Home : Subpoena Regulations Adopted by Judicial Conference
Subpoena Regulations Adopted by Judicial Conference
At its March 2003 meeting, the Judicial Conference
endorsed regulations governing responses to subpoenas issued to federal
judges and employees. By establishing procedures for litigants to follow
to obtain documents or testimony from offices within the judicial branch,
as well as the procedures judges and employees would follow if they receive
subpoenas, these regulations accomplish three goals:
The regulations are principally procedural in nature, and do not interfere with substantive decisions by individual courts and officers as to the availability of official documents and testimony. For example, the regulations provide that for a subpoena directed to a judge or a member of a judge’s personal staff, that judge would be the official authorized to determine the proper substantive response to the subpoena. For a subpoena directed to a court unit or office, the determination would be assigned to the head of the unit or office, in consultation with the chief judge of the court, when appropriate.
Thus, the only real change that these regulations accomplish is to provide the “determining officer” with well-recognized procedural and substantive grounds to respond to a subpoena. The following is the full text of the subpoena regulations, as adopted by the Judicial Conference in March 2003.
Section 1. Purpose.
(a) These regulations establish policy, assign responsibilities and prescribe procedures with respect to: (1) the production or disclosure of official information or records by the federal judiciary, and (2) the testimony of present or former judiciary personnel relating to any official information acquired by any such individual as part of that individual’s performance of official duties, or by virtue of that individual’s official status, in federal, state, or other legal proceedings covered by these regulations.
(b) The purpose of these regulations is, among other things, to: (1) conserve the time of federal judicial personnel for conducting official business; (2) minimize the involvement of the federal judiciary in issues unrelated to its mission; (3) maintain the impartiality of the federal judiciary in disputes between private litigants; (4) avoid spending the time and money of the United States for private purposes; and (5) protect confidential and sensitive information and the deliberative processes of the federal judiciary.
Section 2. Authority.
These regulations are promulgated under the authority granted
the Director of the Administrative Office of the United States Courts, under
and direction of the Judicial Conference of the United States, to “[s]upervise
all administrative matters relating to the offices of clerks and other clerical
and administrative personnel of the courts,” 28 U.S.C.
Section 3. Definitions.
(a) Request. An order, subpoena, or other demand of a court, or administrative or other authority, of competent jurisdiction, under color of law, or any other request by whatever method, for the production, disclosure, or release of information or records by the federal judiciary, or for the appearance and testimony of federal judicial personnel as witnesses as to matters arising out of the performance of their official duties, in legal proceedings. This definition includes requests for voluntary production or testimony in the absence of any legal process.
(b) Judicial personnel. All present and former officers and employees of the federal judiciary and any other individuals who are or have been appointed by, or subject to the supervision, jurisdiction, or control of, the federal judiciary, including individuals hired through contractual agreements by or on behalf of the federal judiciary, or performing services under such agreements for the federal judiciary, such as consultants, contractors, subcontractors, and their employees and personnel. This phrase also includes alternative dispute resolution neutrals or mediators, special masters, individuals who have served and are serving on any advisory committee or in any advisory capacity, and any similar personnel performing services for the federal judiciary.
(c) Legal proceedings. All pretrial, trial, and post-trial stages of all existing or anticipated judicial or administrative actions, hearings, investigations, cases, controversies, or similar proceedings, including grand jury proceedings, before courts, agencies, commissions, boards or other tribunals, foreign and domestic, or all legislative proceedings pending before any state or local body or agency, other than those specified in section 4(b).
(d) Information or records. All information, records, documents, or materials of any kind, however stored, that are in the custody or control of the federal judiciary or were acquired by federal judicial personnel in the performance of their official duties or because of their official status.
(e) Testimony. Any written or oral statement in any form by a witness arising out of the performance of the witness’ official duties, including personal appearances and statements in court or at a hearing or trial, depositions, answers to interrogatories, affidavits, declarations, interviews, telephonic, televised, or videotaped remarks, or any other response during discovery or similar proceedings that would involve more than production of documents.
Section 4. Applicability.
(a) These regulations apply to:
(b) These regulations do not apply to:
Section 5. Policy.
(a) Federal judicial personnel may not provide testimony or produce records in legal proceedings except as authorized in accordance with these regulations.
