DOJ-OGR-00002896.jpg

Case 1:20-cr-00330-PAE Document195 _ Filed 04/05/21 Page7of11 Page 7 party can demonstrate” a basis (emphasis omitted)); United States v. Weisman, 01 Cr. 529 (BSJ), 2002 WL 1467845, at *1 (S.D.N.Y. July 8, 2002) (similar); see also United States v. Fox, 275 F. Supp. 2d 1006, 1012 & n.7 (D. Neb. 2003) (surveying the caselaw and adopting the “majority view” that Rule 17(c) “does not ordinarily permit the use of ex parte applications by the government or the defense for subpoenas seeking pretrial production of documents unless the sole purpose of seeking the documents is for use at trial,” and even then, only if “there is a good trial- related reason” and generally requiring production in the presence of the opposing party); 2 Wright & Miller, Fed. Prac. & Procedure § 275 (4 ed.) (“It has been held, however, that in limited circumstances, both the government and a defendant may make an ex parte application for a pre- trial subpoena duces tecum” (emphasis added)). But see Ray, 2020 WL 6939677 at *8 (“Courts in this District have long followed the practice of permitting both the defense and the Government to submit ex parte applications for Rule 17(c) subpoenas.”); United States v. Reyes, 162 F.R.D. 468, 470 (S.D.N.Y. 1995) (permitting ex parte applications because a party must “detail its trial strategy or witness list in order to convince a court that the subpoena satisfies the Nixon standards”). Notice of Rule 17(c) subpoenas is similarly appropriate in this case to prevent abuse and address objections expediently. And such a requirement is consistent with the plain language of Rule 17: while Rule 17(b) expressly provides for an ex parte procedure for indigent defendants seeking to subpoena a witness for trial, it makes no such provision for an application for the production of documents and objects pursuant to Rule 17(c).4 “In Ray, the Court concluded that Rule 17(c) is simply an extension of Rules 17(a) and (b)’s provisions of subpoenas to witnesses, which may issue without notice. See 2020 WL 6939677, at *8 (quoting United States v. Florack, 838 F. Supp. 77, 79 (W.D.N.Y. 1993)). However, Rule 17(c) subpoenas for records are quite unlike subpoenas for trial testimony: they can be made returnable before trial, and Rule 17(c)’s text provides that materials obtained pursuant to such a subpoena may be returnable to the Court, which may in turn “permit the parties and their attorneys to inspect all or part of them,” and subjects the subpoenas to motions to quash. Fed. R. Crim. P. 17(c)(1)-(2) DOJ-OGR- 00002896