Can Fed. R. Crim. P. 17(c) Even the Playing Field?

Federal Rule of Criminal Procedure 17(c) helps offset this inequality in the access to information. The Rule states, 'A subpoena may order the witness to produce any ' documents ' The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence.' Because Rule 17(c) allows any party to subpoena documents for production prior to trial, it can be a powerful tool for defendants. The Rule allows defendants to subpoena documents and receive them well in advance of trial. Defendants thus have the opportunity to analyze the documents, integrate them into the case, and use them as a basis for further investigation or even to subpoena additional documents.

In order to issue a Rule 17(c) subpoena, a party must file a motion seeking leave of court. There is limited case law interpreting Rule 17(c). The Supreme Court issued the leading opinion, United States v. Nixon, 418 U.S. 683 (1974), during the battle over production of the Nixon White House tapes. Nixon established certain standards for a Rule 17(c) subpoena, including that the moving party must show that the subpoenaed materials are relevant, admissible, and specifically identified. As to the criterion of 'admissibility,' Nixon explained that a party seeking a Rule 17(c) subpoena must establish that the documents sought are evidentiary ' the party must make a preliminary showing that that documents would contain material that is admissible with respect to the charged offenses. 418 U.S. at 700.

This showing to obtain Rule 17(c) subpoenas should include sufficient information to establish that: 1) the documents are evidentiary and relevant; 2) the documents are not otherwise procurable reasonably in advance of trial; 3) the defendant cannot property prepare for trial without the production of the documents in advance of trial and that the failure to obtain advance production may tend unreasonably to delay the trial; and 4) the application is made in good faith and is not intended as a general fishing expedition. Nixon, 418 U.S. at 699.

A critical benefit of Rule 17(c) is that the court can allow the defendant to serve the subpoenas and receive the documents without providing copies to the government. It is imperative that courts protect the defendant's right to use Rule 17(c) on an ex parte basis. Though there is some diversity of opinion, there is strong case law upholding the defendant's right to protect the confidentiality of its subpoenas, its reasons for requesting the subpoenas, and the documents it receives in response. See United States v. Tomison, 969 F. Supp. 587 (E.D. Cal. 1997); see also, e.g., United States v. Daniels, 95 F. Supp. 2d 1160 (D. Kan. 2000); United States v. Beckford, 964 F. Supp. 1010 (E.D. Va. 1997). As shown by the case law, the government frequently submits its Rule 17(c) subpoenas ex parte, making it poorly positioned to challenge a defendant's request for comparable treatment.

The court's overriding justification for allowing ex parte treatment of pre-trial subpoenas is based on an inherent conflict between the showing necessary in order to obtain pre-trial subpoenas and a criminal defendant's right to protection of trial strategy. It follows that, where a defendant must reveal trial strategy, attorney work product, or witness identities in order to make the Nixon showing that the documents sought are relevant, admissible, and specific, that showing must be made ex parte.

Despite the defendant's right to a court order maintaining the confidentiality of documents received in response to a defendant's subpoena, the defendant has the continuing obligation to comply with Federal Rule of Criminal Procedure 16, which governs the production of discovery. Thus, the defendant should expect that it will have to produce those documents that it knows it will use in its case-in-chief, though it may withhold from production those documents that it expects to use for cross-examination or that it will not use at trial.

Steps to Follow

We suggest that defense counsel perform the following steps in making a Rule 17(c) motion for service of subpoenas ex parte:

• File a motion with the court with service on the government outlining the general request. This document will put the government on notice without disclosing confidential work product.
• Provide a second set of papers ex parte and under seal to the court. This pleading should include copies of the actual subpoenas to be served along with a detailed explanation of why the documents would be relevant and difficult to obtain before trial without a subpoena, and why it would be burdensome to the parties and the court to delay service and return until the date of trial.

Defense counsel should provide a specific, factual basis for the belief that the subpoenas likely will lead to important evidence. The strongest motions show that the subpoenaed records will be exculpatory and not just useful for cross-examination, though usefulness in cross-examination is a valid ground for such a request.

