JERRY H. RITTER, Magistrate Judge.
This matter comes before the Court on Non-Party Microsoft Corporation's Motion to Modify Rule 17(c) Subpoena [Doc. 125], filed April 18, 2019, and fully briefed on May 20, 2019. [See Doc. 138]. Presiding District Judge Herrera referred the Motion to the undersigned Magistrate Judge for decision pursuant to 28 U.S.C. § 636(b)(1)(A) and Fed. R. Crim. P. 59(a). [See Doc. 139]. The questions presented concern the proper scope and use of a subpoena to a non-party under the Federal Rules of Criminal Procedure. Having considered Defendant Rosenschein's Response to the Motion [Doc. 136], and all pertinent authority, the Court recommends that the Motion be granted. Additionally, the Court recommends that Defendant Rosenschein's Request for Telephonic Hearing on the Motion [Doc. 141], filed May 22, 2019, be denied.
"It was not intended by [Fed. R. Crim. P.] Rule 16 to give a limited right of discovery, and then by [Fed. R. Crim. P.] Rule 17 to give a right of discovery in the broadest terms." Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951). For this reason, the materials that can be compelled via a Rule 17(c) subpoena are inherently narrow and specific. See, e.g., United States v. Nixon, 418 U.S. 683, 700 (1974). As one court has said, "[t]he relevance and specificity elements `require more than the title of a document and conjecture as to its contents,' and a subpoena should not issue based upon a party's `mere hope' that it will turn up favorable evidence." United States v. Stevenson, 727 F.3d 926, 831 (8th Cir. 2013) (citation omitted). The proponent of a Rule 17 subpoena may not, therefore, utilize a subpoena to "fish[] for evidence that might support his theory, as if he were in the discovery phase of a civil action." United States v. Richardson, 607 F.3d 357, 368 (4th Cir. 2010).
Defendant Rosenschein's subpoena to non-party Microsoft in this case contained eighteen (18) separate subparts, requesting, among other things, "[a]ny and all" agreements, guidelines, memorandums of understanding, contracts, correspondence and reports generated by Microsoft in relation to its PhotoDNA Service and its relationships with law enforcement, the National Center for Missing & Exploited Children (NCMEC), and electronic service provider Chatstep. [See Doc. 125-1, pp. 9-12]. Rather than identify specific documents to be produced, Rosenschein's subpoena reads like a civil discovery request, seeking "the production of essentially any document that would support his theory that [Microsoft] was in an agency relationship with the Government." See Richardson, 607 F.3d at 368. Therefore, because Rosenschein's subpoena fails to conform to Nixon's specificity requirement, Microsoft's Motion to Modify the subpoena should be granted. Alternatively, Microsoft's Motion should be granted because compliance with the subpoena as drafted would be oppressive.
Rosenschein is charged with the distribution and possession of child pornography. [See Doc. 1]. As stated by Judge Herrera in her most recent Memorandum Opinion and Order, law enforcement began investigating Rosenschein when the Bernalillo County Sheriff's Office ("BCSO") received two CyberTipline Reports from the NCMEC. [Doc. 151, p. 2]. The two CyberTipline Reports that the BCSO received were generated by Chatstep, an electronic service provider that hosts internet-based conversations between users. [Id.]. Chatstep was able to identify the alleged child pornography through its use of Microsoft's PhotoDNA service. [Id.]. PhotoDNA is a cloud-based service developed by Microsoft to help prevent the sharing of child pornography. [Id.]. It works by analyzing digital images to create a unique "hash value" of a file that is then matched against databases of hash values of known child pornography. [Id., pp. 2-3]. Through its use of PhotoDNA, Chatstep identified two images allegedly distributed by Rosenschein as child pornography before the images were submitted to the NCMEC. NCMEC did not view the images, but determined the probable physical origin of the images, and forwarded the material to the New Mexico Attorney General's Office Internet Crimes Against Children Task Force. This prosecution followed.
Rosenschein issued a subpoena under the authority of Fed. R. Crim. P. 17 to Microsoft on October 11, 2018, [Doc. 125-1, p. 6], requesting the following documents:
[Doc. 125-1, pp. 9-12 (bold type in original].
The parties met and conferred in an attempt to narrow these requests, but were ultimately unsuccessful. [See Doc. 125, pp. 4-8; Doc. 136, pp. 7-8]. Microsoft then filed this Motion, asking the Court to modify the subpoena. Microsoft argues that the subpoena fails to satisfy the Rule 17(c) requirements of specificity, relevancy, and admissibility. [See Doc. 125, pp. 8-14]. Alternatively, Microsoft argues that the burden imposed by the subpoena is unreasonable and oppressive, [see id., pp. 14-17], predicting "based on its experience with past document production ... it would cost the company more than $1 million to host and review the documents." [Id., p. 15; see also Doc. 125-2, p. 2]. Microsoft also argues that compliance with the subpoena would result in the production of documents relating to the technical engineering of PhotoDNA, and require it to review the documents for proprietary, commercially sensitive, and privileged information. [Id.]. Microsoft asks for an order which would limit its duty to search to the following categories of documents:
[Doc. 125, pp. 17-18].
