United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court on the Proposed Findings
and Recommended Disposition ("PFRD") of the
Magistrate Judge [Doc. 183], filed October 2, 2019, which
recommends that the Court grant Non-Party Microsoft
Corporation's Motion to Modify Rule 17(c) Subpoena [Doc.
125]. The Court referred the Motion to the Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(A) and Fed. R. Crim.
P. 59(a). [See Doc. 139]. Defendant Rosenschein
objected to the Magistrate Judge's recommendation on
October 16, 2019, [Doc. 185], Microsoft responded to
Defendant's objections on November 8, 2019, [Doc. 190],
and Defendant filed a Reply to Microsoft's Response on
November 27, 2019. [Doc. 196]. Having reviewed the Magistrate
Judge's PFRD and considered the parties' positions,
the Court finds that the Magistrate Judge's findings are
not clearly erroneous and that his conclusions are not
contrary to law. See 28 U.S.C. § 636(b)(1)(A);
Fed. R. Crim. P. 59(a). Therefore, the Court
overrules the objections and
adopts the Magistrate Judge's PFRD.
STANDARD OF REVIEW
filed his objections "under 28 U.S.C. §
636(b)(1)(C) and Federal Rule of Criminal Procedure 59(a)
which provide de novo review of a Magistrate's finding
and recommendations." [Doc. 185, p. 1; see also
Doc. 196, p. 1 ("Dr. Rosenschein seeks de novo
review of the issues presented by Microsoft in its original
motion under 28 U.S.C. § 636(b)(1)(C) and Federal Rule
of Criminal Procedure 59(a).")]. Microsoft did not
challenge Defendant's statement of the standard of
review, even though it noted that "[a]fter the motion
was fully briefed this Court referred Microsoft's motion
to the Magistrate Judge for decision pursuant to 28 U.S.C.
§ 636(b)(1)(/4) and Fed. R. Crim. P. 59(a)." [Doc.
190, p. 3 (emphasis added)]. However, de novo review
is the standard for dispositive recommendations, see
28 U.S.C. § 636(b)(1)(B) and Fed. R. Crim. P. 59(b), and
it does not apply here.
motion to modify a subpoena is a pretrial, non-dispositive
matter. Authority for a district judge to refer such a matter
to a magistrate judge in a criminal case comes from 28 U.S.C.
§ 636(b)(1)(A) and Fed. R. Crim. P. 59(a). If there are
objections to the magistrate judge's recommendations, the
district judge reviews them under a standard of "clearly
erroneous or contrary to law." 28 U.S.C. §
636(b)(1)(A); see also Fed. R. Crim. P. 59(a)
("[t]he district judge must consider timely objections
and modify or set aside any part of the order that is
contrary to law or clearly erroneous.").
Tenth Circuit recently stated, "Rule 59 is 'derived
in part from Federal Rule of Civil Procedure 72.'"
United States v. Doby, 1199');">928 F.3d 1199, 1206 (10th
Cir. 2019) (quoting Fed. R. Crim. P. 59, advisory
committee's note to 2005 amendment). Thus, the Court
takes guidance from the standards applicable under
Fed.R.Civ.P. 72. Under Fed.R.Civ.P. 72, "[t]he clearly
erroneous standard ... requires the reviewing court affirm
unless it 'on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.'" Ocelot Oil Corp. v. Sparrow
Industries, 1458');">847 F.2d 1458, 1464 (10th Cir. 1988)
(quoting United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948)).[1" name="FN1" id="FN1">1] "Under
the 'contrary to law' standard, the district judge
conducts a plenary review of the magistratejudge's legal
determinations, setting aside the magistrate judge's
order only if it applied an incorrect legal standard."
Coll v. Stryker Corp., CV 14-1089 KG/SMV, 2017 WL
3190658, at *7 (D.N.M. 2017) (cited authority omitted).
is charged with the distribution and possession of child
pornography. [See Doc. 1]. Law enforcement began
investigating Defendant after he sent two images through
electronic service provider Chatstep, which Chatstep
identified as child pornography through the use of
Microsoft's PhotoDNA service. PhotoDNA is a cloud-based
service developed by Microsoft in conjunction with the
National Center for Missing and Exploited Children
("NCMEC") to help prevent the sharing of child
pornography. 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.
