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United States v. DNRB, Inc.

United States District Court, W.D. Missouri, Western Division

June 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DNRB, INC., d/b/a Fastrack Erectors, Defendant.

          ORDER DENYING SANDBERG PHOENIX & VON GONTARD P.C.'S MOTION TO QUASH SUBPOENA

          GREG KAYS, UNITED STATES DISTRICT COURT CHIEF JUDGE

         This 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).[1] 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 DNRB.

         Prior 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 dissolved.

         Now 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.

         Background

         On April 18, 2017, the Court issued an order setting the sentencing hearing for May 31, 2017, at 2:00 p.m.

         On May 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.

         On May 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 voluntarily dissolved.

         On May 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.

         Less than twenty-four hours before the hearing, on May 30 at 4:40 p.m., Sandberg Phoenix filed the pending motion to quash.

         The 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).

         Later that day, at the scheduled time of the sentencing, the Court held a hearing in the matter.

         Standard

         Under 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 ...


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