The opinion of the court was delivered by: Reggie B. Walton United States District Judge
On February 27, 2006, this Court issued an order permitting the defendant to serve subpoenas duces tecum on news reporters and news organizations with production dates well in advance of the scheduled trial date as authorized by Federal Rule of Criminal Produce 17(c)(1). February 27, 2006 Order. Consistent with this Order, the defendant served Rule 17(c) subpoenas on a number of news reporters and news organizations. Currently before the Court are motions to quash from NBC News, Andrea Mitchell, Time Inc.,*fn1 Matthew Cooper, The New York Times, and Judith Miller ("movants").*fn2 Upon consideration of the papers filed in connection with these motions to quash and the oral arguments heard by the Court on these motions, for the reasons set forth below, Judith Miller's motion is granted, but all other motions are granted in part and denied in part.
The facts of this case are well-known to the parties and have been previously discussed in this Court's earlier Memorandum Opinions. See United States v. Libby, ____ F. Supp. 2d ____, ____, 2006 WL 574260, at *1 (D.D.C. March 10, 2006); United States v. Libby, ____ F. Supp. 2d ____, _____, 2006 WL 1109454, at *1-2 (D.D.C. Apr. 27, 2006). It is helpful, nonetheless, to briefly review the facts as they relate to the motions currently before the Court.
The defendant is charged in a five-count indictment with obstruction of justice in violation of 18 U.S.C. § 1503 (2000), two counts of false statements in violation of 18 U.S.C. § 1001(a)(2) (2000), and two counts of perjury in violation of 18 U.S.C. § 1623 (2000). Indictment at 1. All of these charges arise from a criminal investigation into the possible unauthorized disclosure of classified information-Valerie Plame Wilson's affiliation with the Central Intelligence Agency ("CIA")-to several journalists. Indictment at 8, ¶ 25. Specifically, the charges against the defendant are predicated upon statements that the defendant allegedly made to Special Agents of the Federal Bureau of Investigation ("FBI") in October and November, 2003, id. at 9, ¶ 26, and testimony he provided to a grand jury in March 2004, id. at 11, ¶ 30. The alleged false statements occurred when the defendant recounted to the FBI Agents and the grand jury conversations he had with news reporters Tim Russert, Judith Miller, and Matthew Cooper in June and July 2003. See generally Indictment at 11-22.
The charges against the defendant are based entirely upon what the defendant has said was discussed during his conversations with these news reporters. Accordingly, documents and information possessed by the various news reporters and news organizations played a central role during the grand jury investigation that led to the issuance of the indictment. See In re Special Counsel Investigation, 332 F. Supp. 2d 26 (D.D.C. 2004), aff'd, In re: Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006), reissuing, 397 F.3d 964 (D.C. Cir. 2005), cert. denied, 125 S.Ct. 2977 (June 27, 2005). And, as evidenced by the motions that are the subject of this opinion, the significance of the media's role has not diminished.
Based upon the government's earlier representations, it is clear that the government has provided the defendant all documents in its possession that he is entitled to receive at this time*fn3 that discuss the defendant's conversations he allegedly had with reporters Miller, Russert, and Cooper. The defendant now seeks additional documents and information from these reporters, as well as, among others,*fn4 NBC News, Time Inc., and The New York Times, pursuant to Rule 17(c) subpoenas. All six have filed motions to quash the defendant's subpoenas. These motions assert (1) that the subpoenas issued to them do not comport with the requirements of Rule 17(c), and (2) that a reporters' privilege under either the United States Constitution or the common law protects the subpoenaed material from disclosure.*fn5 The Court's analysis of these challenges must first begin with Rule 17(c) itself. Harmon v. Brucker, 355 U.S. 579, 581 (1958) (It is well-settled that a Court should "avoid deciding constitutional questions presented unless essential to proper disposition of a case"). Only if the Rule 17(c) challenges are rejected need the Court address the privilege arguments.
II. Federal Rule of Criminal Procedure 17(c)
Federal Rule of Criminal Procedure 17(c) provides:
(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.
