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Case 1:20-cr-00330-PAE Document 269 Filed 05/04/21 Page2of9 Page 2 The Nixon test is enforced strictly. “The party requesting the subpoena must also show that the information sought is ‘not otherwise procurable reasonably in advance of trial by exercise of due diligence,’ that ‘the party cannot properly prepare for trial without such production,’ and that ‘the application is made in good faith and is not intended as a general “fishing expedition.”’” United States v. Ulbricht, 858 F.3d 71, 109 (2d Cir. 2017) (quoting Nixon, 418 U.S. at 699-700), abrogated on other grounds as recognized by United States v. Chambers, 751 F. App’x 44, 46 & n.1 (2d Cir. 2018) (summary order). It is not sufficient for a party to show only that the subpoenaed documents “are potentially relevant or admissible.” United States v. Wey, 252 F. Supp. 3d 237, 254 (S.D.N.Y. 2017) (internal quotation marks omitted). Moreover, as the Court has explained, impeachment material is not “relevant” within the meaning of Nixon “until after the witness testifies.” (Order at 5). See Nixon, 418 U.S. at 701 (“[g]enerally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial” (citations omitted)). Finally, Rule 17 by its terms prohibits subpoenas aimed at statements “of a witness or a prospective witness.” See Fed. R. Crim. P. 17(h). Il. Discussion Although the Government has not seen the proposed subpoena, the Government understands that Request 9 seeks the complete diary of Minor Victim-2, Request 10 seeks a pair of boots given to Minor Victim-2, and Request 11 seeks a series of photographs. Requests 9 and 11 should be denied. The Government is working to moot Request 10, so the Court should reserve decision on that request until it can be denied as moot. A. Request 9 The Government understands that Request 9 calls for Minor Victim-2’s entire diary from her teenage years. This request is improper under Rule 17 in three respects. DOJ-OGR-00004095