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Case 1:20-cr-00330-PAE Document191 Filed 03/30/21 Page2of7 The Honorable Alison J. Nathan March 22, 2021 Page 2 of 7 Government prior to the arrest was somehow improper and that her accusers, several of whom BSF represents, are lying in order to obtain settlements. See Letter from L. Menninger to Hon. Debra C. Freeman at 2—3, Annie Farmer v. Darren K. Indyke, et al., 19-cv-10475 (LGS-DCF) (S.D.N.Y. Dec. 30, 2020), ECF No. 108 (accusing Ms. Farmer of “working during the pendency of this lawsuit with the Southern District of New York’s U.S. Attorney’s Office to try to circumvent Ms. Maxwell’s Fifth Amendment rights in advance of the June 29, 2020 indictment”); id. at 3 (“The fact that [Ms. Farmer] seeks, money from the Estate and from Ms. Maxwell, in the millions of dollars, at the same time she is a government witness in an upcoming criminal trial on the same topic is reason enough to suspect that her newly asserted memories of abuse—without corroboration—are not based on the truth or a desire for ‘justice’ so much as her desire for cash.” (emphases in original)); Maxwell’s Motion to Stay Pending Appeal at 4, 8-10, Giuffre v. Maxwell, No. 20-2413 (2d Cir. July 30, 2020), ECF No. 10-1 (explaining the Defendant’s “concerns that [Ms. Giuffre] and [BSF] were acting as either express or de facto agents of the government” and falsely accusing BSF of leaking a confidential deposition transcript to the Government). The Subpoena, which seeks, for example, communications between BSF and the Government and BSF’s submissions on behalf of its clients to an independent claims program administered by Jeffrey Epstein’s Estate, is a transparent attempt to further this false narrative and to fish for potential impeachment material. But a fishing expedition for potential impeachment material goes well beyond the scope of a permissible Rule 17(c) subpoena. The Defendant’s motion to authorize service of the Subpoena on BSF should be denied.! THE REQUIREMENTS OF RULE 17(C) Rule 17(c) of the Federal Rules of Criminal Procedure Rule governs nonparty subpoenas in criminal proceedings. Rule 17(c) “was not intended to provide a means of discovery for criminal cases.” United States v. Nixon, 418 U.S. 683, 698 (1974); see also, e.g., United States v. Barnes, 560 F. App’x 36, 39 (2d Cir. 2014) (“Rule 17 subpoenas are properly used to obtain admissible evidence, not as a substitute for discovery.”); United States v. Cherry, 876 F. Supp. 547, 553 (S.D.N.Y. 1995) (explaining that although the civil rules permit subpoenas “to seek production of documents or other materials which, although not themselves admissible, could lead to admissible evidence,” criminal “Rule 17(c) cannot be used to obtain leads as to the existence of additional documentary evidence or to seek information relating to the defendant’s case” (internal quotation marks omitted)). Accordingly, a party seeking a Rule 17(c) subpoena must demonstrate: (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 : A motion to quash the Subpoena is not yet ripe because, without having the benefit of the Defendant’s sealed briefing on her motion and any other orders pertaining to it, it appears that the Court has not granted Defendant’s motion for an order authorizing service of the Subpoena on BSF. The Court, however, should exercise its discretion and deny the Defendant’s motion. See United States v. Weissman, No. 01 Cr. 529 (BSJ), 2002 WL 1467845, at *1 (S.D.N.Y. July 8, 2002) (“Rule 17(c) expressly commits the decision whether to require pre-trial production of documents to the sound discretion of the court.”). Should the Court wish to hear further from BSF prior to deciding the Motion, BSF is prepared to appear before the Court and/or move to intervene and to quash the Subpoena. DOJ-OGR- 00002878