United States v. Wittig

250 F.R.D. 548, 2008 U.S. Dist. LEXIS 108456, 2008 WL 2404959
Procedural entryThis page is a short order in United States v. Wittig. Read the opinion of the Court — 425 F. Supp. 2d 1196
District Court, D. Kansas·Decided June 12, 2008·No. No. 03-40142-JAR·Published

Opinion

[550]*550 MEMORANDUM AND ORDER

JULIE A. ROBINSON, District Judge.

This matter is before the Court on defendant Douglas Lake’s third Motion for Subpoena Issued Pursuant to Fed.R.Crim.P. 17(c) (Doc. 881). The government has filed a Response in Opposition (Doc. 877). A hearing was held April 14, 2008, at which time the Court directed further briefing on the issues of standing and specificity. The government has also filed its opposition to the instant motion as well as a separate motion for a subpoena issued to Westar (Doc. 910).1 Defendant moved to strike the government’s opposition (Doc. 911) on the grounds that the government lacks standing to object to the issuance of subpoenas pursuant to Rule 17(c). The Court has considered the submissions and oral arguments of the parties and is now prepared to rule. For reasons set forth in detail below, defendant’s motions are denied.

1. Background

On January 8, 2008, defendant sought two subpoenas issued pursuant to Rule 17(c) directed to the law firms of Debevoise and Plimpton and Lankier Siffert and Wohl, LLP (Docs. 875, 876). On February 4, 2008, this Court denied both motions (Doc. 878), ruling that defendant did not meet the test for issuance of such subpoenas set forth by the Supreme Court in United States v. Nixon.2 In its Order, the Court analyzed the Nixon test, which summarizes the moving party’s burden as clearing the three hurdles of relevancy, admissibility and specificity.3 The Court will not restate the text of its analysis in its entirety, but instead incorporates the Order by reference and relies on it as necessary in ruling on the instant motion.

On February 25, 2008, defendant filed the instant motion pursuant to Rule 17(e) (Doc. 881), requesting the Court permit defendant to issue a subpoena duces tecum to John T. Siffert, of Lankier Siffert & Wohl, for

[551]*551Communications (including emails), correspondence, notes, or other documents by and between John T. Siffert, in his capacity as counsel for Westar Energy, and the United States Attorneys Office for the District of Kansas and/or the Department of Justice regarding Westar Energy’s status in a criminal investigation regarding Wes-tar, between date on which Gilman sent bill to Irick rec’d bill November 8, 2002 and November 27, 2002.

Defendant submits in support of the motion his affidavit that states Mr. Siffert of-ficed in the same building as one of defendant’s previous lawyers, Mr. Fitzpatrick. While defendant was meeting with Fitzpatrick on or about November 27, 2002, Sif-fert entered the office, displayed defendant’s most recent legal bill that had been submitted for payment, and stated that it would be a “bad idea” for Lake to press for payment of legal fees to Westar for indemnification and that such a demand “wouldn’t go over well with Hathaway.” Defendant states that he interpreted this statement as a threat by Mr. Siffert. Defendant also attaches a copy of the so-called “Holder Memorandum.”

II. Discussion

A. Standing

The first issue raised by defendant is whether the government has standing to object to the issuance of the proposed subpoena. Defendant argues that objection to the issuance of the subpoena is, in effect, a motion to quash the subpoena. Thus, defendant argues, only the subpoenaed third party and not the government, has a proprietary interest in the requested materials, and only the third party can assert that compliance with the subpoena would be unreasonable or oppressive. However, the cases cited by defendant in support of this argument apply in cases where a third-party subpoena is issued and the government thereafter files a motion to quash the subpoena.4 This ease is not in the same procedural posture, as the subpoenas have not yet been served, and the government merely objects to their issuance. The Court finds that the government, as opposing party, has a right to be heard on a motion presented for the Court’s consideration.5

More importantly, standing is really a non-issue in this case because the Court “has an interest in preserving the proper procedure prescribed by the Rules of Criminal Procedure, irrespective of the desires of the parties.”6 The Court must ensure that Rule 17(c) does not become a means of conducting general discovery, which is not permitted in criminal cases.7 Regardless of the government’s position, the Court is required to examine the subpoena for compliance with the test set forth in Nixon.8 The government’s standing to object has no effect on the Court’s independent obligations under Rule 17(c).9

B. Legal Standard

As a threshold matter, defendant argues that a relaxed evidentiary standard should apply when a Rule 17(c) subpoena is directed to a third party, rather than to the government. Defendant does not cite, nor could the Court find, any cases that support this proposition, although the Nixon Court suggested that a lesser standard might apply.10 The Court agrees with the reasoning of other courts that have applied Nixon to [552]*552assess the validity of Rule 17(c) subpoenas issued to third parties, and finds no compelling reason to employ a lesser standard in this case.11 Thus, defendant’s requested subpoena must meet the test set forth in Nixon, which requires a party to show:

(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise 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.” 12

There are three obstacles to issuance of a Rule 17(c) subpoena: relevancy, admissibility, and specificity.13 The Court finds that defendant has failed to satisfy this test.

Specificity

Specificity is the most difficult hurdle to overcome.14 “The specificity requirement ensures that Rule 17(c) subpoenas are used only to secure for trial certain documents or sharply defined groups of documents.” 15 “The specificity requirement also prevents the moving party from using the Rule 17(c) subpoena as a license for what the Supreme Court ... decried as a ‘fishing expedition to see what may turn up.’ ”16

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United States v. Wittig, 250 F.R.D. 548, 2008 U.S. Dist. LEXIS 108456, 2008 WL 2404959 (D. Kan. 2008).

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