Overview
For decades, criminal defense attorneys have struggled with a procedural catch‑22 under Federal Rule of Criminal Procedure 17: while the rule allows subpoenas to obtain documents and other evidence, courts often require proof that the material will be admissible at trial before granting access. This forces defendants into a difficult position, as they must show the contents and admissibility of evidence they have not yet seen in order to obtain it.
Yet last year, the US Judicial Conference's Committee on Rules of Practice and Procedure approved several proposed amendments to federal procedural rules for public comment. These amendments span appellate, bankruptcy, evidentiary, and civil rules. Spurred by white-collar defense attorneys of the New York City Bar, only one criminal amendment was proposed—a change to Federal Rule of Criminal Procedure 17.1
For white‑collar defendants, the amendments could help overcome long‑standing barriers to accessing exculpatory evidence essential to mounting a defense, even if the final product stops short of fully aligning criminal discovery with its civil counterpart.
Rule 17 and Nixon
By way of background, Rule 17 allows parties to subpoena documents and objects from witnesses. Enacted in the 1940s, the rule grants courts broad authority to compel the production of documents, data, and physical evidence for an adequate defense.2 However, courts may quash subpoenas that impose unreasonable or oppressive burdens on nonparties, especially when seeking sensitive victim information. See Fed. R. Crim. P. 17(c)(2)–(3).
As with many areas of the law, Rule 17 undertook new life in the aftermath of Watergate. In United States v. Nixon, 418 US 683 (1974), the Supreme Court addressed whether a nonparty—President Richard Nixon—could be subpoenaed to produce Oval Office tape recordings and documents related to the Watergate break-in via Rule 17 for use in the criminal trial of top White House aides.3 In an opinion by Chief Justice Burger, the Court unanimously rejected the president's claim of absolute executive privilege, holding that while executive privilege exists, it must yield to the needs of criminal justice when evidence is demonstrably relevant to a pending prosecution. Id. at 713. Regarding Rule 17 subpoenas, the Court required parties to clear several "hurdles" to subpoena materials: (1) relevancy, (2) specificity, (3) necessity, (4) good faith, (5) pre-trial timing, and (6) admissibility. See id. at 699–700. Thus, the Court created what became known as the "Nixon standard."
Problems with Nixon
Problems quickly arose following the Court's 1974 opinion. The Nixon standard devolved into a patchwork of local interpretations. The most significant fissure sees some courts require a showing of only "potentially admissible" evidence, whereas others demand parties to show that evidence "will be admissible."4 Fortunately for parties in the Southern District, the Second Circuit reads "admissible" to not require proof that evidence will be admitted. E.g., In re Irving, 600 F.2d 1027 (2d Cir. 1979).
But the certainty of admissibility exacerbates another related issue: certainty of substance. Some courts require near-verbatim recitation of the sought-after documents' contents, an impossible hurdle without having the documents in your physical possession.5 Therein lies the catch-22. Take, for example, a securities fraud case against a corporate CFO. Defense counsel suspects that internal audit reports held by an outside accounting firm would show the transactions were properly disclosed. Under Nixon, she must describe the reports' contents and prove admissibility without seeing the reports—forcing a choice between revealing her defense strategy to meet the standard and abandoning the effort to obtain potentially exculpatory evidence.
Meanwhile, other discrepancies involve Rule 17's scope. Despite a Nixon footnote that expressly stated it was "not decid[ing]" whether a different standard should apply to nonparty subpoenas, Nixon, 418 US at 699 n.12, every federal circuit has applied the Nixon standard.6 With reservations, the Southern District applies the Nixon standard to nonparty subpoenas. See United States v. Nachamie, 91 F. Supp. 2d 552, 562 (S.D.N.Y. 2000) (suggesting nonparty subpoenas should be granted if they are simply reasonable and unoppressive); United States v. Rajaratnam, 753 F. Supp. 2d 317, 320 n.1 (S.D.N.Y. 2011) (noting that while civil defendants can get documents "reasonably calculated to lead to the discovery of admissible evidence," criminal defendants facing liberty penalties cannot obtain documents "material to his defense" from nonparties).
