Title 22—Foreign Relations--Volume 1
PART 713—PRODUCTION OF NONPUBLIC RECORDS AND TESTIMONY OF EMPLOYEES IN LEGAL PROCEEDINGS
§ 713.1   What does this part prohibit?
This part prohibits the release of nonpublic records for legal proceedings or the appearance of an DFC employee to testify in legal proceedings except as provided in this part. Any person possessing nonpublic records may release them or permit their disclosure or release only as provided in this part.
(a) Duty of DFC employees. (1) If you are an DFC employee and you are served with a subpoena requiring you to appear as a witness or to produce records, you must promptly notify the Vice-president/General Counsel in the Department of Legal Affairs. The Vice-President/General Counsel has the authority to instruct DFC employees to refuse to appear as a witness or to withhold nonpublic records. The Vice-President/General Counsel may let an DFC employee provide testimony, including expert or opinion testimony, if the Vice-President/General Counsel determines that the need for the testimony clearly outweighs contrary considerations.
(2) If a court or other appropriate authority orders or demands from you expert or opinion testimony or testimony beyond authorized subjects contrary to the Vice-President/General Counsel's instructions, you must immediately notify the Vice-President/General Counsel of the order and then respectfully decline to comply with the order. You must decline to answer questions on the grounds that this part forbids such disclosure. You should produce a copy of this part, request an opportunity to consult with the Vice-President/General Counsel, and explain that providing such testimony without approval may expose you to disciplinary or other adverse action.
(b) Duty of persons who are not DFC employees. (1) If you are not an DFC employee but have custody of nonpublic records, as defined at § 713.10, and you are served with a subpoena requiring you to produce records or to testify as a witness, you must promptly notify DFC of the subpoena. Also, you must notify the issuing court or authority and the person or entity for whom the subpoena was issued of the contents of this part. Provide notice to DFC by sending a copy of the subpoena to the Vice-President/General Counsel, DFC, 1100 New York Avenue, NW, Washington, DC 20527. After reviewing notice, DFC may advise the issuing court or authority and the person or entity for whom the subpoena was issued that this part applies and, in addition, may intervene, attempt to have the subpoena quashed or withdrawn, or register appropriate objections.
(2) After you notify the Vice-President/General Counsel of the subpoena, respond to the subpoena by appearing at the time and place stated in the subpoena, unless otherwise directed by the Vice President/General Counsel. Unless otherwise authorized by the Vice-President/General Counsel, decline to produce any records or give any testimony, basing your refusal on this part. If the issuing court or authority orders the disclosure of records or orders you to testify, decline to produce records or testify and advise the Vice-President/General Counsel.
(c) Penalties. Anyone who discloses nonpublic records or gives testimony related to those records, except as expressly authorized by DFC or as ordered by a federal court after DFC has had the opportunity to be heard, may face the penalties provided in 18 U.S.C. 641 and other applicable laws. Also, former DFC employees, in addition to the prohibition contained in this part, are subject to the restrictions and penalties of 18 U.S.C. 207.
§ 713.2   When does this part apply?
This part applies if you want to obtain nonpublic records or testimony of an DFC employee for a legal proceeding. It does not apply to records that DFC is required to release, records which DFC discretionarily releases under the Freedom of Information Act (FOIA), records that DFC releases to federal or state investigatory agencies, records that DFC is required to release pursuant to the Privacy Act, 5 U.S.C. 552a, or records that DFC releases under any other applicable authority.
§ 713.3   How do I request nonpublic records or testimony?
To request nonpublic records or the testimony of an DFC employee, you must submit a written request as described in § 713.4 to the Vice-President/General Counsel of DFC. If you serve a subpoena on DFC or an DFC employee before submitting a written request and receiving a final determination, DFC will oppose the subpoena on the grounds that you failed to follow the requirements of this part.
§ 713.4   What must my written request contain?
Your written request for records or testimony must include:
(a) The caption of the legal proceeding, docket number, and name of the court or other authority involved.
