DOJ-OGR-00011465.pdf

Case 1:20-cr-00330-PAE Document 734 Filed 07/15/22 Page 15 of 16 November 19, 2021 Page Fifteen inconsistent statement or a contradiction." Fed. R. Evid. 408(a). The Court should decline to uphold the subpoena based on a possible permissible use under Rule 408(b) when the most readily apparent purpose for the materials is one barred by Rule 408(a). C. Rule 17(h) bars Maxwell from subpoenaing statements of a witness or potential witness. Under Rule 17(h), Maxwell is barred from subpoenaing "a statement of a witness or of a prospective witness," as the production of any such statements is governed by Rule 26.2. Fed. R. Crim. P. 17(h). Many of the documents Maxwell seeks are statements of the four victims, such as their claim forms or any communications they sent to the EVCP (or statements from representatives of the EVCP). As courts have held, such statements are not subject to subpoena, even when sought from a third party. See United States v. Yudong Zhu, No. 13 Cr. 761 (VM), 2014 WL 5366107, at *3 & n.3 (S.D.N.Y. Oct. 14, 2014) (quashing request under Rule 17(h) for materials that "likely constitute" statements of a witness or prospective witness and rejecting argument "that Rule 17(h) applies only to witness statements already in the Government's possession" (citing United States v. Vasquez, 258 F.R.D. 68, 73 (E.D.N.Y.2009)). The Court should quash the subpoena to the extent it seeks statements of witnesses or prospective witnesses. * * * For the foregoing reasons, the Court respectfully should quash the subpoena. We also respectfully request oral argument on this motion, and we are available should the Court have any questions. Respectfully submitted, /s/ Patrick J. Smith Patrick J. Smith Smith Villazor LLP DOJ-OGR-00011465