Finally, there is also significant variation among districts about whether a motion or court order is required before serving a Rule 17 subpoena.7Some districts require motions for all subpoenas, others only for those seeking confidential victim information.8
US Judicial Conference Committee's Proposals
In August 2025, the Judicial Conference's Rules of Practice and Procedure published its proposed amendments on Rule 17 from its Criminal Rules Advisory Committee.9 These amendments spawned from recommendations by the New York City Bar Association's White Collar Crime Committee. The NYC Bar advanced several reasons to rework Rule 17, such as the Nixon footnote, defense-prosecution disequilibrium, and inconsistency between Rule 16 discovery restrictions that inherently do not apply to Rule 17 subpoenas.10
The NYC Bar proposed, in relevant part, to abandon Nixon, instead requiring a party to demonstrate only a "material" connection between the requested documents and the defense. It also recommended that no court order be required to issue a subpoena.11
On the whole, the Judicial Conference's Advisory Committee proposed a more modest set of revisions, proposing to:12
- Loosen—not abandon—the Nixon standard:
- A party must describe each item with reasonable particularity
- Items must be likely to be possessed by the recipient
- Items must be not reasonably available from another source
- Items must be, or contain information that is, "likely to be admissible as evidence" in the designated proceeding
- Explicitly expand Rule 17's scope to other critical proceedings, such as sentencing hearings, suppression hearings, and revocation hearings.
- Permit Rule 17 motions without court order, except for:
- Subpoenas seeking personal or confidential information about a victim
- Subpoenas by self-represented parties
- When required by local rule or court order
- Permit ex parte motions for good cause, but when no motion is required, parties generally have no duty to disclose the subpoena to opposing parties absent court order.
- Disclose materials obtained via subpoena to opposing parties only if independently discoverable under Rule 16 and other discovery rules.
- Miscellaneous provisions include special requirements for pro se litigants and modernized terminology (e.g., "electronically stored information" and "data").
Lingering Questions
These amendments appear to represent a modest, incremental compromise—but they could leave fundamental issues unresolved. For one, the Nixon uncertainties still remain; national uniformity may prove elusive. In addition, the new "likely to be admissible as evidence" standard is still restrictive. Notably, the Advisory Committee itself rejected a broader standard that would have allowed subpoenas for evidence "likely to lead to" admissible evidence, dashing hopes to make criminal discovery on par with the more flexible civil discovery standards.
Questions also remain. Is revealing defense trial strategy alone sufficient "good cause" to warrant ex parte subpoenas? Will courts interpret "likely to be admissible" differently? And with caveats for local rules, will we recreate the patchwork problem? Indeed, more issues could arise before the closing of the comment period, which is scheduled for February 16.13
Next Steps
Over the next several months, the Rules Committee is slated to hold a series of meetings. Under the Rules Enabling Act, 28 USC. §§ 2072–2077, the Advisory Committee will then review any comments, and may approve or withdraw the amendments before forwarding it to the Standing Committee in fall of 2026. The amendments will then head to the Supreme Court. If approved, the Court will send them to Congress by May 2027 for a December 1 effective date, absent congressional action.14
As it stands, the amendments offer benefits for white-collar defense strategies. By lowering the standard to "likely admissible" and expanding Rule 17's reach to key pretrial and sentencing proceedings, the amendments could open new avenues for gathering critical financial records, correspondence, and other materials without tipping trial strategy to the government. However, because the amendments stop short of adopting the broader "likely to lead to admissible evidence" standard used in civil cases, the white-collar bar will still face limits that constrain pretrial investigations.
1 Comm. on R. of Prac. & Proc., US Judicial Conf., Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure, and the Rules of Evidence (Aug. 2025), https://www.uscourts.gov/sites/default/files/document/preliminary-draft-of-proposed-amendments-to-federal-rules_august2025.pdf.
2 Norah Senftleber, No More Nixon: A Proposed Change to Rule 17(c) of the Federal Rules of Criminal Procedure, 92 Fordham L. Rev. 1697, 1705 (2024), https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=6070&context=flr.
4 Comm. on R. of Prac. & Proc., Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure, and the Rules of Evidence at 75.
5 Advisory Comm. on Crim. R., Meeting of the Advisory Committee on Criminal Rules 294 (Apr. 24, 2025), https://www.uscourts.gov/sites/default/files/document/2025-04-criminal-rules-committee-agenda-book.pdf; Senftleber, No More Nixon, 92 Fordham L. Rev. at 1708–09.
6 Senftleber, No More Nixon, 92 Fordham L. Rev. at 1708 n.101.
9 See Comm. on R. of Prac. & Proc., Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure, and the Rules of Evidence.
13 Open Meetings and Hearings of the Rules Committee, US Courts (accessed Jan. 9, 2026), https://www.uscourts.gov/forms-rules/about-rulemaking-process/open-meetings-and-hearings-rules-committee.
14 28 USC. §§ 2073–74.