(b) 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.
(c) 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.
(d) A statement as to how the need for the information outweighs the need to maintain the confidentiality of the information and outweighs the burden on DFC to produce the records or provide testimony.
(e) A statement indicating that the information sought is not available from another source, such as the requestor's own books and records, other persons or entities, or the testimony of someone other than an DFC employee, such as retained experts.
(f) A description of all prior decisions, orders, or pending motions in the case that bear upon the relevance of the records or testimony you want.
(g) The name, address, and telephone number of counsel to each party in the case.
(h) An estimate of the amount of time you anticipate that you and other parties will need with each DFC employee for interviews, depositions, and/or testimony.
§ 713.5   When should I make my request?
Submit your request at least 45 days before the date you need the records or testimony. If you want your request processed in a shorter time, you must explain why you could not submit the request earlier and why you need such expedited processing. DFC retains full discretion to grant, deny, or propose a new completion date on any request for expedited processing. If you are requesting the testimony of an DFC employee, DFC expects you to anticipate your need for the testimony in sufficient time to obtain it by deposition. The Vice-President/General Counsel may well deny a request for testimony at a legal proceeding unless you explain why you could not have used deposition testimony instead. The Vice-President/General Counsel will determine the location of a deposition, taking into consideration DFC's interest in minimizing the disruption for an DFC employee's work schedule and the costs and convenience of other persons attending the deposition.
§ 713.6   Where should I send my request?
Send your request or subpoena for records or testimony to the attention of the Vice-President/General Counsel, DFC, 1100 New York Avenue NW, Washington, DC 20527.
§ 713.7   What will DFC do with my request?
(a) Factors DFC will consider. DFC may consider various factors in reviewing a request for nonpublic records or testimony of DFC employees, including:
(1) Whether disclosure would assist or hinder DFC in performing its statutory duties or use DFC resources unreasonably, including whether responding to the request will interfere with DFC employees' ability to do their work.
(2) Whether disclosure is necessary to prevent the perpetration of a fraud or other injustice in the matter.
(3) Whether you can get the records or testimony you want from sources other than DFC.
(4) Whether the request is unduly burdensome.
(5) Whether disclosure would violate a statute, executive order, or regulation, such as the Privacy Act, 5 U.S.C. 552a.
(6) Whether disclosure would reveal confidential, sensitive or privileged information, trade secrets or similar, confidential commercial or financial information, or would otherwise be inappropriate for release and, if so, whether a confidentiality agreement or protective order as provided in § 713.9(a) can adequately limit the disclosure.
(7) Whether the disclosure would interfere with law enforcement proceedings, compromise constitutional rights, or hamper DFC programs or other DFC operations.
(8) Whether the disclosure could result in DFC's appearing to favor one litigant over another.
(9) Any other factors DFC determines to be relevant to the interests of DFC.
(b) Review of your request. DFC will process your request in the order it is received. DFC will try to respond to your request within 45 days, but this may vary, depending on the scope of your request.
(c) Final determination. the Vice-President/General Counsel makes the final determination on requests for nonpublic records or DFC employee testimony. All final determinations are in the sole discretion of the Vice-President/General Counsel. The Vice-President/General Counsel will notify you and the court or other authority of the final determination of your request. In considering your request, the Vice-President/General Counsel may contact you to inform you of the requirements of this part, ask that the request or subpoena be modified or withdrawn, or may try to resolve the request or subpoena informally without issuing a final determination.
§ 713.8   If my request is granted, what fees apply?
(a) Generally. You must pay any fees associated with complying with your request, including copying fees for records and witness fees for testimony. The Vice-President/General Counsel may condition the production of records or appearance for testimony upon advance payment of a reasonable estimate of the fees.
(b) Fees for records. You must pay all fees for searching, reviewing and duplicating records produced in response to your request. The fees will be the same as those charged by DFC under its Freedom of Information Act regulations, 22 CFR Part 706, Subpart B, § 706.26.
