United States v. Shanahan

252 F.R.D. 536, 2008 U.S. Dist. LEXIS 46835, 2008 WL 2483154
CourtDistrict Court, E.D. Missouri
DecidedJune 17, 2008
DocketNo. S1-4:07 CR 175 JCH
StatusPublished

This text of 252 F.R.D. 536 (United States v. Shanahan) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Shanahan, 252 F.R.D. 536, 2008 U.S. Dist. LEXIS 46835, 2008 WL 2483154 (E.D. Mo. 2008).

Opinion

MEMORANDUM AND ORDER

DAVID D. NOCE, United States Magistrate Judge.

This action is before the court upon the motions of non-parties Thompson Coburn LLP (Doe. 179), DRS Technologies, Inc. (DRS) (Doc. 181), and Pricewaterhouse Coopers LLP (PwC) (Doc. 183) to quash defendants’ Rule 17(c) subpoenas. On March 3, 2008, after ruling the government’s objections, the court granted the joint motions of defendants to serve Rule 17(c) subpoenas on the three non-parties listed above. (Doc. 175); United States v. Shanahan, No. S1-4:07 CR 175 JCH, 2008 WL 619213, at *6 (E.D.Mo. March 3, 2008). The non-parties move to quash these subpoenas.1 The government does not raise any objections to the subpoenas.

On April 29, 2008, the court held a hearing on the motion to quash the Rule 17(c) subpoenas. After the hearing, the defendants were able to reach an agreement with non-parties PwC and Thompson Coburn. (Doe. 213.) According to the agreement, there are no longer any issues in dispute. The motions of non-parties PwC and Thompson Coburn to quash defendants’ Rule 17(c) subpoenas are therefore denied as moot.

The defendants were unable to reach a complete agreement with DRS concerning the motion to quash. Request 1, Request 5, Request 8, Request 9, Request 12, and Request 13 remain in dispute. (Doc. 215.)

Rule 17(c) Standard

Rule 17(e) of the Federal Rules of Criminal Procedure provides that a “subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The 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). The scope of Rule 17(e) is more narrow than the corresponding rules of civil procedure, which permit broad discovery. Reyes, 239 F.R.D. at 597. Rule 17(c) was not intended to serve as a discovery device for criminal cases. United States v. Nixon, 418 U.S. 683, 698, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); United States v. Bueno, 443 F.3d 1017, 1026 (8th Cir.2006). Instead, Rule 17(c) seeks to expedite a trial by providing a time and place before trial for the inspection of subpoenaed materials. Id. at 698-99. In complex criminal cases, the Supreme Court has noted the utility of using Rule 17(c). See id. at 699 n. 11. To gain access to the desired documents, the moving party must show that the subpoenaed documents are: (1) relevant; (2) admissible; and (3) identified or described with adequate [540]*540specificity. Id. at 700; United States v. Hardy, 224 F.3d 752, 755 (8th Cir.2000).

Of these three requirements, “[s]pecificity is the hurdle on which many subpoena requests stumble.” United States v. Ruedlinger, 172 F.R.D. 453, 456 (D.Kan.1997). A request will usually be sufficiently specific where it limits documents to a reasonable period of time and states with reasonable precision the subjects to which the documents relate. United States v. RW Prof'l Leasing Servs. Corp., 228 F.R.D. 158, 162 (E.D.N.Y.2005). As the period of time increases, so must the subpoena’s particularity. Application of Linen Supply Cos., 15 F.R.D. 115, 118 (S.D.N.Y.1953). “If the moving party cannot reasonably specify the information contained or believed to be contained in the documents sought but merely hopes that something useful will turn up, this is a sure sign that the subpoena is being misused.” United States v. Noriega, 764 F.Supp. 1480, 1493 (S.D.Fla.1991). The specificity and relevance requirements demand more than the title of a document and conjecture concerning its contents. Hardy, 224 F.3d at 755. The specificity requirement ensures that a Rule 17(e) subpoena will not be used just to see “what may turn up.” United States v. Libby, 432 F.Supp.2d 26, 32 (D.D.C.2006). The specificity requirement also ensures that a subpoena will only be used to secure, for trial, a sharply defined group of documents. Ruedlinger, 172 F.R.D. at 456.

