United States District Court, S.D. New York
OPINION AND ORDER
L. CARTER, JR., UNITED STATES DISTRICT JUDGE:
Huberfeld has served subpoenas on Jona Rechnitz
("Rechnitz"), Cooley LLP ("Cooley"),
Naftol & Weberman CPAs, P.C. ("Naftol &
Weberman"), Simcha Schonfeld, and Koss & Schonfeld
LLP ("Koss & Schonfeld") (collectively,
"Non-Parties"). The recipients have moved to quash
the subpoenas. The motion is granted in part and denied in
has served five subpoenas. Each subpoena consists of a number
of requests. The subpoena to Rechnitz (Rechnitz Requests 1-8)
seeks four categories of documents: prior statements of
Rechnitz about the allegations in the indictment in this
case, tax returns filed by Rechnitz and JSR Capital,
documents regarding payments to Jason Nissen, and health
insurance benefits. The subpoena to Alan Levine and Cooley
(Cooley Requests 1-4), Rechnitz's attorneys, seeks
statements made by Rechnitz to the prosecutors, statements
made by Rechnitz's lawyers who were acting on
Rechnitz's behalf to the prosecutors about the
allegations in this case, and statements made by Rechnitz to
any other third party in a non-privileged setting about the
allegations in this case. The subpoena to Naftol &
Weberman (Naftol & Weberman Requests 1-3) seeks Rechnitz
or JSR Capital's tax returns, communications related to
the tax returns, and documents concerning inquiries or
investigations by a government tax agency into the tax
returns. Finally, the subpoena to Koss & Schonfel (Koss
& Schonfel Requests 1-2), who represented Rechnitz in his
transactional and real estate matters since 2012, seeks
documents, contracts, loan agreement or promissory notes
related to agreements between any Jason Nissen entity or any
Hamlet Peralta entity with Jona Rechnitz. The subpoenas were
issued on September 29, 2017, prior to the receipt of the
3500 or Jencks Act material from the Government. The return
date for all of the subpoenas is October 23, 2017, the first
day of trial.
October 10 and 11, 2017, the Non-Parties moved to quash the
subpoenas. Huberfeld responded on October 17, .2017. In their
response, Huberfeld did not seek compliance with all the
requests in the subpoena opting for an order seeking
compliance with certain requests.
Crim. P. 17(c) allows parties to subpoena any books, papers,
documents, data, or other objects the subpoena designates.
The subpoena must meet three criteria: "(1) relevancy;
(2) admissibility; [and] (3) specificity." United
States v. Ulbricht, 858 F.3d 71, 109 (2d Cir. 2017)
(citing United States v. Nixon, 418 U.S. 683, 700
(1974)). Moreover, the evidence sought must be unattainable
through means other than the Rule 17(c) subpoena, and the
moving party must be unable to adequately prepare for trial
without the materials sought." United States v.
Mendinueta-Ibarro, 956 F.Supp.2d 511, 513 (S.D.N.Y.
party moves to quash the subpoenas as unduly
"unreasonable or oppressive, " Fed. R. Crim. P.
17(c)(2), the party responding to a motion to quash (the
proponent of the subpoena) "must make a preponderance
showing that the materials requested are relevant,
specifically identified, admissible, and not otherwise
procurable by the exercise of due diligence." See
United States v. Pena, 15-cr-551, 2016 WL 8735699, at *2
(S.D.N.Y. Feb. 2, 2016) (quoting United States v.
Barnes, 560 Fed.App'x 36, 39-40 (2d Cir. 2014)).
evidence is insufficient to require its production in
advance of trial. Mendinueta-Ibarro, 956 F.Supp.2d
at 514. This is because impeachment material is not relevant
for production until a witness has testified. United
States v. Coriaty, No. 99CR1251, 2000 WL 1099920, at *7
(S.D.N.Y. Aug. 7, 2000) (citing United States v.
Cuthbertson, 630 F.2d 139 (3d Cir. 1980)). Accordingly,
impeachment evidence can be obtained by means of a Rule 17(c)
subpoena at trial. United States v. Murray, 297 F.2d
812, 821 (2d Cir. 1962).
seeks material to attack Rechnitz's
credibility-impeachment material-and is thus obtainable at
trial. However, certain requests as written are overbroad,
specifically Rechnitz Requests 1, 2, 3, and 5, and Cooley
Request 1. The proponent of a subpoena must reasonably
specify the information contained or believed to be contained
in the document sought. United States v. Treacy, No.
08 Cr. 0366, 2008 WL 5082884, at *3 (S.D.N.Y. Dec 1, 2008).
Huberfeld contends that the subpoenas are not overbroad, that
the documents sought are those "specific documents which
contain a statement or communication by Rechnitz about the
allegations in the case." Def Letter Opp'n Mot.
Quash (ECF No. 125) at 8. In other words, Huberfeld seeks
prior statements to impeach Rechnitz with. See United
States v. Ferguson, No. 3:06-CR137, 2007 WL 4577303, at
*2 (D. Conn. Dec. 26, 2007) (discussing prior inconsistent
statements). However, this is not what the subpoena says,
which seems to seek all documents, communications, and
recordings "concerning or comprising" any statement
by Rechnitz. "Concerning or comprising" as defined
in the subpoenas is too broad. The net cast is too wide.
Accordingly, the Court modifies those requests to match
Defendant's clarification: those specific documents which
contain a statement or communication by Rechnitz about the
allegations in the Indictment.
return date on subpoenas is for the beginning of trial as
opposed to when Rechnitz testifies. Huberfeld correctly notes
a divide among the courts about whether impeachment material
needs to be produced after the witness testifies or at the
beginning of trial and asks the Court to allow the current
return date. There are courts that have permitted the
production of impeachment materials prior to the witness
testifying at trial. See United States v. LaRouche
Campaign, 841 F.2d 1176, 1180 (1st Cir. 1988)
(concluding that it was proper to disclose impeachment
evidence before trial pursuant to a Rule 17(c) subpoena
because the "putative key witness, whose general
testimony is already known, is scheduled to testify").
in this Circuit, "the document[s] sought must at
that time meet the tests of relevancy and
admissibility." See United States v. Marchisio,344 F.2d 653, 669 (2d Cir. 1965) (emphasis added).
Accordingly, in United States v. Giampa, the Court
rejected the defendant's request for production on the
first day of trial, and instead, modified the subpoena to
make them returnable at the time when the witness would
testify. No. S 92 Cr. 437, 1992 WL 296440, at *3 (S.D. N.Y.
1992); see also Ferguson, 2007 WL 4577303, at *3
(modifying subpoenas for production when witness testifies at
trial). The only decision in this Circuit which permitted
production of impeachment material at the beginning of trial,
specifically a day before the start of trial, known to this
Court is United States v. Tucker,249 F.R.D. 58
(S.D.N.Y. 2008). However, in that case, the court did not
apply the Nixon standard; moreover, the materials to
be produced, a significant amount of recordings, would lead
to an "unreasonable delay" in trial if produced at
the completion of the witness's testimony. Id.
at 67 n.56. Thus, despite the fact that it is a virtual
certainty that Rechnitz will testify in this matter, the
weight of the authority in this Circuit favors production
when the witness ...