A court in the Southern District of New York recently made it easier for a defendant to secure a Rule 17(c) documentary subpoena to a third party, rejecting a more rigorous standard often employed in this circumstance. In United States v. Tucker, 249 F.R.D. 58 (S.D.N.Y. 2008), Judge Scheindlin granted a defense motion and issued a subpoena for BOP audio recordings of cooperators.
Typically, Rule 17(c) subpoenas sought by defendants are scrutinized under the standard of United States v. Nixon, 418 U.S. 683 (1974), requiring a defendant to show that the subpoenaed material is relevant, admissible, and specific (that is, something more than mere hope actuates the request). Id. at 702. In Nixon, of course, the government sought a trial subpoena to obtain third party records, and the Tucker court considered whether a defendant should in fairness be held to the same standard when he seeks third party records. The court considered the relative imbalance between the government's expansive tools for obtaining evidence and the defendant's meager opportunities to gain information through discovery from the government.
The Tucker court concluded that the Nixon standard is too restrictive when applied to a defendant's subpoena to a third party close to the trial date. In those circumstances, the defendant need only show that the subpoena is reasonable, i.e., material to the defense, and no unduly oppressive or burdensome for the responding party.
Defense counsel would be well advised to rely upon Tucker in those jurisdictions where Rule 17(c) subpoenas can be issued and made returnable before trial only upon motion, since the government invariably argues in opposing such motions that the higher, Nixon standard has not been met.