Several recent decisions from DC Courts have resticted
the ability of the federal government to refuse compliance with subpoenas. Federal agencies often claim that they are not required to comply based on citation to Touhy
(i.e., Touhy v. Ragen
, 340 U.S. 462, 468 (1951)) regulations. They also often argue that the federal government is not a "person" within the meaning of Rule 45. Judge Urbina
of the DC District recently issued a decision in Securities Exchange Commission v. Selden (In re Subpoenas)
, __ F. Supp. 2d __, 2007 WL
1241862, at *2 (D.D.C. 2007), which held that “Touhy
in no way stands for the proposition that agency regulations alter the procedures set forth in the Federal Rules of Civil Procedure or that agency regulations can preclude the production of documents ‘that are relevant to a judicial proceeding.’” and that “[t]o the extent that the FDA’s [Touhy
] regulations prohibit that which the Federal Rules expressly permit . . . those regulations fail." Thanks to Cale Keable
Boston office for a fine job litigating Selden
(which is linked above).
Similarly, District of Columbia Circuit Court of Appeals recently held that a “federal court litigant . . . can seek to obtain the production of documents from a federal agency by means of a federal subpoena . . . . [and that] neither the Federal Housekeeping Statute nor the Touhy
decision authorizes a federal agency to withhold documents from a federal court." In re Apollo Group, Inc. Sec. Litig.
, 2007 WL
778653, at *5 (D.C. Cir. 2007) (“[I]n Yousuf
, the D.C. Circuit held that ‘the Government is a ‘person’ subject to subpoena under Rule 45 regardless whether it is a party to the underlying litigation.‘”). ABL
recently ran into an obstinate federal agency that, even after Selden
and In re Apollo
, claimed that the federal government was not a person within the meaning of Rule 45 and that its Touhy
regulations allowed it to refuse compliance with a subpoena (which was signed by a federal judge in this case). After considerable discussion (and the drafting of a motion to compel that never got the chance to be e-filed), the federal agency relented somewhat by producing witness statements that it had obtained close in time to the subject event.