EFTA00018236.pdf

Case 1:20-cr-00330-AJN Document 195 Filed 04/05/21 Page 1 of 11
U.S. Department of Justice
United States Attorney
Southern District of New York
The Silvio J. Mollo Building
One Saint Andrew's Plaza
New York, New York 10007
April 5, 2021
BY ECF
The Honorable Alison J. Nathan
United States District Judge
Southern District of New York
40 Foley Square
New York, New York 10007
Re: United States v. Ghislaine Maxwell, S2 20 Cr. 330 (AJN)
Dear Judge Nathan:
The Government respectfully submits this letter in connection with the Court’s Order of
March 24, 2021, regarding the defendant’s application for an order authorizing a subpoena
pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure for records from Boies Schiller
Flexner LLP (“BSF”). For the reasons set forth herein, the Government respectfully requests that
the Court (1) direct the defendant to provide the Government with a copy of the proposed subpoena
to BSF and notice of all existing and future applications for subpoenas under Rule 17(c) returnable
in advance of trial, and (2) direct that any productions made in response to Rule 17(c) subpoenas
be produced to the opposing party and marked confidential under the protective order.
I. Background
As the Court is aware, the Government has produced to the defendant more than 2.7 million
pages of discovery pursuant to the Government’s various discovery obligations, including Rule
16. The parties are also in discussions about the timing of further productions by the Government,
including material provided pursuant to 18 U.S.C. § 3500 and Giglio material.

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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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of due diligence; (3) that the 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.”
United States v. Nixon, 418 U.S. 683, 699-700 (1974) (footnote omitted); see United States v.
Skelos, 988 F.3d 645, 661 (2d Cir. 2021) (affirming a decision to quash subpoenas through
application of Nixon); United States v. Pena, No. 15 Cr. 551 (AJN), 2016 WL 8735699, at *1-*2
(S.D.N.Y. Feb. 12, 2016) (applying Nixon, rather than the “more liberal standard” of United States
v. Tucker, 249 F.R.D. 58 (S.D.N.Y. 2008), to the propriety of a Rule 17(c) subpoena).
The Nixon test is demanding. The defendant must establish that the defense’s “application
is made in good faith and is not intended as a general ‘fishing expedition.’” Nixon, 418 U.S. at
700; United States v. Yian, No. 94 Cr. 719 (DLC), 1995 WL 614563, at *2 (S.D.N.Y. Oct. 19,
1995) (quashing subpoena that “call[s] for the production of the entire investigative file and is
accurately described as a fishing expedition”); United States v. Cuthbertson, 630 F.2d 139, 144
(3d Cir. 1980) (“[T]est for enforcement is whether the subpoena constitutes a good faith effort to
obtain identified evidence rather than a general ‘fishing expedition’ that attempts to use the rule as
a discovery device.” (emphasis added)). Indeed, because the Rule poses such a risk of abuse and
misuse, courts are stringent in holding those seeking to obtain documents to Rule 17(c) to their
burden of demonstrating that the documents sought are (1) relevant, (2) admissible, (3) specifically
identified, and (4) not otherwise procurable, and it is “insufficient” for a party to show only that
the subpoenaed documents “are potentially relevant or may be admissible,” United States v. RW
Prof’l Leasing Servs. Corp., 228 F.R.D. 158, 162 (E.D.N.Y 2005) (emphasis added). “[A] mere
hope that the documents, if produced, may contain evidence favorable to the defendant’s case will
not suffice. Rule 17(c) requires a showing that the materials sought are currently admissible in

