It is one of the great ironies of the law that in criminal cases, where the stakes are the highest, defendants have less discovery rights than in civil cases, and far less than those prosecuting them. One discovery mechanism available to a defendant is Fed.R.Crim.P. 17(c)(1), which allows the criminal defendant, with the permission of the Court, to issue subpoenas to third parties to produce “any books, papers, documents, data or other objects.” Traditionally, these subpoenas are evaluated under the standard in United States v. Nixon, 418 U.S. 683 (1974), which requires that the information sought must be relevant, admissible and specific. There is, however, a movement to relax the use of the Nixon standard in the context of defense subpoenas to non-government parties, and in United States v. Stevenson, issued on August 15, 2013, the Eighth Circuit hints it just might join it.
In Stevenson, the Court applied the Nixon standard to affirm the district court’s quashing of a subpoena issued to AOL in a child pornography possession case. While the subpoena was a smart defense strategy (the goal was to uncover the extent to which AOL acted as a government agent in seeking out illegal images), the Court made a point of noting that Stevenson had failed to argue for a more permissive standard. The Court also cited some of the authority for a more expansive approach to Rule 17(c) subpoenas, including a footnote in Nixon that emphasized that the Nixon Court not decided “whether a lower standard exists” where “the subpoena duces tecum is issued to third parties, rather than to government prosecutors.” This suggests that if asked, the Circuit may be open to revisiting its prior precedent applying Nixon to third-party subpoenas.
The analysis in S.D.N.Y. Judge Shira Scheindlin’s decision in United States v. Nachamie, 91 F. Supp. 2d 552 (S.D.N.Y. 2000), is an excellent primer. The history of Rule 17, the Advisory Committee Notes, and Supreme Court precedent recognize that a higher standard is appropriate when discovery is sought by and from the government. As Judge Scheindlin explains:
[The Nixon standard] made sense in the context of a Government subpoena, especially one seeking evidence from the President. It must be recalled that the Government’s use of a subpoena occurs after the completion of a grand jury investigation . . . A real question remains as to whether it makes sense to require a defendant’s use of Rule 17(c) to obtain material from a non-party to meet this same standard. Unlike the Government, the defendant has not had an earlier opportunity to obtain material by means of a grand jury subpoena . . . The notion that because Rule 16 provides for discovery, Rule 17(c) has no role in the discovery of documents can, of course, only apply to documents in the government’s hands; accordingly, Rule 17(c) may well be a proper device for discovering documents in the hands of third parties . . . If this is so, then the only test for obtaining the documents would be whether the subpoena was: (1) reasonable, construed using the general discovery notion of “material to the defense;” and (2) not unduly oppressive for the producing party to respond.