United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
H. Ritter, U.S. Magistrate Judge.
matter comes before the Court on Non-Parties Microsoft
Corporation, Courtney Gregoire, and Greg Clark's Motion
to Quash Rule 17(a) Subpoenas, [Doc. 169], filed July 2');">29,
2');">2019, and fully briefed on September 6, 2');">2019. Presiding
District Judge Herrera referred the Motion to the undersigned
Magistrate Judge for decision pursuant to 2');">28 U.S.C. §
636(b)(1)(A) and Fed. R. Crim. p. 5');">p. 59(a). [See Doc.
186]. At issue in Microsoft's Motion is whether the Court
should quash or modify the subpoenas ad testificandum issued
by Defendant Rosenschein to Ms. Gregoire and Mr. Clark under
Rule 17(a) of the Federal Rules of Criminal Procedure. Having
considered the parties' arguments and all pertinent
authority, the Court recommends that the non-parties'
Motion be granted as to Ms. Gregoire but denied in part as to
Rosenschein is charged with the distribution and possession
of child pornography. [See Doc. 1]. As stated by
Judge Herrera, law enforcement began investigating
Rosenschein when the Bernalillo County Sheriff's Office
(“BCSO”) received two CyberTipline Reports from
the NCMEC. [Doc. 151, 2');">2');">p. 2');">2]. The two CyberTipline Reports
that the BCSO received were generated by Chatstep, an
electronic service provider that hosts internet-based
conversations between users. [Id.]. Chatstep was
able to identify the alleged child pornography through its
use of Microsoft's PhotoDNA service. [Id.].
PhotoDNA is a cloud-based service developed by Microsoft to
help prevent the sharing of child pornography.
[Id.]. It works by analyzing digital images to
create a unique “hash value” of a file that is
then matched against databases of hash values of known child
pornography. [Id., p2');">2');">p. 2');">2-3]. Through its use of
PhotoDNA, Chatstep identified two images allegedly
distributed by Rosenschein as child pornography before the
images were submitted to the NCMEC. NCMEC did not view the
images, but determined the probable physical origin of the
images, and forwarded the material to the New Mexico Attorney
General's Office Internet Crimes Against Children Task
Force. This prosecution followed.
motions to suppress, Defendant Rosenschein has
“challenged the constitutionality of the search and
seizure of digital images by Microsoft's PhotoDNA
program.” [Doc. 174');">174');">174');">174, 2');">2');">p. 2');">2 (citing Doc. 74)]. “In
short, Dr. Rosenschein has argued that Microsoft's
longstanding relationship with NCMEC, coupled with
NCMEC's acquiesce (sic) in Microsoft's conduct, and
Microsoft (sic) intention to assist NCMEC and other law
enforcement agencies with the PhotoDNA program, ran afoul of
Dr. Rosenschein's Fourth Amendment Rights to be free of
intrusive governmental oversight.” [Id.
(citing Doc. 71, pp. 13-19)]. Specifically, Defendant
Rosenschein argues that “Microsoft's PhotoDNA
program indiscriminately seized, searched and hashed every
image passing through Chatstep's service without any
concerns about having reasonable suspicion or probable cause
to believe a crime had been committed before doing so.”
support of his motions to suppress, Defendant Rosenschein
subpoenaed two Microsoft employees to testify at Judge
Herrera's hearing on the Motions: Ms. Gregoire and Mr.
Clark. [See Doc. 169-1, p. 5');">p. 5; Doc. 169-2');">2, p. 5');">p. 5]. Ms.
Gregoire and Mr. Clark now move to quash the subpoenas,
claiming that any relevant testimony they could offer would
be cumulative of the testimony of Microsoft employee Jeff
Lilleskare, whose declarations were offered by the United
States in support of its Response and Surreply briefs in
opposition to Defendant Rosenschein's Motion to Suppress
Evidence Under [United States v.] Ackerman[, 831
F.3d 12');">292');">2 (10th Cir. 2');">2016)]. [Doc. 74; see Docs.