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evidence; it cannot be used as a device to gain understanding or explanation.” United States v.
Rich, No. 83 Cr. 579 (SWK), 1984 WL 845, at *3 (S.D.N.Y. Sept. 7, 1984) (internal quotation
marks omitted) (emphasis added). Accordingly, subpoenas that call for “any” and “all” records
“do not evince specificity” and “read[] like a discovery request, which is not permitted under Rule
17(c).” Tagliaferro, 2021 WL 980004 at *3; see Pena, 2016 WL 8735699, at *3. And “[g]enerally
the need for evidence to impeach witnesses is insufficient to require its production in advance of
trial.” Nixon, 418 U.S. at 701 (citations omitted); see Fed. R. Crim. P. 17(h) (“No party may
subpoena a statement of a witness or of a prospective witness under this rule.”).
If a subpoena calls for “personal or confidential information about a victim,” the subpoena
may be served “only by court order” following “notice to the victim so that the victim can move
to quash or modify the subpoena or otherwise object.” Fed. R. Crim. P. 17(c)(3). After a subpoena
issues, “[t]he court may direct the witness to produce the designated items in court before trial or
before they are to be offered in evidence.” Fed. R. Crim. P. 17(c)(1). “When the items arrive, the
court may permit the parties and their attorneys to inspect all or part of them.” Id.
II. The Court Should Direct the Defendant to Provide Notice of Prior and Future
Applications Under Rule 17(c) to the Government
The Government has legitimate and cognizable interests in Rule 17(c) subpoenas issued by
the defense. In particular, courts have routinely found that the Government has standing to move
to quash Rule 17(c) subpoenas that target information about anticipated Government witnesses
“based on the Government’s ‘interest in preventing any undue lengthening of the trial, any undue
harassment of the witness and his family, and any prejudicial over-emphasis on the witness’s
credibility.’” United States v. Ray, -- F.R.D. --, No. 20 Cr. 110 (LJL), 2020 WL 6939677, at *7
(S.D.N.Y. Nov. 25, 2020) (alterations omitted) (quoting United States v. Giampa, No. 92 Cr. 437
(PKL), 1992 WL 296440, at *1 (S.D.N.Y. Oct. 7, 1992)); see United States v. Bergstein, No. 16

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Cr. 746 (PKC), 2017 WL 6887596, at *2-*3 (S.D.N.Y. Dec. 28, 2017) (“Preventing the undue
harassment of a cooperating witness is a legitimate governmental interest giving rise to standing
in this context.”); cf. United States v. Nachamie, 91 F. Supp. 2d 552, 558-60 (S.D.N.Y. 2000)
(concluding that the Government failed to establish a legitimate interest where, among other
things, none of the subpoenaed entities had been “publicly identified by the Government as trial
witnesses, or as particularly vulnerable witnesses”). That is particularly true where the subpoena
at issue seeks material that the defendants would be entitled to, if at all, as Giglio or 3500 material
given that the Government has a cognizable interest in “controlling the timing of disclosures as
to” witnesses who are expected to testify at trial, and for whom the Government has various
disclosure obligations. United States v. Cole, No. 19 Cr. 869 (ER), 2021 WL 912425, at *2
(S.D.N.Y. Mar. 10, 2021); see Bergstein, 2017 WL 6887596, at *3. Finally, the Government has
standing to challenge subpoenas that call for its own communications. See United States v. Carton,
17 Cr. 680 (CM), 2018 WL 5818107, at *3 (S.D.N.Y. Oct. 19, 2018) (quashing a subpoena for
communications with the Government).1
The only way for the Government to vindicate those interests is with notice so that the
Government may, as appropriate, have an opportunity to quash the subpoenas. There is no avenue,
after a subpoena is issued and fulfilled, for the Government to protect its interests in the timing of
disclosures about victims or the disclosure of the Government’s own communications. That is
particularly important given that a subpoena recipient may lack sufficient knowledge about the

1 The Government also has standing to challenge a Rule 17(c) subpoena at the request of a victim,
witness or third-party impacted by the subpoena. See Ray, 2020 WL 6939677, at *7 (“Courts have
acknowledged that the Government has standing to challenge Rule 17(c) subpoenas directed to a
non-party when the non-party authorizes the Government to assert his or her right by request or by
indicating its joinder in a motion to quash.” (internal quotation marks and alteration omitted)).

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case or motivation to move to quash an otherwise improper subpoena. 2 Accordingly, the
Government respectfully requests notice of all subpoenas with pretrial return dates issued or sought
to be issued under Rule 17(c).3
While, as the Court noted in its Order, Rule 17(c) subpoenas are frequently issued ex parte
in this district, the issue is rarely litigated. See, e.g., United States v. States v. Wey, 252 F. Supp. 3d
237, 243 (S.D.N.Y. 2017) (noting, without extended discussion, that subpoena had issued upon ex
parte application); United States v. Earls, No. 03 Cr.0364 (NRB), 2004 WL 350725, at *6 (S.D.N.Y.
Feb. 25, 2004) (noting that the defendant may seek subpoenas ex parte). When courts have considered
the issue, however, many have directed that the parties should give each other notice of Rule 17(c)
subpoenas unless a party can justify proceeding ex parte. See United States v. Skelos, No. 15 Cr.
317 (KMW), 2018 WL 2254538, at *8 (S.D.N.Y. May 17, 2018) (explaining that courts have
permitted ex parte requests “where a reason existed for doing so,” and requiring notice “[t]o further
reduce the risk that trial will be delayed, unless a party has a compelling reason for proceeding ex
parte with a subpoena request”), aff’d, 988 F.3d 645 (2d Cir. 2021); United States v. St. Lawrence,
16 Cr. 259 (CS), Dkt. No. 66 at 6 (S.D.N.Y. Dec. 22, 2016) (requiring motions for Rule 17(c)
subpoenas and permitting ex parte applications “if the movant can articulate a reason why it should
be”); United States v. Boyle, No. 08 Cr. 523 (CM), 2009 WL 484436, at *3 (S.D.N.Y. Feb. 24,
2009) (requiring noticed motions for Rule 17(c) subpoenas to “assur[e] that such subpoenas are
not abused or used for impermissible discovery,” and permitting ex parte applications “where a

