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Case 1:20-cr-00330-PAE Document 247 Filed 04/23/21 Page9of17 The Honorable Alison J. Nathan April 5, 2021 Page 9 of 17 appears to be BSF, including all communications between the Government and BSF attorneys David Boies, Sigrid McCawley, and Peter Skinner, and requesting immediate disclosure of Brady and Giglio materials). The Defendant cannot use Rule 17 to circumvent resolution of an outstanding discovery dispute with the Government, especially when that dispute is currently pending before the Court. If the Defendant is entitled to the communications with the Government she requests in Requests 1 and 2 pursuant to Rule 16, then presumably the Court will order the Government to produce them and she may not use Rule 17 to obtain them from a nonparty instead. See, e.g., Nixon, 418 U.S. at 699 (documents requested pursuant to Rule 17(c) must not be “otherwise procurable” from another source); United States v. Cole, No. 19 CR. 869 (ER), 2021 WL 912425, at *6 (S.D.N.Y. Mar. 10, 2021) (explaining that “Rule 17(c) is not the proper method for obtaining” materials that the Government has an obligation to disclose under the Jencks Act, Brady, and Giglio). If the Defendant is not entitled to obtain the communications she seeks from the Government under Rule 16, then they are not discoverable under Rule 17 from a nonparty. See United States v. Boyle, No. 08 Cr. 523 (CM), 2009 WL 484436, at *2 (S.D.N.Y. Feb. 24, 2009) (“Defendants may not seek material under Rule 17 that they are prohibited from obtaining under Rule 16.”); United States v. Barnes, No. S9 04 CR 186 SCR, 2008 WL 9359654, at *2 (S.D.N.Y. Apr. 2, 2008) (“[I]f the item is not discoverable under Rule 16, a party cannot make it discoverable simply by subpoenaing it under Rule 17.”); United States v. Cherry, 876 F. Supp. 547, 552 (S.D.N.Y. 1995) (“Courts must be careful that Rule 17(c) is not turned into a broad discovery device, thereby undercutting the strict limitation of discovery in criminal cases found in Fed. R. Crim. P. 16.”). Either way, if the Government has the communications that the Defendant seeks and if she is legally entitled to them, she must get them from the Government. DOJ-OGR-00004009