Rule 17(c) of the Federal Rules of Criminal Procedure sets forth the means by which a criminal defendant can compel the production of documents from third parties. It is a critical mechanism by which defendants facing trial may realize their constitutional right to "put before a jury evidence that might influence the determination of guilt."1 The practical utility of Rule 17(c) subpoenas has been limited, however, because courts have tended to hold them to a demanding standard that arose in the context of subpoenas addressed not to third parties, but to the government. That standard has become the touchstone in this area since the Supreme Court’s ruling in United States v. Nixon, notwithstanding that in that case the court expressly left open the question whether a lower standard generally should be applied to subpoenas to third parties.

In recent years, courts have begun to depart from the rote application of the so-called Nixon standard, with Judge Shira Scheindlin of the Southern District of New York leading the charge. With the recent explosion in the quantity and variety of electronic evidence potentially available from third parties, practitioners should be aware of the unlikely provenance of the doctrine that will typically be asserted to challenge their Rule 17(c) subpoenas, and the growing body of decisions suggesting a more flexible standard.

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