United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: THIRD-PARTIES MICHAEL
BRUNO'S AND MARIE BRUNO'S MOTION TO QUASH (DOCKET
ENTRY # 84)
MARIANNE B. BOWLER, UNITED STATES MAGISTRATE JUDGE
before this court is a motion filed by the subjects of two,
pretrial subpoenas duces tecum, Michael and Marie Bruno
(“the Brunos”), that the Deputy Clerk issued
based on an application filed ex parte by defendant Jack
Ventola (“defendant”). (Docket Entry # 84). The
application to this court described the subpoenas only in
general terms. It also articulated the relevance,
admissibility, and specificity requirements in United
States v. Nixon, 418 U.S. 683, 699 (1974). (Docket Entry
Brunos move to quash the subpoenas duces tecum (Docket Entry
# 84) and, “[f]or the reasons articulated in the
Brunos' memorandum” (Docket Entry # 85), the
government concurs (Docket Entry # 86). Defendant opposes the
motion on a number of grounds and further contends that the
government lacks standing to challenge the third party
subpoenas. After conducting a hearing on May 16, 2017, this
court took the motion (Docket Entry # 84) under advisement.
Familiarity with the facts is presumed.
Rule of Criminal Procedure 17(c) (“Rule 17(c)”)
allows a defendant to file requests for subpoenas duces tecum
that are returnable prior to trial. See United States v.
Kravetz, 706 F.3d 47, 53 n.2 (1st Cir. 2013) (Rule 17(c)
“contemplates subpoenas duces tecum returnable either
at or prior to trial”). One of the “fundamental
characteristics of the subpoena duces tecum in criminal
cases” is that “it was not intended to provide a
means of discovery for criminal cases.” United
States v. Nixon, 418 U.S. at 698; accord United
States v. Henry, 482 F.3d 27, 30 (1st Cir.
2007). A Rule 17(c) subpoena duces tecum applicant must show,
inter alia, that “the application is made in good faith
and is not intended as a general ‘fishing
expedition.'” United States v. Nixon, 418
U.S. at 700.
obtain a subpoena duces tecum under the rule, defendant, as
the party seeking production, has the burden to “clear
three hurdles: (1) relevancy; (2) admissibility; (3)
specificity.” Id. The subpoenas to the Brunos
broadly request “any and all” documents during a
six-year time period for 17 entities. The requests therefore
fail the specificity hurdle, invariably include matters that
are not admissible, and amount to “a general discovery
device.” United States v. Henry, 482 F.3d at
30; see, e.g., United States v.
Manghis, 2010 WL 349583, at *2 (D.Mass. Jan. 22, 2010)
(subpoena duces tecum “request for ‘any and all
documents' relating to the CBP and FWS's
interpretation and implementation of certain regulatory
provisions is overbroad and amounts to little more than a
fishing expedition”); United States v. Louis,
2005 WL 180885, at *5-6 (S.D.N.Y. Jan. 27, 2005) (allowing
motion to quash Rule 17(c) subpoenas that sought
“‘any and all' documents relating to several
categories of subject matter (some of them quite large),
rather than specific evidentiary items”). The breadth
of the subpoenas likewise establishes that defendant intended
the subpoenas to operate as a general fishing expedition.
See United States v. Nixon, 418 U.S. at 700.
nevertheless submits that the approval of the ex parte
application and the issuance of the subpoenas by the Deputy
Clerk “for completion and service by defense
counsel” (Docket Entry # 90, p. 4) established
satisfaction of the Nixon standard. Although the
application described the nature of the documents sought in
general, the application did not attach the schedule that
defense counsel subsequently completed. Consequently, this
court did not review the expansive language in the schedules
eventually served on the Brunos. Moreover, Rule 17(c)
expressly provides a “check on the judicial issuance of
a pre-trial subpoena duces tecum--a motion to quash or modify
by the subpoenaed party.” U.S. v. Beckford,
964 F.Supp. 1010, 1028 (E.D. Va. 1997) (examining similar,
albeit prior, version of Rule 17(c)). As stated in
Beckford, “Where, ” as here, “the
subpoenaed party brings a motion to quash or modify, the
court must reconsider the Nixon standard in
determining whether ‘compliance with the subpoena would
be unreasonable or oppressive.'” Id.
(quoting Rule 17(c) and citing Bowman Dairy Co. v. United
States, 341 U.S. 214, 220 (1951)) (emphasis added).
Having reexamined the Nixon standard with the
benefit of the Brunos' brief, this court is convinced
that the subpoenas amount to a fishing expedition and fail to
satisfy all of the Nixon requirements. Furthermore,
the sheer breadth of the subpoenas duces tecum renders it
more appropriate to quash rather than modify the subpoenas.
Accordingly, based on the arguments presented by the Brunos,
the subpoenas are quashed.
arriving at this ruling, this court considered the ex parte
memorandum (Docket Entry # 108) recently filed by defendant.
See United States v. Kravetz, 706 F.3d at 53 n.4
(text of Rule 17(c) “does not expressly prohibit ex
parte requests”). Although the government objects to
shielding the subpoena process from the government's
view, the remaining subjects of the subpoena identified in
the sole, ex parte application filed motions to quash.
(Docket Entry ## 106, 109). The government's request is
therefore denied without prejudice to be renewed in the event
this court denies these motions to quash. Defendant is not
precluded from submitting another application with the caveat
that use of the ex parte process is generally not favored by
this court. Defendant's argument that the government
lacks standing is moot because this court only considered and
relied on the Brunos' arguments in allowing the motion to
accordance with the foregoing discussion, the motion to quash