Rule 17 Subpoena Changes Go to the Supreme Court

The rule that lets both sides in a federal criminal case subpoena records from banks, phone companies and other outsiders is set to be rewritten. On October 20, 2026, the Judicial Conference of the United States sent proposed amendments to Federal Rule of Criminal Procedure 17 to the Supreme Court. If the Court adopts them and Congress does not act, they take effect December 1, 2027.

A "subpoena" is a court order that makes someone testify or hand over items. A "third party" is anyone who is not the prosecution or the defense, such as a business, an agency or a witness.

Why the rule is being changed

Today, Rule 17(c) says only that a subpoena may order a witness to produce books, papers, documents, data or other objects. Courts have filled in the details. Most rely on the test in United States v. Nixon, 418 U.S. 683 (1974), which asks whether the items are relevant, admissible and specifically identified.

The committee note to the proposal says courts have applied that test inconsistently. It says this has caused "harmful uncertainty" and "unnecessarily restricted access to evidence needed from third parties." It also says some courts read the current rule to bar subpoenas for items at any hearing other than grand jury proceedings and trial.

What the proposed rule would do

The proposal is in the October 20, 2026 package to the Supreme Court. The main changes:

• More hearings covered. A subpoena for items would be available for trial and for hearings on detention, suppression, sentencing and revocation. With the court's permission in a particular case, it could also be used for other evidentiary hearings.
• A written standard. The subpoena must describe each item with "reasonable particularity." It may seek only items that are likely held by the person subpoenaed, not reasonably available from another source, and "likely to be admissible as evidence" in that proceeding. The note says "likely to be admissible" was chosen on purpose over stricter tests some courts use, for example so impeachment evidence can be sought before a witness testifies.
• No motion needed in most cases. A party could serve a subpoena without first asking the court, unless the rule, a local rule or a court order requires a motion.
• When a motion is required. A motion and court order would still be required for subpoenas seeking personal or confidential information about a victim, as the current rule already provides. They would also be required for subpoenas requested by a person representing themselves. When a motion is required, the court must allow it to be filed ex parte (without the other side seeing it) if there is good cause.
• Keeping a subpoena private. When no motion is required, a party would not have to tell the other side it is seeking or has served a subpoena, unless a local rule or court order says otherwise.
• Notice to victims. As under the current rule, before ordering production of a victim's personal or confidential information, the court must, except in exceptional circumstances, require notice to the victim so the victim can object.
• Where items go. Items would go to the court when the subpoena is from a self-represented party or seeks a victim's personal or confidential information. Otherwise, they may go straight to the requesting party's lawyer.

The proposal also says Rule 17 does not require a party to share what it receives with the other side, and that it does not change the discovery rules. The note adds that the rule should still not be used for general discovery or "fishing expeditions."

What happens next

Under the Rules Enabling Act, 28 U.S.C. § 2074, the Supreme Court must send any new rule to Congress by May 1 of the year it is to take effect. The rule then takes effect no earlier than December 1 of that year, unless Congress acts. The Judicial Conference's memo to the Court says these amendments, if adopted and sent to Congress by May 1, 2027, take effect December 1, 2027. Until then, the current Rule 17 and the case law in each district still apply.

What this means now

The proposal does not change anything in a pending case today. If your defense depends on records held by a third party, such as phone, bank, medical or employment records, the current rules and your district's practice control. Ask early which records matter and how to get them in time for a detention hearing, a suppression hearing, sentencing or trial. For how subpoenas work in a grand jury investigation, see our page on federal grand juries.