Last substantive revision (Transmittal GR-4) September 2, 2009

Last revised (minor technical changes) July 5, 2016

Guide to Judiciary Policy

Vol. 20: Administrative Claims and Litigation

Ch. 8: Testimony and Production of Records

§ 810 Overview

§ 810.10 Purpose

§ 810.20 Authority

§ 810.30 Definitions

§ 810.40 Applicability

§ 820 Testimony and Production of Records

§ 830 Contents and Timeliness of a Request

§ 840 Identity of Determining Officer

§ 850 Procedure When Request Is Made

§ 810 Overview

§ 810.10 Purpose

(a) These regulations establish policy, assign responsibilities and prescribe 

procedures with respect to:

(1) the production or disclosure of official information or records by the 

federal judiciary; and

(2) the testimony of present or former judiciary personnel relating to 

any official information acquired by any such individual as part of 

that individual’s performance of official duties, or by virtue of that 

individual’s official status, in federal, state, or other legal 

proceedings covered by these regulations.

(b) The purpose of these regulations is, among other things, to:

(1) conserve the time of federal judicial personnel for conducting 

official business;

(2) minimize the involvement of the federal judiciary in issues unrelated 

to its mission;
Guide to Judiciary Policy, Vol. 20, Ch. 8 Page 2 

(3) maintain the impartiality of the federal judiciary in disputes between 

private litigants;

(4) avoid spending the time and money of the United States for private 

purposes; and

(5) protect confidential and sensitive information and the deliberative 

processes of the federal judiciary.

§ 810.20 Authority

Adopted by the Judicial Conference of the United States in March 2003 (JCUS-MAR 03, 

p. 9), these regulations are promulgated under the authority granted the Director of the 

Administrative Office of the U.S. Courts (AO), under the supervision and direction of the 

Conference, to: 

(a) “[s]upervise all administrative matters relating to the offices of clerks and 

other clerical and administrative personnel of the courts” (28 U.S.C. 

§ 604(a)(1));

(b) “[p]erform such other duties as may be assigned to him by. . .the Judicial 

Conference of the United States” (28 U.S.C. § 604(a)(24));

(c) “make, promulgate, issue, rescind, and amend rules and regulations. . .as 

may be necessary to carry out the Director’s functions, powers, duties, 

and authority” (28 U.S.C. § 604(f)); and

(d) “delegate any of the Director’s functions, powers, duties, and authority. . . 

to such officers and employees of the judicial branch of Government as 

the Director may designate” (28 U.S.C. § 602(d)).

§ 810.30 Definitions

Information 

or records

All information, records, documents, or materials of any kind, however stored, 

that are in the custody or control of the federal judiciary or were acquired by 

federal judicial personnel in the performance of their official duties or because 

of their official status.

Judicial 

personnel

All present and former officers and employees of the federal judiciary and any 

other individuals who are or have been appointed by, or subject to the 

supervision, jurisdiction, or control of, the federal judiciary, including 

individuals hired through contractual agreements by or on behalf of the federal 

judiciary, or performing services under such agreements for the federal 

judiciary, such as consultants, contractors, subcontractors, and their 

employees and personnel. This phrase also includes alternative dispute 

resolution neutrals or mediators, special masters, individuals who have served 

and are serving on any advisory committee or in any advisory capacity, and 
Guide to Judiciary Policy, Vol. 20, Ch. 8 Page 3 

§ 810.30 Definitions

any similar personnel performing services for the federal judiciary.

Legal 

proceedings

All pretrial, trial, and post-trial stages of all existing or anticipated judicial or 

administrative actions, hearings, investigations, cases, controversies, or 

similar proceedings, including grand jury proceedings, before courts, 

agencies, commissions, boards or other tribunals, foreign and domestic, or all 

legislative proceedings pending before any state or local body or agency, 

other than those specified in § 810.40(b).

Request An order, subpoena, or other demand of a court, or administrative or other 

authority, of competent jurisdiction, under color of law, or any other request by 

whatever method, for the production, disclosure, or release of information or 

records by the federal judiciary, or for the appearance and testimony of federal 

judicial personnel as witnesses as to matters arising out of the performance of 

their official duties, in legal proceedings. This definition includes requests for 

voluntary production or testimony in the absence of any legal process.

