Case 2:15-cr-00193-SDW Document 24 Filed 07/10/15 Page 1 of 5 PageID: 303

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHAMBERS OF
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
July 10, 2015

MARTIN LUTHER KING

COURTHOUSE
50 WALNUT ST.
NEWARK, NJ 07101
973-645-5903

David William Feder, J. Fortier Imbert, Lee M. Cortes, and Vikas Khanna
Office of the U.S. Attorney
District of New Jersey
970 Broad Street, Room 700
Newark, NJ 07102
Attorneys for Plaintiff (Government)
Michael A. Baldassare, Dillon Hoey Malar, and Jennifer Mara
Baldassare & Mara, LLC
570 Broad Street
Suite 900
Newark, NJ 07102
973-200-4066
Attorneys for Defendant William E. Baroni, Jr.
Michael D. Critchley
Critchley, Kinum & Vazquez, LLC
75 Livingston Ave.
Roseland, NJ 07068-3737
Attorney for Defendant Bridget Anne Kelly

LETTER ORDER FILED WITH THE CLERK OF THE COURT GRANTING MOTION
FOR SUBPOENA
Re:

United States v. William E. Baroni, Jr. and Bridget Anne Kelly (15-cr-193
(SDW))

Counsel:
Before this Court is the Motion of Defendants Bridget Anne Kelly (Kelly) and William
E. Baroni, Jr. (Baroni) (collectively, Defendants) for a Federal Rule of Criminal Procedure
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17(c) subpoena regarding notes from interviews conducted by Gibson, Dunn & Crutcher LLP
(Gibson Dunn). For the reasons set forth below, this request shall be GRANTED.

DISCUSSION
On May 27, 2015, counsel for Defendant Kelly filed a Motion for Issuance of a Rule 17(c)
Subpoena related to Gibson Dunns work when the firm was retained by the Office of the Governor
of New Jersey to conduct an internal investigation into the events giving rise to this criminal action.
Defendant Kelly, joined by Defendant Baroni, requests a Rule 17(c) subpoena to compel the
pretrial production of the following:
a. Any and all handwritten or typed notes, stenographic transcripts
and audio and/or video recordings of witness interviews conducted
by Gibson Dunn during its representation of the Office of the
Governor of New Jersey from on or about January 16, 2014 to the
present; [and]
b. Any and all metadata and the document properties for all typed
notes and interview summaries created during interviews of
witnesses during Gibson Dunns representation of the Office of the
Governor of New Jersey from on or about January 16, 2014 to the
present[.]
(Dkt. No. 16, Kelly Proposed Order.) In the alternative, Defendants request that [i]n the event
that any of the above information no longer exists, Gibson Dunn shall provide a written explanation
to the Court of when the information was destroyed, why the information was destroyed, and at
whose instruction the information was destroyed. (Id.)
By letter dated June 4, 2015, the Government indicated that it does not object to this
application but noted that if the materials requested are sought for the purpose of impeaching
Government witnesses, they ordinarily would not properly be the subject of an order compelling

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pretrial production under Rule 17. (Govt June 4, 2015 Letter (citing United States v. Cuthbertson,
630 F.2d 139, 144 (3d Cir. 1980) (Cuthbertson I)).)
On June 8, 2015, Randy Mastro, Esq., of Gibson Dunn, on behalf of the Office of the
Governor (and/or Gibson Dunn), submitted a letter to this Court, requesting that this Court reject
Defendants application. By letter dated June 9, 2015, counsel for Defendant Kelly responded.
On June 10, 2015, Gibson Dunn submitted related correspondence.
Pursuant to Federal Rule of Criminal Procedure 17(c)(1),
[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.
FED. R. CRIM. P. 17(c)(1). Federal Rule of Criminal Procedure 17(c)(2) provides that [o]n motion
made promptly, the court may quash or modify the subpoena if compliance would be unreasonable
or oppressive. FED. R. CRIM. P. 17(c)(2).
It is a longstanding tenet that [r]ule 17(c) was not intended to provide an additional means
of discovery. Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951); see also United
States v. Cuthbertson, 651 F.2d 189, 192 (3d Cir. 1981) (Cuthbertson II). Rather, [i]ts chief
innovation was to expedite the trial by providing a time and place before trial for the inspection of
subpoenaed materials. United States v. Nixon, 418 U.S. 683, 698-99 (1974) (citing Bowman, 341
U.S. at 220). Therefore, courts have held that issuing a Rule 17(c) subpoena requires a showing
of good cause to entitle the moving party to pretrial production and inspection. See, e.g., United
States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y. 1952). Courts have interpreted good cause for
pretrial production to require showing the following:
(1) that the documents are evidentiary and relevant; (2) that they are
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not otherwise procurable reasonably in advance of trial by exercise

