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Case 1:20-cr-00330-PAE Document195 Filed 04/05/21 Page9of11 Page 9 II. Any Records Obtained Pursuant to a Rule 17(c) Subpoena Should Be Marked Confidential Under the Protective Order and Produced to the Opposing Party Additionally, and to the extent the defendant has issued or will issue other subpoenas ex parte pursuant to Rule 17(c), the responsive records should be produced to the Government and marked confidential pursuant to the protective order. See Fed. R. Crim. P. 17(c)(1). First, materials gathered pursuant to a Rule 17(c) subpoena by either party should be promptly made available to their adversary. As noted above, the text of Rule 17(c) plainly provides that materials obtained pursuant to a subpoena may be returned to the Court which “may permit the parties and their attorneys to inspect all or part of them.” Fed. R. Crim. P. 17(c)(1). Nowhere does the Rule provide for one party’s ability to use a subpoena to secretively gather material in advance of trial, nor does it include a categorical exception due to concerns about defense or trial strategy. Indeed, because the purpose of Rule 17 is to obtain evidence for use at trial, and not to investigate for evidence or obtain impeachment material, disclosure of the fruits of a Rule 17(c) subpoena fits neatly with Rule 16’s reciprocal obligations for disclosure of evidence that the defendant intends to introduce in her case-in-chief. See Fed. R. Crim. P. 16(b)(1)(A); United States v. St. Lawrence, 16 Cr. 259 (CS), Dkt. No. 66 at 6 (S.D.N.Y. Dec. 22, 2016) (“It seems to the Court that because Rule 17(c) subpoenas are intended to obtain specific materials that the party expects to offer into evidence, Rule 16 would oblige the party to make the materials available to the other side anyway.”).° By contrast, to the extent the defendant has improperly obtained information through a Rule 17(c) subpoena, the Government should have the opportunity to move to preclude its use at trial. In order to permit such a motion to be made in a timely manner—and so as to avoid the ® To the extent the Government makes use of Rule 17(c) subpoenas, it similarly will promptly produce all material received to the defendant. DOJ-OGR- 00002898