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[Federal Register: April 5, 1995]
     
     
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POSTAL SERVICE
39 CFR Part 265
     
Demands for Testimony or Records in Certain Legal Proceedings 
AGENCY: Postal Service.
     
ACTION: Final rule.
     
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SUMMARY: This rule establishes a procedure for Postal Service response 
to subpoenas or other demands for Postal Service employees to testify 
about, or produce records concerning, Postal Service matters in private 
litigation or other proceedings in which the United States is not a 
party.
     
EFFECTIVE DATE: April 5, 1995.
     
FOR FURTHER INFORMATION CONTACT: Julie A. Holvik, Attorney, (312) 765-5230.
     
SUPPLEMENTARY INFORMATION: The rule provides that, in response to subpoenas
or other demands for testimony or records concerning Postal Service matters
in private litigation or other proceedings in which the United States is not
a party, Postal Service employees may testify or produce records only if the
General Counsel or the General Counsel's delegate authorizes compliance with
the demand. In making this determination, the General Counsel or his or her
delegate will consider whether compliance is in accordance with applicable
laws, privileges, rules, authority, and regulations and would not be contrary
to the interests of the United States.

On February 17, 1995, the Postal Service published a notice of proposed
rulemaking (60 FR 8610-8612) with a 30-day comment period. No comments were
received during the comment period. Accordingly, the rule is adopted as
proposed.
     
List of Subjects in 39 CFR Part 265
     
    Administrative practice and procedure, Freedom of information,
Government employees.
     
    For the reasons set out above, 39 CFR part 265 is amended as
follows.
     
PART 265--RELEASE OF INFORMATION
     
    1. The authority citation for part 265 is revised to read as
follows:
     
    Authority: 5 U.S.C. 552; 5 U.S.C. App. 3; 39 U.S.C. 401, 403,
410, 1001, 2601.
     
    2. Section 265.12 is added to read as follows:
     
     
Sec. 265.12  Demands for testimony or records in certain legal 
proceedings.
     
