United States District Court, W.D. Missouri, Western Division
ORDER DENYING SANDBERG PHOENIX & VON GONTARD
P.C.'S MOTION TO QUASH SUBPOENA
KAYS, UNITED STATES DISTRICT COURT CHIEF JUDGE
criminal case arises from the death of an ironworker, Eric
Roach, on a construction site. He fell while working on a
steel beam 36 feet off the ground without fall protection and
died the next day from his injuries. After a two-day bench
trial, the Court found Defendant DNRB, Inc., d/b/a Fastrack
Erectors (“DNRB”), guilty of violating an OSHA
regulation and causing death, 29 U.S.C. §
666(e). See Mem. Regarding Verdict (Doc.
68); Mem. Order and Verdict Making Findings of Fact and
Conclusions of Law (Doc. 69). The Court has not yet sentenced
to the initially scheduled sentencing hearing, DNRB provided
information to the probation office suggesting it was
incapable of paying a fine. Believing a successor corporation
existed which could pay a fine, the Government issued
subpoenas to several entities, including the law firm
representing DNRB in the related civil matter before the U.S.
Occupational Safety and Health Review Commission, Sandberg
Phoenix & von Gontard P.C. (“Sandberg
Phoenix”). The Government issued the subpoena to
Sandberg Phoenix in order to determine precisely how DNRB was
paying its legal bills despite being administratively
before the Court is Sandberg Phoenix's Motion to Quash
Subpoena (Doc. 81). Finding that the subpoena complies with
Rule 17, the motion is DENIED.
April 18, 2017, the Court issued an order setting the
sentencing hearing for May 31, 2017, at 2:00 p.m.
9, the probation officer released his final presentence
investigation report (“PSR”). The PSR concluded
that based upon financial statements provided by DNRB, which
showed DNRB had a majority of zero balances in its accounts,
DNRB would not be able to pay a fine of any amount either now
or in the future.
11, the Court ordered the parties to brief what they believed
an appropriate sentence would be, particularly given that
DNRB was voluntarily dissolved in January 2016. Among other
questions, the Court asked if a fine was an appropriate
sentence, and if so, how it could be paid since DNRB had
18, the Government served Sandberg Phoenix with a subpoena to
obtain billing records. The subpoena sought: “Any and
all records regarding billing and payment records for the
representation of DNRB, Inc., for the time period from August
1, 2015, through the date of subpoena.” Subpoena at 2
(Doc. 81-1). It directed Sandberg Phoenix to produce the
information at the sentencing hearing.
than twenty-four hours before the hearing, on May 30 at 4:40
p.m., Sandberg Phoenix filed the pending motion to quash.
Government filed its response the next morning. It clarified
that the subpoena is “only seeking information
concerning the amounts billed to the client on a monthly or
other periodic basis, the payments made to the law firm, the
method of payments to the law firm, and the source of the
payments to the law firm.” Resp. at 1 (Doc. 82).
that day, at the scheduled time of the sentencing, the Court
held a hearing in the matter.
Federal Rule of Criminal Procedure 17(c)(1), a party may use
a subpoena to “order the witness to produce any books,
papers, documents, data, or other objects the subpoena
designates” before trial or before they are offered
into evidence. The purpose of the rule is to expedite a trial
or hearing by providing a means before the trial or hearing
to inspect subpoenaed materials. United States v.
Nixon, 418 U.S. 683, 698-99 (1974). Rule 17 is not a
means for ...