[Code of Federal Regulations]
[Title 17, Volume 1]
[Revised as of April 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 17CFR10.68]

[Page 249-251]
 
              TITLE 17--COMMODITY AND SECURITIES EXCHANGES
 
             CHAPTER I--COMMODITY FUTURES TRADING COMMISSION
 
PART 10_RULES OF PRACTICE--Table of Contents
 
                           Subpart E_Hearings
 
Sec.  10.68  Subpoenas.

    (a) Application for and issuance of subpoenas--(1) Application for 
and issuance of subpoena ad testificandum. Any party may apply to the 
Administrative Law Judge for the issuance of a subpoena requiring a 
person to appear and testify (subpoena ad testificandum) at the hearing. 
All requests for the issuance of a subpoena ad testificandum shall be 
submitted in duplicate and in writing and shall be served upon all other 
parties to the proceeding, unless the request is made on the record at 
the hearing or the requesting party can demonstrate why, in the interest 
of fairness or justice, the requirement of a written submission or 
service on one or more of the other parties is not appropriate. A 
subpoena ad testificandum shall be issued upon a showing by the 
requesting party of the general relevance of the testimony being sought 
and the tender of an original and two copies of the subpoena being 
requested, except in those situations described in paragraph (b) of this 
section, where additional requirements are set forth.
    (2) Application for subpoena duces tecum. An application for a 
subpoena requiring a person to produce specified documentary or tangible 
evidence (subpoena duces tecum) at any designated time or place may be 
made by any party to the Administrative Law Judge. All requests for the 
issuance of a subpoena duces tecum shall be submitted in duplicate and 
in writing and shall be served upon all other parties to the proceeding, 
unless the request is made on the record at the hearing or the 
requesting party can demonstrate why, in the interest of fairness or 
justice, the requirement of a written submission or service on one or 
more of the other parties is not appropriate. Except in those situations 
described in paragraph (b) of this section, where additional 
requirements are set forth, each application for the issuance of a 
subpoena duces tecum shall contain a statement or showing of general 
relevance and reasonable scope of the evidence being sought and be 
accompanied by an original and two copies of the subpoena being 
requested, which shall describe the documentary or tangible evidence to 
be subpoenaed with as much particularity as is feasible.
    (3) Standards for issuance of subpoena duces tecum. The 
Administrative Law Judge considering any application for a subpoena 
duces tecum shall issue the subpoena requested if he is satisfied the 
application complies with this section and the request is not 
unreasonable, oppressive, excessive in scope or unduly burdensome. No 
attempt shall be made to determine the admissibility of evidence in 
passing upon an application for a subpoena duces tecum and no detailed 
or burdensome showing shall be required as a condition to the issuance 
of any subpoena.
    (4) Denial of application. In the event the Administrative Law Judge 
determines that a requested subpoena or any of its terms are 
unreasonable, oppressive, excessive in scope, or unduly burdensome, he 
may refuse to issue the subpoena, or may issue it only upon such 
conditions as he determines fairness requires.
    (b) Special requirements relating to application for and issuance of 
subpoenas for commission records and for the appearance of commission 
employees or employees of other agencies--(1) Form. An application for 
the issuance of subpoena shall be made in the form of a written motion 
served upon all other parties, if the subpoena would require
    (i) The production of documents, papers, books, physical exhibits, 
or other material in the records of the Commission;
    (ii) The appearance of a Commissioner or an official or employee of 
the Commission;
    (iii) The appearance of a Commissioner or an official or employee of 
any other state or federal agency in his official capacity.
    (2) Content. The motion shall specifically describe the material to 
be produced, the information to be disclosed, or the testimony to be 
elicited from the witness, and shall show

[[Page 250]]