    (a) Scope and applicability of this section. (1) This section
establishes procedures to be followed if the Postal Service or any 
Postal Service employee receives a demand for testimony concerning or 
disclosure of:
    (i) Records contained in the files of the Postal Service;
    (ii) Information relating to records contained in the files of the
Postal Service; or
    (iii) Information or records acquired or produced by the employee
in the course of his or her official duties or because of the 
employee's official status.
    (2) This section does not create any right or benefit, substantive
or procedural, enforceable by any person against the Postal Service.
    (3) This section does not apply to any of the following:
    (i) Any legal proceeding in which the United States is a party; 
    (ii) A demand for testimony or records made by either House of
Congress or, to the extent of matter within its jurisdiction, any 
committee or subcommittee of Congress;
    (iii) An appearance by an employee in his or her private capacity
in a legal proceeding in which the employee's testimony does not relate 
to the employee's official duties or the functions of the Postal 
Service; or
    (iv) A demand for testimony or records submitted to the Postal
Inspection Service (a demand for Inspection Service records or 
testimony will be handled in accordance with rules in Sec. 265.11).
    (4) This section does not exempt a request from applicable
confidentiality requirements, including the requirements of the Privacy 
Act. 5 U.S.C. 552a.
    (b) Definitions. The following definitions apply to this section: 
    (1) Adjudicative authority includes, but is not limited to, the
following:
    (i) A court of law or other judicial forums, whether local, state,
or federal; and
    (ii) Mediation, arbitration, or other forums for dispute
resolution.
    (2) Demand includes a subpoena, subpoena duces tecum, request,
order, or other notice for testimony or records arising in a legal 
proceeding.
    (3) Employee means a current employee or official of the Postal
Service.
    (4) General Counsel means the General Counsel of the United States
Postal Service, the Chief Field Counsels, or an employee of the Postal 
Service acting for the General Counsel under a delegation of authority.
    (5) Legal proceeding means:
    (i) A proceeding before an adjudicative authority;
    (ii) A legislative proceeding, except for a proceeding before
either House of Congress or before any committee or subcommittee of 
Congress; or
    (iii) An administrative proceeding.
    (6) Private litigation means a legal proceeding to which the United
States is not a party.
    (7) Records custodian means the employee who maintains a requested
record. For assistance in identifying the custodian of a specific 
record, contact [[Page 17225]] the Records Officer, United States 
Postal Service, 475 L'Enfant Plaza, SW, Washington, DC 20260-5240.
    (8) Testimony means statements made in connection with a legal
proceeding, including but not limited to statements in court or other 
forums, depositions, declarations, affidavits, or responses to 
interrogatories.
    (9) United States means the federal government of the United States
and any of its agencies, establishments, or instrumentalities, 
including the United States Postal Service.
    (c) Requirements for submitting a demand for testimony or records.
(1) Ordinarily, a party seeking to obtain records from the Postal 
Service should submit a request in accordance with the provisions of the 
Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Postal 
Service's regulations implementing the FOIA at 39 CFR 265.1 through 
265.9 or the Privacy Act, 5 U.S.C. 552a and the Postal Service's 
regulations implementing the Privacy Act at 39 CFR 266.1 through 266.9.
    (2) A demand for testimony or records issued pursuant to the rules
governing the legal proceeding in which the demand arises must:
    (i) Be in writing;
    (ii) Identify the requested record and/or state the nature of the
requested testimony, describe the relevance of the record or testimony 
to the proceeding, and why the information sought is unavailable by any 
other means; and
    (iii) If testimony is requested, contain a summary of the requested
testimony and a showing that no document could be provided and used in 
lieu of testimony.
    (3) Procedures for service of demand are made as follows:
    (i) Service of a demand for testimony or records (including, but
not limited to, personnel or payroll information) relating to a current 
or former employee must be made in accordance with the applicable rules 
of civil procedure on the employee whose testimony is requested or the 
records custodian. The requester also shall deliver a copy of the 
demand to the District Manager, Customer Services and Sales, for all 
current employees whose work location is within the geographic 
boundaries of the manager's district, and any former employee whose 
last position was within the geographic boundaries of the manager's 
district. A demand for testimony or records must be received by the 
employee whose testimony is requested and the appropriate District 
Manager, Customer Services and Sales, at least ten (10) working days 
before the date the testimony or records are needed.
    (ii) Service of a demand for testimony or records other than those
described in paragraph (c)(3)(i) of this section must be made in 
accordance with the applicable rules of civil procedure on the employee 
whose testimony is requested or the records custodian. The requester 
also shall deliver a copy of the demand to the General Counsel, United 
States Postal Service, 475 L'Enfant Plaza, SW, Washington DC 20260- 
1100, or the Chief Field Counsel. A demand for testimony or records 
must be received by the employee and the General Counsel or Chief Field 
Counsel at least ten (10) working days before the date testimony or 
records are needed.
    (d) Procedures followed in response to a demand for testimony or
records. (1) After an employee receives a demand for testimony or 
records, the employee shall immediately notify the General Counsel or 
Chief Field Counsel and request instructions.
    (2) An employee may not give testimony or produce records without
the prior authorization of the General Counsel.
    (3)(i) The General Counsel may allow an employee to testify or
produce records if the General Counsel determines that granting 
permission:
    (A) Would be appropriate under the rules of procedure governing the
matter in which the demand arises and other applicable laws, 
privileges, rules, authority, and regulations; and
    (B) Would not be contrary to the interest of the United States. The
interest of the United States includes, but is not limited to, 
furthering a public interest of the Postal Service and protecting the 
human and financial resources of the United States.
    (ii) An employee's testimony shall be limited to the information
set forth in the statement described at paragraph (c)(2) of this section 
or to such portions thereof as the General Counsel determines are not 
subject to objection. An employee's testimony shall be limited to facts 
within the personal knowledge of the employee. A Postal Service employee 
authorized to give testimony under this rule is prohibited from giving 
expert or opinion testimony, answering hypothetical or speculative 
questions, or giving testimony with respect to privileged subject 
matter. The General Counsel may waive the prohibition of expert 
testimony under this paragraph only upon application and showing of 
exceptional circumstances and the request substantially meets the 
requirements of this section.
    (4) The General Counsel may establish conditions under which the
employee may testify. If the General Counsel authorizes the testimony 
of an employee, the party seeking testimony shall make arrangements for 
the taking of testimony by those methods that, in the General Counsel's 
view, will least disrupt the employee's official duties. For example, 
at the General Counsel's discretion, testimony may be provided by 
affidavits, answers to interrogatories, written depositions, or 
depositions transcribed, recorded, or preserved by any other means 
allowable by law.
    (5) If a response to a demand for testimony or records is required
before the General Counsel determines whether to allow an employee to 
testify, the employee or counsel for the employee shall do the 
following:
    (i) Inform the court or other authority of the regulations in this
section; and
    (ii) Request that the demand be stayed pending the employee's
receipt of the General Counsel's instructions.
    (6) If the court or other authority declines the request for a
stay, or rules that the employee must comply with the demand regardless 
of the General Counsel's instructions, the employee or counsel for the 
employee shall respectfully decline to comply with the demand, citing 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and the 
regulations in this section.
    (7) The General Counsel may request the assistance of the
Department of Justice or a U.S. Attorney where necessary to represent 
the interests of the Postal Service and the employee.
    (8) At his or her discretion, the General Counsel may grant a
waiver of any procedure described by this section, where waiver is 
considered necessary to promote a significant interest of the United 
States or for other good cause.
    (9) If it otherwise is permissible, the records custodian may
authenticate, upon the request of the party seeking disclosure, copies 
of the records. No employee of the Postal Service shall respond in 
strict compliance with the terms of a subpoena duces tecum unless 
specifically authorized by the General Counsel.
    (e) Postal Service employees as expert witnesses. No Postal Service
employee may 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 Postal Service, for any party other than the United 
States, except that in extraordinary circumstances, the General Counsel 
may approve such expert testimony in private litigation. A Postal 
Service employee may not testify as such an expert witness without the 
express authorization of the General Counsel. A litigant must obtain 
authorization of the General Counsel [[Page 17226]] before designating 
a Postal Service employee as an expert witness.
     
