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Case 1:20-cr-00330-PAE Document 732 Filed 07/14/22 Page4of25 The Honorable Alison J. Nathan November 22, 2021 Page 4 accusers, this Court should resolve each of these disagreements in favor of Ms. Maxwell and deny the motions to quash. ARGUMENT This Court evaluates a Rule 17(c) subpoena under Nixon, 418 U.S. at 699-700. See United States v. Pena, No. 15-CR-551 (AJN), 2016 WL 8735699, at * 1-2 (S.D.N.Y. Feb. 12, 2016).* Under Nixon, Ms. Maxwell “must make a preponderance showing that the materials requested are relevant, specifically identified, admissible, and not otherwise procurable by the exercise of due diligence.” Pena, 2006 WL 8735699, at *2 (quoting Barnes, 560 Fed. Appx. at 39-40). If Ms. Maxwell satisfies this standard, the Court may quash the subpoena only “if compliance would be unreasonable or oppressive.” Fed. R. Crim. P. 17(c). * In United States v. Pena, this Court declined to follow the more liberal standard for defense subpoenas to third parties articulated in United States v. Tucker, 249 F.R.D. 58 (S.D.N.Y. 2008). The Second Circuit has not resolved this debate. See United States v. Barnes, 560 Fed. Appx. 36, 40 n.1 (2d Cir. 2014) (unpublished) (declining to address the defendant’s argument that the court “forego the Nixon standard for the more permissive standard employed in [Tucker|’”). Ms. Maxwell contends that Tucker articulates the correct standard. See Nachamie, 91 F. Supp. 2d at 562-63 (“A real question remains as to whether it makes sense to require a defendant’s use of Rule 17(c) to obtain material from a non-party to meet [the Nixon] standard. Unlike the Government, the defendant has not had an earlier opportunity to obtain material by means of a grand jury subpoena. Because the Rule states only that a court may quash a subpoena ‘if compliance would be unreasonable or oppressive,’ the judicial gloss that the material sought must be evidentiary—defined as relevant, admissible and specific—may be inappropriate in the context of a defense subpoena of documents from third parties.” (citing Tomison, 969 F. Supp. at 593 n.14)). Even so, this Court need not reconsider its decision in Pena, because Ms. Maxwell’s subpoena is enforceable under Nixon. Should this Court disagree, however, Ms. Maxwell makes this argument to preserve the record for potential appellate review. DOJ-OGR-00011427