5 C.F.R. Subpart B—Demands or Requests for Testimony and Production of Documents
Title 5 - Administrative Personnel
No employee may produce official records and information or provide any testimony relating to official information in response to a demand or request without the prior, written approval of the General Counsel. The General Counsel, in his or her sole discretion, may grant an employee permission to testify on matters relating to official information, or produce official records and information, in response to a demand or request. Among the relevant factors that the General Counsel may consider in making this decision are whether: (a) The purposes of this part are met; (b) Allowing such testimony or production of records would be necessary to prevent a miscarriage of justice; (c) Allowing such testimony or production of records would assist or hinder the MSPB in performing its statutory duties; (d) Allowing such testimony or production of records would be in the best interest of the MSPB or the United States; (e) The records or testimony can be obtained from other sources; (f) The demand or request is unduly burdensome or otherwise inappropriate under the applicable rules of discovery or the rule of procedure governing the case or mater in which the demand or request arose; (g) Disclosure would violate a statute, Executive Order or regulation; (h) Disclosure would reveal confidential, sensitive, or privileged information, trade secrets or similar, confidential or financial information, otherwise protected information, or information which would otherwise be inappropriate for release; (i) Disclosure would impede or interfere with an ongoing law enforcement investigation or proceeding, or compromise constitutional rights or national security interests; (j) Disclosure would result in the MSPB appearing to favor one litigant over another; (k) Whether the request was served before the demand; (l) A substantial Government interest is implicated; (m) The demand or request is within the authority of the party making it; and (n) The demand or request is sufficiently specific to be answered. A litigant must comply with the following requirements when filing a request for official records and information or testimony under this part. A request should be filed before a demand. (a) The request must be in writing and must be submitted to the Clerk of the Board who will immediately forward the request to the General Counsel. (b) The written request must contain the following information: (1) The caption of the legal proceeding, docket number, and name and address of the court or other authority involved; (2) A copy of the complaint or equivalent document setting forth the assertions in the case and any other pleading or document necessary to show relevance; (3) A list of categories of records sought, a detailed description of how the information sought is relevant to the issues in the legal proceeding, and a specific description of the substance of the testimony or records sought; (4) A statement as to how the need for the information outweighs any need to maintain the confidentiality of the information and outweighs the burden on the MSPB to produce the records or provide testimony; (5) A statement indicating that the information sought is not available from another source, from other persons or entities, or from the testimony of someone other than an MSPB employee, such as a retained expert; (6) If testimony is requested, the intended use of the testimony, and a showing that no document could be provided and used in lieu of testimony; (7) A description of all prior decisions, orders, or pending motions in the case that bear upon the relevance of the requested records or testimony; (8) The name, address, and telephone number of counsel to each party in the case; and (9) An estimate of the amount of time that the requester and other parties will require for each MSPB employee for time spent by the employee to prepare for testimony, in travel, and for attendance in the legal proceeding. (c) The MSPB reserves the right to require additional information to complete the request where appropriate. (d) The request should be submitted at least 30 days before the date that records or testimony is required. Requests submitted in less than 30 days before records or testimony is required must be accompanied by a written explanation stating the reasons for the late request and the reasons for expedited processing. (e) Failure to cooperate in good faith to enable the General Counsel to make an informed decision may serve as the basis for a determination not to comply with the request. (f) The request should state that the requester will provide a copy of the MSPB employee's statement free of charge and that the requester will permit the MSPB to have a representative present during the employee's testimony. Requests or demands for official records or information or testimony under this subpart must be served on the Clerk of the Board, U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419–0002 by mail, fax, or e-mail and clearly marked “Part 1216 Request for Testimony or Official Records in Legal Proceedings.” The request or demand will be immediately forwarded to the General Counsel for processing. (a) After receiving service of a request or demand for testimony, the General Counsel will review the request and, in accordance with the provisions of this subpart, determine whether, or under what conditions, to authorize the employee to testify on matters relating