Bowman and Nixon
The ambiguity surrounding the appropriate standard to apply in evaluating a Rule 17(c) subpoena directed to a third party stems primarily from the Supreme Court's decisions in Bowman Dairy Co. v. United States, 341 U.S. 214, 219 (1951), and United States v. Nixon. Bowman Dairy involved a subpoena issued by the defendant to the government. While the Supreme Court rejected the government's argument that Rule 16 provided the sole mechanism for a criminal defendant to obtain discovery from the government, the Court limited that right to obtaining only those documents that seek "evidentiary" material. Twenty-three years later in Nixon, the Court again addressed the standard for enforcing a Rule 17(c) subpoena issued by the government to the president of the United States. Drawing on the "evidentiary" standard enunciated in Bowman Dairy, the Court adopted a four-part test for determining what is "evidentiary." Under this four-part test, the requesting party bears the burden of demonstrating: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such production and inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not a fishing expedition. Nixon, 418 U.S. at 699–700. The Court further distilled the test down into three requirements: (1) relevancy, (2) admissibility, and (3) specificity. Id. at 700.
While the test enunciated by the Court may be straightforward and clear, the Court created ambiguity as to whether this heightened standard should apply equally to subpoenas issued to third parties. See id. at 700 n.12 (indicating that it "need not decide whether a lower standard exists" for subpoenas issued to third parties because it was satisfied that the relevance and evidentiary nature of the subpoenaed tapes were sufficiently shown and warranted the district court's refusal to quash the subpoena at issue). This ambiguity thus has created a conflict among district courts as to whether the Nixon standard applies in the context of subpoenas issued to third parties.
On August 26, 2016, the Fourth Circuit Court of Appeals became the first appellate court to directly address whether a less stringent standard should be applied to subpoenas issued to third parties under Rule 17(c). The defendant in Rand was indicted for accounting fraud and sought to obtain broad financial information from his former employer. The district court ultimately denied the defendant's request to have a Rule 17(c) subpoena issued for the records, finding that such requests failed to meet the evidentiary standard required by Nixon. See Rand, 835 F.3d at 462.
On appeal, the Rand defendant argued that the Nixon standard is properly limited to subpoenas issued to the government (which may create inconsistencies with the discovery obligations set forth in Federal Rule of Criminal Procedure 16) and should not apply to subpoenas issued to third parties that do not implicate the discovery obligations and limitations set forth in Rule 16. The defendant asserted that third-party subpoenas instead are more appropriately subject to a less stringent standard requiring only that the requests not be unreasonable or oppressive.
Noting that the application of the Nixon standard to third-party subpoenas is an issue of first impression, the Fourth Circuit Court of Appeals declined to adopt a lower standard for subpoenas issued to third parties and held that the Nixon standard of relevance, admissibility, and specificity applies equally to all subpoenas issued under Rule 17(c). In so holding, the Fourth Circuit rejected any notion that Rule 17 should be interpreted to allow for more broad-based discovery by the defendant from third parties, specifically relying on the Supreme Court's statements in Nixon and Bowman Dairy that the subpoena duces tecum was never intended to provide a means of discovery in criminal cases.
While the Rand decision is consistent with the vast majority of district court and appellate court decisions applying the Nixon standard to third-party subpoenas, it remains the only federal appellate court decision to directly analyze whether application of the Nixon standard is appropriate in the context of subpoenas issued to third parties. The Rand holding conflicts with a number of district court decisions rejecting the Nixon standard in the context of third-party subpoenas. See, e.g., United States v. Nosal, 291 F.R.D. 403 (N.D. Cal. 2013); United States v. Nachamie, 91 F. Supp. 2d 552 (S.D.N.Y. 2000) (distinguishing Nixon and Bowman Dairy and holding that Rule 17 is a proper vehicle for discovery from third parties subject only to the limitations set forth in Rule 17(c)(2) that the requests be neither oppressive nor unreasonable).