United States District Court, W.D. North Carolina, Asheville Division
Carleton Metcalf United States Magistrate Judge
matter came before the Court on March 20, 2019 for a hearing
on “Non-Party Jones Road LLC's Motion to Quash
Subpoenas Duces Tecum and Request for Hearing” (Doc.
53) (“Motion to Quash”). Present at the hearing
were attorneys Leita Walker, Michael Tadych, and Charles
Tobin for the movant, Jones Road LLC (“Jones
Road”), Amos Tyndall for Defendant, and Assistant
United States Attorney Daniel Bradley for the Government.
Defendant was also present. At the conclusion of the hearing,
the Court took the matter under advisement. This Order now
was originally charged in a Bill of Indictment (Doc. 1) filed
on June 7, 2018.
December 14, 2018, Defendant filed an Application for
Subpoenas Duces Tecum (Doc. 41) which the Government
did not oppose. Id. 4-5. The Application was allowed
by Order entered on January 2, 2019 (Doc. 42).
repeated unsuccessful attempts by a private process server to
serve the subpoenas, Defendant filed an Application for
Service of Subpoenas Duces Tecum (Doc. 47), which
was granted by Sealed Order on February 13, 2019 (Doc.
Road filed the instant Motion to Quash (Doc. 53) on February
22, 2019. It also moved to stay the execution of the
subpoenas duces tecum (Doc. 59), which motion was
allowed on March 4, 2019 (Doc. 63). Defendant filed a
memorandum opposing the motion to quash (Doc. 60) on March 1,
2019 to which Jones Road replied (Doc. 68) on March 7, 2019.
Government has not made filings in this matter relative to
the Motion to Quash. However, at the hearing, and upon
inquiry by the Court, the Government advised that, although
it did not previously oppose the issuance of the subject
subpoenas duces tecum, in light of the Superseding
Bill of Indictment that has now been filed against Defendant
(Doc. 65), the Government does not believe the information
sought is relevant or admissible under the Nixon
analysis, discussed below.
witnesses named in the subpoenas duces tecum have
not objected. Instead, the challenge here is lodged by Jones
Road, which argues that it has an interest in preventing the
disclosure of confidential material sought by Defendant and
therefore has standing to request that the issued subpoenas
duces tecum be quashed. Defendant does not dispute
that Jones Road has some standing in this regard, though
argues that standing is limited. As other issues are
dispositive of the Motion to Quash, the Court does not find
it necessary to analyze this issue in further detail.
17(c) is not intended to provide a mechanism for pre-trial
discovery, but rather to afford counsel “a time and
place before trial for the inspection of subpoenaed
materials.” United States v. Kipp, No.
3:15-CR-244, 2016 WL 7209581, at *1 (W.D. N.C. Dec. 9, 2016)
(emphasis in original) (quoting United States v.
Richardson, 607 F.3d 357, 368 (4thCir. 2010)). In other
words, the use of pre-trial subpoenas duces tecum is
intended to expedite trial proceedings. See Bowman Dairy
Co. v. United States, 341 U.S. 214, 220 (1951) (citing
United States v. Maryland & Virginia Milk Producers
Ass'n, D.C., 9 F.R.D. 509, 510).
case, the amount of documentation encompassed by the
subpoenas duces tecum was previously unknown. At the
hearing, however, counsel for Jones Road estimated that the
documents covered by the subpoenas duces tecum would
total approximately 100 pages in length, for all witnesses.
Consequently, the need for pre-trial production of the
information is lacking.
request for pre-trial production of the information has
additional deficiencies. A subpoena may be quashed or modified
“if compliance would be unreasonable or
oppressive.” Fed. R. Crim. P. 17(c)(2). With regard to
a pretrial subpoena that has been issued, at least one court
has found that this analysis includes a reconsideration of
the standards established by United States v. Nixon,
which asks whether the subpoena demonstrates sufficient
“(1) relevancy; (2) admissibility; [and] (3)
specificity, ” to warrant pre-trial production. See
United States v. Beckford, 964 F.Supp. 1010, 1028 (E.D.
Va. 1997) (citing United States v. Nixon, 418 U.S.
683, 700 (1974)).
reconsidered whether the subpoenas duces tecum meet
the Nixon standards, particularly in light of the
Superseding Bill of Indictment, the Court finds that
Defendant has not made a showing of sufficient relevancy and