Opinion
Alexander C. Van Hook, U.S. Attorneys Office, Shreveport, LA, for United States of America.
MEMORANDUM ORDER
Mark L. Hornsby, U.S. Magistrate Judge
Defendant Donna Poimboeuf issued a Rule 17(c) subpoena duces tecum to the Caddo Parish Sheriff’s office ("CPSO"), and the Government moved to quash the subpoena (Doc. 53). In a memorandum order (Doc. 61), the undersigned denied the motion to quash but narrowed the scope of the subpoena. 2019 WL 1768612 (April 22, 2019). Now before the court is the Government’s Motion for Reconsideration (Doc. 62) of the prior memorandum order. The Government seeks clarification regarding the issuance of future Rule 17(c) subpoenas and the production of responsive documents. Rule 17(c)(1) provides:
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. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.
The Government argues that the court’s order denying the motion to quash could be construed to permit parties to issue subpoenas duces tecum without notice and on a date returnable at the discretion of the issuing party. The Government’s motion to reconsider seeks clarification as to whether each party must (1) consult the court before issuing the subpoena; (2) provide notice to the other parties regarding issuance of the subpoena; and/or (3) draft the subpoena so that any responsive documents be produced to the court so that the information could be viewed by all parties.
Defendant filed a response (Doc. 64) that argued that Rule 17(c)(1) makes return to the court and inspection by the parties optional and does not require notice to opposing parties. Defendant asserts that the court properly exercised its discretion in its prior order.
The law is clear that a Rule 17 subpoena is not a discovery device. United States v. Nixon, 418 U.S. 683, 698, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). Instead, it is an instrument intended exclusively for trial or a formal hearing. United States v. Pereira, 353 F.Supp.3d 158, 160 (D. P.R. 2019). The production of documents allowed by Rule 17 is intimately related to the attendance of witnesses at the trial or hearing. United States v. Santiago-Lugo, 904 F.Supp. 43, 46 (D. P.R. 1995). The subpoena is limited to evidentiary materials, and it cannot be used as a fishing expedition to see what may turn up. 2 Wright & Henning, Federal Practice & Procedure, § 275 at pp. 264-265 and fns. 24 & 25. Therefore, requests for "any and all" documents relating to a category of subject matter are not appropriate. As one court stated:
Federal Rule of Criminal Procedure 17(c) is directed to trial witnesses, and provides that "[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 into evidence." The purpose of a 17(c) subpoena is "to implement the Sixth Amendment guarantee that the defendant shall have compulsory process to obtain evidence in the defendant’s favor." 25 James Wm. Moore et al., Moore’s Federal Practice § 617.08[1] (3d ed.2007).
United States v. Ferguson, 2007 WL 2815068, at *2 (D. Conn. 2007). Rule 17(c)’s "chief innovation was to expedite trials by providing a time and place before trial for the inspection of the subpoenaed materials." United States v. Potts, 2017 WL 1314193 *1 (S.D. Tex. 2017) quoting Bowman Dairy Co. v. United States, 341 U.S. 214, 220, 71 S.Ct. 675, 95 L.Ed. 879 (1951).
The party requesting the subpoena has the burden to show the court that the materials sought are (a) relevant, (b) admissible, and (c) requested with adequate specificity. United States v. Gas Pipe, 2018 WL 5262361 (N.D. Tex. 2018)(citing United States v. Arditti, 955 F.2d 331, 345 (5th Cir. 1992)). Materials that have no potential value other than for purposes of impeachment are not subject to subpoena under Rule 17(c). Id. The information must be relevant to the Government’s case or a valid defense. Id. Moreover, a Rule 17(c) subpoena is improper where it calls for the production of Brady, Jencks Act, or Giglio material. Id.
Courts have considerable discretion under Rule 17 to oversee the subpoena process. United States v. Parker, 586 F.2d 422, 428 (5th Cir. 1978). The court may quash or modify the subpoena if compliance would be "unreasonable or oppressive." Rule 17(c)(2); United States v. Denson, 2016 WL 6473218 (E.D. La. 2016).
Considering the foregoing, the Government’s motion to reconsider is granted as follows. All future requests for Rule 17(c) subpoenas for documents in this or in any other case pending in this division of the court must be approved by the court on motion, and the requesting defendant must provide a copy of the motion and subpoena to all parties. The documents shall be returnable and produced in open court immediately prior to the start of the trial or hearing unless the parties agree otherwise. If the records requested and approved by the court are voluminous, the parties are strongly encouraged to reach an agreement regarding the date, time, and place of production so that (1) all parties can participate and (2) the inconvenience to jurors and the presiding judge can be minimized.
There may be rare occasions where a defendant wishes to request permission to serve a Rule 17(c)(1) subpoena but does not wish to identify to the Government the recipient or other information that may be sensitive under the circumstances. A defendant in that situation may file an ex parte motion for leave that is not served on the Government. Before serving an ex parte subpoena under Rule 17(c)(1), defendants in this division of the court must file under seal an ex parte motion for approval by this court for the issuance of the subpoena, attaching the actual subpoena and demonstrating in detail via an affidavit or declaration that the materials sought are (a) relevant to a particular aspect of the Government’s case or defendant’s defense, (b) admissible, (c) requested with adequate specificity, (d) not reasonably obtainable by other means; and (e) if the subpoena requests production prior to the morning of the trial or a hearing, explain why it would be burdensome to the court and the parties to delay production until the morning of trial.
Courts are split as to whether to permit
THUS DONE AND SIGNED in Shreveport, Louisiana, this 15th day of May, 2019.
ex parte duces tecum United States v. Sellers, ex parte See United States v. Potts,