to official information and/or produce official records and information. (b) Absent exigent circumstances, the MSPB will issue a determination within 30 days from the date the request is received. (c) The General Counsel may grant a waiver of any procedure described by this subpart where a waiver is considered necessary to promote a significant interest of the MSPB or the United States, or for other good cause. (d) Certification (authentication) of copies of records. The MSPB may certify that records are true copies in order to facilitate their use as evidence. If a requester seeks certification, the requester must request certified copies from the MSPB at least 30 days before the date they will be needed. The request should be sent to the Clerk of the Board. The General Counsel makes the final determination on demands to requests to employees for production of official records and information or testimony in litigation in which the MSPB is not a party. All final determinations are within the sole discretion of the General Counsel. The General Counsel will notify the requester and, when appropriate, the court of other competent authority of the final determination, the reasons for the grant or denial of the request, and any conditions that the General Counsel may impose on the release of records or information, or on the testimony of an MSPB employee. The General Counsel's decision exhausts administrative remedies for discovery of the information. (a) The General Counsel may impose conditions or restrictions on the testimony of MSPB employees including, for example: (1) Limiting the areas of testimony; (2) Requiring the requester and other parties to the legal proceeding to agree that the transcript of the testimony will be kept under seal; (3) Requiring that the transcript will be used or made available only in the particular legal proceeding for which testimony was requested. The General Counsel may also require a copy of the transcript of testimony at the requester's expense. (b) The MSPB may offer the employee's written declaration in lieu of testimony. (c) If authorized to testify pursuant to this part, an employee may testify as to facts within his or her personal knowledge, but, unless specifically authorized to do so by the General Counsel, the employee shall not; (1) Disclose confidential or privileged information; or (2) For a current MSPB employee, testify as an expert or opinion witness with regard to any matter arising out of the employee's official duties or the functions of the MSPB unless testimony is being given on behalf of the United States (see also 5 CFR 2635.805). (d) The scheduling of an employee's testimony, including the amount of time that the employee will be made available for testimony, will be subject to the MSPB's approval. (a) The General Counsel may impose conditions or restrictions on the release of official records and information, including the requirement that parties to the proceeding obtain a protective order or execute a confidentiality agreement to limit access and any further disclosure. The terms of the protective order or of a confidentiality agreement must be acceptable to the General Counsel. In cases where protective orders or confidentiality agreements have already been executed, the MSPB may condition the release of official records and information on an amendment to the existing protective order or confidentiality agreement. (b) If the General Counsel so determines, original MSPB records may be presented for examination in response to a request, but they may not be presented as evidence or otherwise used in a manner by which they could lose their identity as official MSPB records, nor may they be marked or altered. In lieu of the original records, certified copies may be presented for evidentiary purposes. If a response to a demand or request is required before the General Counsel can make the determination referred to in §1216.206, the General Counsel, when necessary, will provide the court or other competent authority with a copy of this part, inform the court or other competent authority that the request is being reviewed, provide an estimate as to when a decision will be made, and seek a stay of the demand or request pending a final determination. If the court or other competent authority fails to stay a demand or request, the employee upon whom the demand or request is made, unless otherwise advised by the General Counsel, will appear, if necessary, at the stated time and place, produce a copy of this part, state that the employee has been advised by counsel not to provide the requested testimony or produce documents, and respectfully decline to comply with the demand or request, citing United States ex rel. Touchy v. Ragen, 340 U.S. 462 (1951).
Title 5: Administrative Personnel
PART 1216—TESTIMONY BY MSPB EMPLOYEES RELATING TO OFFICIAL INFORMATION AND PRODUCTION OF OFFICIAL RECORDS IN LEGAL PROCEEDINGS
Subpart B—Demands or Requests for Testimony and Production of Documents
§ 1216.201 General prohibition.
§ 1216.202 Factors the MSPB will consider.
§ 1216.203 Filing requirements for litigants seeking documents or testimony.
§ 1216.204 Service of requests or demands.
§ 1216.205 Processing requests or demands.
§ 1216.206 Final determination.
§ 1216.207 Restrictions that apply to testimony.
§ 1216.208 Restrictions that apply to released records.
§ 1216.209 Procedure when a decision is not made prior to the time a response is required.
§ 1216.210 Procedure in the event of an adverse ruling.