of due diligence; (3) that the party cannot properly prepare for trial
without such production and inspection in advance of trial and that
the failure to obtain such inspection may tend unreasonably to delay
the trial; and (4) that the application is made in good faith and is not
intended as a general fishing expedition.
Nixon, 418 U.S. at 699-700 (footnote omitted) (citing Iozia, 13 F.R.D. at 338); Cuthbertson II, 651
F.2d at 192. Set against this background and considering the exceptional circumstances of a
motion to quash a subpoena directed to the President of the United States, the Supreme Court in
United States v. Nixon summarized the required analysis, stating that a party seeking production
pursuant to Rule 17(c) must establish (1) relevancy; (2) admissibility; and (3) specificity. 418 U.S.
683, 700 (1974); see also United States v. Eisenhart, 43 Fed.Appx. 500, 505 (3d Cir. 2002).
Thus, [R]ule 17(c) is designed as an aid for obtaining relevant evidentiary material that
the moving party may use at trial. Cuthbertson I, 630 F.2d at 144; see also United States v.
Messercola, 701 F.Supp. 482, 485 (D.N.J. 1988) (Given the difficulties inherent in preparing for
a complex and lengthy criminal trial, the benefits that arise from requiring [pretrial] production
. . . from a nonparty witness far outweigh the speculative inconveniences.) (alteration in original)
(internal quotation marks omitted). [A]ny document or other materials, admissible as evidence
is subject to subpoena under [Rule 17(c)]. Cuthbertson I, 630 F.2d at 144 (quoting Bowman, 341
U.S. at 221). That is not to say that the materials thus subpoenaed must actually be used in
evidence. It is only required that a good-faith effort be made to obtain evidence. Bowman, 341
U.S. at 219-20; see also Cuthbertson II, 651 F.2d at 195 (discussing Rule 17(c) in the context of
pretrial production for in camera review). Moreover, [e]nforcement of a pretrial subpoena duces
tecum must necessarily be committed to the sound discretion of the trial court since the necessity
for the subpoena most often turns upon a determination of factual issues. Nixon, 418 U.S. at 702.
Applying the standards set forth above, this Court finds that Defendants have made a valid
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request for a Rule 17(c) subpoena to issue and that the request is not merely a fishing expedition.
First, the information requested by Defendants includes interview notes from an investigation of
the events leading to the instant criminal matter and refers to Defendants actions with regard to
the same. As such, the information is clearly relevant. Second, this material would not otherwise
be reasonably procurable by Defendants. Third, there has been a sufficient preliminary showing
that the information requested may be admissible at trial depending on the exact content of the
materials and how Defendants seek to use the information. Thus, pretrial production may be useful
to expedite trial. Finally, the request appears to be made in good faith.
While this Court acknowledges the submissions by Gibson Dunn, the objections are
premature. A proper motion to quash or modify the subpoena is not currently before this Court.
As such, this Court does not address or opine on the merits of the arguments that Gibson Dunn set
forth in its correspondence. This Court finds that based on Rule 17(c) and the applicable legal
standards, the subpoena can be issued at this juncture.

CONCLUSION
For the reasons set forth above, this Court will grant Defendants request for a Rule 17(c)
subpoena for the items listed herein. Gibson Dunn is to produce the responsive documents and/or
file the appropriate motion(s) within forty-five (45) days of the filing of this Order.
SO ORDERED.

s/ Susan D. Wigenton, U.S.D.J.

Orig: Clerk
cc:
Parties
Steven C. Mannion, U.S.M.J.