[Code of Federal Regulations]
[Title 32, Volume 5]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR725.4]

[Page 266-267]
 
                       TITLE 32--NATIONAL DEFENSE
 
                   CHAPTER VI--DEPARTMENT OF THE NAVY
 
PART 725_RELEASE OF OFFICIAL INFORMATION FOR LITIGATION PURPOSES AND 
TESTIMONY BY DEPARTMENT OF THE NAVY PERSONNEL--Table of Contents
 
Sec. 725.4  Definitions.

    (a) Determining authority. The cognizant DON or DOD official 
designated to grant or deny a litigation request. In all cases in which 
the United States is, or might reasonably become, a party, or in which 
expert testimony is requested, the Judge Advocate General or the General 
Counsel of the Navy, depending on the subject matter of the request, 
will act as determining authority. In all other cases, the 
responsibility to act as determining authority has been delegated to all 
officers exercising general court-martial convening authority, or to 
their subordinate commands, and to other commands and activities 
indicated in Sec. 725.6.
    (b) DON personnel. Active duty and former military personnel of the 
naval service including retirees; personnel of other DOD components 
serving with a DON component; Naval Academy midshipmen; present and 
former civilian employees of the DON including non-appropriated fund 
activity employees; non-U.S. nationals performing services overseas for 
the DON under provisions of status of forces agreements; and other 
specific individuals or entities hired through contractual agreements by 
or on behalf of DON, or performing services under such agreements for 
DON (e.g., consultants, contractors and their employees and personnel).
    (c) Factual and expert or opinion testimony. DON policy favors 
disclosure of factual information if disclosure does not violate the 
criteria stated in Sec. 725.8. The distinction between factual matters, 
and expert or opinion matters (where DON policy favors non-disclosure), 
is not always clear. The considerations set forth below pertain.
    (1) Naval personnel may merely be percipient witnesses to an 
incident, in which event their testimony would be purely factual. On the 
other hand, they may be involved with the matter only

[[Page 267]]

through an after-the-event investigation (e.g., JAGMAN investigation). 
Describing the manner in which they conducted their investigation and 
asking them to identify factual conclusions in their report would 
likewise constitute factual matters to which they might testify. In 
contrast, asking them to adopt or reaffirm their findings of fact, 
opinions, and recommendations, or asking them to form or express any 
other opinion--particularly one based upon matters submitted by counsel 
or going to the ultimate issue of causation or liability--would clearly 
constitute precluded testimony under the above policy.
    (2) Naval personnel, by virtue of their training, often form 
opinions because they are required to do so in the course of their 
duties. If their opinions are formed prior to, or contemporaneously 
with, the matter in issue, and are routinely required of them in the 
course of the proper performance of their professional duties, they 
constitute essentially factual matters (i.e., the opinion they 
previously held). Opinions formed after the event in question, including 
responses to hypothetical questions, generally constitute the sort of 
opinion or expert testimony which this instruction is intended to 
severely restrict.
    (3) Characterization of expected testimony by a requester as fact, 
opinion, or expert is not binding on the determining authority. When 
there is doubt as to whether or not expert or opinion (as opposed to 
factual) testimony is being sought, advice may be obtained informally 
from, or the request forwarded, to the Deputy Assistant Judge Advocate 
General (General Litigation) or the Associate General Counsel 
(Litigation) for resolution.
    (d) Litigation. All pretrial, trial, and post-trial stages of all 
existing or reasonably anticipated judicial or administrative actions, 
hearings, investigations, or similar proceedings before civilian courts, 
commissions, boards (including the Armed Services Board of Contract 
Appeals), or other tribunals, foreign and domestic. This term includes 
responses to discovery requests, depositions, and other pretrial 
proceedings, as well as responses to formal or informal requests by 
attorneys or others in situations involving, or reasonably anticipated 
to involve, civil or criminal litigation.
    (e) Official information. All information of any kind, however 
stored, in the custody and control of the DOD and its components 
including the DON; relating to information in the custody and control of 
DOD or its components; or acquired by DOD personnel or its component 
personnel as part of their official duties or because of their official 
status within DOD or its components, while such personnel were employed 
by or on behalf of the DOD or on active duty with the United States 
Armed Forces (determining whether ``official information'' is sought, as 
opposed to non-DOD information, rests with the determining authority 
identified in Sec. 725.6, rather than the requester).
    (f) Request or demand (legal process). Subpoena, order, or other 
request by a federal, state, or foreign court of competent jurisdiction, 
by any administrative agency thereof, or by any party or other person 
(subject to the exceptions stated in Sec. 725.5) for production, 
disclosure, or release of official DOD information or for appearance, 
deposition, or testimony of DON personnel as witnesses.