After receiving the images from Chatstep, NCMEC did not view
them, but forwarded them onto the New Mexico Attorney
General's Office Internet Crimes Against Children Task
issued a subpoena under Fed. R. Crim. P. 17(c) on October 11,
2018, requesting eighteen (18) separate categories of
documents. [Doc. 125-1, p. 6]. Microsoft objected to the
subpoena as overbroad, and, after meeting and conferring,
communications between counsel for Defendant and Microsoft
broke down, resulting in the instant motion practice. The
Magistrate Judge summarized the parties' arguments and
the Court will not revisit them here. Suffice to say, in its
Motion Microsoft asked the Court to find the subpoena to be
unreasonable and oppressive as drafted, and to limit
Microsoft's duty to respond to specific categories of
documents. [See Doc. 125, pp. 17-18]. Pertinent
here, Microsoft asked the Court to limit its duty to produce
"[information regarding the specific CyberTipline
Reports in this case, dated July 31, 2016, and August 8,
briefing on Microsoft's Motion was complete, the Court
referred the Motion to the Magistrate Judge for decision. The
Magistrate Judge issued his PFRD on October 2, 2019,
recommending that Microsoft's Motion be granted and that
Defendant's request for a telephonic hearing on the
Motion be denied. [Doc. 183, p. 13]. The Magistrate Judge
found that as drafted Defendant's subpoena read like
civil discovery requests and failed to meet the specificity
requirement announced in United States v. Nixon, 418
U.S. 683, 700 (1974). [Id., pp. 10-12].
Alternatively, he found that the subpoena should be modified
because Microsoft produced evidence that responding to the
subpoena as drafted would be unreasonable or oppressive.
[Id., p. 12]. The Magistrate Judge recommended that
this Court modify the subpoena and order Microsoft to produce
only certain specific categories of documents.
begins his objections by asserting that the Magistrate Judge
applied the wrong legal standard because the subpoena is
directed at Microsoft, a third party, rather than the
government. [See Doc. 185, pp. 3-8]. Following this
argument, Defendant objects to the Magistrate Judge's
findings regarding the specificity of a number of his
requests. [Id., p. 8]. Defendant fails to
acknowledge that, pursuant to the parties' agreement, the
Magistrate Judge ordered Microsoft to produce information
relevant to the two Cybertips at issue in this case as well
as other limited information sought by the subpoena.
Defendant argues that his other requests, as narrowed by the
parties' negotiations, were not oppressive because of the
extent of Microsoft's resources. [Id., p. 10].
Defendant does not challenge the Magistrate Judge's
finding that the subpoena as drafted should be modified as
oppressive, nor Microsoft's estimate of the cost of
compliance other than to claim that it "is not
sufficiently particularized in Microsoft's declarations
to be reliable." [Id., p. 12]. Finally,
Defendant asks for a hearing "to aid the Court in
resolving the legal issues set forth in the briefs on the
issues presented." [Id., p. 13].
Response to Defendant's objections defends the legal
standard employed by the Magistrate Judge, arguing that
Defendant's proposed lesser standard "has been
roundly rejected by courts across the country, including in
this Circuit." [Doc. 190, p. 4');">p. 4]. Microsoft further
argues that Defendant's objections to the Magistrate
Judge's specificity analysis should be overruled, both
because the Magistrate Judge correctly found the
subpoena's requests to be insufficiently specific, and
because "Defendant fails to acknowledge that Microsoft
already agreed to conduct a reasonable search and
produce non-privilege documents responsive to many of these
requests." [Id., p. 6 (emphasis in original)].
Finally, Microsoft argues in favor of the Magistrate
Judge's finding that compliance with the subpoena as
drafted would be oppressive. [Id., pp. 7-9].
Reply takes issue with the Magistrate Judge's observation
that service providers would be forced to abandon
preventative efforts if subpoenas like the one at issue were
enforced in every case and accuses him of failing to properly
apply the law. [See Doc. 196, p. 5 (stating that the
Magistrate Judge's "rationale in denying Dr.
Rosenschein's subpoena requests underscores the point
that he considered this case to be less about specificity or
evidentiary requirements and more about the magistrate
judge's unfounded and improper concern that 'service
providers would be forced to abandon preventative
efforts.'"). Defendant also argues that
"Microsoft's objections have more to do with
stacking the deck against [him] than ensuring the fair
administration of justice is achieved in this case."
[Id., p. 8]. Finally, Defendant argues that the
Court should "treat Microsoft's litigation positions
and declarations with a healthy degree of skepticism"
because it "protects its customers from criminal
prosecution by not using PhotoDNA on its internal systems ...
while at the same time employing PhotoDNA to prosecute
individuals who use non-Microsoft services like
Chatstep." [Id., p. 10]. Finally, Defendant
requests a hearing before this Court to explain his position
because "all of the evidence requested by Dr.
Rosenschein is relevant and material for Dr. Rosenschein to
prove, as an evidentiary matter, that NCMEC acquiesced in
Microsoft's employing the PhotoDNA search tool, and that
Microsoft intended to assist law enforcement agencies and
criminal prosecutions by providing this service for free to
NCMEC and other qualified entities." [Id., p.
11]. For the reasons explained below, the Court overrules
Defendant's objection that the PFRD applied the wrong