Testimony by Employees and the Production of Documents in Legal Proceedings

DEPARTMENT OF COMMERCE

Office of the Secretary

15 CFR Part 15a

[Docket No. 940706-4206]

RIN: 0690-AA22

Testimony by Employees and the Production of Documents in Legal

Proceedings

AGENCY: Office of the Secretary, Department of Commerce.

ACTION: Proposed rule.

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SUMMARY: The Department of Commerce is proposing to amend 15 CFR Part

15a which prescribes policies and procedures to be followed with

respect to the testimony of Department employees regarding official

matters, and the production of Department documents in legal

proceedings. These regulations would serve as a statement of policy and

the amendments expand the scope of the existing regulations and provide

for more comprehensive standards and guidelines for Department

components, employees, former employees, other federal agencies, and

the public in general regarding the appropriate procedures concerning

testimony and the production of documents.

DATES: November 8, 1994.

ADDRESSES: Written comments should be submitted to: M. Timothy Conner/

Donald J. Reed, U.S. Department of Commerce, Office of the General

Counsel, General Litigation Division, Room 5890, 14th & Constitution

Avenue NW., Washington, DC 20230.

FOR FURTHER INFORMATION CONTACT:

M. Timothy Conner or Donald J. Reed, (202) 482-1067.

SUPPLEMENTARY INFORMATION: Section 301 of Title 5, United States Code,

provides that the head of an Executive department may prescribe

regulations for the custody, use and preservation of its records. The

Supreme Court has upheld the ability of Federal agencies to establish

procedures in section 301 regulations governing the production of

records and testimony in legal proceedings in which the United States

is not a party. United States ex rel. Touhy v. Ragen, 340 U.S. 462

(1951).

These proposed rules would establish Department of Commerce (DOC)

policies and procedures applicable to the production of DOC documents

and/or testimony by DOC employees in legal proceedings. Basically, the

legal proceedings addressed in the rules are any administrative or

judicial activities traditionally conducted within the executive or

judicial branches of Federal, state, local or foreign governmental

entities in which the United States:

(i) Is not a party;

(ii) Is not represented;

(iii) Does not have a direct and substantial interest; and

(iv) Is not providing representation to an individual or entity

that is a party.

Similarly, the proposed rules would not cover activities that are

not legal proceedings such as Congressional request for records or

testimony, or requests for records under the Freedom of Information

Act, 5 U.S.C. 552. In addition, the proposed rules would not infringe

upon or displace responsibilities committed to the Department of

Justice in conducting litigation on behalf of the United States.

Finally, the proposed rules would not remove the need to comply

with any applicable confidentiality provisions such as the Privacy Act,

The Freedom of Information Act or the Trade Secrets Act. In fact, if

the requirements of confidentiality statutes or regulations are not

met, records or testimony cannot be provided even where the

requirements of these regulations are satisfied.

This proposed rule has been determined to be ``not significant''

for purposes of Executive Order 12866.

The General Counsel certified to the Chief Counsel for Advocacy of

the Small Business Administration that this proposed rule, if adopted,

would not have a significant economic impact on a substantial number of

small entities. This is because the proposed rule is established to

facilitate the Department's safeguarding, control and preservation of

its records, information, papers and property. As a result, a

regulatory flexibility analysis was not prepared.

List of Subjects in 15 CFR Part 15a

Administrative practice and procedure, Courts, and Government

employees.

For the reasons set out in the preamble, it is proposed that Part

15a be revised to read as follows:

PART 15a--TESTIMONY BY EMPLOYEES AND THE PRODUCTION OF DOCUMENTS IN

LEGAL PROCEEDINGS

Sec.

15a.1 Scope.

15a.2 Definitions.

15a.3 Demands for testimony or production of documents: Department

policy.

15a.4 Demand for testimony or production of documents: Department

procedures.

15a.5 Procedures when a Department employee receives a subpoena.

15a.6 Legal Proceedings between private litigants: Expert or

opinion testimony.

15a.7 Demands or requests in legal proceedings for records

protected by confidentiality statutes.

15a.8 Testimony of Department employees in proceedings involving

the United States.

Authority: 5 U.S.C. 301; 15 U.S.C. 1501, 1512, 1513, 1515 and

1518; Reorganization Plan No. 5 of 1950, 3 CFR, 1949-1953 Comp., p.

