MEMORANDUM ORDER On February 5, 2021, with Court authorization, third party Circle Internet Financial LLC (“Circle”) moved to quash a subpoena issued by defendant Ruben Weigand pursuant to Federal Rule of Criminal Procedure 17(c). That motion is now fully briefed. For the reasons that follow, the motion is granted in part and denied in part. BACKGROUND The S3 superseding indictment charges defendants Weigand and Hamid “Ray” Akhavan with conspiracy to commit bank fraud during the approximate period of 2016 to 2019. It alleges that the defendants and co-conspirators participated in what the Government calls a “transaction laundering scheme” to trick banks into processing debit and credit card transactions for marijuana. Specifically, the Government alleges that the defendants and others conspired to set up “phony merchants,” complete with fictitious websites and offshore bank accounts, to process transactions on behalf of Eaze, an online marijuana marketplace. The phony merchants appeared to sell legitimate products, “such as carbonated drinks, face cream, dog products, and diving gear. Yet…these companies were actually being used to facilitate the approval and processing of marijuana transactions.” Indictment 13. The indictment alleges that the conspirators used the phony merchants to launder more than $100 million worth of marijuana transactions. Indictment 14. Relevantly for present purposes, the indictment alleges that misrepresentations regarding the phony merchants and their sales mattered to the issuing banks because “[i]ssuing banks in the United States generally will not extend credit (i.e., approve) transactions that involve unlawful activity under federal law, such as the sale of marijuana.” Indictment 11(e). At trial, one disputed issue will be the accuracy of this allegation. To be sure, it is not seriously disputed that banks maintain policies against processing transactions involving unlawful activity under federal law. But defendants intend to argue that these policies are pretextual — designed to protect banks from liability, but not enforced in practice. The dispute now before the Court concerns Weigand’s attempt to acquire evidence on this topic. LEGAL STANDARD In contrast to the broad subpoena powers enjoyed by civil litigants and by the Government, utilizing the grand jury, a criminal defendant may not command production of discovery materials; rather, the defendant must seek leave of Court before issuing a subpoena for documents returnable before trial. See Fed. R. Crim. P. 17(c). Rule 17(c) provides, in pertinent part: (1) In General. A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them. (2) Quashing or Modifying the Subpoena. On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive. In 1951, the Supreme Court explained that Rule 17(c) permits a defendant to issue a subpoena to the Government compelling the production only of “evidence” — that is, “any material that had been used before the grand jury or could be used at the trial.” Id. at 221. Rule 17(c) did not permit broad “discovery” against the Government. Id. But the fact that the defendant had sought issuance of subpoenas directed to the Government, rather than to a third party, was crucial to the Supreme Court’s reasoning. The Court pointed out that Federal Rule of Criminal Procedure 16 permits only limited discovery from the Government and inferred that “[i]t was not intended by Rule 16 to give a limited right of discovery, and then by Rule 17 to give a right of discovery in the broadest terms.” Id. at 220. In 1974, the Supreme Court revisited the issue in the context of a subpoena issued to a third party, albeit a unique one: former president Richard Nixon. Relying upon Bowman, which it called “[t]he leading case in this Court interpreting” Rule 17(c), the Supreme Court found that “the Special Prosecutor, in order to carry his burden [to show entitlement to a Rule 17(c) subpoena], must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity.” United States v. Nixon, 418 U.S. 683, 698 (1974). Nixon, unlike Bowman, concerned a request for a subpoena directed to a third party. But on the other hand, the request was made by the Government, not by the defendant. Thus, like Bowman, Nixon did not consider whether, and under what circumstances, Rule 17(c) might be appropriately used by the defendant to seek discovery against a third party. Indeed, the Nixon Court recognized that a different standard might apply when a subpoena was issued to a third party, even by the Government: The District Court found here that it was faced with the more unusual situation where the subpoena, rather than being directed to the government by defendants, issues to what, as a practical matter, is a third party. The Special Prosecutor suggests that the evidentiary requirement of Bowman…does not apply in its full vigor when the subpoena duces tecum is issued to third parties rather than to government prosecutors. We need not decide whether a lower standard exists because we are satisfied that the relevance and evidentiary nature of the subpoenaed tapes were sufficiently shown as a preliminary matter to warrant the District Court’s refusal to quash the subpoena. See id. at 699 n.12 (punctuation omitted). Nevertheless, when confronted with defendants’ requests to issue a Rule 17(c) subpoena to a third party, courts in this Circuit generally look to the three factors articulated in Nixon. See, e.g., United States v. Skelos, No. 1-CR-317 (KMW), 2018 WL 225453, at *1 (S.D.N.Y. May 17, 2018) (“[C]ourts in the Second Circuit have almost unanimously applied Nixon to subpoenas served on third-parties[.]