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`Case 2:18-cr-00422-SMB Document 1121 Filed 02/11/21 Page 1 of 4
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`United States of America,
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`Plaintiff,
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`v.
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`Michael Lacey,
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`No. CR-18-00422-001-PHX-SMB
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`ORDER
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`Defendant.
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`Pending before this Court is Defendants’ Motion for Issuance of Subpoenas. (Doc.
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`1083.) The Government filed a response to the motion (Doc. 1091), and Defendants
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`replied. (Doc. 1093.) The Court has reviewed the pleadings and issues the following order.
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`I. BACKGROUND
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`Defendants filed this motion requesting to send subpoenas pursuant to Rule 17(c),
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`Fed. R. Crim. P., to the National Center for Missing and Exploited Children (“NCMEC”)
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`and the Office of the Attorney General of Arizona (“AZ AG”). Defendants contend
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`“[e]vidence of NCMEC and the AZ AG’s communications with the investigators in this
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`case, and with each other, will be relevant to show that NCMEC’s and the AZ AG’s views
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`of Backpage.com and the Defendants in this case were influenced by political concerns as
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`much if not more than legal concerns…” (Doc. 1083 at 4.) Defendants seek four categories
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`of documents from the AZ AG, including (1) all correspondence or documents referencing
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`Backpage.com, its principles, or employees; (2) all correspondence or documents
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`referencing the operations or activities of Backpage.com; (3) all documents referencing
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`Case 2:18-cr-00422-SMB Document 1121 Filed 02/11/21 Page 2 of 4
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`any analysis of the legality of the activities of Backpage.com or any of its principles or
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`employees; and (4) all correspondence between the AZ AG’s Office and NCMEC or any
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`of its employees relating to Backpage.com and any of its principles or employees. (Doc.
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`1083-1., Ex. A.) Defendants seek three categories of information from NCMEC, including
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`(1) all correspondence or documents referencing the investigation or prosecution of
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`Backpage.com and/or any of its principles and employees; (2) all documents reflecting any
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`analysis of the legality of operations or activities of Backpage.com or any of its principles
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`or employees; and (3) all correspondence or other documents between the AZ AG’s Office
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`or any of its employees and NCMEC or any of its employees relating to Backpage.com
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`and any of its principles and employees. (Id.)
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`II. LEGAL STANDARD
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`A proponent of a subpoena under Rule 17(c) must clear three hurdles: (1) relevancy;
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`(2) admissibility; and (3) specificity. U.S. v. Reed, 726 F.2d 570, 577 (9th Cir. 1984) (citing
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`U.S. v. Nixon, 418 U.S. 683, 700 (1974)). Rule 17(c) “‘was not intended to provide an
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`additional means of discovery.’” U.S. v. Hang, 75 F.3d 1275, 1283 (8th Cir. 1996) (quoting
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`Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951)). If the information sought
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`under Rule 17(c) is sought merely for impeachment purposes, it is generally insufficient to
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`justify the pretrial production of documents. U.S. v. Fields, 663 F.2d 880, 881 (9th Cir.
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`1981) (citing Nixon, 418 U.S. at 701.). A Rule 17(c) subpoena cannot be issued on “‘mere
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`hope’ that the desired documents [will] produce favorable evidence.” Hang, 75 F.3d at
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`1283. Indeed, a court may properly deny a Rule 17(c) subpoena that constitutes a mere
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`“‘fishing expedition.’” See id. at 1283-84. When a proponent of a subpoena merely states
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`why he or she wants to look into materials, but fails to set forth what they contain, a court
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`may properly quash a subpoena for lack of specificity or relevance. See United States v.
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`Arditti, 955 F.2d 331, 346 (5th Cir. 1992) (“he has not set forth what the subpoena’s
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`materials contain, forcing the court to speculate as to the specific nature of their contents
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`and its relevance.”). Additionally, a party seeking production prior to trial must show that
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`the requested evidence is “not otherwise procurable reasonably in advance of trial by the
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`Case 2:18-cr-00422-SMB Document 1121 Filed 02/11/21 Page 3 of 4
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`exercise of due diligence.” U.S. v. Nixon, 418 U.S. 683, 699 (1974).
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`III. ANALYSIS
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`Once again Defendants argue that the Government lacks standing to object to their
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`proposed subpoenas. However, the Court has already rejected that argument and has ruled
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`that the Government has standing to object to Defendants’ Rule 17(c) subpoenas. (Doc.
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`1084 at 3.) Accordingly, the Court again denies this argument.
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`A. AZ AG Subpoena
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`The Court declines to entertain Defendants’ subpoena to the AZ AG because the
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`documents requested are procurable by other means. See Nixon, 418 U.S. at 699. In
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`Arizona, public records may be obtained from state agencies under the Arizona Public
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`Records Law. A.R.S. §§ 39-101, et seq. Under the Arizona Public Records Law, all officers
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`and public bodies must maintain records that are “reasonably necessary to provide an
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`accurate accounting of their official activities and government-funded activities.” A.R.S. §
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`39-121.01(B). The statute unquestionably includes the AZ AG. See A.R.S. § 39-
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`121.01(A)(1)-(2), (B) (defining “Public body” as any public organization or agency
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`supported in whole or in part by monies from this state). Any person may request to
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`examine public records. A.R.S. § 39-121.01(D). Here, the subpoena to the AZ AG is
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`unnecessary because Arizona’s Public Records Law provides an avenue for Defendants to
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`obtain the requested documents. Thus, Defendants have not shown that the documents
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`requested from the AZ AG are not procurable in advance of trial by the exercise of due
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`diligence. Nixon, 418 U.S. at 699. Accordingly, the Court denies Defendants’ requested
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`Rule 17(c) subpoena to the AZ AG.
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`B. NCMEC Subpoena
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`As with Defendants’ last proposed subpoena to NCMEC, the Court denies the
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`current proposed subpoena to NCMEC. Simply put, the Defendants again attempt to use
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`the subpoena process as a discovery tool and attempt to embark on a fishing expedition for
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`helpful evidence. See Hang, 75 F.3d at 1283-84. Defendants argue that the documents and
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`communications requested are relevant “to show that NCMEC’s and the AZ AG’s views
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`Case 2:18-cr-00422-SMB Document 1121 Filed 02/11/21 Page 4 of 4
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`of Backpage.com and the Defendants in this case were motivated by political concerns,”
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`and that the statements from the organization were not supported by legal analysis. (Doc.
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`1083 at 4.) The Court sees no other purpose for which the documents can be relevant except
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`to impeach the Government’s witnesses, which is insufficient to justify a subpoena under
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`Rule 17(c). Fields, 663 F.2d at 881. In addition, Defendants fail to set forth what the
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`requested materials contain. See Arditti, 955 F.2d at 346. Defendants have also failed the
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`specificity prong of the Nixon analysis. As with Defendants’ last proposed subpoena to
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`NCMEC, the current proposed subpoena requests “large swaths” of communications and
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`internal documents regarding Backpage.com, its owners, and employees and is not
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`specifically tailored to uncover any specific evidence. (Doc. 1084 at 5-6.) Accordingly, the
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`Court denies Defendants’ request to send its proposed Rule 17(c) subpoena to NCMEC.
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`IV. CONCLUSION
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`For the reasons discussed above,
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`IT IS ORDERED that Defendants’ Motion for Issuance of Subpoenas is denied. (Doc.
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`1083.)
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`Dated this 11th day of February, 2021.
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