1004; 44 U.S.C. 3101.

Sec. 15a.1 Scope.

(a) This part sets forth the policies and procedures of the

Department of Commerce regarding the testimony of employees, and former

employees, as witnesses in legal proceedings and the production or

disclosure of information contained in Department of Commerce documents

for use in legal proceedings pursuant to a request, order, or subpoena

(collectively referred to in this part as a ``demand'').

(b) This part does not apply to any legal proceeding in which an

employee is to testify while on leave status, regarding facts or events

that are unrelated to the official business of the Department.

(c) This part in no way affects the rights and procedures governing

public access to records pursuant to the Freedom of Information Act,

the Privacy Act or the Trade Secrets Act.

(d) This part is not intended to be relied upon to, and does not,

create any right or benefit, substantive or procedural, enforceable at

law by any party against the United States.

Sec. 15a.2. Definitions.

For the purpose of this part:

(a) Agency counsel means the chief legal officer (or his/her

designee) of an agency within the Department of Commerce.

(b) Component means Office of the Secretary or an operating unit of

the Department as defined in Department Organization Order 1-1.

(c) Demand means a request, order, or subpoena for testimony or

documents for use in a legal proceeding.

(d) Department means the United States Department of Commerce and

its constituent agencies.

(e) Document means any record, paper and other property held by the

Department, including without limitation, official letters, telegrams,

memoranda, reports, studies, calendar and diary entries, maps, graphs,

pamphlets, notes, charts, tabulations, analyses, statistical or

informational accumulations, any kind of summaries of meetings and

conversations, film impressions, magnetic tapes and sound or mechanical

reproductions.

(f) Employee means all current or former employees or officers of

the Department, including commissioned officers of the National Oceanic

and Atmospheric Administration and any other individual who has been

appointed by, or subject to the supervision, jurisdiction or control of

the Secretary of the Department of Commerce.

(g) General Counsel means the General Counsel of the Department or

other Department employee to whom the General Counsel has delegated

authority to act under this part.

(h) Legal proceeding means all pretrial, trial and post trial

stages of all existing or reasonably anticipated judicial or

administrative actions, hearings, investigations, or similar

proceedings before courts, commissions, boards or other tribunals,

foreign or domestic. This phrase includes all phases of discovery as

well as responses to formal or informal requests by attorneys or others

involved in legal proceedings.

(i) Official business means the authorized business of the

Department.

(j) Secretary means the Secretary of the Department of Commerce.

(k) Solicitor means the Solicitor of the Patent and Trademark

Office.

(l) Testimony means a statement in any form, including personal

appearances before a court or other legal tribunal, interviews,

depositions, telephonic, televised, or videotaped statements or any

responses given during discovery or similar proceedings, which response

would involve more than the production of documents.

(m) United States means the Federal Government, its departments and

agencies, and individuals acting on behalf of the Federal Government.

Sec. 15a.3 Demand for testimony or production of documents: Department

policy.

No employee shall in response to a demand, produce any documents,

or provide testimony regarding any information relating to, or based

upon Department of Commerce documents, or disclose any information or

produce materials acquired as part of the performance of that

employee's official duties, or because of that employee's official

status without the prior authorization of the General Counsel, or the

Solicitor, or the appropriate agency counsel. The reasons for this

policy are as follows:

(a) To conserve the time of Department employees for conducting

official business;

(b) To minimize the possibility of involving the Department in

controversial issues that are not related to the Department's mission;

(c) To prevent the possibility that the public will misconstrue

variances between personal opinions of Department employees and

Department policy;

(d) To avoid spending the time and money of the United States for

private purposes;

(e) To preserve the integrity of the administrative process; and

(f) To protect confidential, sensitive information and the

deliberative process of the Department.

Sec. 15a.4 Demand for testimony or production of documents: Department

procedures.

(a) Whenever a demand for testimony or for the production of

documents is made upon an employee, the employee shall immediately

notify the General Counsel (Room 5890, U.S. Department of Commerce,

Washington, D.C. 20230, (202) 482-1067) or appropriate agency counsel.

When a demand for testimony or for the production of documents is made

upon an employee of the Patent and Trademark Office, the employee

should immediately notify the Solicitor, by phone, (703) 305-9035; by

mail addressed Solicitor, Box 8, Patent and Trademark Office,

Washington, D.C. 20231; or in person to 2121 Crystal Drive, Crystal

Park 2, Suite 918, Arlington, Virginia 22215.

