Getting Expert Testimony from Government Witnesses:

What Is A "Touhy Reg"?

Just what is a “Touhy Reg”? Suppose you have a case where the plaintiff was treated by a VA doctor. You want to talk to the VA doctor informally, and then depose the doctor. Thinking that a courtesy call and a letter will do, you call on the doctor for a conference. In short order, you are directed to a central authority in that agency or department, and told you must follow the “Touhy Reg” for that agency or department if you want to get the information.

The “Touhy Reg” moniker comes from the Supreme Court’s decision in United States ex rel. Touhy v. Ragen, 340 U.S. 461, 71 S.Ct. 416, 95 L.Ed. 417 (1951). 

The government’s “housekeeping privilege” goes back to George Washington’s presidency. Not much happened with this issue until the Supreme Court decided the Touhy case in 1951. There, an FBI agent defied a subpoena duces tecum, citing FBI regulations prohibiting their disclosure. Touhy, an Illinois inmate, had filed a habeas corpus proceeding and sued the warden. The United States Supreme Court reversed a contempt order a federal district court had entered against the FBI agent. The Court held that a federal agent who acts according to his agency’s valid, statutorily authorized regulations cannot be held in contempt for those actions. 71 S.Ct. at 419-20. 

The Court examined the reasons for the regulations and their authority, and approved their purpose of centralizing agency determinations about subpoena responses. Hence, regulations issued under the housekeeping statute, 5 U.S.C. § 301, became known as “Touhy Regs.”

Almost universally, a federal fovernment employee is prohibited by regulation from disclosing documents or giving testimony without authorization from an appropriate agency official. This prohibition is found in regulations issued by the agency or department under 5 U.S.C. § 301, known as the "Housekeeping Statute," or in some agencies, under their general administrative authority.

Each agency’s regulations are unique, but generally address two matters:

1. for the federal employee who receives a subpoena, they provide guidance and direction about what the employee should do internally and what the employee is allowed to do on compliance; and

2. for the discovering party, they provide the procedures to obtain agency approval for the production of information.         

These regulations establish a central authority in each agency or department to determine whether and to what extent subpoenas for testimony and documents will be honored. The central authority, on a third party’s proper application, determines whether the agency will comply with the request and allow the testimony or document production, or whether it will deny the request. Denial of the request must have a proper legal basis, like an evidentiary privilege, statutory privacy requirements or confidentiality. The regulations apply only to official documents and testimony relating to agency information. They do not apply to a subpoena served on the federal employee that seeks testimony or documents related to their private, nonofficial life.

The regulation itself does not, and cannot, form the basis for the agency to deny testimony or document production. It is merely the vehicle by which the agency determines whether it will assert a privilege or other reason for non-disclosure. The last sentence of 5 U.S.C. § 301 was added in 1958 to clarify that point."This section does not authorize withholding information from the public or limiting the availability of records to the public.” Section 301 does not provide its own privilege for nondisclosure. Instead, withholding information must be based on a legitimate legal reason, like an evidentiary privilege.

When the agency’s central authority reaches its decision, the employee is notified if and to what extent he or she can respond to the request for testimony or documents. The regulation has the force of law, and the instructions issued are binding on the employee.

A couple of cases are instructive.  In McElya v. Sterling Medical, Inc., 129 F.R.D. 510 (W.D. Tenn. 1990), the plaintiffs bought consolidated medical malpractice suits against the government, Sterling Medical, and Dr. Cox. The government advised plaintiff’s counsel of the Navy’s Touhy Reg. The Navy’s lawyer advised plaintiff’s counsel that all requests to interview, depose or obtain testimony of present or former Navy personnel about factual matters had to be forwarded to the appropriate naval officer exercising general court-martial jurisdiction over the individual. The Navy’s lawyer also warned the plaintiff’s attorney that criminal penalties were available to enforce compliance with the regulation.

The Navy’s regulations imposed severe limitations on disclosure of information by Navy personnel. To comply with the Navy’s Touhy Reg, plaintiff’s counsel had to make a written request setting out 19 things, including a brief summary of the case, and a “statement of understanding that the United States reserves the right to be present at any interview or deposition.” Id., at 512.

Plaintiff’s counsel requested the depositions of present and former Navy personnel and independent contractors, including Sterling Medical and Dr. Cox, co-defendants in the case. Plaintiff’s counsel then noticed Dr. Cox’s deposition. The Navy responded that a proper Touhy Reg request had not been made, and noted that the request for Dr. Cox’s deposition sought opinion and expert testimony. The Navy took the position that it would not authorize the testimony without a showing of “exceptional need or undue circumstances, and that the anticipated testimony will not be adverse” to the government’s interest. The district court noted, “of course, testimony adverse to the interest of the United States was just what Mr. Gordon was seeking.” Id.

