[Code of Federal Regulations]
[Title 39, Volume 1]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 39CFR265.12]

[Page 111-114]
 
                        TITLE 39--POSTAL SERVICE
 
                 CHAPTER I--UNITED STATES POSTAL SERVICE
 
PART 265_RELEASE OF INFORMATION--Table of Contents
 
Sec.  265.12  Demands for testimony or records in certain legal 

proceedings.

    (a) Scope and applicability of this section. (1) This section 
establishes procedures to be followed if the Postal Service or any 
Postal Service employee receives a demand for testimony concerning or 
disclosure of:
    (i) Records contained in the files of the Postal Service;
    (ii) Information relating to records contained in the files of the 
Postal Service; or
    (iii) Information or records acquired or produced by the employee in 
the course of his or her official duties or because of the employee's 
official status.
    (2) This section does not create any right or benefit, substantive 
or procedural, enforceable by any person against the Postal Service.
    (3) This section does not apply to any of the following:

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    (i) Any legal proceeding in which the United States is a party;
    (ii) A demand for testimony or records made by either House of 
Congress or, to the extent of matter within its jurisdiction, any 
committee or subcommittee of Congress;
    (iii) An appearance by an employee in his or her private capacity in 
a legal proceeding in which the employee's testimony does not relate to 
the employee's official duties or the functions of the Postal Service; 
or
    (iv) A demand for testimony or records submitted to the Postal 
Inspection Service (a demand for Inspection Service records or testimony 
will be handled in accordance with rules in Sec.  265.11).
    (4) This section does not exempt a request from applicable 
confidentiality requirements, including the requirements of the Privacy 
Act. 5 U.S.C. 552a.
    (b) Definitions. The following definitions apply to this section:
    (1) Adjudicative authority includes, but is not limited to, the 
following:
    (i) A court of law or other judicial forums, whether local, state, 
or federal; and
    (ii) Mediation, arbitration, or other forums for dispute resolution.
    (2) Demand includes a subpoena, subpoena duces tecum, request, 
order, or other notice for testimony or records arising in a legal 
proceeding.
    (3) Employee means a current employee or official of the Postal 
Service.
    (4) General Counsel means the General Counsel of the United States 
Postal Service, the Chief Field Counsels, or an employee of the Postal 
Service acting for the General Counsel under a delegation of authority.
    (5) Legal proceeding means:
    (i) A proceeding before an adjudicative authority;
    (ii) A legislative proceeding, except for a proceeding before either 
House of Congress or before any committee or subcommittee of Congress; 
or
    (iii) An administrative proceeding.
    (6) Private litigation means a legal proceeding to which the United 
States is not a party.
    (7) Records custodian means the employee who maintains a requested 
record. For assistance in identifying the custodian of a specific 
record, contact the Manager, Records Office, U.S. Postal Service, 475 
L'Enfant Plaza, SW., Washington, DC 20260, telephone (202) 268-2608.
    (8) Testimony means statements made in connection with a legal 
proceeding, including but not limited to statements in court or other 
forums, depositions, declarations, affidavits, or responses to 
interrogatories.
    (9) United States means the federal government of the United States 
and any of its agencies, establishments, or instrumentalities, including 
the United States Postal Service.
    (c) Requirements for submitting a demand for testimony or records. 
(1) Ordinarily, a party seeking to obtain records from the Postal 
Service should submit a request in accordance with the provisions of the 
Freedom of Information Act (FOIA), 5 U.S.C. 552, and the Postal 
Service's regulations implementing the FOIA at 39 CFR 265.1 through 
265.9 or the Privacy Act, 5 U.S.C. 552a and the Postal Service's 
regulations implementing the Privacy Act at 39 CFR 266.1 through 266.9.
    (2) A demand for testimony or records issued pursuant to the rules 
governing the legal proceeding in which the demand arises must:
    (i) Be in writing;
    (ii) Identify the requested record and/or state the nature of the 
requested testimony, describe the relevance of the record or testimony 
to the proceeding, and why the information sought is unavailable by any 
other means; and
    (iii) If testimony is requested, contain a summary of the requested 
testimony and a showing that no document could be provided and used in 
lieu of testimony.
    (3) Procedures for service of demand are made as follows:
    (i) Service of a demand for testimony or records (including, but not 
limited to, personnel or payroll information) relating to a current or 
former employee must be made in accordance with the applicable rules of 
civil procedure on the employee whose testimony is requested or the 
records custodian. The requester also shall deliver a copy of the demand 
to the District Manager, Customer Services and Sales, for all current 
employees whose work location

