United States District Court, D. Nevada
ORDER (Mot for SDT - Dkt. #18)
PEGGY A. LEEN, Magistrate Judge.
This matter is before the court on Defendant Mahesh Kuthuru's Sealed Ex Parte Motion for Leave to Subpoena Under Seal (Dkt. #18) filed December 15, 2014. The court has considered the Motion. This order will be filed on the public docket redacted of the patient names to protect patient confidentiality, with an unredacted version served on counsel of record.
On October 15, 2014, a grand jury returned an Indictment (Dkt. #1) against Kuthuru, charging him with nine counts of distribution of a Schedule II controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 1306.04. Kuthuru made an initial appearance on October 16, 2014, with his retained counsel and entered pleas of not guilty to the charges in the Indictment. See Minutes of Proceedings (Dkt. #6). He was released on a personal recognizance bond. Id.
Kuthuru seeks an order requiring the Clerk of Court to issue a subpoena duces tecum to the custodian of records for North Las Vegas Pain Management & Urgent Care for files related to patients of Desert Pain Management listed on the attachment to the proposed subpoena, which is attached to the Motion as Exhibit A. Kuthuru also seeks to subpoena all sign-in sheets, logs, calendars, and other documents regarding scheduling of Desert Pain Management patients between June and November 2012. Although the proposed subpoena complies with Rule 17 and requires the custodian of record to deliver responsive documents at the time of trial, it appears defense counsel is actually seeking pretrial production of responsive documents. On December 15, 2014, defense counsel mailed an unexecuted proposed subpoena to the custodian of records at North Las Vegas Pain Management, and in the cover letter, indicated that if the custodian of records completed a certification, he or she could simply mail the responsive documents and certification to defense counsel and need not appear with the documents at trial. Based on the timing of counsel's letter, it appears counsel may be seeking responsive documents for pretrial motion practice.
A. Federal Rule of Criminal Procedure 17.
Rule 17 of the Federal Rules of Criminal Procedure governs the issuance of subpoenas in criminal proceedings. Rule 17(c) establishes the process by which federal courts can issue subpoenas duces tecum for the production of evidence before trial and 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).
Unlike a subpoena issued under Rule 17(a) or 17(b) to compel a witness to appear at trial, the court has discretion to direct that a subpoena duces tecum be made returnable before trial. However, Rule 17 is not a discovery device. United States v. Nixon, 418 U.S. 683, 689 (1974), superceded by statute on other grounds, Fed.R.Evid. 104(a); see also United States v. LaRouche Campaign, 841 F.2d 1176, 1179 (1st Cir. 1988); United States v. Fletcher, 461 F.Supp.2d 1101, 1102 (D. Ariz. 2006) ("[s]ubpoenas issued pursuant to Rule 17(c) are not discovery devices and may not be used to expand the scope of Rule 16"); United States v. Shinderman, 232 F.R.D. 147, 150 (D. Me. 2005); United States v. Carter, 15 F.R.D. 367, 369 (D. D.C. 1954) ("to construe Rule 17 as a discovery rule would render Rule 16 nugatory and meaningless and would defeat its limitations"). Rule 17(c) may, however, be used to obtain evidentiary materials. See Nixon, 418 U.S. at 699-700; Bowman Diary Co. v. United States, 341 U.S. 214, 219-20 (1951).
Rule 17(c)(1) does not authorize a party to subpoena a witness and require him to report at some time or place other than either a trial or hearing to be held at which he is to testify. Its purpose is to permit the issuance of subpoenas only to compel attendance at hearings conducted by the court and trial. See United States v. LaFuente, 54 F.3d 457 (8th Cir. 1995), cert. denied, 516 U.S. 902 (prosecutor improperly secured attendance of witness at pretrial interview by subpoena); United States v. Keen, 509 F.2d 1273 (6th Cir. 1975) (government's use of subpoenas to compel witnesses to attend pretrial interview miles from place of trial at a proceeding not authorized by court was improper); United States v. Stirone, 168 F.Supp. 490 (D. Pa. 1957), aff'd, 262 F.2d 571 (3rd Cir. 1958), rev'd on other grounds, 361 U.S. 212 (1960) (improper for government to issue subpoenas compelling witnesses to appear at U.S. Attorney's Office in federal courthouse to ensure keeping of proper records).
Leave of court is required for a pretrial subpoena duces tecum. United States v. Beckford, 964 F.Supp. 1010, 1021 n.10 (D. Va. 1997). A number of courts have held that the court has discretion to require production of documents by subpoena duces tecum prior to trial. United States v. Lieberman, 608 F.2d 889 (1st Cir. 1979), cert. denied, 444 U.S. 1019; United States v. Parker, 586 F.2d 422 (5th Cir. 1978), cert. denied, 441 U.S. 962; United States v. Murray, 297 F.2d 812 (2nd Cir. 1962), cert. denied, 369 U.S. 828. The Supreme Court has stated:
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. Without a determination of arbitrariness or that the trial court finding was without record support, an appellate court will not ...