United States District Court, D. South Carolina, Rockhill Division
ORDER AND OPINION
matter is before the court on the South Carolina Attorney
General Alan Wilson's Motion to Quash (ECF No. 72).
Defendant George Underwood (“Underwood”), through
counsel, served the Attorney General with a subpoena (ECF No.
75-1) to produce various documents regarding prosecutorial
matters related to the instant criminal case and the
potential prosecution of Kevin and Earnestine Simpson
(“the Simpsons”). The subpoena orders the
Attorney General to produce these documents at the Moore
Taylor Law Firm in West Columbia, South Carolina on August
12, 2019 at noon. (Id.) The Attorney General now
moves to quash the subpoena, asserting that it is
unreasonable and improper under Rule 17 of the Federal Rules
of Criminal Procedure. For the reasons set forth below, the
Motion to Quash is GRANTED.
FACTS RELEVANT TO PENDING MOTION
November 20, 2018, Underwood, along with other officers,
arrested two individuals- the Simpsons. (ECF No. 1 at 8
¶ 12.) State charges were filed against the Simpsons,
but were dropped several days after the arrest. The instant
case involves the Department of Justice's
(“DOJ”) subsequent charges against Underwood for
alleged misconduct in executing the Simpsons' arrest,
whereby the DOJ alleges that Underwood, inter alia,
arrested the couple without probable cause and falsified
records. (Id. at ¶ 12.) Underwood denies all
allegations in the indictment. (ECF No. 31.) In an attempt to
“compel testimony and other admissible evidence”
and to develop a defense in the instant criminal case,
Underwood served a subpoena upon the South Carolina Attorney
General. (ECF No. 72 at 10-12; ECF No. 75-1.) Underwood
contends that the DOJ and the South Carolina Attorney
General's Office “colluded regarding the dismissal
of the State warrants against the Simpsons” in order to
build a stronger case against Underwood. (ECF No. 75 at 3.)
subpoena includes two requests:
(1) all written or electronic communications, to include
emails, between the Attorney General's Office and the
U.S. Department of Justice (as well as any other federal
agency) pertaining to Underwood's instant criminal case
or the State charges against Kevin and Ernestine Simpson.
(2) all written and electronic communications, to include
email, between the Simpsons' attorney and the Attorney
General's Office related to those state charges.
(ECF No. 72 at 10-12; ECF No. 75-1.)
response to the subpoena, the South Carolina Attorney General
filed its Motion to Quash the subpoena (ECF No. 75). The
court heard arguments on this Motion to Quash on August 20,
II. LEGAL STANDARD
Rule 17 of the Federal Rules of Criminal Procedure,
“[a] subpoena may order the witness to produce any
books, papers, documents, data, or other objects the subpoena
designates. The court may direct the witness to produce the
designated items in court before trial or before they are to
be offered in evidence. When the items arrive, the court may
permit the parties and their attorneys to inspect all or part
of them.” Fed. R. Crim. P. 17(c)(1) (emphasis added).
Stated differently, “Rule 17 authorizes subpoenas for
production of evidence at trial.” United States v.
Skeddle, 178 F.R.D. 167, 168 (N.D. Ohio 1996).
motion made promptly, the court may quash or modify the
subpoena if compliance would be unreasonable or
oppressive.” Fed. R. Crim. P. 17(c)(2). Specifically,
in the third-party subpoena context, the district court is
bound to follow the U.S. Supreme Court's precedent in
United States v. Nixon, 418 U.S. 683, 700 (1974). In
Nixon, the Court required the requesting party to
show: (1) relevancy; (2) admissibility; and (3) specificity.
Nixon, 418 U.S. at 463; see also United States
v. Rand, 835 F.3d 451, 463 (4th Cir. 2016) (upholding
the district court's use of the Nixon standard,
specifically). A district court's decision to quash a
subpoena is reviewed for an abuse of discretion. In re
Grand Jury, John Doe No. G.J.2005-2, 478 F.3d 581, 584
(4th Cir. 2007). “A district court has abused its
discretion if its decision is guided by erroneous legal
principles or rests upon a clearly erroneous factual
finding.” Id. (quoting Morris v. Wachovia
Sec., Inc., 448 F.3d 268, 277 (4th Cir. 2006))
compel production, the Supreme Court has required that
subpoenas cover (1) relevant evidentiary materials or
documents; (2) that are not otherwise procurable by exercise
of due diligence; (3) without which the party cannot properly
prepare for trial; and (4) which is not intended as a fishing
expedition. Nixon, 418 U.S. at 699. Further
distilled, Nixon requires that a party seeking
pre-trial production of documents demonstrate (1) relevancy,
(2) admissibility, and (3) specificity with respect to the
documents. In re Martin Marietta 712 Corp., 856 F.2d
619, 621 (4th Cir.1988). Additionally, Rule 17 subpoenas are
not a substitute for discovery. United States v.
McDonald,444 Fed.Appx. 710, 711 (4th Cir. 2011)
(quoting Bowman Dairy Co. v. United States, 341 U.S.
214, 220, 7 ...