If defense counsel is not familiar with the court's Rule 17(c) practices, it may be advisable to discuss the first set of papers described above with the judge in open court before filing the more detailed ex parte request. In the ex parte papers, the more specific and detailed the information that defense counsel can provide, the greater the likelihood that the court will find both that the papers should remain sealed and that the subpoenas themselves should be ex parte to protect the defendant's trial strategy.

Our Experience

The authors recently have litigated the availability of ex parte Rule 17(c) subpoenas in a criminal tax case in the District of Massachusetts. In a thoughtful opinion, the magistrate judge authorized many of the subpoenas the defendant had sought. More significantly, the court held that: 1) the defendant was entitled to an ex parte application for those subpoenas; 2) the defendant need not disclose most of the requested subpoenas to the government; and 3) the defendant was not required to produce to the government documents received in response to the subpoenas unless they are otherwise subject to production ' for example, if the defendant intends to use them at trial. The magistrate judge's opinion is available on the district court's PACER system, Case No. 1:05-cr-10154-MLW-ALL, Docket No. 33.

Conclusion

The often-overlooked Rule 17(c), when applied with its full potential, can be an effective tool to remedy the disparity in access to information between the government and the defendant. In a typical white-collar case, it will take months if not longer to analyze the government's documents and gather documentary evidence to refute the charge. Frequently, defendants will need additional bank, credit card, travel, tax, accounting, or other records to establish the deficiencies in the government's case. Rule 17(c) not only allows a defendant to obtain such information with sufficient time to analyze it ' it also protects a defendant from disclosing to the government related documents and work product.

Michael Kendall, a member of this newsletter's Board of Editors, is a partner, and Lauren Papenhausen is an associate at McDermott Will & Emery LLP's Boston office. Their practices include both white-collar criminal defense and complex civil litigation.

As the pace and scale of federal white-collar prosecutions grow, an inherent inequality in the process threatens the fundamental fairness of the criminal justice system: the uneven access to information. The government typically spends years investigating with the grand jury and using subpoena powers, immunity offers, and foreign treaties to gather virtually any document or testimony it wants. Moreover, because the government has no obligation to subpoena exculpatory records, it can purposely sanitize its case, avoiding subpoenaing documents that are helpful to the defendant.

In contrast to the broad investigatory powers that the government enjoys, the defendant is at a distinct disadvantage. Though the defendant may have to produce documents in response to government subpoenas, it cannot compete with the scope of the government's pretrial gathering of evidence, and its discovery options are few. Once the grand jury returns an indictment, the government will make available to the defendant the documents it has gathered. After the court sets a trial date, the defendant can issue trial subpoenas, but the documents generally are not returnable until the first day of trial. For the typical defendant, there are few other avenues to gather information.

Rule 17(c)

Federal Rule of Criminal Procedure 17(c) helps offset this inequality in the access to information. The Rule states, 'A subpoena may order the witness to produce any ' documents ' The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence.' Because Rule 17(c) allows any party to subpoena documents for production prior to trial, it can be a powerful tool for defendants. The Rule allows defendants to subpoena documents and receive them well in advance of trial. Defendants thus have the opportunity to analyze the documents, integrate them into the case, and use them as a basis for further investigation or even to subpoena additional documents.

In order to issue a Rule 17(c) subpoena, a party must file a motion seeking leave of court. There is limited case law interpreting Rule 17(c). The Supreme Court issued the leading opinion, United States v. Nixon , 418 U.S. 683 (1974), during the battle over production of the Nixon White House tapes. Nixon established certain standards for a Rule 17(c) subpoena, including that the moving party must show that the subpoenaed materials are relevant, admissible, and specifically identified. As to the criterion of 'admissibility,' Nixon explained that a party seeking a Rule 17(c) subpoena must establish that the documents sought are evidentiary ' the party must make a preliminary showing that that documents would contain material that is admissible with respect to the charged offenses. 418 U.S. at 700.

This showing to obtain Rule 17(c) subpoenas should include sufficient information to establish that: 1) the documents are evidentiary and relevant; 2) the documents are not otherwise procurable reasonably in advance of trial; 3) the defendant cannot property prepare for trial without the production of the documents in advance of trial and that the failure to obtain advance production may tend unreasonably to delay the trial; and 4) the application is made in good faith and is not intended as a general fishing expedition. Nixon, 418 U.S. at 699.