Testimony Any written or oral statement in any form by a witness arising out of the 

performance of the witness’ official duties, including personal appearances 

and statements in court or at a hearing or trial, depositions, answers to 

interrogatories, affidavits, declarations, interviews, telephonic, televised, or 

videotaped remarks, or any other response during discovery or similar 

proceedings that would involve more than production of documents.

§ 810.40 Applicability

(a) These regulations apply to all components and personnel of the federal 

judiciary, except the following agencies and their personnel: 

• Supreme Court of the United States,

• Federal Judicial Center, and

• United States Sentencing Commission. 

(b) These regulations do not apply to:

(1) Legal proceedings in which the federal judiciary or a court or office 

of the federal judiciary is a party.

(2) Legal proceedings, arising out of the performance of official duties 

by federal judicial personnel, in which federal judicial personnel are 

parties.

(3) Legal proceedings in which federal judicial personnel are to testify 

while in leave or off-duty status as to matters that do not arise out 

of the performance of official duties. (Note: These regulations do 
Guide to Judiciary Policy, Vol. 20, Ch. 8 Page 4 

not seek to deny federal judicial personnel access to the courts as 

citizens in their private capacities on off-duty time.)

(4) Congressional requests for testimony or documents.

(5) Requests governed by the garnishment regulations in Guide, Vol. 

20, Ch. 5.

(6) Proceedings conducted under the Judicial Conduct and Disability 

Act, 28 U.S.C. § § 351-364, under the authority conferred on the 

judicial councils of the respective federal judicial circuits by 

28 U.S.C. § 332, or under the authority conferred on the Judicial 

Conference of the United States by 28 U.S.C. § 331. 

(7) Requests by members of the public, when properly made through 

the procedures established by a court for that purpose, for records 

or documents, such as court files or dockets, routinely made 

available to members of the public for inspection or copying.

§ 820 Testimony and Production of Records

(a) Federal judicial personnel may not provide testimony or produce records 

in legal proceedings except as authorized in accordance with these 

regulations.

(b) Testimony may be taken from federal judicial personnel only at the federal 

judicial personnel’s place of business, or at any other place authorized by 

the determining officer designated in § 840(b). Additional conditions may 

be specified by the determining officer. The time for such testimony 

should be reasonably fixed so as to avoid substantial interference with the 

performance of official duties by federal judicial personnel.

(c) Nothing in these regulations should restrict in any way any defenses, 

objections, or privileges that may be asserted by federal judicial personnel 

in response to a request.

(d) These regulations are not intended to, and do not:

(1) waive the sovereign immunity of the United States; or

(2) infringe upon or displace the responsibilities committed to the 

Department of Justice in conducting litigation on behalf of the 

United States in appropriate cases.

(e) These regulations are intended only to govern the internal operation of the 

federal judiciary and are not intended to create, do not create, and may 
Guide to Judiciary Policy, Vol. 20, Ch. 8 Page 5 

not be relied upon to create any right or benefit, substantive or procedural, 

enforceable in law or equity against the United States or against the 

federal judiciary or any court, office, or personnel of the federal judiciary.

§ 830 Contents and Timeliness of a Request

(a) The request for testimony or production of records must set forth, or must 

be accompanied by an affidavit setting forth, a written statement by the 

party seeking the testimony or production of records, or by counsel for the 

party, containing:

• an explanation of the nature of the testimony or records sought,

• the relevance of the testimony or records sought to the legal 

proceedings, and

• the reasons why the testimony or records sought, or the information 

contained therein, are not readily available from other sources or by 

other means. 

(1) This explanation must contain sufficient information for the 

determining officer designated in § 840(b) to determine whether or 

not federal judicial personnel should be allowed to testify or the 

records should be produced.

(2) Where the request does not contain an explanation sufficient for 

this purpose, the determining officer may deny the request or may 

ask the requester to provide additional information.

(b) The request for testimony or production of records, including the written 

statement required by § 830(a), must be provided to the federal judicial 

personnel from whom testimony or production of records is sought at least 

15 working days in advance of the time by which the testimony or 

production of records is to be required. Failure to meet this requirement 

will provide a sufficient basis for denial of the request.