“). But no binding authority requires such a result.1 In 2019, when an appellant argued that a district court abused its discretion by quashing a Rule 17(c) subpoena, the Second Circuit explicitly declined to address whether district courts must apply Nixon or whether they might instead apply a different test. See United States v. Bergstein, 788 F. App’x 742, 746 (2d Cir. 2019). An alternative test was articulated by Judge Scheindlin in United States v. Tucker, 249 F.R.D. 58 (S.D.N.Y. 2008). Judge Scheindlin explained that the Nixon standard is inappropriate where production is requested by (A) a criminal defendant; (B) on the eve of trial; (C) from a non-party; (D) where the defendant has an articulable suspicion that the documents may be material to his defense. A defendant in such a situation need only show that the request is (1) reasonably construed as “material to the defense,” and (2) not unduly oppressive for the producing party to respond. Id. at 66. Put simply, instead of applying Nixon, Judge Scheindlin went back to basics by requiring defendants to comply with Rule 17(c) itself, which precludes only a subpoena that is “unreasonable or oppressive.” The Second Circuit in Bergstrein refused to reject Tucker’s more liberal approach, leaving the question open. Bergstein, 788 F. App’x at 746. (“Whether under the Nixon standard or the standard articulated in Tucker, we conclude that the district court did not abuse its discretion in quashing the subpoenas. The district court may quash a Rule 17(c) subpoena ‘if compliance would be unreasonable or oppressive.’”) (citing Fed. R. Crim. P. 17(c)(2)). Judge Scheindlin’s approach is more consistent with modern principles of liberal discovery than Nixon. Permitting issuance of reasonable third-party subpoenas to take discovery, even when a defendant cannot demonstrate in advance that the sought-after evidence is admissible appropriately aligns criminal discovery more closely with modern principles of liberal discovery and better balances the discovery powers of Government and defense. A more liberal approach is also more consistent with the text of Rule 17(c) itself. After all, “[a] subpoena for documents may be quashed if their production would be ‘unreasonable or oppressive,’ but not otherwise.” Nixon, 418 U.S. at 698 (quoting Fed. R. Civ. P. 17(c)(2). That is the standard this Court will apply. ANALYSIS Circle argues that the subpoena should be quashed principally because the documents it seeks are irrelevant. Circle also argues that many of the documents are inadmissible hearsay, that public disclosure of Circle’s confidential information would subject it to potential competitive harms, and that the requests are insufficiently specific.2 The Court begins with relevance. I. Relevance In assessing whether the subpoena is “unreasonable,” the Court must first consider whether it seeks relevant information. The defendants principally contend that the subpoena seeks evidence that would be probative on the question of materiality. The materiality of an alleged misrepresentations is an element of the charge of bank fraud. Because the Government intends to prove a conspiracy to commit bank fraud, it must prove beyond a reasonable doubt the materiality of the misrepresentations that the defendants allegedly conspired to make. “[A] false statement is material if it has a natural tendency to influence, or is capable of influencing, the decision of the decisionmaking body to which it was addressed.” Neder v. United States, 527 U.S. 1, 16 (1999) (citation, alteration, and quotation marks omitted). However, a “mere metaphysical possibility” of influence is insufficient. United States v. Litvak, 808 F.3d 160, 173 (2d Cir. 2015). Rather, a misrepresentation is material when it is “reasonably likely to influence the [decisionmaker] in making a determination required to be made.” United States v. Rigas, 490 F.3d at 208, 231 (2d Cir. 2007) (emphasis added). Accordingly, a principal question for the jury will be whether the alleged misrepresentations had a natural tendency to influence, or were reasonably likely to influence, the banks in deciding whether to process Eaze credit and debit card transactions. To understand why the defendants believe that Weigand’s subpoena seeks evidence that bears on materiality, one must first understand the business relationship between Circle and Eaze.3 The parties (and Circle) agree that after the period described in the indictment, despite the fact that the Government pursued this case, Eaze has continued to permit its customers to purchase marijuana using credit and debit cards issued by U.S. banks. Beginning in July 2020, Circle has facilitated such payments for Eaze, acting as an intermediary between Eaze and the credit card companies. Circle offers a “payment infrastructure” to companies like Eaze “whereby online companies can take card and bank transfer payments for goods or services and receive settlement in USD Coin,” a cryptocurrency with its value pegged 1:1 to the U.S. dollar. Allaire Aff., ECF No. 137-3,
