United States District Court, N.D. California
ORDER DENYING DEFENDANT'S MOTION TO
THELTON E. HENDERSON United States District Judge
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.
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.
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.
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.
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.
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
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
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).
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.").
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.
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.
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 ...