TOUHY REGULATIONS EXPERT WITNESS TESTIMONY

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					    TOUHY REGULATIONS & EXPERT WITNESS TESTIMONY
                                                     T erry M . Henry
                           Federal Programs B ranch– Civil D ivision– U .S. D epartm ent of Justice
                                                      February 2008



                                          Touhy Regulations

L   Touhy regulations prohibit the unauthorized release of information by current (and
    typically former) agency employees and provide a procedure for centralized agency
    decisionmaking concerning how the agency will respond to a subpoena or other request
    for testimony or documents served on a current or former agency employee. United
    States ex rel. Touhy v. Ragen, 340 U.S. 462, 468 (1951); see 5 U.S.C. § 301.

    L      Factors typically included in such regulations to be considered in determining
           whether to authorize testimony or production:

           Privilege                                    Agency Mission                                Public Interest

           Statutory Constraints                        Agency Resources                              Litigant’s Need

           Ethics & Related Matters                     Cumulative Effect                             Other


    L      While supplying factors to be considered in an agency decision, Touhy regulations
           in and of themselves cannot provide a privilege for withholding evidence.


L   Because centralization of decisionmaking is a valid function of Touhy regulations:

    L      A litigant must comply with the regulations prior to seeking court relief with
           respect to nonparty subpoenas.

    L      A court cannot compel a subpoenaed agency employee to disobey applicable
           Touhy regulations.

    L      When United States is not a party in the case, review of an agency’s decision under
           its Touhy regulations depends on the Circuit

           L        Some Circuits utilize Administrative Procedure Act review

           L        Some Circuits utilize plenary, FED . R. CIV. P. 45 review



L   For additional information on a number of these points, see attached “Overview of
    Defensive Subpoena Practice From a Government Perspective.”



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           Interplay Between Touhy Regulations And Ethics Laws


L   When the United States is not a party to the litigation from which request for testimony
    emanates, Touhy regulations apply fully.


    L      When the United States has no direct or substantial interest in the litigation:


           L        Ethics laws and regulations typically do not apply.


           L        Expert testimony typically may be prohibited via a decision made under
                    agency’s Touhy regulation (subject, of course, to court review).

                    L       Regulations frequently prohibit expert testimony in absence of
                            extraordinary circumstances.


                    L       With respect to current employees, the time and resource drain on
                            the agency, the availability of alternative expert resources, the
                            encumbrance of the agency’s mission, etc. can justify refusal to
                            authorize testimony.


                    L       With respect to former employees, the potential for disclosure of
                            privileged information, the danger of lending the agency’s
                            imprimatur to the testimony, etc. can justify refusal to authorize
                            testimony or at least the imposition of limitations on testimony.


                    L       Policies underlying ethics laws and rules may be considered.




    L      When the United States has a direct or substantial interest in the litigation:


           L        Ethics laws and regulations apply. Such considerations typically become
                    an added element of a decision made under agency’s Touhy regulations.



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          Interplay Between Touhy Regulations And Ethics Laws
                                (cont’d)


L   When the United States is a party to the litigation, Touhy regulations typically have very
    limited application. The waiver of sovereign immunity that permits the United States to be
    a party, generally subjects the government to the Federal Rules like a private litigant. See
    Moseller v. United States, 158 F.2d 380, 382-83 (2d Cir. 1946).



    L      A non-party, independent regulatory agency, however, may be treated as a true
           non-party so that Touhy regulations apply fully. See United States v. AT&T, 461
           F. Supp. 1314, 1330-37 (D.D.C. 1978). Other exceptions also may be argued,
           depending upon the circumstances.



    L      Ethics laws and regulations can apply with respect to both current and former
           employees.



    L      Privileges and other factors under the Federal Rules or articulated in Touhy
           regulations can justify discovery limitations and should be considered.




L   Other Related Issues


    L      Communication



    L      Other




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