Rosenschein responds that his subpoena is reasonable because "documents concerning collaboration of Microsoft and NCMEC concerning the development of PhotoDNA are material to the agency relationship between Microsoft and NCMEC." [Doc. 136, p. 12]. Rosenschein explains that he intends to prove that Microsoft was acting as an agent of the government "through developing PhotoDNA with NCMEC as well as supporting NCMEC and participating in the PhotoDNA Initiative[.]" [Id.]. He argues that he "must have access to the materials and documentation that reflect the relationship of Microsoft to law enforcement entities, including NCMEC, as well as the knowledge and acquiescence of law enforcement agencies, like NCMEC, to allow Microsoft to serve their interests." [Id.]. Rosenschein concludes that the materials described in the subpoena categories are admissible and relevant, [id., p. 16], and, as narrowed by his February 18, 2019, proposal to Microsoft, sufficiently specific. [See id., pp. 17-21]. He observes that his requests, as modified, "are self-limiting in time as they either refer to the specific CyberTips at issues (sic) in this case, or simply the life of the PhotoDNA program which is from 2008 to present." [Id., p. 21]. "Microsoft is the most valuable company in the world," according to Rosenschein, and "has not demonstrated that the costs of compliance are unduly onerous in light of the financial holdings of the Corporation, nor have they attempted to associate the cost of compliance with the narrow terms that were proposed by Dr. Rosenschein on February 18, 2019." [Id., pp. 22-23].
Microsoft replies that, in this Circuit, "a Rule 17(c) subpoena must be quashed or modified if the proponent cannot `identify the item sought and what the item contains.'" [Doc. 138, p. 6 (quoting United States v. Morris, 287 F.3d 985, 991 (10th Cir. 2002))]. Therefore, Microsoft submits Rosenschein's requests fail Rule 17(c)'s specificity requirement even as modified by his proposal. [Id.]. Microsoft maintains that "even setting aside the requests Defendant fails to defend, his subpoena remains unreasonable and oppressive[,]" [id., pp. 10-11], because compliance, even as modified by Rosenschein's proposal, would cost it hundreds of thousands of dollars. [Id.].
Federal Rule of Criminal Procedure 17(c) authorizes pretrial subpoenas duces tecum in criminal cases for limited purposes. Rule 17(c) was never intended to be a tool for discovery. See Nixon, 418 U.S. at 698. Thus,
Morris, 287 F.3d at 991 (quoting Nixon, 418 U.S. at 699-700). In order to meet its burden, the proponent of a subpoena "must clear three hurdles: (1) relevancy; (2) admissibility; and (3) specificity." Id. Failure to clear even one of these hurdles will result in the modification of the subpoena. See United States v. Abdush-Shakur, 465 F.3d 458, 467 (10th Cir. 2006).
"Specificity is the most difficult hurdle to overcome." United States v. Wittig, 247 F.R.D. 661, 663 (D. Kan. 2008) (citation omitted). "Nixon['s specificity requirement] mandates that the party requesting the information identify the item sought and what the item contains, among other things." Morris, 287 F.3d at 991. Thus, "[t]he specificity requirement ensures that Rule 17(c) subpoenas are used only to secure for trial certain documents or sharply defined groups of documents." Wittig, 247 F.R.D. at 663.
For example, the special prosecutor who issued the subpoena in Nixon was able to identify the participants and time and place of the sought-for taped conversations, and so the subpoenas were upheld by the Court. See Nixon, 418 U.S. at 700. In contrast, the Tenth Circuit in Morris held that a subpoena was properly quashed for lack of specificity where it sought all documents surrounding an FBI agent's shooting of the defendant as well as the agent's personnel file. Morris, 287 F.3d at 991. Prior to Morris, the Tenth Circuit held a subpoena to be overbroad where it requested evidence to show that the arresting officer had a propensity to make pretextual stops and to impeach his credibility. See United States v. Hughes, 931 F.2d 63 (10th Cir. 1991) (unpublished). In sum, "a Rule 17 subpoena duces tecum cannot substitute for the limited discovery otherwise permitted in criminal cases and the hope of obtaining favorable evidence does not justify the issuance of such a subpoena." Richardson, 607 F.3d at 368-369; see also Stevenson, 727 F.3d at 831 ("The relevance and specificity elements require more than the title of a document and conjecture as to its contents, and a subpoena should not issue based upon a party's mere hope that it will turn up favorable evidence.").
As noted, failure of the proponent of a subpoena to clear even one of the Nixon hurdles permits modification of the subpoena. Even assuming if Rosenschein can demonstrate the relevance and admissibility of the categories of documents he seeks, he has failed to identify those documents with the required specificity. The majority of his requests (a, b, f, g, h, i, k, l, m, n, o, p, q, and r), seek "any and all" or "any" documents related to Microsoft's relationships with law enforcement and Chatstep and are clearly aimed at discovering documents that Defendant Rosenschein does not presently know exist. See Wittig, 247 F.R.D. at 664 ("Defendant's proposed subpoenas clearly resemble discovery requests, employing such terms as `any and all' documents or communications, or `includes, without limitation.'"). Only after the parties met and conferred were these topics narrowed to be "self-limiting in time as they either refer to the specific CyberTips at issues (sic) in this case, or simply the life of the PhotoDNA program which is from 2008 to present." [Doc. 136, p. 21]. Even as narrowed, however, the Court finds that these requests run afoul of Nixon's specificity requirement.
