United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE
before the court are Defendant's Amended Application for
Rule 17(c) Subpoena Duces Tecum to the Complaining Witness
Chevron Corporation ("Amended Application") (Docket
Entry No. 83) and Non-Party Chevron Corporation's
Response to Defendant Shawn Potts' Application for
Subpoena Duces Tecum and Motion to Quash Proposed
Subpoena ("Chevron's Response") (Docket Entry
No. 87). For the following reasons the Amended Application
will be granted in part and denied in part.
December 9, 2016, defendant Shawn Potts applied for a
subpoena duces tecum under Fed.R.Civ.P. 17(c) to
"Custodian of Records, Chevron Corporation"
commanding the production of documents and records in
response to 4 9 requests. At a pretrial conference on January 25,
2016, the court ordered Potts to submit an amended
application. Potts filed the Amended Application on February
21, 2017, supported by an Ex Parte Declaration. Potts'
Amended Application calls for documents and records in
response to 38 requests. Chevron Corporation
("Chevron") responded to the Amended Application
and moved to quash the subpoena on March 7, 2017.
Rule of Criminal Procedure 17(c) "governs the issuance
of subpoenas duces tecum in federal criminal
proceedings." United States v. Nixon, 94 S.Ct.
3090, 3102 (1974). Rule 17(c) provides:
(1) In General. A subpoena may order the
witness to produce any books, papers, documents, data, or
other objects the subpoena designates. The court may direct
the witness to produce the designated items in court before
trial or before they are to be offered in evidence. When the
items arrive, the court may permit the parties and their
attorneys to inspect all or part of them.
(2) Quashing or Modifying the Subpoena. On
motion made promptly, the court may quash or modify the
subpoena if compliance would be unreasonable or oppressive.
A Rule 17(c) subpoena must be a "'good-faith effort
... to obtain evidence, '" and the court's power
to quash or modify subpoenas may be used to ensure that Rule
17(c) is used only for that purpose. United States v.
Arditti, 955 F.2d 331, 347 (5th Cir.), cert.
denied, 113 S.Ct. 597 (1992) (quoting Bowman Dairy
Co. v. United States, 71 S.Ct. 675, 678-679 (1951)).
"Rule 17 was not intended to provide the defendant a
mechanism by which to troll the waters of the sea's
otherwise undiscoverable material in the small hope that
something beneficial might rise to the surface."
United States v. King, 164 F.R.D. 542, 546 (D. Kan.
1996) . Nor was Rule 17(c) "intended to provide an
additional means of discovery. Its chief innovation was to
expedite the trial by providing a time and place before trial
for the inspection of the subpoenaed materials."
Bowman Dairy, 71 S.Ct. at 679.
party seeking access to materials under a Rule 17(c) subpoena
bears the burden of showing that (1) the subpoenaed documents
are relevant, (2) admissible, and (3) have been requested
with adequate specificity. Arditti, 955 F.2d at 345
(citing Nixon, 94 S.Ct. at 3103) . "The
specificity and relevance elements require more than the
title of a document and conjecture as to its contents."
Id. In Nixon the Supreme Court adopted the
test set out in United States v. Iozia, 13 F.R.D.
335, 338 (S.D.N.Y. 1952), requiring the defendant to show, in
addition to the factors listed above: (1) that the documents
are not otherwise procurable reasonably in advance of trial
by exercise of due diligence; (2) that production and
inspection in advance of trial is necessary to properly
prepare for trial and to prevent delay; and (3) that the
application is made in good faith and is not intended as a
general 'fishing expedition.' See Nixon, 94
S.Ct. 3103; United States v. Bearden, 423 F.2d 805,
810 n.4 (5th Cir. 1970).
argues that Potts' Rule 17(c) subpoena should be quashed
because it fails to identify specific, relevant, admissible
evidentiary documents and because Potts has not met his
burden under the Iozia test.
specificity requirement is intended to provide the subpoenaed
party with enough knowledge about the documents being
requested to lodge objections based on relevancy and
admissibility. United States v. Ruedlinger, 172
F.R.D. 453, 456 (D. Kan. 1997) (citing Black v. Sheraton
Corp. of America, 564 F.2d 531, 545 (D.C. Cir. 1977)).
All but one of Potts' requests references "all"
documents or other materials pertaining to the identified
category. Such sweeping requests are suspect. For most of the
requests, Potts fails to adequately specify which documents
contain relevant evidence and the nature of any such
evidence. But despite their broad prefatory language, several
of the requests are specific enough to allow for Chevron to
lodge appropriate objections. The court concludes that
Requests 1-5, 30, 32, 34, and 35 of the Amended Application
are sufficiently ...