Subpoenas

United States v. Llanez-Garcia, 735 F.3d 483 (6th Cir. 2013)

The defense attorney was sanctioned for issuing a Rule 17(c) subpoena that directed the witness to produce documents on a particular date that was not a scheduled court date. No court approval of the early compliance was obtained. The district judge held that the lawyer engaged in misconduct. The Sixth Circuit reversed the sanction order. The case includes a discussion of the conflicting rules regarding the issuance of a Rule 17(c) subpoena. Because the central issue was whether the attorney engaged in conduct that merited sanctions, the court did not conclusively decide whether a Rule 17(c) subpoena necessarily requires court approval. The Sixth Circuit held that this may be decided by district courts through local rules, standing orders, or on a case-by-case basis. For purposes of this case, however, the issue was sufficiently debatable that the attorney did not engage in intentional misconduct and was not acting in bad faith.

United States v. Bahamonde, 445 F.3d 1225 (9th Cir. 2006)

The Ninth Circuit concluded that the federal regulation that requires the defendant to serve notice upon the United States Attorney, or a designated Department of Homeland Security official before serving a subpoena on an agent employed by Homeland Security is unconstitutional. The regulation, 6 C.F.R. § 5.44 et seq., requires a defendant to notify the U.S. Attorney of the desired testimony, in as much specificity as possible. The Ninth Circuit held that the lack of reciprocity in this discovery provision violated the Due Process concept announced in Wardius v. Oregon, 412 U.S. 470 (1973). A similar regulation governs subpoenas issued to DOJ employees, including FBI and DEA agents. 28 C.F.R. § 16.21.