    (i) The relevance of the material, information, or testimony to the 
matters at issue in the proceeding;
    (ii) The reasonableness of the scope of the proposed subpoena; and
    (iii) That such material, information, or testimony is not available 
from other sources.
    (3) Rulings. The motion shall be decided by the Administrative Law 
Judge and shall provide such terms or conditions for the production of 
the material, the disclosure of the information or the appearance of the 
witness as may appear necessary and appropriate for the protection of 
the public interest.
    (4) Commission review of rulings. Interlocutory review by the 
Commission of a ruling made under this section may be sought in 
accordance with the procedures set forth in Sec.  10.101 without 
certification by the Administrative Law Judge.
    (c) Motions to quash subpoenas; protective orders--(1) Application. 
Within 10 days after a subpoena has been served or at any time prior to 
the return date thereof, a motion to quash or modify the subpoena or for 
a protective order limiting the use or disclosure of any information, 
documents or testimony covered by the subpoena may be filed with the 
Administrative Law Judge who issued it. At the same time, a copy of the 
motion shall be served on the party who requested the subpoena and all 
other parties to the proceeding. The motion shall include a brief 
statement setting forth the basis for the requested relief. If the 
Administrative Law Judge to whom the motion has been directed has not 
acted upon the motion by the return date, the subpoena shall be stayed 
pending his or her final action.
    (2) Disposition. After due notice to the person upon whose request 
the subpoena was issued, and after opportunity for response by that 
person, the Administrative Law Judge may (i) quash or modify the 
subpoena, or (ii) condition denial of the application to quash or modify 
the subpoena upon just and reasonable terms, including, in the case of a 
subpoena duces tecum, a requirement that the person in whose behalf the 
subpoena was issued shall advance the reasonable cost of producing 
documentary or other tangible evidence. The Administrative Law Judge may 
issue a protective order sought under paragraph (c)(1) of this section 
or under any other section of these rules upon a showing of good cause. 
In considering whether good cause exists to issue a protective order, 
the Administrative Law Judge shall weigh the harm resulting from 
disclosure against the benefits of disclosure. Good cause shall only be 
established upon a showing that the person seeking the protective order 
will suffer a clearly defined and serious injury if the order is not 
issued, provided, however, that any such injury shall be balanced 
against the public's right of access to judicial records. No protective 
order shall be granted that will prevent the Division of Enforcement or 
any respondent from adequate presenting its case.
    (d) Attendance and mileage fees. Persons summoned to testify either 
by deposition or at a hearing under requirement of subpoena are entitled 
to the same fees and mileage as are paid to witnesses in the courts of 
the United States. Fees and mileage are paid by the party at whose 
instance the persons are called.
    (e) Service of subpoenas--(1) How effected. Service of a subpoena 
upon a party shall be made in accordance with Sec.  10.12(a) of these 
rules except that only one copy of a subpoena need be served. Service of 
a subpoena upon any other person shall be made by delivering a copy of 
the subpoena to him as provided in paragraphs (e)(2) or (e)(3) of this 
section, as applicable, and by tendering to him or her the fees for one 
day's attendance and mileage as specified in paragraph (d) of this 
section. When the subpoena is issued at the instance of the Commission, 
fees and mileage need not be tendered at the time of service.
    (2) Service upon a natural person. Delivery of a copy of a subpoena 
and tender of the fees to a natural person may be effected by
    (i) Handing them to the person;
    (ii) Leaving them at his office with the person in charge thereof 
or, if there is no one in charge, by leaving them in a conspicuous place 
therein;

[[Page 251]]

    (iii) Leaving them at his dwelling place or usual place of abode 
with some person of suitable age and discretion then residing therein;
    (iv) Mailing them by registered or certified mail to him at his last 
known address; or
    (v) Any other method whereby actual notice is given to him and the 
fees and mileage are timely made available.
    (3) Service upon other persons. When the person to be served is not 
a natural person, delivery of a copy of the subpoena and tender of the 
fees and mileage may be effected by
    (i) Handing them to a registered agent for service, or to any 
officer, director, or agent in charge of any office of such person;
    (ii) Mailing them by registered or certified mail to any such 
representative at his last known address; or
    (iii) Any other method whereby actual notice is given to any such 
representative and the fees and mileage are timely made available.
    (f) Enforcement of subpoenas. Upon failure of any person to comply 
with a subpoena issued at the request of a party, that party may 
petition the Commission in its discretion to institute an action in an 
appropriate U.S. District Court for enforcement of that subpoena. When 
instituting an action to enforce a subpoena requested by the Division of 
Enforcement, the Commission, in its discretion, may delegate to the 
Director of the Division or any Commission employee designated by the 
Director and acting under his or her direction, or to any other employee 
of the Commission, authority to serve as the Commission's counsel in 
such subpoena enforcement action.

[41 FR 2511, Jan. 16, 1976, as amended at 60 FR 54802, Oct. 26, 1995; 63 
FR 55794, Oct. 19, 1998; 63 FR 68829, Dec. 14, 1998; 64 FR 30903, June 
9, 1999]