(b) A Department employee may not give testimony, produce

documents, or answer inquiries from a person not employed by the

Department regarding testimony or documents subject to a demand or a

potential demand under the provisions of this part without the approval

of the General Counsel, or the Solicitor, or the appropriate agency

counsel. A Department employee shall immediately refer all inquiries

and Demands to the General Counsel, or the Solicitor, or appropriate

agency counsel. Where appropriate, the General Counsel, or the

Solicitor, or appropriate agency counsel, may instruct the Department

employee, orally or in writing, not to give testimony or produce

documents.

(c) (1) Demand for testimony or documents. A demand for the

testimony of a Department employee shall be addressed to the General

Counsel, Room 5890, Department of Commerce, Washington, D.C. 20230 or

appropriate agency counsel. A demand for testimony of an employee of

the Patent and Trademark Office shall be mail addressed to the

Solicitor, Box 8, Patent and Trademark Office, Washington, D.C. 20231;

or in person to 2121 Crystal Drive, Crystal Park 2, Suite 918,

Arlington, Virginia 22215.

(2) Subpoenas. A subpoena for testimony by a Department employee or

a document shall be served in accordance with the Federal Rules of

Civil or Criminal Procedure or applicable state procedure and a copy of

the subpoena shall be sent to the General Counsel, or the Solicitor, or

appropriate agency counsel.

(3) Affidavit. Except when the United States is a party, every

demand shall be accompanied by an affidavit or declaration under 28

U.S.C. 1746 or, if an affidavit is not feasible, a statement setting

forth the title of the legal proceeding, the forum, the requesting

party's interest in the legal proceeding, the reason for the demand, a

showing that the desired testimony or document is not reasonably

available from any other source, and if testimony is requested, the

intended use of the testimony, a general summary of the desired

testimony, and a showing that no document could be provided and used in

lieu of testimony. The purpose of this requirement is to assist the

General Counsel, or the Solicitor, or appropriate agency counsel in

making an informed decision regarding whether testimony or the

production of a document(s) should be authorized.

(d) A certified copy of a document for use in a legal proceeding

may be provided upon written request and payment of applicable fees.

Written requests for certification shall be addressed to the agency

counsel for the component having possession, custody, or control of the

document. Unless governed by another applicable provision of law or

component regulation, the applicable fee includes charges for

certification and reproduction as set out in 15 CFR 4.9. Other

reproduction costs and postage fees, as appropriate, must also be borne

by the requester.

(e) The Secretary retains the authority to authorize and direct

testimony in those cases where a statute or Presidential order mandates

a personal decision by the Secretary.

(f) The General Counsel, or the Solicitor, or appropriate agency

counsel may consult or negotiate with an attorney for a party or the

party if not represented by an attorney, to refine or limit a demand so

that compliance is less burdensome or obtain information necessary to

make the determination required by paragraph (b) of this section.

Failure of the attorney to cooperate in good faith to enable the

General Counsel, or the Solicitor, or the Secretary, or the appropriate

agency counsel to make an informed determination under this part may

serve, where appropriate, as a basis for a determination not to comply

with the demand.

(g) A determination under this Part to comply or not to comply with

a demand is not an assertion or waiver of privilege, lack of relevance,

technical deficiency or any other ground for noncompliance.

(h) The General Counsel, or the Solicitor, or appropriate agency

counsel may waive any requirements set forth under this section when

circumstances warrant.

Sec. 15a.5 Procedures when a Department employee receives a subpoena.

(a) A Department employee who receives a subpoena shall immediately

forward the subpoena to the General Counsel, or the appropriate agency

counsel. In the case of an employee of the Patent and Trademark Office,

the subpoena shall immediately be forwarded to the Solicitor. The

General Counsel, or the Solicitor, or appropriate agency counsel will

determine the extent to which a Department employee will comply with

the subpoena.

