United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE.
before the Court are the Government's Motion to Quash
Subpoenas for Records Issued to Kenneth Elser and Robert
Cessario (Doc. 262) and Defendant Jonathan E. Woods's
Response (Doc. 263). For the reasons given below, the
Governments Motion is GRANTED IN PART AND DENIED IN
evidentiary hearing is set to be held in this case on January
10, 2018, at 9:00 a.m. The primary purpose of this hearing is
to determine whether certain documents obtained by the
Government and produced to Mr. Woods in discovery are subject
to the attorney-client privilege, and if so, then whether Mr.
Woods has waived that privilege. If the Court rules that
those documents are and remain subject to the privilege, then
an additional purpose of the hearing would be to determine
(1) whether the Government acquired these documents through
misconduct, and (2) the extent, if any, to which Mr. Woods
has suffered prejudice as a result of that acquisition.
However, if the Court rules that those documents are not
subject to the privilege, then an additional purpose of the
hearing would be to determine (1) whether the premise of Mr.
Woods's Motion to Dismiss (Doc. 211) has been rendered
moot, and (2) whether there is any other reason why these
documents should not be disclosed to Mr. Woods's
codefendants. The Court does not intend for the scope of the
January 10 evidentiary hearing to extend beyond this limited
set of issues.
December 28, 2017, Mr. Woods caused subpoenas to be served on
Kenneth Elser, who is counsel for the Government in this
case, and Robert Cessario, who is an FBI Agent for the
Government in this case. The subpoenas command these two
individuals to testify at the January 10 hearing. The
subpoenas also command these two individuals to bring
documents to the January 10 hearing. Specifically, Agent
Cessario's subpoena commands him to bring his
"complete case file regarding Jonathan Woods."
See Doc. 262-2, p. 1. Mr. Elser's subpoena
commands him to:
Please bring a copy of all written communications sent and/or
received from W.H. Taylor regarding Jon Woods beginning on
October 1, 2015 through December 28, 2017. This includes all
correspond[e]nce, including letters, emails, and text
messages. Also include dates and times of all phone calls
made to W.H. Taylor during the same time period.
See Doc. 262-1, p. 1.
Government has moved to "quash these subpoenas'
documentary requests." See Doc. 262, p. 4. The
Government's Motion also expresses some skepticism about
the need for testimony from these two individuals,
see Doc. 262, p. 3 n.3, but it does not appear to
seek or argue for outright quashal of the subpoena's
commands to appear and provide testimony. Accordingly, the
Court will restrict its analysis in this Opinion and Order
solely to the issue of whether these subpoenas'
documentary requests should be quashed.
with respect to each subpoena, Mr. Woods bears the burden of
proof to show:
(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 inspection may tend unreasonably to delay the trial; and
(4) that the application is made in good faith and is not
intended as a general "fishing expedition."
United States v. Nixon, 418 U.S. 683, 699-700
(1974). "[I]n order to carry his burden, " Mr.
Woods "must clear three hurdles: (1) relevancy; (2)
admissibility; [and] (3) specificity." id. at
"subpoenas duces tecum are not meant to serve as tools
of discovery in criminal cases." United States v.
Bueno, 443 F.3d 1017, 1026 (8th Cir. 2006) (citing.
Nixon, 418 U.S. at 698-99). And even if Mr. Woods
satisfies "the minimal requirements for relevance,
admissibility, and specificity under Nixon, the
district court may still properly quash a subpoena under Rule
17(c) if 'compliance would be unreasonable or
oppressive.'" See United States v. Hardy,
224 F.3d 752, 756 (8th Cir. 2013) (quoting Fed. R. Crim. P.
17(c)(2)). Ultimately, the decision whether to quash these
subpoenas is committed to this Court's discretion.
See Bueno, 443 F.3d at 1026. When exercising that
discretion, this Court may "determine whether 'the
burden of producing subpoenaed records greatly outweighs any
relevance they may have to the case.'" See
Hardy, 224 F.3d at 756 (quoting United States v.
Roach, 164 F.3d 403, 412 (8th Cir. 1998)).