DOJ-OGR-00007394.pdf

--- Page 1 --- **Document Extraction:** **Case Information:** * Case Number: 1:20-cr-00330-PAE * Document Number: 487 * Filed Date: 11/22/21 * Page Number: 2 of 8 **Header:** * Case 1:20-cr-00330-PAE * Document 487 * Filed 11/22/21 * Page 2 of 8 **Text:** The Nixon test is enforced strictly. 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."). It is not sufficient for a party to show only that the subpoenaed documents "are potentially relevant or admissible." United States v. Wey, 252 F. Supp. 3d 237, 254 (S.D.N.Y. 2017) (internal quotation marks omitted); see United States v. Skelos, No. 15 Cr. 317, 2018 WL 2254538, at *2 ("The materials sought under Rule 17 must themselves be admissible at trial; it is not enough that they contain information which could be admissible." (alterations and internal quotation marks omitted)); United States v. RW Prof'l Leasing Servs. Corp., 228 F.R.D. 158, 162 (E.D.N.Y. 2005) (explaining that it is "insufficient" for a party to show only that the subpoenaed documents "are potentially relevant or may be admissible"). Similarly, the party requesting the subpoena must also show that the "the application is made in good faith and is not intended as a general fishing expedition." United States v. Ulbricht, 858 F.3d 71, 109 (2d Cir. 2017) (quoting Nixon, 418 U.S. at 699-700) (internal quotation marks omitted), abrogated on other grounds as recognized by United States v. Chambers, 751 F. App'x 44, 46 & n.1 (2d Cir. 2018) (summary order). **Discussion:** The defendant has subpoenaed four categories of information: (1) copies of any payments to the Minor Victims and their counsel, (2) "[a]ny and [a]ll [r]eleases executed by the [Minor Victims] and their counsel, and (3) "[a]ny and [a]ll [r]eleases executed by the [Minor Victims] and their counsel, and (4) "[a]ny and [a]ll [r]eleases executed by the [Minor Victims] and their counsel. Although generally "production of impeaching evidence pursuant to Rule 17(c) is not required until after the witness testifies," Skelos, 2018 WL 2254538, at *2, in this case the Government expects each of the Minor Victims named in the subpoena to testify at trial. Accordingly, if the Court permits enforcement of the subpoena, the Government does not object to production of the records to the Court before the Minor Victims actually testify for the sake of efficiency. **Footer:** * DOJ-OGR-00007394