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is within the geographic boundaries of the manager's district, and any 
former employee whose last position was within the geographic boundaries 
of the manager's district. A demand for testimony or records must be 
received by the employee whose testimony is requested and the 
appropriate District Manager, Customer Services and Sales, at least ten 
(10) working days before the date the testimony or records are needed.
    (ii) Service of a demand for testimony or records other than those 
described in paragraph (c)(3)(i) of this section must be made in 
accordance with the applicable rules of civil procedure on the employee 
whose testimony is requested or the records custodian. The requester 
also shall deliver a copy of the demand to the General Counsel, United 
States Postal Service, 475 L'Enfant Plaza, SW, Washington DC 20260-1100, 
or the Chief Field Counsel. A demand for testimony or records must be 
received by the employee and the General Counsel or Chief Field Counsel 
at least ten (10) working days before the date testimony or records are 
needed.
    (d) Procedures followed in response to a demand for testimony or 
records. (1) After an employee receives a demand for testimony or 
records, the employee shall immediately notify the General Counsel or 
Chief Field Counsel and request instructions.
    (2) An employee may not give testimony or produce records without 
the prior authorization of the General Counsel.
    (3)(i) The General Counsel may allow an employee to testify or 
produce records if the General Counsel determines that granting 
permission:
    (A) Would be appropriate under the rules of procedure governing the 
matter in which the demand arises and other applicable laws, privileges, 
rules, authority, and regulations; and
    (B) Would not be contrary to the interest of the United States. The 
interest of the United States includes, but is not limited to, 
furthering a public interest of the Postal Service and protecting the 
human and financial resources of the United States.
    (ii) An employee's testimony shall be limited to the information set 
forth in the statement described at paragraph (c)(2) of this section or 
to such portions thereof as the General Counsel determines are not 
subject to objection. An employee's testimony shall be limited to facts 
within the personal knowledge of the employee. A Postal Service employee 
authorized to give testimony under this rule is prohibited from giving 
expert or opinion testimony, answering hypothetical or speculative 
questions, or giving testimony with respect to privileged subject 
matter. The General Counsel may waive the prohibition of expert 
testimony under this paragraph only upon application and showing of 
exceptional circumstances and the request substantially meets the 
requirements of this section.
    (4) The General Counsel may establish conditions under which the 
employee may testify. If the General Counsel authorizes the testimony of 
an employee, the party seeking testimony shall make arrangements for the 
taking of testimony by those methods that, in the General Counsel's 
view, will least disrupt the employee's official duties. For example, at 
the General Counsel's discretion, testimony may be provided by 
affidavits, answers to interrogatories, written depositions, or 
depositions transcribed, recorded, or preserved by any other means 
allowable by law.
    (5) If a response to a demand for testimony or records is required 
before the General Counsel determines whether to allow an employee to 
testify, the employee or counsel for the employee shall do the 
following:
    (i) Inform the court or other authority of the regulations in this 
section; and
    (ii) Request that the demand be stayed pending the employee's 
receipt of the General Counsel's instructions.
    (6) If the court or other authority declines the request for a stay, 
or rules that the employee must comply with the demand regardless of the 
General Counsel's instructions, the employee or counsel for the employee 
shall respectfully decline to comply with the demand, citing United 
States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and the regulations 
in this section.
    (7) The General Counsel may request the assistance of the Department 
of

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Justice or a U.S. Attorney where necessary to represent the interests of 
the Postal Service and the employee.
    (8) At his or her discretion, the General Counsel may grant a waiver 
of any procedure described by this section, where waiver is considered 
necessary to promote a significant interest of the United States or for 
other good cause.
    (9) If it otherwise is permissible, the records custodian may 
authenticate, upon the request of the party seeking disclosure, copies 
of the records. No employee of the Postal Service shall respond in 
strict compliance with the terms of a subpoena duces tecum unless 
specifically authorized by the General Counsel.
    (e) Postal Service employees as expert witnesses. No Postal Service 
employee may testify as an expert or opinion witness, with regard to any 
matter arising out of the employee's official duties or the functions of 
the Postal Service, for any party other than the United States, except 
that in extraordinary circumstances, the General Counsel may approve 
such expert testimony in private litigation. A Postal Service employee 
may not testify as such an expert witness without the express 
authorization of the General Counsel. A litigant must obtain 
authorization of the General Counsel before designating a Postal Service 
employee as an expert witness.
    (f) Substitution of Postal Service employees. Although a demand for 
testimony may be directed to a named Postal Service employee, the 
General Counsel, where appropriate, may designate another Postal Service 
employee to give testimony. Upon request and for good cause shown (for 
example, when a particular Postal Service employee has direct knowledge 
of a material fact not known to the substitute employee designated by 
the Postal Service), the General Counsel may permit testimony by a named 
Postal Service employee.
    (g) Fees and costs. (1) The Postal Service may charge fees, not to 
exceed actual costs, to private litigants seeking testimony or records 
by request or demand. The fees, which are to be calculated to reimburse 
fully the Postal Service for processing the demand and providing the 
witness or records, may include, among others:
    (i) Costs of time spent by employees, including attorneys, of the 
Postal Service to process and respond to the demand;
    (ii) Costs of attendance of the employee and agency attorney at any 
deposition, hearing, or trial;
    (iii) Travel costs of the employee and agency attorney;
    (iv) Costs of materials and equipment used to search for, process, 
and make available information.
    (2) All costs for employee time shall be calculated on the hourly 
pay of the employee (including all pay, allowance, and benefits) and 
shall include the hourly fee for each hour, or portion of each hour, 
when the employee is in travel, in attendance at a deposition, hearing, 
or trial, or is processing or responding to a request or demand.
    (3) At the discretion of the Postal Service, where appropriate, 
costs may be estimated and collected before testimony is given.
    (h) Acceptance of service. This section does not in any way abrogate 
or modify the requirements of the Federal Rules of Civil Procedure (28 
U.S.C. Appendix) regarding service of process.

[60 FR 17224, Apr. 5, 1995, as amended at 60 FR 57345, Nov. 15, 1995; 64 
FR 41291, July 30, 1999; 68 FR 56559, Oct. 1, 2003]