Fed. R. Crim. P. 17(c). The Supreme Court has concluded that Rule 17(c) is "not intended to provide a means of discovery for criminal cases," but was meant "to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials."*fn6 Nixon v. United States, 418 U.S. 683, 698-99 (1974) (citing Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951)); see United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980) (Cuthberston I) ("Courts must be careful that rule 17(c) is not turned into a broad discovery device, thereby undercutting the strict limitation of discovery in criminal cases found in Fed. R. Crim. P. 16."); United States v. Haldeman, 559 F.2d 31, 75 (D.C. Cir. 1976) (Rule 17(c) "is not a discovery device, [it] confines a subpoena duces tecum to admissible evidence, [and] authorizes the quashing of the subpoena if it is 'unreasonable or oppressive.'") (footnotes omitted). Accordingly, "Rule 17(c) may be used to obtain only evidentiary materials." United States v. Cherry, 876 F. Supp. 547, 552 (S.D.N.Y. 1995) (citing Bowman Dairy Co., 341 U.S. at 221 ("[A]ny document or other materials, admissible as evidence, obtained by the Government by solicitation or voluntarily from third persons is subject to subpoena.")). The Rule "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. Thus, "Rule 17(c) can be contrasted with the civil rules which permit the issuance of subpoenas to seek production of documents or other materials which, although not themselves admissible, could lead to admissible evidence." Cherry, 876 F. Supp. at 553 (citing United States v. Marchisio, 344 F.2d 653, 669 (2d Cir. 1965)). As the Third Circuit has noted, there is a difference between:
exculpatory material in the possession of the prosecution, generally available [to a criminal defendant] under the teachings of Brady v. Maryland, and exculpatory evidence in the possession of third parties. Only the latter is retrievable under a rule 17(c) subpoena; naked exculpatory material held by third parties that does not rise to the dignity of admissible evidence simply is not within the rule.
United States v. Cuthbertson, 651 F.2d 189, 195 (3d Cir. 1981) ("Cuthbertson II").
Before Nixon, most courts required a party seeking production of documents under Rule 17(c) to show:
(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."
Nixon, 418 U.S. at 699-700 (citing United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y. 1952)). Guided by these factors, the Supreme Court in Nixon concluded that to compel production of documents under Rule 17(c), the party seeking production "must clear three hurdles: (1) relevancy; (2) admissibility; and (3) specificity." Id. at 700. A subpoena that fails to satisfy these three requirements will be deemed unreasonable or oppressive and must be either quashed or modified. See, e.g., Cuthbertson I, 630 F.2d at 145 (concluding, in part, that the district court properly modified a Rule 17(c) subpoena); United States v. North, 708 F. Supp. 402, 404 (D.D.C. 1989) (holding that the government's Rule 17(c) subpoena had to be quashed because it failed to satisfy the relevance, admissibility, and specificity requirements).
The first prong of this test-relevance-requires the Court to assess whether the documents sought have "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. If the documents are deemed relevant, the Court must then determine whether they would be admissible. This inquiry is largely governed by the Federal Rules of Evidence. See, e.g., Fed. R. Evid. 401-415, 801-807. Under these Rules, documents sought pursuant to a Rule 17(c) subpoena can be deemed admissible for a variety of purposes, including impeachment. Nixon, 418 U.S. at 701; United States v. LaRouche Campaign, 841 F.2d 1176, 1180 (1st Cir. 1988) (concluding that it was proper to disclose impeachment evidence before trial pursuant to a Rule 17(c) subpoena because the "putative key witness, whose general testimony is already known, is scheduled to testify"); see Fed. R. Evid. 801(d)(1). But see Cuthbertson II, 651 F.2d at 195 (concluding that district court erred in requiring disclosure of Rule 17(c) documents that contained potential impeachment evidence before the witness who made the statement testified at trial). Admittedly, it will often be difficult at the pretrial stage to determine with precision the admissibility of certain documents; therefore, if a document is arguably relevant and admissible under the Rules of Evidence, the Nixon "evidentiary" requirement is likely satisfied. See United States v. Orena, 883 F. Supp. 849, 868 (E.D.N.Y. 1995).
In addition to seeking documents that are both relevant and admissible, a Rule 17(c) subpoena must also be specific. Although the Supreme Court in Nixon requires that a party issuing a Rule 17(c) subpoena identify with specificity the documents being sought, the Court recognized that in some instances it may be impossible to "describe fully" the documents; therefore, the Court concluded that the specificity requirement could be satisfied if there is a "sufficient likelihood," demonstrated through rational inferences, that the documents being sought contain relevant and admissible evidence. Nixon, 418 U.S. at 700. While "exquisite specificity" is not required, United States v. Poindexter, 727 F. Supp. 1501, 1510 (D.D.C. 1989), courts will not approve a subpoena for documents based upon requests for disclosure from broad categories of documents. North, 708 F. Supp. at 404. In fact, "[i]f the moving party cannot reasonably specify the information contained or believed to be contained in the documents sought but merely hopes that something useful will turn up, this is a sure sign that the subpoena is being misused." United States v. Noriega, 764 F. Supp. 1480, 1493 (S.D. Fla. 1991). The specificity requirement ensures that a Rule 17(c) subpoena will not be used as a "fishing expedition to see what may turn up." United States v. King, 164 F.R.D. 542, 545 (D. Kan. 1996) (quoting Noriega, 764 F. Supp. at 1493) (internal quotation marks omitted). It is important to remember that "one of the major purposes of the specificity requirement is to provide the subpoenaed party or other party having standing with enough knowledge about what documents are being requested so as to lodge any objections on relevancy or admissibility." United States v. Anderson 31 F. Supp. 2d 933, 945 (D. Kan. 1998).