82');">2-6 (Lilleskare Declaration), 94-1 (Supplemental
Declaration)]. Ms. Gregoire and Mr. Clark also represent that
testifying at Defendant Rosenschein's suppression hearing
would be unduly burdensome because Ms. Gregoire, as Chief
Digital Safety Officer and Assistant General Counsel at
Microsoft “travel[s] extensively internationally as
well as domestically[, ]” and because Mr. Clark, a
Principal Program Manager at Microsoft, is “responsible
for a number of time sensitive and urgent projects [and
p]reparing for and testifying at the hearing in this case
would interfere with [his] ability to fulfill those
responsibilities in a timely manner.” [Doc. 169-1, p.
1; Doc. 169-2');">2, p. 3');">p. 3].
Rosenschein's Response brief argues that Microsoft's
Motion “fails to address the actual testimony Dr.
Rosenschein seeks from Courtney Gregoire and Greg
Clark.” [Doc. 174');">174');">174');">174, p. 3');">p. 3]. Defendant Rosenschein
explains that Ms. Gregoire “has acknowledged the role
NCMEC had in the development of the PhotoDNA software[,
]” whereas Mr. Lilleskare has “tacit[ly]
assert[ed] that NCMEC was not involved[.]”
[Id., pp. 3');">p. 3-5]. Defendant Rosenschein then
speculates that Ms. Gregoire was present at a meeting wherein
“three entities-Darthmouth (sic) College, NCMEC and
Microsoft-came to develop PhotoDNA.” [Id., p.
5]. Thus, Defendant Rosenschein seeks to have Ms. Gregoire
testify about Microsoft and NCMEC's collaboration in the
development of PhotoDNA. [Id., p. 6]. Additionally,
Defendant Rosenschein seeks to question Ms. Gregoire
“about the ongoing legal relationship between Microsoft
and PhotoDNA concerning the sharing of hash values, the
licensing of PhotoDNA as part of NCMEC's PhotoDNA
initiative … as well has (sic) Microsoft's role in
other areas such as ICAC meetings and law enforcement
support.” [Id., pp. 6-7]. As to Mr. Clark,
Defendant Rosenschein argues that “[q]uite unlike Jeff
Lilleskare, Mr. Clark was instrumental in welcoming Chatstep
to Microsoft's PhotoDNA Cloud Service Program and
troubleshooting Chatstep's set up of the PhotoDNA
program.” [Doc. 174');">174');">174');">174, p. 8]. Defendant Rosenschein then
details an introductory email sent by Mr. Clark which offered
“guidance … in the form of the Sound Practices
Guide…. [which] provides legal considerations to
companies like Chatstep that could ‘be considered to be
an agent of law enforcement' by a Court.”
[Id. (citing Doc. 174');">174');">174');">174-4, p. 7)]. Additionally,
Defendant Rosenschein provides emails between Chatstep, Mr.
Clark and NCMEC indicating that, when Chatstep's
reporting credentials were not initially approved,
“NCMEC responded to Microsoft's request for the
reporting credentials right away without any input from
Chatstep.” [Doc. 174');">174');">174');">174, p. 8]. Finally, Defendant
Rosenschein presents an email from Mr. Clark to Chatstep
explaining “that Microsoft had a preference that the
person attempting to upload a blocked image file not be
notified that the image was blocked or why.”
[Id., pp. 8-9].
their Reply, Ms. Gregoire and Mr. Clark point out that there
is no evidence that Ms. Gregoire was present at the meetings
Defendant Rosenschein referenced in his Response, and in
fact, provide evidence that she was not. [Doc. 177, pp. 5');">p. 5-6].
They also argue that Mr. Lilleskare has “more specific
and detailed knowledge than Ms. Gregoire regarding the
operation and implementation of PhotoDNA.”
[Id., p. 6]. As to Ms. Gregoire's knowledge
regarding Microsoft and NCMEC's contractual relationship,
they argue that much of her knowledge would be privileged,
and that Mr. Lilleskare “is familiar with the
contractual relationship between Microsoft and NCMEC and can
knowledgably testify about this issue.” [Id.,
pp. 7-9]. As to Mr. Clark, they argue that a Chatstep
representative, Saurabh Davala (who will testify at the
hearing), can provide similar information about the
relationship between Chatstep and Microsoft. [Id.,
p. 10]. The non- parties represent that Mr. Lilleskare is
equally competent to testify about Microsoft's preference
to not notify individuals who attempt to upload child
pornography, rendering Mr. Clark's testimony on that
issue cumulative. [Id., p. 11]. Finally, they argue
that Defendant Rosenschein has not rebutted their assertions
that testifying at the hearing would be unduly burdensome.
