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United States v. Pacific Gas & Electric Co.

United States District Court, N.D. California

June 17, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
PACIFIC GAS AND ELECTRIC COMPANY, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO QUASH

          THELTON E. HENDERSON United States District Judge

         On June 7, 2016, Defendant Pacific Gas and Electric Company ("PG&E") filed a motion to quash two trial subpoenas served by the Government. Dkt. No. 618 ("Mot."). The Government, who issued the subpoenas, timely opposed the motion on an expedited briefing schedule, Dkt. No. 637 ("Opp'n"), and PG&E timely replied in support thereof. Dkt. No. 650 ("Reply"). After carefully considering the parties' written arguments, the Court hereby DENIES the motion.

         BACKGROUND

         Magistrate Judge Maria-Elena James was the first to consider the subpoenas that PG&E now moves to quash. On February 24, 2016, the Government filed an application for the issuance of a pretrial subpoena duces tecum to PG&E, pursuant to Federal Rule of Criminal Procedure ("Rule") 17(c). Dkt. No. 312. Among other things, the Government's "Request A" sought certain personnel files for numerous current and former PG&E employees who are on the Government's witness list. Id. at 2-3. On March 28, 2016, Judge James granted in part the Government's Request A application, holding that a subset of the request - including the witnesses' severance agreements - may be admissible to impeach the credibility of the witnesses, and ordering disclosure of these agreements for in camera review. Dkt. No. 408 ("Mar. 28 Order") at 23.[1]

         On March 31, 2016, the Government filed a supplemental ex parte application for a Rule 17(c) pretrial subpoena, to "offer additional bases for [the] relevance and admissibility" of Request A. Dkt. No. 413 ("Mar. 31 Suppl. Mot.") at 1. PG&E objected that this "supplement" was a procedurally improper motion for reconsideration, but on April 7, 2016, Judge James addressed the merits of the Government's "additional bases" for Request A in a supplemental order. Dkt. No. 427 ("Apr. 7 Order") at 3. On the basis of this supplemental showing, Judge James held that the Government may issue a subpoena for additional information under Request A: "the witnesses' employee offer letters, performance appraisals . . . and incentive plans and compensation data from PG&E." Id. at 5.

         PG&E subsequently sought relief from both the March 28 and April 7 Orders. Dkt. Nos. 445 ("Mar. 28 Objs."), 446 ("Apr. 7 Objs."). This Court set aside Judge James's March 28 Order that the severance agreements be produced in camera, because impeachment is an insufficient basis for pretrial production under Rule 17(c). Dkt. 526 ("May 10 Order") at 3-5. This Court also set aside Judge James's April 7 reconsideration of (and ruling on) the Government's supplemental ex parte application for Request A materials, because the application was untimely under this Court's prior scheduling orders. Dkt. No. 584 at 5-7.

         On May 24 and May 26, 2016, the Government served PG&E with trial subpoenas seeking the same information previously sought before (and approved by) Judge James. See Dkt. No. 619-1, Attach. A ("May 24 Subpoena") (seeking "severance agreements" for 16 witnesses); Dkt. No. 619-2, Attach. A ("May 26 Subpoena") (seeking "employee offer letters, performance appraisals, and incentive plans and compensation data from PG&E" for 30 witnesses). PG&E now moves to quash these subpoenas.

         LEGAL STANDARDS

         A party may subpoena a witness to compel the production of "any books, papers, documents, data, or other objects the subpoena designates." Fed. R. Crim. P. 17(c). Rule 17(c) also authorizes a federal district court to "quash or modify the subpoena if compliance would be unreasonable or oppressive." Id.

         In interpreting this "unreasonable or oppressive" standard, the Supreme Court explained that Rule 17(c) is "not intended to provide a means of discovery for criminal cases." United States v. Nixon, 418 U.S. 683, 698 (1974). In Nixon, the Supreme Court therefore held that the proponent of a Rule 17(c) pretrial subpoena "must clear three hurdles: (1) relevancy; (2) admissibility; and (3) specificity." Id. at 700.[2] The first factor - relevance - "requires the Court to assess whether the documents sought have ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.'" United States v. Libby, 432 F.Supp.2d 26, 31 (D.D.C. 2006) (quoting Fed.R.Evid. 401). The second factor - admissibility - is governed by the Federal Rules of Evidence. Id. The final factor - specificity - may be "satisfied if there is a ‘sufficient likelihood, ' demonstrated through rational inferences, that the documents being sought contain relevant and admissible evidence." Id. (quoting Nixon, 418 U.S. at 700).

         The decision whether to issue or enforce a subpoena is left to the discretion of the district court. Nixon, 418 U.S. at 702 ("Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the sound discretion of the trial court since the necessity for the subpoena most often turns upon a determination of factual issues.").

         DISCUSSION

         Both parties mischaracterize the nature of this Court's prior rulings on the subpoenaed materials. Though PG&E is correct that this Court previously denied the Government's request for pretrial production of these materials, Mot. at 3-4, the previous denials were procedural and do not find application with the present trial subpoenas. First, though impeachment is an insufficient basis for pretrial production under Rule 17(c), the cases establishing this principle do not extend to production at trial. See Nixon, 418 U.S. at 701 ("Generally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial.") (emphasis added); United States v. Fields, 663 F.2d 880, 881 (9th Cir. 1981) ("The only evidentiary use that defendants have been able to advance is that the statements and transcribed interviews of witnesses could be used for impeachment purposes. This use is generally insufficient to justify the pretrial production of documents.") (citations omitted) (emphasis added). Second, though the March 31 Supplemental Motion violated the Court's deadline for application of Rule 17(c) pretrial subpoenas, Dkt. No. 369 at 3, this deadline did not foreclose the issuance of Rule 17(c) trial subpoenas, which do not require a court order. See Crim. L.R. 17-1. Accordingly, the reasons the Court set aside the portions of the March 28 and April 7 Orders that gave rise to the present subpoenas do not apply to quash these subpoenas.

         And though the Government is correct that this Court has several times approved of Judge James's application of the Nixon factors, Opp'n at 1, the Court has never addressed Judge James's application of those factors to the materials sought in the challenged subpoenas.

         Accordingly, the Court now addresses the merits of PG&E's motion to quash the May 24 and May 26 subpoenas. Though Judge James considered the Government's request for the materials sought in these same subpoenas - i.e., (i) severance agreements, and (ii) employee offer letters, performance appraisals, and incentive plans and compensation data - in the context of Rule 17(c) pretrial applications, the same standard applies to the Government's request for these documents in the context of Rule 17(c) trial subpoenas. See Dkt. No. 662 at 4 n.5 (explaining that Nixon applies to limit both trial and pretrial subpoenas). And though the ...


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