February 14, 2017 Articles

Federal Rule of Criminal Procedure 17(c) in Light of United States v. Rand

Exploring the current conflict among federal courts regarding the standard applicable to subpoenas issued to third parties

by Jeanne M. Cors

On November 28, 2016, the United States Supreme Court denied certiorari in an appeal from the Fourth Circuit Court of Appeals decision in United States v. Rand, 835 F.3d 451 (4th Cir. 2016). This denial leaves unresolved a question that has divided district courts across the country: whether the heightened standard enunciated by the Supreme Court in United States v. Nixon, 418 U.S. 683 (1974), applies to criminal defendants seeking pretrial production of documents from third parties under Federal Rule of Criminal Procedure 17(c).

Since its enactment, Rule 17(c) has become an important tool for criminal defendants to obtain pretrial production of documents from third parties. While the practice of seeking pretrial production of documents from third parties has become more commonplace, federal courts have struggled with the appropriate standard to apply in evaluating such subpoenas.

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