United States District Court, S.D. Georgia, Augusta Division
K. EPPS UNITED STATES MAGISTRATE JUDGE.
Court is determining prior to issuance whether forty-one
subpoenas submitted by Defendant pursuant to Federal Rule of
Criminal Procedure 17(c) satisfy United States v.
Nixon. 418 U.S. 683 (1974), and its progeny. (See doc.
nos. 159, 244, 256.) Defendant concedes the Court has
discretion to conduct this inquiry now rather than after
issuance and service. (Doc. no. 247, pp. 9-11.) On April 23,
2018, the parties presented arguments concerning the
Nixon specificity standard, followed by Defendant
explaining ex parte the subpoenas' relation to
trial strategy. Upon consideration of all arguments and
evidence, the Court REJECTS forty subpoenas
in their entirety as overly broad and APPROVES AS
MODIFIED the subpoena at docket entry 256.
filed her Motion for Issuance of Rule 17 Subpoenas on
November 21, 2017. (Doc. no. 159.) Following rulings that
defined the scope of discovery and narrowed Defendant's
Rule 16 requests, Defendant submitted reformulated Rule 17
subpoenas on March 29, 2018. (Doc. no. 244.) To preserve her
right of appeal, Defendant submitted a proffer of additional
requests she would have included in the reformulated
subpoenas but for the Court's discovery rulings. (Doc.
Rule 17(c) Narrowly Permits the Subpoena of Documents that
Are Specifically Identifiable, Relevant, and Admissible at
17(c)(1) provides as follows: "A subpoena may order the
witness to produce any books, papers, documents, data, or
other objects the subpoena designates. The court may direct
the witness to produce the designated items in court before
trial or before they are to be offered in evidence."
Rule 17 expedites "the trial by providing a time and
place before trial for the inspection of subpoenaed
materials" Nixon, 418 U.S. at 698-99. In order
to obtain production prior to trial under Rule 17(c), the
moving party must show:
(1) that the documents are evidentiary and relevant; (2) that
they are not otherwise procurable reasonably in advance of
trial by exercise of due diligence; (3) that the party cannot
properly prepare for trial without such production and
inspection in advance of trial and that the failure to obtain
such inspection may tend unreasonably to delay the trial; and
(4) that the application is made in good faith and is not
intended as a general "fishing expedition."
Id. at 699-700 (footnote omitted). The requesting
party must therefore "clear three hurdles:
relevancy; (2) admissibility; (3) specificity."
Id. at 700.
is the hurdle on which many subpoena requests stumble."
United States v. Ruedlinger. 172 F.R.D.
453, 456 (D. Kan. 1997). "Courts have noted that the
specificity and relevance elements are somewhat heightened in
that they 'require more than the title of a document and
conjecture as to its contents.'" United States
v. Brown, No. 11-60285, 2013 WL 1624205, at *4 (S.D.
Fla. Apr. 15, 2013) (Rosenbaum, J.) (citing United States
v. Arditti. 955 F.2d 331, 345 (5th Cir. 1992)). "As
the Eleventh Circuit has explained, 'the rule only
reaches specifically identified documents that will
be admissible as evidence at trial, provided that the
application for the subpoena is made in good
faith.'" Id. (citation omitted).
is "not intended to provide an additional means of
discovery for any party in criminal cases." United
States v. Silverman, 745 F.2d 1386, 1397 (11th Cir.
1984) (citing Bowman Dairy Co. v. United States, 341
U.S. 214, 220 (1951)); see also Arditti. 955 F.2d at
345 (same). Nor can Rule 17 be used "as a means for
developing investigative leads which would lead to evidence
producible at trial . . . ." United States v.
Noriega, 764 F.Supp. 1480, 1492 (S.D. Fla. 1991).
"[A] Rule 17(c) subpoena duces tecum cannot
substitute for the limited discovery otherwise permitted in
criminal cases and the hope of obtaining favorable evidence
does not justify the issuance of such a subpoena."
United States v. Caro, 597 F.3d 608, 620 (4th Cir.
2010) (citation omitted).
the Due Process Clause of the Fourteenth Amendment,
fundamental fairness requires that a criminal defendant
"be afforded a meaningful opportunity to present a
complete defense." California v. Trombetta, 467
U.S. 479, 485 (1984). "To safeguard that right, the
Court has developed 'what might loosely be called the
area of constitutionally guaranteed access to evidence ....
[T]his group of constitutional privileges delivers
exculpatory evidence into the hands of the accused, thereby
protecting the innocent from erroneous conviction and
ensuring the integrity of the criminal justice system."
Id. (citations omitted). Rule 17(c) "implements
the Sixth Amendment guarantee that an accused have compulsory
process to secure evidence in [her] favor." United
States v. Ventola, Crim. No. 15-10356, 2017 WL 2468777,
at *3 (D. Mass. June 6, 2017) (citations omitted).
Nevertheless, "[t]he right to defend oneself does not
extend to using the power of the Court to compel third
parties to provide information that may not even be
admissible at trial or at a hearing or that is merely
'investigatory.'" Id. (collecting
cases); see also United States v. Rand. 835 F.3d
451, 463 (4th Cir. 2016) (same).
Defendant's Subpoenas Fail to Satisfy the ...