Dealing with TouhyCompelling Non-Party Deposition Testimony from a Government Agent 

Touhy

Litigation arising out of government construction projects often hinges upon obtaining valuable testimony from the nonparty government employees who coordinated, supervised, or determined key aspects of the matters in dispute.  Before litigants can obtain testimony from a government agent or the agency itself, however, they must first navigate the minefield known as “Touhy regulations,” which can present a formidable barrier to obtaining deposition testimony and conducting necessary pretrial discovery.

  1.  Touhy Regulations.

The term “Touhy regulations” derives from the U.S. Supreme Court’s decision in United States ex rel. Touhy v. Regan, 340 U.S. 462 (1951).  In Touhy, the Supreme Court reversed a contempt order entered by a federal district court against an FBI agent who had defied a deposition subpoena in accordance with a Department of Justice regulation issued under the Federal Housekeeping Statute, 5 U.S.C. § 301, which authorizes agencies to adopt regulations regarding “the conduct of [their] employees . . . and the custody, use, and preservation of [agency] records, papers, and property.”  The Court held that the contempt citation was improper because the Department’s regulation, which gave the Attorney General the power to decide whether to comply with a subpoena, was valid, and the agent was simply obeying a lawful instruction from a superior.  The Court found it unnecessary “to consider the ultimate reach of the authority of the Attorney General to refuse to produce at a court’s order the government papers in his possession.”  Id. at 467.

Although the Court’s holding was really quite narrow, federal agencies urged a far more expansive reading of Touhy:  that as long as an agency enacted strict regulations governing the release of information by subordinates, the agency had the authority to defy federal subpoenas.  Thus, in the wake of Touhy, many government agencies refused to permit their agents to testify in litigation unless testifying was on non-controversial issues or would advance the agency’s own interests.  These agencies contended that they were not subject to the obligations imposed by a federal subpoena or Rule 45 of the Federal Rules of Civil Procedure.  Indeed, some agencies even contended that federal courts no longer had the power to enforce deposition subpoenas at all against federal agencies.

  1. Fine-tuning the law regarding Touhy Regulations.

Within the last few decades, federal courts have reined in this expansive reading of Touhy and clarified that, while Touhy regulations may empower the head of a federal agency to decide whether the agency will comply or resist a subpoena, the legal basis for any opposition to the subpoena must derive from an independent source of law such as a governmental privilege or the rules of evidence or procedure.  The Federal appellate courts are split, however, over the issue of judicial review of an agency’s decisions not to comply with a subpoena, with some holding that the agency’s action should be reviewed according to the Federal Rules of Civil Procedure, and others that it should be judged under the Administrative Procedure Act’s (“APA’s”) “arbitrary and capricious” standard, 5 U.S.C. § 706.

The leading case in the former camp is Exxon Shipping Co. v. United States Department of the Interior, 34 F.3d 774 (9th Cir. 1994), in which the Ninth Circuit held that federal agencies have no authority to prohibit their employees from disclosing information in response to a lawful subpoena.  The court observed that “district courts should apply the federal rules of discovery when deciding on discovery requests made against government agencies, whether or not the United States is a party to the underlying action.”  Id. at 780.  In Watts v. SEC, 482 F.3d 501 (D.C. Cir. 2007), the D.C. Circuit followed Exxon’s lead, holding that the Securities and Exchange Commission’s refusal to allow three of its employees to appear for depositions pursuant to subpoenas served by a private litigant was properly reviewable under Rule 45 of the Federal Rules of Civil Procedure.  The court concluded that “an agency’s Touhy regulations do not relieve district courts of the responsibility to analyze privilege or undue burden assertions under Rule 45.”  Id. at 508.  Such regulations are only “relevant for internal housekeeping and determining who within the agency must decide how to respond to a federal court subpoena.  Id. at 09 (citing 5. U.S.C. § 301 (authorizing Touhy regulations but providing:  “This section does not authorize withholding information from the public or limiting the availability of records to the public.”).

The leading authority for the proposition that an agency’s refusal to comply with a subpoena must be reviewed pursuant to the APA is COMSAT Corp. v. NSF, 190 F.3d 269 (4th Cir. 1999), in which the Fourth Circuit expressly declined to follow the Ninth Circuit’s holding in Exxon that nonparty federal agencies must produce evidence in response to the subpoenas of private litigants, subject only to the court’s discretionary right to limit burdensome discovery under the Federal Rules of Civil Procedure.  Observing that the APA is the source of the congressional waiver of sovereign immunity permitting review of a nonparty agency’s refusal to comply with a private litigant’s subpoena, the court reasoned that an agency’s decision may only be reviewed in accordance with the APA’s “deferential standard of review.”  Id. at 277.  Because waivers of sovereign immunity are strictly construed, a prominent treatise on Federal Civil Procedure regards the Fourth Circuit’s interpretation as being “the more reliable.”  9 Moore’s Federal Practice § 45.05[1][a].

  1. Practical Considerations.

Even decisions such as Exxon and Watts still afford special treatment to agencies that object to a particular subpoena on the grounds that it imposes an undue burden or as being obtainable from a more convenient source.  In Exxon, for instance, the Ninth Circuit recognized that the federal government has a “serious and legitimate concern that its employee resources not be commandeered into service by private litigants to the detriment of the smooth functioning of government operations.”  Exxon, 34 F.3d at 779.  The court in Watts likewise recognized the “government’s interest in not being used as a speakers’ bureau for private litigants.”  Watts, 482 F.3d at 509.

Accordingly, litigants should keep several things in mind when seeking to depose a government employee.  First, the deposition subpoena should include a section explaining that the information sought is important to the litigation, that there is not a more convenient source to obtain such information, that the litigation itself is significant, and that the government can provide the information without an undue burden.  The subpoena should also provide a detailed explanation of the subject matter and nature of the testimony sought, and it should comply, to the extent possible, with the Touhy regulations set forth by the agency at issue.

Second, in addition to serving a subpoena on a specific government employee, the litigant should also consider submitting a second subpoena requesting a Rule 30(b)(6) deposition of the agency that, among its topics, covers the knowledge of the targeted individual.  Otherwise, if the agency objects to the first subpoena and the employee refuses to testify, the litigant may be left under Touhy without any recourse or forced to file an action under the APA.  A 30(b)(6) deposition, on the other hand, can sidestep these issues and potentially provide the litigant with the same information.

Third, to the extent that 30(b)(6) deposition subpoena is drafted—or to the extent that the deposition subpoena also includes a request for production of documents—it is important to keep the scope of subpoena narrow and also include a cover letter offering to cooperate with the agency in order to modify the subpoena, if necessary, to accommodate legitimate agency concerns.

Touhy regulations can pose a formidable challenge to litigants seeking to depose a government agent, but—with the aid of favorable caselaw and careful strategy—litigants should be able to traverse the Touhy minefield safely.