    (f) Substitution of Postal Service employees. Although a demand for
testimony may be directed to a named Postal Service employee, the 
General Counsel, where appropriate, may designate another Postal 
Service employee to give testimony. Upon request and for good cause 
shown (for example, when a particular Postal Service employee has 
direct knowledge of a material fact not known to the substitute 
employee designated by the Postal Service), the General Counsel may 
permit testimony by a named Postal Service employee.
     
    (g) Fees and costs. (1) The Postal Service may charge fees, not to
exceed actual costs, to private litigants seeking testimony or records 
by request or demand. The fees, which are to be calculated to reimburse 
fully the Postal Service for processing the demand and providing the 
witness or records, may include, among others:
     
    (i) Costs of time spent by employees, including attorneys, of the
Postal Service to process and respond to the demand;
     
    (ii) Costs of attendance of the employee and agency attorney at any
deposition, hearing, or trial;
     
    (iii) Travel costs of the employee and agency attorney;
     
    (iv) Costs of materials and equipment used to search for, process,
and make available information.
     
    (2) All costs for employee time shall be calculated on the hourly
pay of the employee (including all pay, allowance, and benefits) and 
shall include the hourly fee for each hour, or portion of each hour, 
when the employee is in travel, in attendance at a deposition, hearing, 
or trial, or is processing or responding to a request or demand.
     
    (3) At the discretion of the Postal Service, where appropriate,
costs may be estimated and collected before testimony is given.
     
    (h) Acceptance of service. This section does not in any way
abrogate or modify the requirements of the Federal Rules of Civil 
Procedure (28 U.S.C. Appendix) regarding service of process.
     
Stanley F. Mires,
3Chief Counsel, Legislative.
[FR Doc. 95-8226 Filed 4-4-95; 8:45 am]
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