The Court takes guidance from analogous decisions of the Fourth and Eighth Circuits in Richardson, 607 F.3d at 368-369, and Stevenson, 727 F.3d at 831. In both, the defendant sought to develop an agency argument between the government and an internet service provider in a child pornography prosecution, but the district courts quashed the subpoenas, finding that they failed Nixon's requirements. On appeal, the Fourth and Eighth circuits each affirmed because the document requests issued by the defendants, though relevant, were too vague, suggesting instead attempts at exploratory discovery. So too here.
Even Rosenschein's requests that are arguably narrow (c, d, e, and j), still verge on exploratory discovery. For example, in request c, Rosenschein is unable to identify the website used to provide information to NCMEC concerning the two Cybertips in this case and asks Microsoft to provide this information. [See Doc. 136, p. 18]. The same is true for the IP addresses at issue in request d, and the names of the Chatstep or Microsoft employees responsible for forwarding the information concerning the two Cybertips in request e. [See id.]. Finally, request j seeks "Microsoft.com's registration materials or documents detailing Microsoft.com's ... registration with NCMEC's CyberTipline, and confirmation that the appropriate sign in credentials were assigned to Microsoft.com," not identifying specific documents Rosenschein needs to prove his agency argument.
Microsoft is agreeable, however, to providing more than the Court would otherwise require. Therefore, the Court will honor Microsoft's commitment to provide agreements pertaining to PhotoDNA and any federal law enforcement agency or State Attorney General, and agreements with third parties regarding hash sharing. [See Doc. 126-1, p. 1]. It has also agreed to provide information regarding and relevant to the Cybertipline Reports in this case, as well as the guidelines, memorandums of understanding, policies, procedures, or terms of service that were applicable to its relationships with Chatstep and NCMEC. [Id.]. Microsoft has further agreed to provide emails pertaining to Chatstep's use and discovery of the PhotoDNA Cloud Service. [Id., p. 2]. The Court finds that these stipulations are reasonable and reflect the parties' agreement.
Microsoft has presented evidence that compliance with the subpoena as issued would cost more than one million dollars. [Doc. 125-2, p. 2]. While Microsoft may be a company of nearly endless resources, [see Doc. 136, p. 22], such a burden on a non-party is disproportional to a case such as this. If every defendant in every child pornography prosecution were to be permitted to make such requests service providers would be forced to abandon preventative efforts.
The cases Rosenschein cites do not convince the Court otherwise. The court in In re August, 1993 Regular Grand Jury (Med. Corp. Subpoena II), 854 F.Supp. 1392, 1402 (S.D. Ind. 1993), was addressing a grand jury subpoena issued to a potential defendant corporation, not a pretrial subpoena issued to a third party. The same is true of Matter of Midland Asphalt Corp., 616 F.Supp. 223, 225 (W.D.N.Y. 1985). In sum, the Court is not convinced that Microsoft should be required to shoulder the burden of complying with the subpoena as drafted.
In moving for a telephonic hearing before this Court, Rosenschein described his Rule 17(c) Subpoena to Microsoft as "essential" to his motions to suppress, then scheduled to be heard during the week of June 10, 2019. [Doc. 141, p. 1]. Rosenschein went on to explain that "Microsoft's Reply raised issues that require clarification regarding Dr. Rosenschein's defense of his Rule 17(c) subpoena requests as narrow (sic) in the Response" and that, "[i]n lieu of requesting leave to file a surreply, defense counsel can address these issues at a hearing before the Court." [Id., p. 2]. Rosenschein did not elaborate as to which issues require clarification. [Id.]. Instead, he contemporaneously moved to continue the June 10, 2019, suppression hearing [see Doc. 145], never thereafter moving the Court for leave to file a surreply. Microsoft takes the position that the Motion can and should be decided on the briefs. [Doc. 141, p. 1].
Rosenschein has not cited to, and the Court is not aware of, any rule of procedure nor case that requires a hearing in these circumstances, and Rosenschein has not identified any factual dispute that needs to be explored. The Court finds that the legal issues pertaining to whether Microsoft's Motion to Modify should be granted can be determined on the briefs. Therefore, the Court recommends that Rosenschein's request for a hearing be denied.
Above all, "Rule 17(c) was not intended to provide an additional means of discovery." Bowman Dairy Co., 341 U.S. at 220. For this reason, the proponent of a subpoena must know what he is requesting and be able to specify its contents. Rosenschein's subpoena in this case did not conform to this requirement.
Wherefore, IT IS HEREBY RECOMMENDED Non-Party Microsoft Corporation's Motion to Modify Rule 17(c) Subpoena [Doc. 125], be
[See Doc. 125, pp. 17-18].
SO ORDERED.
