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United States v. Potts

United States District Court, S.D. Texas, Houston Division

April 6, 2017




         Pending 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.

         I. Introduction

         On 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.[1] 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.[2] 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.

         II. Applicable Law

         Federal 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.

         The 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).

         III. Analysis

         Chevron 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.

         A. Specificity

         The 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.[3] 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 ...

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