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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v. 

Michael Lacey,

Defendant.

No. CR-18-00422-001-PHX-SMB

ORDER 

Pending before this Court is Defendants’ Motion for Issuance of Subpoenas. (Doc. 

1083.) The Government filed a response to the motion (Doc. 1091), and Defendants 

replied. (Doc. 1093.) The Court has reviewed the pleadings and issues the following order. 

I. BACKGROUND

Defendants filed this motion requesting to send subpoenas pursuant to Rule 17(c), 

Fed. R. Crim. P., to the National Center for Missing and Exploited Children (“NCMEC”) 

and the Office of the Attorney General of Arizona (“AZ AG”). Defendants contend 

“[e]vidence of NCMEC and the AZ AG’s communications with the investigators in this 

case, and with each other, will be relevant to show that NCMEC’s and the AZ AG’s views 

of Backpage.com and the Defendants in this case were influenced by political concerns as 

much if not more than legal concerns...” (Doc. 1083 at 4.) Defendants seek four categories 

of documents from the AZ AG, including (1) all correspondence or documents referencing 

Backpage.com, its principles, or employees; (2) all correspondence or documents 

referencing the operations or activities of Backpage.com; (3) all documents referencing 

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any analysis of the legality of the activities of Backpage.com or any of its principles or 

employees; and (4) all correspondence between the AZ AG’s Office and NCMEC or any 

of its employees relating to Backpage.com and any of its principles or employees. (Doc. 

1083-1., Ex. A.) Defendants seek three categories of information from NCMEC, including 

(1) all correspondence or documents referencing the investigation or prosecution of 

Backpage.com and/or any of its principles and employees; (2) all documents reflecting any 

analysis of the legality of operations or activities of Backpage.com or any of its principles 

or employees; and (3) all correspondence or other documents between the AZ AG’s Office 

or any of its employees and NCMEC or any of its employees relating to Backpage.com 

and any of its principles and employees. (Id.)

II. LEGAL STANDARD

A proponent of a subpoena under Rule 17(c) must clear three hurdles: (1) relevancy; 

(2) admissibility; and (3) specificity. U.S. v. Reed, 726 F.2d 570, 577 (9th Cir. 1984) (citing

U.S. v. Nixon, 418 U.S. 683, 700 (1974)). Rule 17(c) “‘was not intended to provide an 

additional means of discovery.’” U.S. v. Hang, 75 F.3d 1275, 1283 (8th Cir. 1996) (quoting 

Bowman Dairy Co. v. United States, 341 U.S. 214, 220 (1951)). If the information sought 

under Rule 17(c) is sought merely for impeachment purposes, it is generally insufficient to 

justify the pretrial production of documents. U.S. v. Fields, 663 F.2d 880, 881 (9th Cir. 

1981) (citing Nixon, 418 U.S. at 701.). A Rule 17(c) subpoena cannot be issued on “‘mere 

hope’ that the desired documents [will] produce favorable evidence.” Hang, 75 F.3d at 

1283. Indeed, a court may properly deny a Rule 17(c) subpoena that constitutes a mere 

“‘fishing expedition.’” See id. at 1283-84. When a proponent of a subpoena merely states 

why he or she wants to look into materials, but fails to set forth what they contain, a court 

may properly quash a subpoena for lack of specificity or relevance. See United States v. 

Arditti, 955 F.2d 331, 346 (5th Cir. 1992) (“he has not set forth what the subpoena’s 

materials contain, forcing the court to speculate as to the specific nature of their contents 

and its relevance.”). Additionally, a party seeking production prior to trial must show that 

the requested evidence is “not otherwise procurable reasonably in advance of trial by the 

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exercise of due diligence.” U.S. v. Nixon, 418 U.S. 683, 699 (1974). 

III. ANALYSIS

Once again Defendants argue that the Government lacks standing to object to their 

proposed subpoenas. However, the Court has already rejected that argument and has ruled 

that the Government has standing to object to Defendants’ Rule 17(c) subpoenas. (Doc. 

1084 at 3.) Accordingly, the Court again denies this argument. 

A. AZ AG Subpoena

The Court declines to entertain Defendants’ subpoena to the AZ AG because the 

documents requested are procurable by other means. See Nixon, 418 U.S. at 699. In 

Arizona, public records may be obtained from state agencies under the Arizona Public 

Records Law. A.R.S. §§ 39-101, et seq. Under the Arizona Public Records Law, all officers 

and public bodies must maintain records that are “reasonably necessary to provide an 

accurate accounting of their official activities and government-funded activities.” A.R.S. § 

39-121.01(B). The statute unquestionably includes the AZ AG. See A.R.S. § 39-

121.01(A)(1)-(2), (B) (defining “Public body” as any public organization or agency 

supported in whole or in part by monies from this state). Any person may request to 

examine public records. A.R.S. § 39-121.01(D). Here, the subpoena to the AZ AG is 

unnecessary because Arizona’s Public Records Law provides an avenue for Defendants to 

obtain the requested documents. Thus, Defendants have not shown that the documents 

requested from the AZ AG are not procurable in advance of trial by the exercise of due 

diligence. Nixon, 418 U.S. at 699. Accordingly, the Court denies Defendants’ requested 

Rule 17(c) subpoena to the AZ AG. 

B. NCMEC Subpoena

As with Defendants’ last proposed subpoena to NCMEC, the Court denies the 

current proposed subpoena to NCMEC. Simply put, the Defendants again attempt to use 

the subpoena process as a discovery tool and attempt to embark on a fishing expedition for 

helpful evidence. See Hang, 75 F.3d at 1283-84. Defendants argue that the documents and 

communications requested are 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 motivated by political concerns,” 

and that the statements from the organization were not supported by legal analysis. (Doc. 

1083 at 4.) The Court sees no other purpose for which the documents can be relevant except 

to impeach the Government’s witnesses, which is insufficient to justify a subpoena under 

Rule 17(c). Fields, 663 F.2d at 881. In addition, Defendants fail to set forth what the 

requested materials contain. See Arditti, 955 F.2d at 346. Defendants have also failed the 

specificity prong of the Nixon analysis. As with Defendants’ last proposed subpoena to 

NCMEC, the current proposed subpoena requests “large swaths” of communications and 

internal documents regarding Backpage.com, its owners, and employees and is not 

specifically tailored to uncover any specific evidence. (Doc. 1084 at 5-6.) Accordingly, the 

Court denies Defendants’ request to send its proposed Rule 17(c) subpoena to NCMEC. 

IV. CONCLUSION

For the reasons discussed above, 

IT IS ORDERED that Defendants’ Motion for Issuance of Subpoenas is denied. (Doc. 

1083.) 

Dated this 11th day of February, 2021.

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