United States District Court, D. Nevada
HOFFMAN, JR. UNITED STATES MAGISTRATE JUDGE.
before the court is the government's Motion to Quash and
for Additional Relief (ECF No. 25), filed on April 3, 2019.
Defendant Robert Marcellus Jones filed a response (ECF No.
31) on April 17, 2019. The government replied (ECF No. 33) on
April 23, 2019.
parties are familiar with the facts of this case and the
court will repeat them here only as necessary. The Office of
the Federal Public Defender issued a subpoena duces tecum to
Jenny Soto at the NYC Department of Education to provide
various school records for the two alleged victims in this
case. The government now moves to quash the subpoena, arguing
Jones did not comply with Rule 17. For the reasons explained
in this order, the court will grant the government's
motion in part and will quash the subpoena.
17(c) governs subpoenas for documents, records, books, and
other objects relevant to a case. To obtain a Rule 17(c)
subpoena before trial, the proponent must demonstrate the
evidence sought is relevant, admissible, and specific.
United States v. Nixon, 418 U.S. 683, 700 (1974).
Rule 17(c)(3), which was added following enactment of the
Crime Victims' Rights Act, 18 U.S.C. § 3771, governs
subpoenas for personal or confidential information about a
crime victim. It provides in relevant part as follows:
a subpoena requiring the production of personal or
confidential information about a victim may be served on a
third party only by court order. Before entering the order
and unless there are exceptional circumstances, the court
must require giving notice to the victim so that the victim
can move to quash or modify the subpoena or otherwise object.
Crim. P. 17(c)(3). The Advisory Committee's Notes to this
provision state the rule's purpose is to “provide
a protective mechanism when the defense subpoenas a third
party” about a victim's personal or confidential
information. Fed. R. Crim. P. 17(c)(3) advisory
committee's notes (2008 amendment). “Third party
subpoenas raise special concerns because a third party may
not assert the victim's interests, and the victim may be
unaware of the subpoena.” Id.
“Accordingly, the amendment requires judicial approval
before service of a subpoena seeking personal or confidential
information about a victim from a third party.”
Id.; see also U.S. v. Sellers, 275 F.R.D.
620, 623 (D. Nev. 2011) (stating “[l]eave of court is
required for a pretrial subpoena duces
tecum.”). The advisory committee's notes
contemplate that a victim's “personal or
confidential information” may include school or medical
the subpoena requests documents including “student
profiles, registration records, notices of discharge,
emergency home contact records, enrollment records,
registration records, notices of discharge, emergency home
contact records, enrollment records, transcripts,
disciplinary records, psychological records, medical records,
teacher evaluations, nurse's notes, specialized education
records, IEP records, psychological or social evaluations or
reports [sic] special education records . . . .” (Mot.
to Quash, Ex. 1 (ECF No. 25-1) [“Subpoena”] at
4.) Thus, the documents at issue are the very type of
personal or confidential information that the advisory
committee contemplated would be covered by Rule 17(c)(3).
review of the docket indicates Jones did not request a court
order before issuing the subpoena duces tecum in
contravention of Rule 17(c)(3). Given that a court order was
not requested, the court did not have an opportunity to
require notification to the victims in this case. Jones does
not indicate he independently provided notice to the victims.
Although Jones argues the victims could have moved to quash
the subpoenas, it is unclear to the court how they would have
the ability to do so if they did not receive notice of the
subpoena. Moreover, it appears duces tecum. Given these
procedural defects, the court will grant the government's
motion to the extent it requests to quash the subpoena.
court notes the parties made several arguments and cited to
legal authority not discussed in this order. The court has
reviewed these arguments and authorities and determines they
do not warrant discussion as they do not affect the outcome
of the motion before the court.
THEREFORE ORDERED that the government's Motion to Quash
and for Additional Relief (ECF No. 25) is GRANTED in part and
is DENIED in part. It is granted to the extent the government
seeks to quash the subpoena to Jenny Soto at the NYC
Department of Education. It is denied in all other respects.
FURTHER ORDERED that the subpoena to Jenny Soto at the NYC
Department of Education, a redacted copy of which is