(c) Witness fees. Your must pay the fees, expenses, and allowances prescribed by the court's rules for attendance by a witness. If no such fees are prescribed, the local federal district court rule concerning witness fees, for the federal district court closest to where the witness appears, will apply. For testimony by current DFC employees, you must pay witness fees, allowances, and expenses to the Vice-President/General Counsel by check made payable to the “US International Development Finance Corporation” within 30 days from receipt of DFC's billing statement. For the testimony of a former DFC employee, you must pay witness fees, allowances, and expenses directly to the former employee, in accordance with 28 U.S.C. 1821 or other applicable statutes.
(d) Certification of records. DFC may authenticate or certify records to facilitate their use as evidence. If you require authenticated records, you must request certified copies at least 45 days before the date they will be needed. Send your request to the Vice-President/General Counsel. DFC will charge you a certification fee of $5.00 per document.
(e) Waiver of fees. A waiver or reduction of any fees in connection with the testimony, production, or certification or authentication of records may be granted in the discretion of the Vice-President/General Counsel. Waivers will not be granted routinely. If you request a waiver, your request for records or testimony must state the reasons why a waiver should be granted.
§ 713.9   If my request is granted, what restrictions may apply?
(a) Records. The Vice-President/General Counsel may impose conditions or restrictions on the release of nonpublic records, including a requirement that you obtain a protective order or execute a confidentiality agreement with the other parties in the legal proceeding that limits access to and any further disclosure of the nonpublic records. The terms of a confidentiality agreement or protective order must be acceptable to the Vice-President/General Counsel. In cases where protective orders or confidentiality agreements have already been executed, DFC may condition the release of nonpublic records on an amendment to the existing protective order or confidentiality agreement.
(b) Testimony. The Vice-President/General Counsel may impose conditions or restrictions on the testimony of DFC employees, including, for example, limiting the areas of testimony or requiring you and the other parties to the legal proceeding to agree that the transcript of the testimony will be kept under seal or will only be used or made available in the particular legal proceeding for which you requested the testimony. The Vice-President/General Counsel may also require you to provide a copy of the transcript of the testimony to DFC at your expense.
§ 713.10   Definitions.
For purposes of this part:
Legal proceedings means any matter before any federal, state or foreign administrative or judicial authority, including courts, agencies, commissions, boards, grand juries, or other tribunals, involving such proceedings as lawsuits, licensing matters, hearings, trials, discovery, investigations, mediation or arbitration. When DFC is a party to a legal proceeding, it will be subject to the applicable rules of civil procedure governing production of documents and witnesses; however testimony and/or production of documents by DFC employees, as defined, will still be subject to this part.
Nonpublic records means any DFC records which are exempt from disclosure by statute or under Part 706, DFC's regulations implementing the provisions of the Freedom of Information Act. For example, this may include records created in connection with DFC's receipt, evaluation and action on actual and proposed DFC finance projects and insurance policies (whether such projects or policies were cancelled or not), including all reports, internal memoranda, opinions, interpretations, and correspondence, whether prepared by DFC employees or by persons under contract, as well as confidential business information submitted by parties seeking to do business with DFC. Whether DFC has actually chosen in practice to apply any exemption to specific documents is irrelevant to the question of whether they are “nonpublic” for the purposes of this Part.
DFC employee means current and former officials, members of the Board of Directors, officers, directors, employees and agents of the US International Development Finance Corporation, including contract employees, consultants and their employees. This definition does not include persons who are no longer employed by DFC and are retained or hired as expert witnesses or agree to testify about general matters, matters available to the public, or matters with which they had no specific involvement or responsibility during their employment.
Subpoena means any order, subpoena for records or other tangible things or for testimony, summons, notice or legal process issued in a legal proceeding.
Testimony means any written or oral statements made by an individual in connection with a legal proceeding, including personal appearances in court or at depositions, interviews in person or by telephone, responses to written interrogatories or other written statements such as reports, declarations, affidavits, or certifications or any response involving more than the delivery of records.