The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Presently before this Court is the "Motion to Direct Production of Documents by Kevin Waltzer and the Law Firm of Looney & Grossman LLP in Advance of Trial Pursuant to Fed. R. Crim. P. 17(c)" filed by the Defendant, George Georgiou ("Georgiou"). For the reasons set forth below, the Motion will be denied.
On February 12, 2009, a federal grand jury entered an indictment against Georgiou, charging him with leading an international stock fraud conspiracy involving the manipulation of stocks of four publicly traded companies from 2004 through 2008. Kevin Waltzer ("Waltzer") is a cooperating witness who will likely testify at trial about his role in the alleged conspiracy and his active cooperation with the Government during which he recorded numerous conversations with Georgiou.
On August 25, 2009, Georgiou filed the instant Motion, seeking records from Waltzer as well as from Looney & Grossman, LLP ("Looney & Grossman"), the law firm that represented Waltzer during and after his alleged involvement in the charged conspiracy. Specifically, as set forth in his proposed subpoena, Georgiou seeks from Waltzer the following: 1) all documents and communications relating to Waltzer's tax liability from 2003 through the present; 2) all financial records from 2002 through 2009; 3) all non-privileged records and filings relating to litigation in which Waltzer is a plaintiff or defendant; 4) all non-privileged financial and billing records relating to three law firms; and 5) all financial and billing records "as to transactions in the names of other persons or entities" over which Waltzer "established, asserted, or maintained control or influence." (Def.'s Mot., Ex. A.) From Looney and Grossman, Georgiou seeks the following: 1) all financial records as to Waltzer or any entity involving Waltzer; and 2) all correspondence between any lawyer of Looney & Grossman and any government employee relating to Waltzer. (Id.)
The Government asserts that it has provided Georgiou with discovery of all documents relating to the alleged fraud, as well as all evidence relating to Waltzer that is both exculpatory and material to this case, thus satisfying the mandates of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).
Federal Rule of Criminal Procedure 17(c) provides that the Court may approve the issuance of a subpoena directing a third party to produce documents in advance of trial. However, in order to obtain a Rule 17(c) subpoena for documents, a defendant must establish the following:
1) that the documents are evidentiary and relevant; 2) that they are 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."
United States v. Cuthbertson, 630 F.2d 139, 145 (3d Cir. 1980) (quoting United States v. Nixon, 418 U.S. 683, 699-700 (1974)).
Federal Rule of Evidence 402 provides that "[e]vidence which is not relevant is not admissible," and Rule 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401, 402. Under Federal Rule of Evidence 403, a court may exclude relevant evidence "if its probative value is substantially outweighed by the danger of . . . confusion of the issues, or misleading the jury, or by considerations of undue delay [or] waste of time." Fed. R. Evid. 403.
In the Memorandum of Law supporting his Motion, Georgiou cites the factors from Cuthbertson and Nixon, and then proceeds with his argument, stated as follows in its entirety:
In the instant case, the documents clearly are evidentiary and relevant. Indeed, the documents are central to the issues raised by Counts One through Eleven. Despite repeated efforts the defendant has been unable to obtain the relevant records by informal means. The defendant cannot fully prepare his case in advance of trial in the absence of these documents. Because the records are expected to be voluminous, the failure to obtain inspection in advance would unreasonably delay the trial. Moreover, this application is made in good faith and with specificity.
Georgiou then proceeds directly to his one-sentence conclusion. His argument, however, fails to explain how "the documents are central to the issues raised by Counts One through Eleven" and what "informal means" he has taken ...