(c) The determining officer designated in § 840(b) has the authority to waive 

the requirements of this section (i.e., § 830) in the event of an emergency 

under conditions which the requester could not reasonably have 

anticipated and which demonstrate a good faith attempt to comply with the 

requirements of these regulations. In no circumstance, however, is a 

requester entitled to consideration of an oral or untimely request. To the 

contrary, whether to permit such an exceptional procedure is a decision 

within the sole discretion of the determining officer.
Guide to Judiciary Policy, Vol. 20, Ch. 8 Page 6

§ 840 Identity of Determining Officer

(a) Federal judicial personnel may not, in response to a request for testimony 

or the production of records in legal proceedings, comment, testify, or

produce records without the prior approval of the determining officer 

designated below in § 840(b).

(b) The determining officer authorized to make determinations under these 

regulations will be as follows:

(1) In the case of a request directed to a federal court of appeals judge, 

district judge, Court of International Trade judge, Court of Federal 

Claims judge, bankruptcy judge, or magistrate judge, or directed to 

a current or former member of such a judge’s personal staff (such 

as a judge’s secretary, law clerk), the determining officer will be the 

federal court of appeals judge, district judge, Court of International 

Trade judge, Court of Federal Claims judge, bankruptcy judge, or 

magistrate judge himself or herself.

(2) In the case of a request directed to a former federal court of 

appeals judge, district judge, Court of International Trade judge, 

Court of Federal Claims judge, bankruptcy judge, or magistrate 

judge, or directed to a former member of a former judge’s personal 

staff who is no longer a court employee and thus is not covered by 

§ 840(b)(1) or (b)(3), the determining officer will be the chief judge 

of the court on which the former judge previously served.

(3) In the case of a request directed to an employee or former 

employee of a court office (other than an employee or former 

employee covered by § 840(b)(1), such as the office of the clerk of 

court, the office of the circuit executive, the staff attorneys’ and/or 

preargument attorneys’ office, the probation and/or pretrial services 

office, and the office of the federal public defender, the determining 

officer will be the unit head of the particular office, such as the:

• clerk of court,

• circuit executive,

• senior staff attorney,

• chief probation officer,

• chief pretrial services officer, or

• federal public defender.

Note: In these instances, the determining officer (except the 

federal public defender, as provided below) should, as provided by 

local rule or order, consult with the chief judge of the court served 

by the particular office regarding the proper response to a request.
Guide to Judiciary Policy, Vol. 20, Ch. 8 Page 7 

The federal public defender, in the case of a request related to the 

defender office’s administrative function (but not requests related to 

the defender office’s provision of representation pursuant to the 

Criminal Justice Act, 18 U.S.C. § 3006A, and related statutes), 

should, as provided by local rule or order, consult with the chief 

judge of the court of appeals that appoints the federal public 

defender regarding the proper response to such a request.

(4) In the case of a request directed to an employee or former 

employee of the AO, the determining officer will be the AO’s

General Counsel.

(5) In the case of a request not specified in subsections (1) through (4) 

above (such as a request made to federal judicial personnel as 

defined in § 810.30 (“judicial personnel”) who are not current or 

former judges or their staff, employees of a court office, or 

employees of the AO), the determining officer will be the officer 

designated to serve as the determining officer by the chief judge of 

the court served by the recipient of the request. In these instances, 

the determining officer (if someone other than the chief judge of the 

relevant court) should, if the circumstances warrant, consult with 

the chief judge of the relevant court regarding the proper response 

to a request.

§ 850 Procedure When Request Is Made

(a) In response to a request for testimony or the production of records by 

federal judicial personnel in legal proceedings covered by these 

regulations, the determining officer may determine:

• whether the federal judicial personnel may be interviewed, 

contacted, or used as witnesses, including as expert witnesses, 

and

• whether federal judicial records may be produced, and what, if any 

conditions will be imposed upon such interview, contact, testimony, 

or production of records.

The determining officer may deny a request if the request does not meet 

any requirement imposed by these regulations.

In determining whether or not to authorize the disclosure of federal judicial 

information or records or the testimony of federal judicial personnel, the 

determining officer will consider, based on the following factors, the effect 

in the particular case, as well as in future cases generally, which testifying 
Guide to Judiciary Policy, Vol. 20, Ch. 8 Page 8

or producing records will have on the ability of the federal judiciary or 

federal judicial personnel to perform their official duties.

