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The Battle over the Scope of Rule 17(c) Subpoenas<br><font size="-1"><b><i>Part One of a Two-Part Article</b></i></font>

By Jodi Misher Peikin and Curtis B. Leitner

White-collar prosecutions often turn on the paper trail. The government and the defense may agree on what business transactions took place, but disagree as to whether the defendant acted with a culpable state of mind. The often voluminous emails, memoranda, invoices, accounting entries and other business records that explain why relevant transactions took place, and give context to the defendant's actions, therefore are critical to both the prosecution's case and the defendant's ability to mount a defense.

But the playing field is not level — not even close. Whereas the government has virtually unlimited access to business records during a grand jury investigation, which it can put before the jury at trial, the only means by which a white-collar defendant can require the production of business records from a non-party is through a subpoena under Rule 17(c) of the Federal Rules of Criminal Procedure. Federal courts, however, have almost uniformly given Rule 17(c) a restrictive interpretation. Under this interpretation, no documents will be produced unless the subpoena seeks documents that are not only admissible in evidence, but also specifically described in the subpoena — no small feat when the documents are not in the defense's possession.

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