2 For example, a financial institution may lack sufficient knowledge about the case or motivation
to expend the resources to move to quash what appears to be a routine subpoena that broadly seeks
financial records for a Government cooperator or lay witness to be used for impeachment purposes,
notwithstanding the fact that such a subpoena may run afoul of the Nixon standard.
3 The Government is not seeking notice of subpoenas returnable at trial.

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party can demonstrate” a basis (emphasis omitted)); United States v. Weisman, 01 Cr. 529 (BSJ),
2002 WL 1467845, at *1 (S.D.N.Y. July 8, 2002) (similar); see also United States v. Fox, 275 F.
Supp. 2d 1006, 1012 & n.7 (D. Neb. 2003) (surveying the caselaw and adopting the “majority
view” that Rule 17(c) “does not ordinarily permit the use of ex parte applications by the
government or the defense for subpoenas seeking pretrial production of documents unless the sole
purpose of seeking the documents is for use at trial,” and even then, only if “there is a good trial-
related reason” and generally requiring production in the presence of the opposing party); 2 Wright
& Miller, Fed. Prac. & Procedure § 275 (4th ed.) (“It has been held, however, that in limited
circumstances, both the government and a defendant may make an ex parte application for a pre-
trial subpoena duces tecum” (emphasis added)). But see Ray, 2020 WL 6939677 at *8 (“Courts
in this District have long followed the practice of permitting both the defense and the Government
to submit ex parte applications for Rule 17(c) subpoenas.”); United States v. Reyes, 162 F.R.D.
468, 470 (S.D.N.Y. 1995) (permitting ex parte applications because a party must “detail its trial
strategy or witness list in order to convince a court that the subpoena satisfies the Nixon
standards”). Notice of Rule 17(c) subpoenas is similarly appropriate in this case to prevent abuse
and address objections expediently. And such a requirement is consistent with the plain language
of Rule 17: while Rule 17(b) expressly provides for an ex parte procedure for indigent defendants
seeking to subpoena a witness for trial, it makes no such provision for an application for the
production of documents and objects pursuant to Rule 17(c).4

4 In Ray, the Court concluded that Rule 17(c) is simply an extension of Rules 17(a) and (b)’s
provisions of subpoenas to witnesses, which may issue without notice. See 2020 WL 6939677, at
*8 (quoting United States v. Florack, 838 F. Supp. 77, 79 (W.D.N.Y. 1993)). However, Rule 17(c)
subpoenas for records are quite unlike subpoenas for trial testimony: they can be made returnable
before trial, and Rule 17(c)’s text provides that materials obtained pursuant to such a subpoena
may be returnable to the Court, which may in turn “permit the parties and their attorneys to inspect
all or part of them,” and subjects the subpoenas to motions to quash. Fed. R. Crim. P. 17(c)(1)-(2)

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Moreover, as the information currently available to the Government about the BSF
subpoena makes plain, the Government’s concerns are well founded. Indeed, the defendant has
already sought issuance of a subpoena that appears to directly implicate the Government’s interests
by expressly and improperly seeking broad categories of victim information and communications
with the Government. While the Government has not seen the subpoena to BSF, it also appears
that the subpoena constitutes a fishing expedition for potential impeachment material, which
plainly runs afoul of the Nixon test. (Letter from BSF to the Court at 2, Dkt. No. 191).5 Insofar
as the defendant is attempting to engage in such an improper expedition in this case—or even if
the defendant is merely pushing the limits of a Rule 17 subpoena—the Government respectfully
submits that it should be afforded the opportunity to bring its concerns to the Court’s attention.
The Government recognizes that some information, such as portions of a defendant’s
explanation for why a particular request in a particular subpoena meets the Nixon standard, may
reveal critical defense strategy meriting ex parte consideration by the Court. But the Government
respectfully submits that interest can be served through specific defense requests tailored to the
particular redaction or application at issue, rather than a default whereby the defendant is permitted
to proceed entirely ex parte in seeking documents and materials pursuant to Rule 17(c).

