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Case 1:20-cr-00330-PAE Document 247 Filed 04/23/21 Page4of17 The Honorable Alison J. Nathan April 5, 2021 Page 4 of 17 the Requests themselves ask for “communications” between BSF and a designated party about a general topic over a five-year period, and then define communications as “all forms of correspondence.” Request 2, for example, is for “Communications between You and the United States Attorney between 2015 and the date of this subpoena about x.” defining “communications” as “all forms of correspondence”; defining “BSF” as “any owner, shareholder, partner or employee of” BSF; and defining “the United States Attorney” as “any employee of the office of the United States Attorney for the Southern District of New York.” This Request cannot be read as anything but “a// communications in any form between anyone who has ever worked at BSF in any capacity and anyone who has ever worked at the S.D.N.Y. United States Attorney’s office in any capacity between 2015 and the date of this subpoena about yg.” Thus, due to their expansive definitions, the Defendant’s requests are even broader than those that Judge Gardephe rejected in Avenatti, which were limited to identified individuals.? Requests 1 through 5 of the subpoena thus fail Nixon’s specificity requirement. 3 The Defendant contends that Requests 1 through 5 are similar to those approved by the court in United States v. Wey, 252 F. Supp. 3d 237 (S.D.N.Y. 2017). Resp. Ltr. at 6. But in Wey, the court originally denied the defendant’s motion for the issuance of a Rule 17 subpoena because it requested: “All emails and records related to the listing applications and approvals for [SmartHeat], [Deer], and [CleanTech], including in particular, any communications regarding, or interpretation or application of, the 300 round-lot shareholder requirement.” /d. at 243. The court found that the defendant “had not identified the documents sought with the requisite specificity and had failed to make the necessary showing that all requested documents would be admissible at trial,” but granted the defendant leave to renew is motion and show that Rule 17’s requirements were met. /d. The defendant then submitted a new set of requests that, unlike the Requests at issue here, limited the request to communications between a certain, specified set of individuals and narrow time periods of approximately a year or less. /d. The defendant’s renewed motion also, unlike the Defendant’s response here, “set forth anticipated bases for admission of the documents at trial through several specific exceptions to the hearsay rule.” Jd. Thus, the court granted the renewed motion. /d. DOJ-OGR-00004004