(1) The need to avoid spending the resources of the United States for 

private purposes, to conserve the time of federal judicial personnel 

for the performance of official duties, and to minimize the federal 

judiciary’s involvement in issues unrelated to its mission.

(2) Whether the testimony or production of records would assist the 

federal judiciary in the performance of official duties.

(3) Whether the testimony or production of records is necessary to 

prevent the perpetration of fraud or injustice in the case or matter in 

question.

(4) Whether the request is unduly burdensome or is inappropriate 

under applicable court or administrative rules.

(5) Whether the testimony or production of records is appropriate or 

necessary under the rules of procedure governing the case or 

matter in which the request arises, or under the relevant 

substantive law of privilege.

(6) Whether the request is within the proper authority of the party 

making it.

(7) Whether the request meets the requirements of these regulations.

(8) Whether the request was properly served under applicable court, 

administrative, or other rules.

(9) Whether the testimony or production of records would violate a 

statute, regulation, or ethical rule.

(10) Whether the testimony or production of records would disclose 

information regarding the exercise of judicial or quasi-judicial 

responsibilities by federal judicial personnel in the decisional or 

deliberative process.

(11) Whether the testimony or production of records would disclose 

confidential information from or pertaining to a presentence 

investigation report or pertaining to an individual’s probation, 

parole, or supervised release, or would disclose any other 

information that is confidential under any applicable statute or 

regulation.
Guide to Judiciary Policy, Vol. 20, Ch. 8 Page 9 

(12) Whether the testimony or production of records reasonably could 

be expected to result in the appearance of the federal judiciary 

favoring one litigant over another, or endorsing or supporting a 

position advocated by a litigant.

(13) Whether the request seeks testimony, records or documents 

available from other sources.

(14) Whether the request seeks testimony of federal judicial personnel 

as expert witnesses.

(15) Whether the request seeks personnel files, records or documents 

pertaining to a current or former federal judicial officer or employee, 

and

(A) the personnel files, records or documents sought by the 

request may be obtained from the current or former federal 

judicial officer or employee in question, or

(B) the personnel files, records or documents sought by the 

request would be made available to the requester with the 

written consent or authorization of the current or former 

federal judicial officer or employee in question.

(16) Any other consideration that the determining officer designated in 

§ 840(b) may consider germane to the decision.

(b) Federal judicial personnel upon whom a request for testimony or the 

production of records in legal proceedings is made should promptly notify 

the determining officer designated in § 840(b). If the determining officer 

determines, upon consideration of the requirements of these regulations 

and the factors listed in § 850(a), that the federal judicial personnel upon 

whom the request was made should not comply with the request, the 

federal judicial personnel upon whom the request was made should notify 

the requester of these regulations and must respectfully decline to comply 

with the request. In appropriate circumstances federal judicial personnel 

may — through the Department of Justice, or with the assistance of 

retained legal counsel if the Department of Justice is unavailable — file a 

motion, before the appropriate court or other authority, to quash such a 

request or to obtain other appropriate relief.

(c) If, after federal judicial personnel have received a request in a legal 

proceeding and have notified the determining officer in accordance with 

this section, a response to the request is required before instructions from 

the determining officer are received, federal judicial personnel should 

notify the requester of these regulations and inform the requester that the 
Guide to Judiciary Policy, Vol. 20, Ch. 8 Page 10

request is under review pursuant to these regulations. If necessary, 

federal judicial personnel may — through the Department of Justice, or 

with the assistance of retained legal counsel if the Department of Justice 

is unavailable — seek a stay of the request pending a final determination 

by the determining officer, or seek other appropriate relief.

(d) If, in response to action taken under § 850(c), a court of competent 

jurisdiction or other appropriate authority declines to stay the effect of a 

request pending a determination by the determining officer, or if such court 

or other authority orders that the request be complied with notwithstanding 

the final decision of the determining officer, the federal judicial personnel 

upon whom the request was made must notify the determining officer and 

must comply with the determining officer’s instructions regarding 

compliance with the order or request. Unless and until otherwise 

instructed by the determining officer, however, the federal judicial 

personnel upon whom the request was made must respectfully decline to 

comply with the order or request. See United States ex rel. Touhy v. 

Ragen, 340 U.S. 462 (1951).