Legal Memorandum: Sanctions for Issuing a Subpoena

Issue: Under Illinois or federal court rules, can sanctions be imposed for issuance of a subpoena on the basis that the subpoena and the verified petition "merged" for purposes of the certification and signature requirements of Rule 137/Rule 11?

The strongest argument for merging the documents or for a waiver is essentially the same as that for imposing sanctions under revised Fed. R. Civ. P. 11—namely, that although the clerk of court signed the subpoena, it was the opposing attorneys who were in reality "responsible" for issuance of the subpoena.  In such a case, the concern for accountability which lies at the core of Rule 137/Rule 11 would arguably support a "merging" of the documents for purposes of imposing sanctions under Rule 137, or even a waiver of any objection to imposition of sanctions.

Even if the facts support this theory, however, the argument remains based on the broad policy underlying Rule 137 and Rule 11, and it is not likely to prevail in the face of Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120 (1989), In re C.K., 214 Ill. App. 3d 297, 573 N.E.2d 378 (1991), Monco v. Janus, 222 Ill. App. 3d 280, 583 N.E.2d 575, 586-87 (1991), appeal denied, 144 Ill. 2d 635, 591 N.E.2d 23 (1992), Snow Machs. Inc. v. Hedco, Inc., 838 F.2d 718, 726-27 (3d Cir. 1988) and the voluminous body of authority indicating that a document signed by court personnel is not sanctionable under Rule 137 or Rule 11, even if the document was prepared by an attorney for a party.

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