Generally, courts assess compliance with the Nixon standard based solely on the content of the subpoena itself, coupled with the papers submitted by the parties in connection with a motion to quash or modify. However, during the May 16, 2006 hearing on the motions to quash, counsel for Miller invited the Court to conduct an in camera review of responsive documents. The Court inquired whether the other movants would object to such review by the Court of their documents also, and all agreed that documents responsive to the defendant's Rule 17(c) subpoenas would be provided to the Court. While courts generally do not to resort to in camera review of responsive documents, Ideal Elec. Co. v. Flowserve Corp., 230 F.R.D. 603, 610 (D. Nev. 2005), because the movants have indicated that the number of responsive documents is not extensive, and the Court wants to ensure that documents the defendant is entitled to receive are produced, the Court acquiesced to the movants' willingness to have the Court conduct in camera inspection of documents they have identified as responsive to the defendant's Rule 17(c) subpoenas. And as demonstrated below, the movants' willingness to provide the Court with the responsive documents has allowed the Court, in most instances, to conclusively determine whether the defendant has satisfied the Nixon standard and whether the Court should require the production of some or all of the responsive documents.
(A) The Judith Miller Subpoena
The Miller subpoena seeks production of eight categories of documents. Miller Mem., Ex. B. However, according to Miller, she has only found documents-her reporter's notes, work-related phone records, and an appointment calendar-that are responsive to four of the eight categories. Miller Mem. at 3-4; Miller Reply at 1 n.2. According to Miller, these documents are responsive only to requests one, two, three and six.*fn7 These requests are the following:
1. The complete unredacted original notebooks from which copies of certain pages were produced to the grand jury or Office of Special Counsel in this matter.
2. All appointment calendars, telephone logs and records of telephone calls placed or received by you during the period of June 7 to July 14, 2003.
3. All documents prepared or received by you prior to July 14, 2003 that refer to the wife of former Ambassador Joseph Wilson, whether by name or otherwise.
6. All documents prepared at any time by you, or based upon information received from you, that refer or purport to describe any part of any conversation between you and I. Lewis Libby on June 23, July 8, or July 12, 2003, or any telephone calls between you and I. Lewis Libby at any time during June or July 2003. This request includes but is not limited to drafts of an article entitled "A Personal Account: My Four Hours Testifying in the Federal Grand Jury Room" published October 16, 2005.
Miller Mem., Ex. B. According to Miller, the documents she has discovered that the defendant does not already have and are responsive to these requests do not "relate to any conversations between Mr. Libby and any news reporter, or to conversations Ms. Miller had with any other individuals with respect to either Mr. Libby, Ms. Plame, or her husband Joseph Wilson" and thus do not fall within the scope of the Nixon standard. Miller Mem. at 5-7. The defendant claims, however, that the subpoena served on Miller satisfies the requirements of Rule 17(c) as established by Nixon. The defendant argues first that Miller's recollection of the conversations between her and the defendant will play a central role in the case. Def.'s Opp'n at 10-11. As such, the defendant claims that during the trial he will be entitled to "contend that Ms. Miller's stated recollection is by no means sufficiently reliable to prove that the conversations occurred as the government alleged." Id. at 12. To do this, the defendant asserts that he needs the unredacted, original notebooks in which those conversations were recorded; Miller's appointment calendars and telephone logs for the period during which the conversations took place; documents prepared or received by Miller prior to July 14, 2003 that refer to Ambassador Wilson's wife; and documents which purport to describe the conversations Miller had with the defendant. Id. As an example of why he needs these documents, the defendant opines that the portions of Miller's notebooks the government has provided to him contain notations relating to Ambassador Wilson and Valerie Wilson that were likely made before Miller spoke with the defendant. Id. at 13. The defendant posits that the unredacted versions of these notebooks would afford him the ability to confront Miller regarding when she learned about Valerie Wilson and from whom. Id. Moreover, the defendant suggests that
[e]ven if Ms. Wilson's name is not mentioned, notes reflecting the identity of other government officials or reporters to whom Ms. Miller spoke and records reflecting when she spoke to them-combined with information already known to the defense-will allow us to identify who, other than Libby, may have disclosed Ms. Wilson's CIA affiliation to Miller ...