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Case 1:20-cr-00330-PAE Document 191 Filed 03/30/21 Page 3 of 7

The Honorable Alison J. Nathan
March 22, 2021
Page 3 of 7

party cannot properly prepare for trial without such production and inspection in
advance of trial and that the failure to obtain such inspection may tend unreasonably
to delay the trial; and (4) that the application is made in good faith and is not
intended as a general “fishing expedition.”

Nixon, 418 U.S. at 699–700. In other words, the proponent of a Rule 17(c) subpoena “must clear
three hurdles: (1) relevancy; (2) admissibility; (3) specificity.” Id. at 700. Finally, “Rule 17(c)
subpoenas may not issue prior to trial to obtain materials usable only to impeach.” United States
v. Pena, No. 15 Cr. 551 (AJN), 2016 WL 8735699, at *2 (S.D.N.Y. Feb. 12, 2016) (Nathan, J.)
(granting motion to quash Rule 17(c) subpoena for all records relating to cooperating witnesses);
see also Nixon, 418 U.S. at 701 (“Generally, the need for evidence to impeach witnesses is
insufficient to require its production in advance of trial.”); Cherry, 876 F. Supp. at 553
(“[D]ocuments are not evidentiary for Rule 17(c) purposes if their use is limited to impeachment.”).

THE SUBPOENA FAILS TO MEET THE REQUIREMENTS OF RULE 17(C)

The Defendant cannot demonstrate that the Subpoena meets Rule 17(c)’s requirements for
four, independent reasons. First, the Subpoena is overbroad and non-specific, and a clear fishing
expedition to “see what may turn up.” See United States v. Avenatti, No. (S1) 19 CR. 373 (PGG),
2020 WL 86768, at *4 (S.D.N.Y. Jan. 6, 2020) (denying motion for issuance of Rule 17(c)
subpoena). “Subpoenas seeking ‘any and all’ materials, without mention of ‘specific admissible
evidence,’ justify the inference that the defense is engaging in the type of ‘fishing expedition’
prohibited by Nixon.” United States v. Mendinueta-Ibarro, 956 F. Supp. 2d 511, 512–513
(S.D.N.Y. 2013) (internal quotation marks omitted) (granting motion to quash Rule 17(c)
subpoena).

Here, the Subpoena plainly fails Nixon’s specificity requirement. Requests 1 through 5 all
seek “communications” between “You” and a designated individual or entity, including the U.S.
Attorney and BSF’s co-counsel, about a certain subject. The Subpoena defines “communications”
as “all forms of correspondence, including regular mail, email, text message, memorandum, or
other written communication of information of any kind,” and defines “You” as “any owner,
shareholder, partner or employee of Boies, Schiller, Flexner, LLP, including but not limited to
David Boies, Sigrid McCawley, Peter Skinner and any former owner, shareholder, partner or
employee, or independent contractor of the firm.” Such broad Requests are plainly overbroad and
non-specific and do not meet the strict requirements of Rule 17(c). See, e.g., Mendinueta-Ibarro,
956 F. Supp. 2d at 512–513 (quashing subpoena that requested “‘any and all writings and records’
related to the [police department’s] contact with a particular confidential witness”); Pena, 2016
WL 8735699, at *3 (Nathan, J.) (holding that defendant’s subpoena “for ‘any and all’ records
associated with the Government’s cooperating witnesses for an indefinite length of time takes an
impermissible shotgun approach to Rule 17(c)”); United States v. Barnes, No. 04 Cr. 186 (SCR),
2008 WL 9359654, at *4 (S.D.N.Y. Apr. 2, 2008) (quashing motion that “blindly seeks ‘all’
documents and records that fall into several categories for an approximate 23-month period rather
than identifiable pieces of evidence” because “[s]uch a blanket request implicates all of the
problems associated with a classic ‘fishing expedition’”); United States v. Chen De Yian, No. 94
CR. 719 (DLC), 1995 WL 614563, at *2 (S.D.N.Y. Oct. 19, 1995) (denying motion for Rule 17(c)
subpoena seeking “all records . . . pertaining to any and all investigations” into charged murders,

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