(b) If an employee is served with a subpoena that the General

Counsel, or the Solicitor, or appropriate agency counsel determines

should not be complied with, the General Counsel, Solicitor or

appropriate agency counsel will attempt to have the subpoena withdrawn

or modified. If this cannot be done, the General Counsel, Solicitor or

appropriate agency counsel will attempt to obtain Department of Justice

representation for the employee and move to have the subpoena modified

or quashed. If, because of time constraints, this is not possible prior

to the compliance date specified in the subpoena, the employee should

appear at the time and place set forth in the subpoena. If legal

counsel cannot appear on behalf of the employee, the employee should

produce a copy of the Department's regulations and inform the legal

tribunal that he/she has been advised by counsel not to provide the

requested testimony and/or produce documents. If the legal tribunal

rules that the demand in the subpoena must be complied with, the

employee shall respectfully decline to comply with the demand. United

States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).

(c) Where the Department employee is an employee of the Office of

the Inspector General, the Inspector General in consultation with the

General Counsel, will make a determination under paragraphs (a) and (b)

of this section.

Sec. 15a.6 Legal Proceedings between private litigants: Expert or

opinion testimony.

In addition to the policies and procedures as outlined in

Secs. 15a.1 through 15a.6, the following applies to legal proceedings

between private litigants:

(a) If a Department employee is authorized to give testimony in a

legal proceeding not involving the United States, the testimony, if

otherwise proper, shall be limited to facts within the personal

knowledge of the Department employee. Employees, with or without

compensation, shall not provide expert testimony in any legal

proceedings regarding Department information, subjects or activities

except on behalf of the United States or a party represented by the

United States Department of Justice. However, upon a showing by the

requester that there are exceptional circumstances and that the

anticipated testimony will not be adverse to the interest of the

Department or the United States, the General Counsel, or the Solicitor,

or appropriate agency counsel may, in writing grant special

authorization for the employee to appear and give the expert or opinion

testimony.

(b) (1) If, while testifying in any legal proceeding, an employee

is asked for expert or opinion testimony regarding official DOC

information, subjects or activities, which testimony has not been

approved in advance in accordance with these regulations, the witness

shall:

(i) Respectfully decline to answer on the grounds that such expert

or opinion testimony is forbidden by these regulations;

(ii) Request an opportunity to consult with the General Counsel, or

the Solicitor, or appropriate agency counsel before giving such

testimony; and

(iii) Explain that upon such consultation, approval for such

testimony may be provided.

(2) If the witness is then ordered by the body conducting the

proceeding to provide expert or opinion testimony regarding official

DOC information, subjects or activities without the opportunity to

consult with either the General Counsel, or the Solicitor, or

appropriate agency counsel, the witness shall respectfully refuse to

provide such testimony. See United States ex rel. Touhy v. Ragen, 340

U.S. 462 (1951).

(c) If an employee is unaware of these regulations and provides

expert or opinion testimony regarding official DOC information,

subjects or activities in a legal proceeding without the aforementioned

consultation, the witness shall, as soon after testifying as possible,

inform the General Counsel, or the Solicitor, or appropriate agency

counsel that such testimony was given and provide a written summary of

the expert or opinion testimony provided.

Sec. 15a.7 Demands or requests in legal proceedings for records

protected by confidentiality statutes.

Demands in legal proceedings for the production of records, or for

the testimony of Department employees regarding information protected

by the Privacy Act, 5 U.S.C. 552a, the Trade Secrets Act, 18 U.S.C.

1905 or other confidentiality statutes, must satisfy the requirements

for disclosure set forth in those statutes before the records may be

provided or testimony given. The General Counsel, or the Solicitor, or

appropriate agency counsel should first determine if there is a legal

basis to provide the testimony or records sought under applicable

confidentiality statutes before applying Secs. 15a.1 through 15a.8.

Where an applicable confidentiality statute mandates disclosure,

Secs. 15a.1 through 15a.8 will not apply.

Sec. 15a.8 Testimony of Department employees in proceedings involving

the United States.

The following section applies in legal proceedings in which the

United States is a party:

(a) A Department employee may not testify as an expert or opinion

witness for any other party other than the United States.

(b) Whenever, in any legal proceeding involving the United States,

a request is made by an attorney representing or acting under the

authority of the United States, the General Counsel, or the Solicitor,

or appropriate agency counsel will make all necessary arrangements for

the Department employee to give testimony on behalf of the United

States. Where appropriate, the General Counsel, or the Solicitor, or

appropriate agency counsel may require reimbursement to the Department

of the expenses associated with a Department employee giving testimony

on behalf of the United States.

Alden F. Abbott,

Assistant General Counsel for Finance and Litigation.

[FR Doc. 94-22173 Filed 9-8-94; 8:45 am]

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