[Id., p. 12');">2].
Rule of Civil Procedure 17(a) governs subpoenas ad
testificandum in criminal proceedings. However, the Rule is
silent as to whether such subpoenas may be quashed or
modified. On the other hand, the proponent of a subpoena
under Federal Rule of Criminal Procedure 17(c) bears the
burden of proving that it is not “unreasonable or
oppressive.” See U.S. v. Nixon, 418 U.S. 683,
698-699 (1974). As the First Circuit has stated,
“[r]oughly the same standard applies to subpoenas
compelling the attendance of witnesses, i.e.,
subpoenas ad testificandum.” Stern v. U.S. Dist.
Court for the Dist. Of Mass., 2');">214 F.3d 4');">2');">214 F.3d 4, 17 (1st Cir.
2');">2000) (“Although Rule 17(a), which governs such
subpoenas, does not provide explicitly for quashal or
modification, courts routinely have entertained motions
seeking such relief and decided them by reference to
comparable principles.”). “Specifically, a
subpoena ad testificandum survives scrutiny if the party
serving it can show that the testimony sought is both
relevant and material.” Id.
(citations omitted); see also United States v.
North, 713 F.Supp. 1448, 1449 (D.D.C. 1989)
(“[T]he Court is required to determine whether or not
defendant has established that Mr. Reagan's appearance is
necessary to assure defendant a fair trial.”). On the
other hand, there is no violation of Rule 17(a) where a
subpoena is quashed for seeking testimony which is cumulative
or immaterial to the defense. U.S. v. Beasley, 479
F.2');">2d 112');">24, 112');">28 (5th Cir. 1973).
the Court acknowledges that the Federal Rules of Evidence do
not apply at suppression hearings, see United States v.
Miramonted, 2');">2');">365 F.3d 902');">2, 904 (10th Cir. 2');">2004), it finds
certain definitions and descriptions contained therein
useful. For example, the Federal Rules define relevant
evidence as that which “has any tendency to make a fact
more or less probable than it would be without the evidence
[where] the fact is of consequence in determining the
action.” Fed.R.Evid. 401. Irrelevant evidence is not
admissible, Fed.R.Evid. 402');">2, and relevant evidence may be
excluded by the Court if its probative value is
“substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed.R.Evid. 403.
Moreover, every person is competent to be a witness; however,
“[a] witness may testify to a matter only if evidence
is introduced sufficient to support a finding that the
witness has personal knowledge of the matter.”
Fed.R.Evid. 601, 602');">2.
should be noted that Rule 17(c) subpoenas duces tecum are
“more far-reaching than testimonial subpoenas, ”
and neither were “intended to provide an additional
means of discovery.” U.S. v. Boutte,
17cr3338-JMC, 2');">2019 WL 2');">292');">29049, *2');">2 (D.N.M. 2');">2019) (Carson, Cir.
J., Sitting by Designation). As such, a Rule 17(a) subpoena
may only be issued for the purpose of compelling the
attendance of witnesses at formal proceedings, such as grand
jury proceedings, preliminary hearings, and trials. U.S.
v. LaFuente, 2');">2d 1406');">991 F.2');">2d 1406, 1411 (8th Cir. 1993).
Finally, it bears emphasis that the Federal Rules of Criminal
Procedure are generally “to be interpreted to provide
for the just determination of every criminal proceeding, to
secure simplicity in procedure and fairness in
administration, and to eliminate unjustifiable expense and
delay.” Fed. R. Crim 2');">2');">p. 2');">2.
that its role in interpreting the Federal Rules of Criminal
Procedure is to ensure the just determination of every
criminal proceeding and to eliminate unjustifiable expense
and delay, the Court has examined the declarations of Mr.
Lilleskare and compared them to the proposed testimony of Ms.
Gregoire and Mr. Clark as proffered by Defendant Rosenschein.
Having done so, the Court concludes that Ms. Gregoire's
testimony would indeed be cumulative and, therefore, the
subpoena to her should be quashed. However, the Court
concludes that Defendant Rosenschein has plausibly argued
that Mr. Clark has ...