Even when the moving party has shown that a subpoena seeks relevant, admissible, and specific evidence, a court must still consider other factors, including whether: (1) the materials could be procured through other means, before trial, by the exercise of due diligence; (2) the party cannot adequately prepare for trial without advance production of the documents, and the failure to obtain the documents may tend to unreasonably delay the trial; and (3) the request for the materials is made in good faith and not as a general “fishing expedition.” See Nixon, 418 U.S. at 699-700, 94 S.Ct. 3090. A court may quash or modify a subpoena for the production of documents, if producing the documents would be unreasonable or oppressive, or if the subpoena calls for privileged matter. Fed.R.Crim.P. 17(c)(2); Reyes, 239 F.R.D. at 598.

Subpoena to DRS Technologies, Inc.

The defendants seek fourteen sets of documents from DRS. (Doc. 181, Ex. A.) After the hearing, the defendants agreed to withdraw a number of these requests. Only Request 1, Request 5, Request 8, Request 9, Request 12, and Request 13 remain in dispute. (Doc. 215.)

DRS objects to each of these requests, arguing the subpoena violates Rule 17(c) and must be quashed in its entirety. In particular, DRS argues the subpoena requests lack specificity, are overly broad, and seek privileged documents. DRS also argues the documents requested can be obtained by other means, and that the subpoena should be directed to Engineered Support Systems, Inc. (ESSI) and not DRS. Finally, DRS argues the subpoena requests are unreasonable and oppressive. (Doc. 182.)

The defendants dispute each of these arguments. (Doc. 188.)

Request 1

The defendants’ first request seeks the following:

Copies of any and all documents relating to ESSI stock options, including but not limited to:
a. documents referring to or relating to the granting, awarding, issuance, re-issuance, cancellation, or allocation of ESSI stock options;
b. documents relating to the receipt of ESSI stock options;
c. documents referring to or relating to the creation, review, or revision of any letter, certificate, or other document regarding ESSI’s stock option grants;
d. documents referring to or relating to the measurement date, grant date, or issuance date of any ESSI stock options;
e. documents referring to or relating to the pricing, repricing, strike price, or value of any ESSI stock options;
[541]*541f. documents referring to or relating to accounting concerning stock options and financial records concerning stock options;
g.

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Related

United States v. Nixon
418 U.S. 683 (Supreme Court, 1974)
United States v. Tou Hang
75 F.3d 1275 (Eighth Circuit, 1996)
United States v. Charles Lavell Hardy
224 F.3d 752 (Eighth Circuit, 2000)
United States v. Noriega
764 F. Supp. 1480 (S.D. Florida, 1991)
United States v. Libby
432 F. Supp. 2d 26 (District of Columbia, 2006)
In Re Hutchinson Technology Inc. Securities Litigation
502 F. Supp. 2d 884 (D. Minnesota, 2007)
In re Rent-Way Securities Litigation
218 F.R.D. 101 (W.D. Pennsylvania, 2003)
United States v. Reyes
239 F.R.D. 591 (N.D. California, 2006)
United States v. Jenks
517 F. Supp. 305 (S.D. Ohio, 1981)
Grossman v. Schwarz
125 F.R.D. 376 (S.D. New York, 1989)
United States v. Doe
15 F.R.D. 115 (S.D. New York, 1953)
United States v. Jackson
155 F.R.D. 664 (D. Kansas, 1994)
United States v. Ruedlinger
172 F.R.D. 453 (D. Kansas, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
252 F.R.D. 536, 2008 U.S. Dist. LEXIS 46835, 2008 WL 2483154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shanahan-moed-2008.