United States District Court, D. Delaware
April 17, Defendants served subpoenas on the Board of
Governors of the Federal Reserve System and the Federal
Reserve Bank of Philadelphia under Federal Rule of Criminal
Procedure 17(c). (D.I. 345-1 at 16-24). Before me is a motion
by the Federal Reserve to quash those subpoenas. (D.I. 344).
subpoenas cover 2008 to 2010 and seek broad categories of
documents including twenty categories of documents relating
to "supervisory events of all types conducted by"
the Federal Reserve, "[e]nforcement work papers and
continuous monitoring materials related to" Wilmington
Trust,  analyst files, any written material
related to any communications with Wilmington Trust, and
document retention files. (Id. at 18-19, 23-24).
United States Attorney's Office initially did not oppose
Defendants' motion to serve the subpoenas because it
understood their purpose to be "enabl[ing Wilmington
Trust] and the [Federal Reserve] to communicate directly to
resolve specific issues...." (D.I. 359 at 2; see
also D.I. 332). The Federal Reserve was not a party to
the USAO's decision not to oppose the request. (D.I. 345
at 8-9). Now, the Federal Reserve has moved to
quash the subpoenas. (D.I. 344, 345).
17(c) subpoenas have a limited purpose. They are not broad
discovery devices. Bowman Dairy Co. v. United
States, 341 U.S. 214, 220 (1951); United States v.
Nixon, 418 U.S. 683, 698 (1974). Instead, Rule 17(c) is
intended to allow criminal defendants to access evidence for
trial. Bowman, 341 U.S. at 220; United States v.
Cuthbertson, 630 F.2d 139, 144 (3d Cir. 1980).
Nixon and Cuthbertson, documents sought by
a Rule 17(c) subpoena must be (1) "evidentiary and
relevant"; (2) "not otherwise procurable reasonably
in advance of trial by exercise of due diligence"; (3)
necessary for Defendants' trial preparation; and (4)
sought "in good faith, " that is, the subpoena
"is not intended as a general fishing expedition."
Nixon, 418 U.S. at 699-700 (internal quotation marks
and footnote omitted); Cuthbertson, 630 F.2d at 145.
documents sought by Defendants can be loosely placed into
three categories. First, Defendants seek documents submitted
to the Federal Reserve by Wilmington Trust. Defendants
presumably already have these documents, as they generated
them, and have not represented otherwise. Thus, this request
clearly fails the requirements that the documents be
otherwise unavailable to Defendants and be necessary for
argue their own documents are the proper subject of a Rule
17(c) subpoena because their production by the Federal
Reserve is necessary for authentication. Defendants'
argument is flawed for two reasons. For one, while the need
to authenticate documents may make the request evidentiary,
the request still does not satisfy the other requirements for
a Rule 17(c) subpoena. For two, the request is not ripe. We
can address the authentication of documents possessed by
Defendants if and when it becomes an issue. See
Cuthbertson, 630 F.2d at 144-45 (explaining that
statements for impeachment of witnesses "ripen into
evidentiary material for purposes of impeachment only if and
when the witness testifies at trial....").
Defendants seek documents related to oversight activity by
the Federal Reserve in 2008. The alleged criminal activity in
the Third Superseding Indictment took place between late 2009
and late 2010. (See D.I. 243 at ¶¶ 65, 74,
76 (defining the conspiracy and scheme to defraud as taking
place from late 2009 through late 2010); see also
Id. at ¶¶ 78, 80, 82, 84, 86, 88, 90
(identifying false statements to federal regulators made
between late 2009 and late 2010)). While the Indictment
includes allegations related to Defendants' pre-2009
activities, those allegations do not relate to
Defendants' interactions with the Federal Reserve and are
not the basis of the filed charges. (See id. at
¶¶ 20, 24, 27, 28). Thus, these documents are not
sufficiently "evidentiary and relevant." Third,
Defendants seek a broad array of internal Federal Reserve
documents. These requests hardly comport with Rule
17(c)'s limited purpose to allow Defendants access to
"identified evidence...." Cuthbertson, 630
F.2d at 144. Instead, the request resembles civil discovery.
If Defendants have more limited requests aimed at specific
evidence that cannot be settled between Defendants and the
Federal Reserve, it should make a more tailored request.
these reasons, I GRANT the motion to quash the subpoenas.
 The subpoena seeks materials related
to both the Wilmington Trust Company and Wilmington Trust
 12 U.S.C. § 248(p) grants the
Federal Reserve authority to "act in its own name and
through its own attorneys... in any action, suit, or
proceeding to which the Board is a party and which involves
the Board's regulation or supervision of any bank... or
the administration of its operations." The Federal
Reserve argues that, because of this independent authority,
the USAO's acquiescence to the subpoenas does not prevent
the Federal Reserve ...