ||
shall be
made so available on the return date specified in | ||
such subpoena,
or on such
later date as the Attorney | ||
General may prescribe in
writing. Such person may,
upon | ||
written agreement between the person and the Attorney | ||
General, substitute
copies for originals of all or any part | ||
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 | ||
fully in writing
under oath and shall be submitted under a | ||
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 | ||
the subpoena is
directed, or
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(2) in the case of a person other than a natural | ||
person, the person or
persons responsible for answering |
each interrogatory.
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If any interrogatory is objected to, the reasons for the | ||
objection shall
be stated in the certificate instead of an | ||
answer. The certificate shall state
that all information | ||
required by the subpoena and in the
possession, custody,
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control, or knowledge of the person to whom the demand is | ||
directed has been
submitted. To the extent that any information | ||
is not furnished, the
information shall be identified and | ||
reasons set forth with particularity
regarding the reasons why | ||
the information was not furnished.
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(h) Oral examinations.
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(1) Procedures. The examination of any person pursuant | ||
to a subpoena for oral testimony served under this Section | ||
shall be
taken before an officer authorized to administer | ||
oaths and affirmations by
the laws of this State or of the | ||
place where the examination is held. The
officer before | ||
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 | ||
acting under the
direction of the officer and in the | ||
officer's presence, record the testimony
of the witness. | ||
The testimony shall be taken stenographically and shall be
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transcribed. When the testimony is fully transcribed, the | ||
officer before
whom the testimony is taken shall promptly | ||
transmit a certified copy of the
transcript of the | ||
testimony in accordance with the instructions of the
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Attorney General. This subsection shall not
preclude the | ||
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 | ||
examination shall
exclude from the place where the | ||
examination is held all persons except the
person giving | ||
the testimony, the attorney for and any other | ||
representative of
the person giving the testimony, the | ||
attorney for the State, any person who may
be agreed upon | ||
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 |
taken, and any
stenographer taking such testimony.
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(3) Where testimony taken. The oral testimony of any | ||
person taken
pursuant to a subpoena served under this
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Section shall be
taken in the county within which such | ||
person resides, is found, or transacts
business, or in such | ||
other place as may be
agreed upon by the
Attorney General | ||
and such
person.
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(4) Transcript of testimony. When the testimony is | ||
fully transcribed,
the Attorney General or the officer | ||
before whom the
testimony is taken shall
afford the | ||
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 | ||
witnesses in
civil cases. Upon payment of reasonable | ||
charges, the Attorney General
shall furnish a copy of the | ||
transcript to the witness, except that the
Attorney General | ||
may, for good cause, limit the witness to inspection
of the | ||
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 | ||
testimony under a
subpoena issued under subsection (a) | ||
may be accompanied,
represented, and advised by | ||
counsel, who may raise objections based on
matters of | ||
privilege in accordance with the rules applicable to | ||
depositions in
civil cases. If such person refuses
to | ||
answer any question, a petition may be filed in circuit | ||
court under
subsection (j)(1) for an order compelling | ||
such person to answer such question.
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(B) If such person refuses any question on the | ||
grounds of the
privilege against self-incrimination, | ||
the testimony of such person may be
compelled in | ||
accordance with Article 106 of the Code of Criminal | ||
Procedure of
1963.
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(6) Witness fees and allowances. Any person appearing | ||
for oral
testimony under a subpoena issued under
subsection | ||
(a)
shall be entitled to the same fees and allowances which |
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 | ||
delegate shall serve as custodian of documentary material, | ||
answers to
interrogatories, and transcripts of oral | ||
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 | ||
transcripts of oral testimony, or
copies thereof, while in | ||
the possession of the custodian, shall be
available for | ||
examination by any individual, except as determined | ||
necessary
by
the Attorney General and subject to the | ||
conditions imposed by him or her for
effective enforcement | ||
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 | ||
documentary
material has
been produced by any person in the | ||
course of any investigation pursuant to
a subpoena under | ||
this Section and:
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(A) any case or proceeding before the court or | ||
grand jury arising out of
such investigation, or any | ||
proceeding before any State agency involving
such | ||
material, has been completed, or
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(B) no case or proceeding in which such material | ||
may be used has been
commenced within a reasonable time | ||
after completion of the examination and
analysis of all | ||
documentary material and other information assembled | ||
in the
course of such investigation,
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the custodian shall, upon written request of the person who | ||
produced such
material, return to such person any such | ||
material which has not passed into the
control of any | ||
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 | ||
fails to comply with any subpoena
issued under
subsection |
(a), or whenever satisfactory copying or reproduction of | ||
any
material requested in such demand cannot be done and | ||
such person refuses to
surrender such material, the | ||
Attorney General may file, in the circuit
court of any | ||
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 | ||
action filed
pursuant to Section 4 of this Act is pending | ||
if the action relates to the
subject matter of the subpoena | ||
and serve upon such person a petition for an
order of such | ||
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 | ||
under subsection
(a) may
file, in the circuit court of | ||
any county within which such person resides,
is found, | ||
or transacts business, and serve upon the Attorney | ||
General a petition for an order of the court to modify | ||
or set aside
such subpoena. In the case of a petition | ||
addressed to an express
demand for
any product of | ||
discovery, a petition to modify or set aside such | ||
demand
may be brought only in the circuit court of the | ||
county in which the
proceeding in which such discovery | ||
was obtained is or was last pending. Any
petition under | ||
this subparagraph (A) must be filed:
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(i) within 20 days after the date of service of | ||
the subpoena, or at any time before the return date | ||
specified in
the subpoena, whichever date is | ||
earlier, or
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(ii) within such longer period as may be | ||
prescribed in writing by
the Attorney General.
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(B) The petition shall specify each ground upon | ||
which the petitioner
relies in seeking relief under | ||
subparagraph (A), and may be based upon any
failure of | ||
the subpoena to comply with the provisions of this
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Section or upon
any constitutional or other legal right | ||
or privilege of such person. During
the pendency of the | ||
petition in the court, the court may stay, as it deems
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proper, the running of the time allowed for compliance | ||
with the subpoena, in
whole or in part, except that the | ||
person filing the petition shall comply
with any | ||
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 | ||
of
discovery. In the case of any subpoena issued under
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subsection (a)
which is an express demand for any product | ||
of discovery, the person from
whom such discovery was | ||
obtained may file, in the circuit court of the
county in | ||
which the proceeding in which such discovery was obtained | ||
is or
was last pending, a petition for an order of such | ||
court
to modify or set aside those portions of the subpoena | ||
requiring
production of
any such product of discovery, | ||
subject to the same terms, conditions, and
limitations set | ||
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 | ||
have jurisdiction to hear and
determine the matter so | ||
presented, and to enter such orders as may
be required to | ||
carry out the provisions of this Section. Any final order | ||
so
entered shall be subject to appeal in the same manner as | ||
appeals of other
final orders in civil matters. Any | ||
disobedience of any final order entered
under this Section | ||
by any court shall be punished as a contempt of the court.
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(k) Disclosure exemption. Any documentary material, | ||
answers to written
interrogatories, or oral testimony provided | ||
under any subpoena issued under subsection (a) shall be exempt | ||
from disclosure under
the Illinois Administrative Procedure | ||
Act.
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(Source: P.A. 92-651, eff. 7-11-02; 93-579, eff. 1-1-04.)
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