MEMORANDUM AND ORDER RE: MOTION TO PRECLUDE EX PARTE RULE 17(c) SUBPOENAS
I. Factual and Procedural Background
Defendant Ronald Anthony McClure, Jr., is charged in two indictments with violations of 18 U.S.C. § 922(g) (felon in possession of a firearm and ammunition), id. § 1201(a)(1) (kidnaping), id. § 1513(b)(2) (retaliating against a witness), and id. § 15191(a)(1) (sex trafficking of children by force, fraud, or coercion). Plaintiff United States of America ("Government") now moves to preclude defendant from obtaining any ex parte early return subpoenas issued under Federal Rule of Criminal Procedure 17(c).
Federal Rule of Criminal Procedure 17(c) provides:
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. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.
Fed. R. Crim. P. 17(c)(1).
In order to obtain a Rule 17(c) subpoena before trial, the proponent must make a showing that the evidence sought is relevant, admissible, and specific. United States v. Nixon, 418 U.S. 683, 700 (1974). In addition, even if the proponent makes this showing, a court must also consider "whether the materials are 'otherwise procurable reasonably in advance of trial by exercise of due diligence,' whether the proponent can 'properly prepare for trial without such production and inspection in advance of trial,' and whether 'the failure to obtain such inspection may tend unreasonably to delay the trial.'" United States v. Reyes, 239 F.R.D. 591, 598 (N.D. Cal. 2006) (quoting Nixon, 418 U.S. at 699, 702); see United States v. Eden, 659 F.2d 1376, 1381 (9th Cir. 1981).
The Government points out that "there appears to be a trend started by defense counsel in child sex trafficking cases to seek, ex parte, the early return of Rule 17(c) subpoenas." (Mot. Preclude 2.) These subpoenas typically request records held by juvenile courts and Child Protective Services that pertain to certain government witnesses. (Id.) The Government contends that these subpoenas often fail to meet the requirements of Nixon and, more generally, are unwarranted intrusions into the private and confidential files of minors. (See id. at 2, 6-10, 27.) Furthermore, because defendants often obtain these subpoenas ex parte, the Government has been unable to oppose their issuance in an adversarial setting. (Id. at 2-3, 27-28.)*fn1
Following Judge Karlton's opinion in United States v. Tomison, the judges in this district have generally permitted Rule 17(c) subpoenas to be obtained ex parte when a party "makes a showing of the need for confidentiality." 969 F. Supp. 587, 591 n.8 (E.D. Cal. 1997); see United States v. Wells, No. 04-69, 2005 WL 3822883, at *3 (E.D. Cal. Dec. 20, 2005) (England, J.). The judges in the Northern District of California appear to follow a similar practice. See United States v. Johnson, No. 94-48, 2008 WL 62281, at *2 (N.D. Cal. Jan. 4, 2008); N.D. Cal. Local R. Crim. P. 17-2(a)(1) ("[A] Rule 17(c) subpoena may be obtained by filing either a noticed motion . . . or, for good cause, an ex parte motion without advance notice to the opposing party.").
In United States v. Sanchez, No. 05-443, slip. op. at 2 (E.D. Cal. Jan. 22, 2007) the undersigned judge expressed agreement with the holding of Tomison, i.e., that requests for subpoenas under Rule 17(c) are generally considered ex parte, while rejecting any notion suggested in Tomison that Rule 17(c) may be properly used as a discovery device. As stated in this court's previous order in Sanchez, Rule 17(c) was designed as a method of compelling witnesses with relevant and admissible documentary evidence to bring those documents to the trial or hearing at which they will be offered in evidence. The fact that the rule goes on to permit the court to direct the witnesses to produce the designated items in court before they are actually to be offered into evidence was not meant to convert Rule 17(c) into a discovery device. The discovery tools available to defendants in criminal cases are limited, and are to be found elsewhere in the Federal Rules of Criminal Procedure, not in Rule 17.
United States v. Sanchez, No. 05-443, slip. op. at 3 (E.D. Cal. Jan. 9, 2007).
The Government suggests that Tomison and Sanchez need to be re-examined in light of recent amendments to Rule 17(c). Specifically, effective December 1, 2008, the following provision was added to Rule 17(c):
[A] subpoena requiring the production of personal or confidential information about a victim may be served on a third party only by court order. Before entering the order and unless there are exceptional circumstances, the court must require giving notice to the victim so that ...