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Case 1:20-cr-00330-PAE Document195 _ Filed 04/05/21 Page8of1i1 Page 8 Moreover, as the information currently available to the Government about the BSF subpoena makes plain, the Government’s concerns are well founded. Indeed, the defendant has already sought issuance of a subpoena that appears to directly implicate the Government’s interests by expressly and improperly seeking broad categories of victim information and communications with the Government. While the Government has not seen the subpoena to BSF, it also appears that the subpoena constitutes a fishing expedition for potential impeachment material, which plainly runs afoul of the Nixon test. (Letter from BSF to the Court at 2, Dkt. No. 191).° Insofar as the defendant is attempting to engage in such an improper expedition in this case—or even if the defendant is merely pushing the limits of a Rule 17 subpoena—the Government respectfully submits that it should be afforded the opportunity to bring its concerns to the Court’s attention. The Government recognizes that some information, such as portions of a defendant’s explanation for why a particular request in a particular subpoena meets the Nixon standard, may reveal critical defense strategy meriting ex parte consideration by the Court. But the Government respectfully submits that interest can be served through specific defense requests tailored to the particular redaction or application at issue, rather than a default whereby the defendant is permitted to proceed entirely ex parte in seeking documents and materials pursuant to Rule 17(c). (emphasis added); see United States v. Reyes, 162 F.R.D. 468, 470 (S.D.N.Y. 1995) (“Rules 17(a) and 17(b), which govern the issuance of subpoenas returnable at trial, also do not provide guidance as to the proper procedure for obtaining a pretrial subpoena duces tecum.”). These procedures are, at a bare minimum, in tension with proceeding ex parte or under the rules that govern subpoenas for trial testimony. > The Government has also not seen any response filing by the defendant, which per the Court’s March 24, 2021 Order was to be filed on or before April 2, 2021. To the extent the defendant did file such a response, it was neither docketed nor provided to the Government, and as such, the Government is unable to address herein any arguments made by the defendant about the BSF subpoena. DOJ-OGR-00002897