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Case 1:20-cr-00330-PAE Document 195 Filed 04/05/21 Page 2 of 11
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Those obligations, and not Rule 17 subpoenas, provide the avenue through which defendants in criminal cases obtain discovery. As the Supreme Court has explained, “[i]t was not intended by Rule 16 to give a limited right of discovery, and then by Rule 17 to give a right of discovery in the broadest terms.” Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951); see also United States v. Purin, 486 F.2d 1363, 1368 (2d Cir. 1973) (“A subpoena duces tecum in a criminal case is not intended as a means of discovery.”). Unlike the rules of civil procedure—permitting the issuance of subpoenas to seek production of documents or materials which, although themselves not admissible, may lead to admissible evidence—the criminal rules do not authorize the issuance of such broad pretrial subpoenas under Rule 17. See United States v. Cherry, 876 F. Supp. 547, 552 (S.D.N.Y. 1995); United States v. Gross, 24 F.R.D. 138, 141 (S.D.N.Y. 1959) (Rule 17(c) cannot be used “to obtain leads as to the existence of additional documentary evidence or to seek information relating to the defendant’s case. This type of discovery, permissible under the Federal Rules of Civil Procedure, has not been authorized for criminal trials.”).

The purpose of Rule 17(c) is to “expedite the trial by providing a time and place before trial for the inspection of” specific materials that the parties intend to offer into evidence. See United States v. Tagliaferro, No. 19 Cr. 472 (PAC), 2021 WL 980004, at *2 (S.D.N.Y. Mar. 16, 2021) (citing Bowman Dairy Co., 341 U.S. at 220 (1951)); see also United States v. Ulbricht, 858 F.3d 71, 109 (2d Cir. 2017) (explaining that the rule “allows parties to subpoena documents and objects to be introduced at criminal trials”), abrogated on other grounds as recognized by United States v. Chambers, 751 F. App’x 44, 46 & n.1 (2d Cir. 2018) (summary order). Accordingly, the Supreme Court has explained that, to require production of materials pursuant to Rule 17(c), the party seeking production must show that:

(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise

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