Twists and Turns in Subpoena’s on Federal Employees or Agencies:
For documents or a deposition when your case is in a state court:
A state court subpoena cannot be used to obtain documents or to depose a Federal government person or agency. The process is to go through a request called an APA procedure and also comply with Touhy regulations. Each Fed. Agency can also have their own adopted procedure (read = obstacles) in your way of getting them to a deposition and/or documents. The freedom of information act is available too but they can claim privilege on certain docs they don’t want to give up.
For documents using a Federal Subponea when in Fed. Court -
In Federal court, the federal government has waived its sovereign immunity, see 5 U.S.C. § 702, and neither the Federal Housekeeping Statute nor the Touhy decision authorizes a federal agency to withhold documents from a federal court. Exxon Shipping, 34 F.3d at 777-78. To the extent that any Federal regulation may be to the contrary, it would conflict with the Federal Rule of Civil Procedure 45 and exceeds any agency’s authority under the Housekeeping Statute. See In re Bankers Trust Co., 61 F.3d 465, 469-71 (6th Cir. 1995), cert. dismissed, 116 S. Ct. 1711 (1996). Accordingly, in past cases in which a federal-court litigant has come to federal district court to enforce a subpoena duces tecum against a government agency the courts have held that the district court owes no deference to the agency in ruling on whether the documents are covered by any examination privilege. See Schreiber v. Society for Sav. Bancorp, Inc., 11 F.3d 217, 220-21 (D.C. Cir. 1993); Fleet Bank, 967 F.2d at 633-34; Fairfield v. Houston Business Journal, Inc., No. 93-2842, 35 F.3d 562 (5th Cir. 1994).
For a deposition or attendance as a witness at a hearing/trial when in Fed. Court –
This is called an ad testificandum subpoena and your right back facing the Touhy regs again, IF the agency/person you subpoenaed has enacted a Tougy regulation in their policy. If they have then one must proceed under the APA. Moore v. Armour Pharmaceutical Co., 927 F.2d 1194, 1197 (11th Cir. 1991); Davis Enters. v. EPA, 877 F.2d 1181, 1186 (3d Cir. 1989), cert. denied, 493 U.S. 1070 (1990).
The agency can challenge the subpoena but you would get a hearing or at least the opportunity to file a written response. The rule is the closer the agency/person is to your case the more likely you’ll get approval. Having a document tying them to the facts of your case is golden.