United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION FOR ISSUANCE OF DOCUMENTS
S. LASNIK UNITED STATES DISTRICT JUDGE.
matter comes before the Court on defendant's
“Motion for Issuance of Documents Subpoena.” Dkt.
# 376. The government opposes defendant's motion on
several grounds. For the reasons explained below,
defendant's motion is DENIED.
David Delay faces federal sex-trafficking and
child-pornography charges that include an alleged victim he
apparently met through the social media website Tagged.com.
In the motion before the Court, he seeks a subpoena issued to
the website's parent company for production of all
records and documents related to Tagged.com accounts
associated with that victim's email addresses. Defendant
previously moved the Court for similar subpoenas involving
Tagged.com records. Among other things, the previous motion
sought to subpoena records related to the accounts of both
defendant and the alleged victim. The Court granted
defendant's motion with regard to his own account, but
denied the motion with regard to the victim's accounts
because defendant failed to notify the victim that her
personal or confidential information could be produced by a
potential subpoena served on a third party. See Fed.
R. Crim. P. 17(c)(3). Defendant moves again for a subpoena to
obtain records associated with the victim's accounts.
Defendant lacks the victim's contact information, and he
also seeks an order directing the government to notify the
victim of this motion in order to comply with the relevant
of subpoenas in a criminal proceeding is governed by Federal
Rule of Criminal Procedure 17. Rule 17(c)(1) provides for the
issuance of a subpoena for pretrial production of documents,
but “a Rule 17(c) subpoena is not intended to serve as
a discovery tool.” United States v. MacKey,
647 F.2d 898, 901 (9th Cir. 1981) (citing Bowman Dairy
Co. v. United States, 341 U.S. 214, 220 (1951)). The
burden is on the party seeking production to show the
relevance, admissibility, and specificity of the items
sought, see United States v. Reed, 726 F.2d 570, 577
(9th Cir. 1984), and conclusory allegations of relevance and
admissibility are insufficient to meet the moving party's
burden, United States v. Eden, 659 F.2d 1376, 1381
(9th Cir. 1981). To meet that burden, defendant must
demonstrate that (1) the documents sought are evidentiary and
relevant; (2) the documents are not otherwise procurable
reasonably in advance of trial through due diligence; (3)
defendant is unable to properly prepare for trial without
such production and inspection prior to trial and the failure
to obtain such inspection may tend to unreasonably delay the
trial; and (4) the application is made in good faith and not
as a “fishing expedition.” United States v.
Nixon, 418 U.S. 683, 699-700 (1974).
has not met his burden of showing that the records or
documents in his extensive request are relevant and
admissible, or that he cannot otherwise procure whatever
relevant and admissible evidence may fall within his request.
Defendant seeks “[a]ll records and documents pertaining
to the Tagged accounts” associated with three of the
alleged victim's email addresses, “including but
not limited to all chat records and profiles of other . . .
membest [sic] that the account holder may have chatted
with.” Dkt. # 376-3. Defendant claims the records
sought “are statements of likely witnesses and may
provide impeachment material.” Dkt. # 376 at 3. He also
submits that the records may undermine allegations that the
victim “informed the Defendant that she was less than
18 years of age.” Id.
before the Court suggests the entirety of the alleged
victim's communications and other private information on
Tagged.com concern the defendant or the facts underlying this
case. Defendant's broad request is overinclusive, and it
likely sweeps in a great deal of irrelevant or inadmissible
information. Other than “mere conclusory statements,
” see Eden, 659 F.2d at 1381, defendant has
not adequately shown the relevance and admissibility of the
items sought. Nor has he shown he cannot otherwise procure
what relevant documents may fall within his broad request.
The records in his request that are most likely to be
relevant in the ways defendant claims are the victim's
communications with the defendant himself, and those records
are either already in defendant's possession or are
otherwise reasonably procurable. The Court therefore finds
that defendant has not met his burden of justifying issuance
of a subpoena under Rule 17.
foregoing reasons, defendant's motion is DENIED.
 In its response, the government
includes an argument that disclosure of the records defendant
seeks would cause Tagged.com's parent company to violate
the Stored Communications Act (“SCA”), 18 U.S.C.
§ 2702(a)(1). Dkt. # 383 at 6. Defendant contends the
government lacks standing to challenge a subpoena request of
this nature. Dkt. # 376 at 5. Because the Court concludes
defendant has not made the threshold showing for ...