(emphasis added); see United States v. Reyes, 162 F.R.D. 468, 470 (S.D.N.Y. 1995) (“Rules 17(a)
and 17(b), which govern the issuance of subpoenas returnable at trial, also do not provide guidance
as to the proper procedure for obtaining a pretrial subpoena duces tecum.”). These procedures are,
at a bare minimum, in tension with proceeding ex parte or under the rules that govern subpoenas
for trial testimony.
5 The Government has also not seen any response filing by the defendant, which per the Court’s
March 24, 2021 Order was to be filed on or before April 2, 2021. To the extent the defendant did
file such a response, it was neither docketed nor provided to the Government, and as such, the
Government is unable to address herein any arguments made by the defendant about the BSF
subpoena.

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III. Any Records Obtained Pursuant to a Rule 17(c) Subpoena Should Be Marked
Confidential Under the Protective Order and Produced to the Opposing Party
Additionally, and to the extent the defendant has issued or will issue other subpoenas ex
parte pursuant to Rule 17(c), the responsive records should be produced to the Government and
marked confidential pursuant to the protective order. See Fed. R. Crim. P. 17(c)(1).
First, materials gathered pursuant to a Rule 17(c) subpoena by either party should be
promptly made available to their adversary. As noted above, the text of Rule 17(c) plainly provides
that materials obtained pursuant to a subpoena may be returned to the Court which “may permit
the parties and their attorneys to inspect all or part of them.” Fed. R. Crim. P. 17(c)(1). Nowhere
does the Rule provide for one party’s ability to use a subpoena to secretively gather material in
advance of trial, nor does it include a categorical exception due to concerns about defense or trial
strategy. Indeed, because the purpose of Rule 17 is to obtain evidence for use at trial, and not to
investigate for evidence or obtain impeachment material, disclosure of the fruits of a Rule 17(c)
subpoena fits neatly with Rule 16’s reciprocal obligations for disclosure of evidence that the
defendant intends to introduce in her case-in-chief. See Fed. R. Crim. P. 16(b)(1)(A); United States
v. St. Lawrence, 16 Cr. 259 (CS), Dkt. No. 66 at 6 (S.D.N.Y. Dec. 22, 2016) (“It seems to the Court
that because Rule 17(c) subpoenas are intended to obtain specific materials that the party expects
to offer into evidence, Rule 16 would oblige the party to make the materials available to the other
side anyway.”).6
By contrast, to the extent the defendant has improperly obtained information through a
Rule 17(c) subpoena, the Government should have the opportunity to move to preclude its use at
trial. In order to permit such a motion to be made in a timely manner—and so as to avoid the

6 To the extent the Government makes use of Rule 17(c) subpoenas, it similarly will promptly
produce all material received to the defendant.

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unnecessary delay and disruption that will occur if the Government only learns of the existence of
such material during trial—the Government seeks disclosure of any records obtained in response
to such a subpoena. At a minimum, the Court should order production of subpoena returns directly
to the Court, so it may screen out irrelevant or improper information and determine whether any
materials should be made available to the Government as well as the defendant.
Second, the Court should direct that any material obtained pursuant to a Rule 17 subpoena
be marked confidential and subject to the protective order. As noted above, the BSF subpoena
appears to call for a substantial amount of sensitive personal information about victims. For
instance, according to the letter from BSF, the subpoena to BSF requests the “original, complete
copy” of a victim’s diary. (Letter from BSF to the Court at 5, Dkt. No. 191). To the extent the
defendant has obtained or will obtain sensitive information about victims or witnesses, it should
be treated as “confidential” under the protective order much like other such information in this
case.

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IV. Conclusion
The Government respectfully requests that the Court order the defendant to provide notice
to the Government of pending and future applications for Rule 17(c) subpoenas returnable in
advance of trial, and for the Court to order that any records obtained in response to Rule 17(c)
subpoenas be treated as confidential under the protective order and disclosed to the Government.
Respectfully submitted,
AUDREY STRAUSS
United States Attorney
by: /s/
[REDACTED]
[REDACTED]
[REDACTED]
Assistant United States Attorneys
cc: Counsel of Record (by ECF)