ORDER AFTER HEARING

EDMUND F. BRENNAN, Magistrate Judge.

This matter was before the court for hearing (see ECF Nos. 243 & 252) on the government's motion for an order directing the Clerk of Court to file on the docket: (1) an August 29, 2019 order for the issuance of a Rule 17(c) subpoena;1 and (2) any related submissions to the court is support of defense counsel's application for the Rule 17(c) order. ECF No. 197. Mr. Corbett (hereinafter "defendant") filed a response (ECF No. 211) and the government filed a reply (ECF No. 226). At close of hearing, the court directed that the order be publicly docketed and took under submission the question of whether to docket the application materials. The court indicated at the hearing that a written order would follow. ECF No. 252 at 16.

Background

On August 29, 2019, the court granted defense counsel's ex parte request for the issuance of a subpoena pursuant to Rule 17(c) mandating that the Butte County District Attorney provide defendant's counsel with non-privileged documents related to Butte County Superior Court Case Nos. CM009910 and CM010468. ECF No. 197-1 at 1-2. As addressed below, the defendant's application for the subpoena was presented ex parte, as is typical of defense applications for the issuance of Rule 17(c) subpoenas. Nonetheless, the subpoena and order were served on the district attorney's office and, not surprisingly, the government became aware of the order and its content.2 The government's instant motion requests that: (1) the August 29, 2019 order for issuance of subpoena be docketed; and (2) that any ex parte submissions provided to the court prior to the issuance of the August 29, 2019 order also be filed — potentially under seal if defendant can so justify. Id. at 2-4.

Defendant argues that the government's motion is an attempt to undermine the long-standing Rule 17(c) process followed in this district as initially set forth by United States v. Tomison, 969 F.Supp. 587 (E.D. Cal. 1997). In Tomison, Judge Lawrence Karlton recognized that a criminal defendant required the ability to obtain a Rule 17(c) subpoena in confidence, lest his trial strategy be potentially laid bare to the prosecution. Id. at 592-94. Judge Karlton, after weighing the text of the rule and relevant decisions made by other courts, concluded that "[Rule 17(c)] should be interpreted to provide for ex-parte applications in situations, such as the matter at bar, where the defendant seeks to serve a subpoena duces tecum for the pre-trial production of documents on a third party, and cannot make the required showing without revealing trial strategy." Id. at 595. Defendant argues that, if the government's requested relief were granted, it would amount to an "end run to attempt to learn defense strategy and undermine the holding in Tomison." ECF No. 211 at 6.

In its reply, the government unequivocally states that it is not asking the court to order that defendant reveal his defense strategy. ECF No. 226 at 1. It notes and accepts that defendant's application may be filed under seal in order to prevent such revelation. Id. And it argues that Tomison would not be eroded insofar as it did not discuss the issue now raised — whether orders and application for Rule 17(c) subpoenas should be filed on the docket. Id. at 2. The government points3 to the Ninth Circuit's recent decision in United States v. Sleugh, 896 F.3d 1007 (9th Cir. 2018) as supportive of its position. In Sleugh, the Ninth Circuit considered whether one defendant in a criminal case could access Rule 17(c) subpoena applications and supporting documents that were filed under seal by another defendant's attorney in the same case. Id. at 1010. In its decision, the Ninth Circuit noted that applications in support of a Rule 17(c) subpoena are "often filed ex parte and under seal." Id. (emphasis added).

Analysis

As addressed at the hearing, the court concluded that the order must be docketed. Rule 55 mandates that "[t]he clerk must enter in the records every court order of judgment and the date of entry." Fed. R. Crim. P. 55. Thus, the order for the issuance of the subpoena in question here will be docketed. As further addressed at the hearing, although the Rule 17(c) application at issue here justified proceeding ex parte, the defense has already served on the district attorney's office the subpoena and the order for its issuance. In turn, the government already possess both documents and there is no longer a basis for sealing the order. Thus, for the reasons discussed at the hearing the Clerk of Court will be directed to file the August 29, 2019 order on the public docket. ECF No. 252 at 13 ("As to the order itself, I'm ordering it docketed given that the government already has a copy of the order as well as the subpoena. I don't see the need to enter a sealing order as to this particular order.").

The more difficult question, as the court noted at the hearing, concerns the filing of the application materials submitted in support of the August 29, 2019 order. ECF No. 252 at 9. Having considered the parties' arguments, the court finds the government's position as to docketing of those material (whether publicly or under seal) to be more persuasive. The Ninth Circuit's decision in Sleugh offers two points in favor of docketing Rule 17(c) application materials. As noted supra, the Ninth Circuit explicitly noted that such application materials were often filed ex parte and under seal. Sleugh, 896 F.3d at 1010. In so doing, it appeared to offer tacit approval for this procedure. Second, and perhaps more importantly, Sleugh illustrates the potential necessity for filing these materials on the docket. The court noted at the October 8, 2019 hearing that the Ninth Circuit panel could not have decided the issue raised in Sleugh without the benefit of the filed application materials. ECF No. 252 at 9-10. And, as the government pointed out at the hearing (id. at 11-12), other circumstances or issues — not yet conceived of by the court or parties in this case — might arise which would demand that a reviewing court be able to access the application materials.4

At the hearing, the only relevant5 argument offered by defendant's counsel concerned the possibility of docketing error. Counsel argued:

ECF No. 252 at 3-4. The court understands counsel's concerns, but it does not find this argument persuasive. It is undoubtedly true that clerks of this court, like all human beings, are fallible and will err from time to time. Those errors are unfortunate and will, as counsel points out, sometimes have profound litigative consequences. Nevertheless, courts are routinely entrusted to docket all manner of sensitive material under seal. Some materials, like the affidavits submitted in support of search warrants might, if erroneously publicized, potentially endanger the lives of government informants or those who execute the warrants. Nevertheless, the court entrusts its clerks to file those materials under seal. And counsel's arguments regarding fallibility cut both ways. Attorneys also make mistakes and it is not impossible to imagine a scenario in which application materials become pertinent on review and, due to some mistake or omission on the part of a defendant's counsel, are no longer available (either in total or in part).

Thus, for the reasons stated above, the court will direct that the application materials offered in support of the August 29, 2019 order be docketed. However, that docketing will, as discussed at the hearing, be ex parte and under seal. ECF No. 252 at 14 ("I do find that the 17(c) application that's in issue here justified proceeding in an ex parte fashion. It also justified keeping the application materials themselves confidential.").

Finally, the court declines to address the issue of whether a defendant may obtain a non-disclosure order prohibiting the recipient of a Rule 17(c) pretrial subpoena duces tecum from disclosing the content of order/subpoena to the government. No non-disclosure order was obtained with regard to the subpoena at issue here and, thus, the issue is not ripe. See, e.g., Allard v. De Lorean, 884 F.2d 464, 466 (9th Cir. 1989) ("This court has no jurisdiction to hear a case that cannot affect the litigant's rights.").

It is, therefore, ORDERED that:

1. The government's motion (ECF No. 197) is GRANTED in part;

2. The Clerk of Court is directed to file, on the public docket, the order for issuance of and the August 29, 2019 subpoena, attached to the government's motion at ECF No. 197-1 at 2;

3. Within seven days of the date this order is served, counsel for the defense shall submit all application materials offered in support of the August 29, 2019 order for subpoena to the Clerk's Office in PDF format to the email address approvedsealed@caed.uscourts.gov; and

4. The Clerk of Court is directed to docket and file the application materials mentioned above under seal.