Yes, we believe your bank likely is required to respond to the subpoena — provided it was duly issued. However, your bank is entitled to prepare an estimate of the costs of responding to the subpoena (which may well exceed $40) and delay delivery of the documents until payment has been made.

The Illinois Supreme Court Rules provide that a subpoena may be issued by the clerk of a court or by an attorney admitted to practice in Illinois who is counsel of record in a pending action, and a subpoena issued by an attorney does not require a clerk’s stamp. If the subpoena you received was issued in connection with a pending action and signed by an attorney of record in the case who is licensed to practice in Illinois, it likely was duly issued.

The Illinois Supreme Court Rules also provide that “a copy of any subpoena issued in connection with” a request for documents in lieu of a deponent’s appearance “shall be attached to the notice and immediately filed with the court, not less than 14 days prior to the scheduled deposition.” Consequently, we believe the attorney who issued the subpoena should file a copy of it with the court — but we do not believe their failure to do so would extinguish your responsibility to respond to the subpoena.

However, your bank is not required to deliver the requested documents until you are reimbursed for your estimated costs. The Illinois Banking Act provides that banks must be reimbursed for the costs of responding to a subpoena. The Illinois Administrative Code includes specific rates of reimbursement for personnel costs ($20 per hour), reproduction costs (30 cents per exposure), and transportation costs (31.5 cents per mile), and states that all other costs must be reimbursed “at actual cost.” Banks may prepare an estimate of these costs before beginning the work of preparing a response, and “delivery of the requested documents may be delayed until final reimbursement of all costs is received.” If your records do not extend back to 2000, you may wish to provide the attorney with a copy of your record retention policy.

Also, note that the Illinois Banking Act requires a bank to notify a customer before responding to a subpoena unless the “bank is specifically prohibited from notifying the person by order of the court or by applicable State or federal law” or the subpoena is issued by a grand jury in connection with certain crimes.

For resources related to our guidance, please see:

• Illinois Supreme Court Rule 204(a)(1) (“Subpoenas. Except as provided in paragraph (c) hereof: (i) the clerk of the court shall issue subpoenas on request; or (ii) 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 subpoena may command the person to whom it is directed to produce documents or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted under these rules subject to any limitations imposed under Rule 201(c).”)

• Illinois Supreme Court Rule 204(a)(2) (“Service of Subpoenas. A deponent shall respond to any lawful subpoena of which the deponent has actual knowledge, if payment of the fee and mileage has been tendered. Service of a subpoena by mail may be proved prima facie by a return receipt showing delivery to the deponent or his authorized agent by certified or registered mail at least seven days before the date on which appearance is required and an affidavit showing that the mailing was prepaid and was addressed to the deponent, restricted delivery, return receipt requested, showing to whom, date and address of delivery, with a check or money order for the fee and mileage enclosed.”)

• Illinois Supreme Court Rule 204(a)3) (“Notice to Parties, et al. Service of notice of the taking of the deposition of a party or person who is currently an officer, director, or employee of a party is sufficient to require the appearance of the deponent and the production of any documents or tangible things listed in the notice.”)

• Illinois Supreme Court Rule 204(a)(4) (“Production of Documents in Lieu of Appearance of Deponent. The notice, order or stipulation to take a deposition may specify that the appearance of the deponent is excused, and that no deposition will be taken, if copies of specified documents or tangible things are served on the party or attorney requesting the same by a date certain. That party or attorney shall serve all requesting parties of record at least three days prior to the scheduled deposition, with true and complete copies of all documents, and shall make available for inspection tangible things, or other materials furnished, and shall file a certificate of compliance with the court. Unless otherwise ordered or agreed, reasonable charges by the deponent for production in accordance with this procedure shall be paid by the party requesting the same, and all other parties shall pay reasonable copying and delivery charges for materials they receive. A copy of any subpoena issued in connection with such a deposition shall be attached to the notice and immediately filed with the court, not less than 14 days prior to the scheduled deposition. The use of this procedure shall not bar the taking of any person’s deposition or limit the scope of same.”)

• Illinois Banking Act, 205 ILCS 5/48.1(g) (“A bank shall be reimbursed for costs that are reasonably necessary and that have been directly incurred in searching for, reproducing, or transporting books, papers, records, or other data required or requested to be produced pursuant to a lawful subpoena, summons, warrant, citation to discover assets, or court order. The Commissioner shall determine the rates and conditions under which payment may be made.”)

• Illinois Administrative Rules, 38 Ill. Adm. Code 356.20 (“Rates of Reimbursement

(a) Personnel costs incurred in locating, retrieving, reproducing and preparing financial records shall be reimbursed at the rate of $20 per hour per person.

(b) Reproduction costs incurred in making photocopies of documents shall be reimbursed at 30 cents per exposure.Reproductions of microfilm, microfiche, photographs, films and other materials shall be reimbursed at actual cost.

(c) Transportation costs incurred in transporting bank personnel to locate and retrieve material, and to convey the material to the place of examination, shall be reimbursed at the rate of 31.5 cents per mile or, if a mail or courier service is used, at the actual cost of such service.

(d) All other costs, including, but not limited to, telephone calls, telegrams and shipping costs, incurred in searching for, reproducing and transporting data pursuant to a request for financial records, shall be reimbursed at actual cost.”)

• Illinois Administrative Rules, 38 Ill. Adm. Code 356.40 (“At the bank's or corporate fiduciary's option, it may prepare one or more reasonable estimates of the ultimate reimbursement of costs associated with a search for financial records in the form prescribed in Section 356.30 of this Part and require one or more partial payments before proceeding with the work of locating and reproducing the requested documents. Delivery of the requested documents may be delayed until final reimbursement of all costs is received.”)

• Illinois Banking Act, 205 ILCS 5/48.1(d) (“A bank shall disclose financial records under paragraph (2) of subsection (c) of this Section under a lawful subpoena, summons, warrant, citation to discover assets, or court order only after the bank sends a copy of the subpoena, summons, warrant, citation to discover assets, or court order to the person establishing the relationship with the bank, if living, and, otherwise the person's personal representative, if known, at the person's last known address by first class mail, postage prepaid, through a third-party commercial carrier or courier with delivery charge fully prepaid, by hand delivery, or by electronic delivery at an email address on file with the bank (if the person establishing the relationship with the bank has consented to receive electronic delivery and, if the person establishing the relationship with the bank is a consumer, the person has consented under the consumer consent provisions set forth in Section 7001 of Title 15 of the United States Code), unless the bank is specifically prohibited from notifying the person by order of court or by applicable State or federal law. A bank shall not mail a copy of a subpoena to any person pursuant to this subsection if the subpoena was issued by a grand jury under the Statewide Grand Jury Act.”)