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United States v. Woods

United States District Court, W.D. Arkansas, Fayetteville Division

January 9, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
JONATHAN E. WOODS; OREN PARIS III; and RANDELL G. SHELTON, JR. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE.

         Currently 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 PART.

         I. BACKGROUND

         An 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.[1] 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.

         On 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[2] 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.

         The 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.

         II. LEGAL STANDARD

         Here, 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 700.

         Importantly, "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)).

         III. ...


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