A critical benefit of Rule 17(c) is that the court can allow the defendant to serve the subpoenas and receive the documents without providing copies to the government. It is imperative that courts protect the defendant's right to use Rule 17(c) on an ex parte basis. Though there is some diversity of opinion, there is strong case law upholding the defendant's right to protect the confidentiality of its subpoenas, its reasons for requesting the subpoenas, and the documents it receives in response. See United States v. Tomison , 969 F. Supp. 587 (E.D. Cal. 1997); see also, e.g., United States v. Daniels , 95 F. Supp. 2d 1160 (D. Kan. 2000); United States v. Beckford , 964 F. Supp. 1010 (E.D. Va. 1997). As shown by the case law, the government frequently submits its Rule 17(c) subpoenas ex parte, making it poorly positioned to challenge a defendant's request for comparable treatment.

The court's overriding justification for allowing ex parte treatment of pre-trial subpoenas is based on an inherent conflict between the showing necessary in order to obtain pre-trial subpoenas and a criminal defendant's right to protection of trial strategy. It follows that, where a defendant must reveal trial strategy, attorney work product, or witness identities in order to make the Nixon showing that the documents sought are relevant, admissible, and specific, that showing must be made ex parte.

Despite the defendant's right to a court order maintaining the confidentiality of documents received in response to a defendant's subpoena, the defendant has the continuing obligation to comply with Federal Rule of Criminal Procedure 16, which governs the production of discovery. Thus, the defendant should expect that it will have to produce those documents that it knows it will use in its case-in-chief, though it may withhold from production those documents that it expects to use for cross-examination or that it will not use at trial.

Steps to Follow

We suggest that defense counsel perform the following steps in making a Rule 17(c) motion for service of subpoenas ex parte:

• File a motion with the court with service on the government outlining the general request. This document will put the government on notice without disclosing confidential work product.
• Provide a second set of papers ex parte and under seal to the court. This pleading should include copies of the actual subpoenas to be served along with a detailed explanation of why the documents would be relevant and difficult to obtain before trial without a subpoena, and why it would be burdensome to the parties and the court to delay service and return until the date of trial.

Defense counsel should provide a specific, factual basis for the belief that the subpoenas likely will lead to important evidence. The strongest motions show that the subpoenaed records will be exculpatory and not just useful for cross-examination, though usefulness in cross-examination is a valid ground for such a request.

If defense counsel is not familiar with the court's Rule 17(c) practices, it may be advisable to discuss the first set of papers described above with the judge in open court before filing the more detailed ex parte request. In the ex parte papers, the more specific and detailed the information that defense counsel can provide, the greater the likelihood that the court will find both that the papers should remain sealed and that the subpoenas themselves should be ex parte to protect the defendant's trial strategy.

Our Experience

The authors recently have litigated the availability of ex parte Rule 17(c) subpoenas in a criminal tax case in the District of Massachusetts. In a thoughtful opinion, the magistrate judge authorized many of the subpoenas the defendant had sought. More significantly, the court held that: 1) the defendant was entitled to an ex parte application for those subpoenas; 2) the defendant need not disclose most of the requested subpoenas to the government; and 3) the defendant was not required to produce to the government documents received in response to the subpoenas unless they are otherwise subject to production ' for example, if the defendant intends to use them at trial. The magistrate judge's opinion is available on the district court's PACER system, Case No. 1:05-cr-10154-MLW-ALL, Docket No. 33.

Conclusion

The often-overlooked Rule 17(c), when applied with its full potential, can be an effective tool to remedy the disparity in access to information between the government and the defendant. In a typical white-collar case, it will take months if not longer to analyze the government's documents and gather documentary evidence to refute the charge. Frequently, defendants will need additional bank, credit card, travel, tax, accounting, or other records to establish the deficiencies in the government's case. Rule 17(c) not only allows a defendant to obtain such information with sufficient time to analyze it ' it also protects a defendant from disclosing to the government related documents and work product.

Michael Kendall, a member of this newsletter's Board of Editors, is a partner, and Lauren Papenhausen is an associate at McDermott Will & Emery LLP's Boston office. Their practices include both white-collar criminal defense and complex civil litigation.