The Battle over the Scope of Rule 17(c) Subpoenas<br><font size="-1"><b><i>Part One of a Two-Part Article</b></i></font>

In the last 10 years, however, a handful of district court decisions, with the leading decision from the Southern District of New York, have adopted a more permissive standard for Rule 17(c) subpoenas. Under these decisions, a subpoena will be enforced if the documents it seeks are “material to the defense,” and the request is not unduly burdensome. But this more expansive standard may be short-lived. Recently, the U.S. Court of Appeals for the Fourth Circuit became the first appellate court to enter the fray, adopting the more restrictive approach to Rule 17(c). Though seemingly a technical disagreement, the battle over Rule 17(c) is a high-stakes one, as the scope of Rule 17(c) can determine the extent to which a white-collar defendant will be able to gain access to documents to rebut the prosecution's arguments.

An analysis of the key Supreme Court cases addressing third-party discovery in criminal cases, and the well-considered analysis by courts in the Southern District, demonstrates that the Fourth Circuit's reasoning does not adequately address the district court decisions that advocate for a more flexible interpretation of Rule 17(c). In light of its potentially important role in trying to level the playing field, defense counsel should continue to press for a fairer application.

The Restrictive View

The text of Rule 17(c) appears to authorize substantial discovery. The parties may compel the pretrial production of “any books, papers, or other objects” designated in the subpoena, and the court may direct production of “the designated items in court before trial or before they are to be offered into evidence.” Further, Rule 17(c) provides that the court may “quash or modify the subpoena if compliance would be unreasonable or oppressive.” As Judge Kaplan of the Southern District of New York has written, “[o]n the face of it, [Rule 17(c)] appears to permit, subject to the court's discretion, the use of compulsory process to obtain pretrial disclosure in criminal cases provided only that compliance with a subpoena not be unreasonable or oppressive.” United States v. Stein, 488 F. Supp. 2d 350, 364 (S.D.N.Y. 2007).

The Advisory Committee Note for Rule 17(c), which accompanied Rule 17(c) when it was adopted in 1944, reinforces the breadth of the rule's language. The Note states that the “rule is substantially the same” as Rule 45(b) of the Federal Rules of Civil Procedure, which broadly authorizes subpoenas for documentary evidence. At the time, Rule 45(b) also stated that the court may quash subpoenas only if they are “unreasonable or oppressive.” The Supreme Court has made clear that Advisory Committee Notes should be given “weight” in interpreting the Federal Rules. Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 444 (1946).

Notwithstanding the textual similarity between Rule 17(c) and Rule 45(b) when they were enacted, and the Advisory Committee Note stating that they are “substantially the same,” in practice, the rules have markedly different meanings. In a civil case, a party may use a Rule 45 subpoena to obtain discovery regarding any nonprivileged matter “that is relevant to any party's claim or defense” so long as the subpoena does not impose an “undue burden.” Fed. R. Civ. P. 26(b), 45(d). Further, the information “need not be admissible in evidence to be discoverable.”

The scope of Rule 17(c), however, has been interpreted in a much more restrictive manner. In a criminal case, where the defendant's liberty is on the line, a Rule 17(c) subpoena, unlike a civil subpoena, must satisfy two requirements in addition to relevancy: The subpoenaed material must be both admissible as evidence in court and described with specificity. No textual basis exists in the rule for either the admissibility or the specificity requirements. Nonetheless, federal courts almost uniformly impose these strict requirements.

The dominant view of Rule 17(c) thus severely restricts its usefulness in white-collar cases. As Robert Morvillo explained in an article outlining the impediments to trial preparation for white-collar defendants, “[i]t is extraordinarily difficult for a defendant, who has limited ability to investigate, to know enough about the discovery he is seeking such that he can comply with” Rule 17(c). Robert G. Morvillo et al., Motion Denied: Systematic Impediments to White Collar Criminal Defendants' Trial Preparation, 42 Am.Crim. L.Rev. 157, 160 n. 12 (2005). As a practical matter, “requiring the defendant to specify precisely the documents he wants without knowing what they are borders on rendering Rule 17 a nullity.” United States v. Rajaratnam, 753 F. Supp. 2d 317, 320 (S.D.N.Y. 2011).

Next month, we will consider the competing interpretations of Rule 17(c), after briefly pausing to explain how we got here.

***** Jodi Misher Peikin ([email protected]), a member of this newsletter's Board of Editors, is a principal at Morvillo Abramowitz Grand Iason & Anello PC, New York. Curtis B. Leitner is counsel with the firm.