(b) Testimony may be taken from federal judicial personnel
only at the federal judicial personnel’s place of business, or at any
other place authorized by the determining officer
(c) Nothing in these regulations shall restrict in any way any defenses, objections, or privileges that may be asserted by federal judicial personnel in response to a request.
(d) These regulations are not intended to, and do not:
(e) These regulations are intended only to govern the internal operation of the federal judiciary and are not intended to create, do not create, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable in law or equity against the United States or against the federal judiciary or any court, office, or personnel of the federal judiciary.
Section 6. Contents and timeliness of a request.
(a) The request for testimony or production of records shall set forth, or
shall be accompanied by an affidavit setting forth, a written statement by
the party seeking the testimony or production of records, or by counsel for
the party, containing an explanation of the nature of the testimony or records
sought, the relevance of the testimony or records sought to the legal proceedings,
and the reasons why the testimony or records sought, or the information contained
therein, are not readily available from other sources or by other means. This
explanation shall contain sufficient information for the determining officer
designated in section 7(b) to determine whether or not federal judicial personnel
should be allowed to testify or the records should be produced. Where the request
does not contain an explanation sufficient for this purpose, the determining
officer may deny the request or may ask the requester to provide additional
(c) The determining officer designated in section 7(b) has the authority to waive the requirements of this section (6) in the event of an emergency under conditions which the requester could not reasonably have anticipated and which demonstrate a good faith attempt to comply with the requirements of these regulations. In no circumstance, however, shall a requester be entitled to consideration of an oral or untimely request; to the contrary, whether to permit such an exceptional procedure is a decision within the sole discretion of the determining officer.
Section 7. Identity of determining officer.
(a) Federal judicial personnel shall not, in response to a request for testimony or the production of records in legal proceedings, comment, testify, or produce records without the prior approval of the determining officer designated in section 7(b).
(b) The determining officer authorized to make determinations under these regulations shall be as follows:
Section 8. Procedure when request is made.
(a) In response to a request for testimony or the production of records by federal judicial personnel in legal proceedings covered by these regulations, the determining officer may determine whether the federal judicial personnel may be interviewed, contacted, or used as witnesses, including as expert witnesses, and whether federal judicial records may be produced, and what, if any conditions will be imposed upon such interview, contact, testimony, or production of records. The determining officer may deny a request if the request does not meet any requirement imposed by these regulations. In determining whether or not to authorize the disclosure of federal judicial information or records or the testimony of federal judicial personnel, the determining officer will consider, based on the following factors, the effect in the particular case, as well as in future cases generally, which testifying or producing records will have on the ability of the federal judiciary or federal judicial personnel to perform their official duties.
(b) Federal judicial personnel upon whom a request for testimony or the production of records in legal proceedings is made shall promptly notify the determining officer designated in section 7(b). If the determining officer determines, upon consideration of the requirements of these regulations and the factors listed in section 8(a), that the federal judicial personnel upon whom the request was made should not comply with the request, the federal judicial personnel upon whom the request was made shall notify the requester of these regulations and shall respectfully decline to comply with the request. In appropriate circumstances federal judicial personnel may -- through the Department of Justice, or with the assistance of retained legal counsel if the Department of Justice is unavailable -- file a motion, before the appropriate court or other authority, to quash such a request or to obtain other appropriate relief.
(c) If, after federal judicial personnel have received a request in a legal proceeding and have notified the determining officer in accordance with this section, a response to the request is required before instructions from the determining officer are received, federal judicial personnel shall notify the requester of these regulations and inform the requester that the request is under review pursuant to these regulations. If necessary, federal judicial personnel may -- through the Department of Justice, or with the assistance of retained legal counsel if the Department of Justice is unavailable -- seek a stay of the request pending a final determination by the determining officer, or seek other appropriate relief.
(d) If, in response to action taken under section 8(c), a
court of competent jurisdiction or other appropriate authority declines to
stay the effect of
a request pending a determination by the determining officer, or if such court
or other authority orders that the request be complied with notwithstanding
the final decision of the determining officer, the federal judicial personnel
upon whom the request was made shall notify the determining officer and shall
comply with the determining officer’s instructions regarding compliance
with the order or request. Unless and until otherwise instructed by the determining
officer, however, the federal judicial personnel upon whom the request was
made shall respectfully decline to comply with the order or request. See United
States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).