The government granted the plaintiff’s attorney’s request to take Dr. Cox’s deposition subject to nine limitations, one of which that Dr. Cox could not testify about “any opinion formulated after the fact, including, but not limited, the issue of causation,” and could not “state any current opinion.”  Id. The plaintiff’s attorney called off Dr. Cox’s deposition and moved for a protective order. 

The district court granted the protective order. The court doubted that Touhy v. Ragen was authority for the Secretary of Navy to promulgate regulations restricting the release of documents under the Rules of Civil Procedure and restrict a litigant’s access in Federal Tort Claims Act cases to Navy employees and former employees. The court also noted the 1958 amendment to the housekeeping statute that added the last sentence to the statute. 

“The Department of the Navy by its regulations here is, in effect, attempting to assert a privilege not recognized by the Federal Rules of Civil Procedure or the law of evidence, that is, a privilege of the Secretary of Navy to decide what, how, and when evidence is made available to an adverse litigant or a court in a Federal Tort Claims Act proceeding.

. . . .the Navy has also attempted to place limitations on the ability of counsel for plaintiff and counsel for the other parties to properly prepare their cases by telling them not undertake to talk to with witnesses connected with the Navy who might have knowledge about this case, on penalty of being criminally prosecuted. The ability to at least attempt to interview is an important component of a party’s litigation preparation. Counsel should not be so limited.”  Id., at 514.

The court noted that there was no privilege that prevented Dr. Cox from giving an expert opinion. Id.

United States ex rel. Roby v. Boeing Co., 189 F.R.D. 512 (S.D. Ohio 1999) is another case discussing the Touhy Regs. There, the government sued Boeing for breach of contract. Boeing retained an expert witness who was a former quality assurance director for the Defense Logistics Agency, an agency within the Department Of Defense.  Id., at 513.

The government told Boeing that Boeing would have to obtain the government’s permission under the Defense Department’s Touhy regulations before Boeing could present testimony of the former employee. Boeing argued that the government had no authority to withhold information in civil litigation or to prohibit former government employees from testifying as experts in litigation with the government. The government responded that Boeing would have to demonstrate “exceptional need or unique circumstances” under the Touhy regulations before Boeing could use a former defense department employee as an expert in litigation with the government. Boeing moved for a protective order prohibiting the government from interfering with Boeing’s retention of the expert witness. 

The district court found that the government could not prohibit its former employee from testifying as a paid expert witness against the government, despite the Touhy regulations. Citing the last sentence of the housekeeping statute added by the 1958 amendment, the district court noted:

“The housekeeping statute is designed to permit an executive agency to manage its internal affairs, including its procedures for releasing official information.  However, the statute explicitly prohibits an executive agency from invoking the statute in order to withhold information.”  Id., at 514.

The district court noted that the Supreme Court’s Touhy decision “determined that the Attorney General had the authority to withdraw from his subordinates the authority to produce the documents at issue,” but did not decide the Attorney General’s authority to refuse to produce the government papers under his charge. Id., at 514-15. The court found that “the Federal Rules of Civil Procedure cannot be trumped by departmental regulations that place arbitrary limits on this court’s discovery powers.” Id., at 517. Moreover, the housekeeping statute did not provide substantive rules regulating the disclosure of governmental information. Id.; Exxon Shipping Co. v. United States Dept. Of Interior, 34 F.3d 774, 776 (9th Cir. 1994) (nothing in text of § 301 empowers federal agency to withhold documents or testimony from federal courts”); In re Bankers Trust Co., 61 F.3d 465, 470-73 (6th Cir. 1995) (federal regulation could not override application of federal rules and divest court of jurisdiction over discovery”).

To the point, the court held, “Touhy does not support such a broad reading as the government seeks.” 189 F.R.D. at 518. The district court cited the Fifth Circuit’s decision in N.L.R.B. v. Capitol Fish Co., 294 F.2d 868 (5th Cir. 1961) construing the housekeeping statute. Since the function of the housekeeping statute is to furnish departments and agencies with housekeeping authority, the reach of the housekeeping statute cannot be extended to vest authority in executive departments to determine whether documents and information are privileged. The housekeeping statute “cannot bar a judicial determination of the question of privilege or demand for the production of evidence found not privileged.” 294 F.2d at 875.