Touhy Exposed

(California Daily Journal) Joseph Saveri Law Firm, LLP, CEO & founding partner Joseph Saveri and associate David Seidel have co-authored “Touhy Exposed,” an article that appeared in the October 13, 2022 California Daily Journal legal newspaper. In it, Joe and David explore the Touhy case in the context of pushing back on federal agencies’ attempts to immunize themselves from subpoenas.

The full article is available here, with an excerpt below:

"Civil litigation often follows criminal indictments. That is especially true in the antitrust context, where the victims of anticompetitive pricing are often unaware they are being harmed until a government investigation leads to a public indictment. In these situations, where the same conduct gives rise to both criminal and civil litigation, materials from the government’s criminal investigation will naturally be highly relevant to the civil litigation.

Moreover, federal agencies generally have means to acquire evidence in ways that civil litigants cannot, meaning the government often possesses highly relevant material that cannot be acquired from other sources. So the question facing many civil litigants is how to acquire the highly relevant materials from a federal agency.

Of course, Rule 45 of the Federal Rules of Civil Procedure provides just such a mechanism: the civil subpoena. But if one thinks that federal agencies will happily comply with any Rule 45 subpoena sent to them, they probably have never tried. In response, federal agencies often take the position that they are not subject to subpoenas. Federal agencies have generally taken this position under two theories: either sovereign immunity or their own internal administrative regulations (referred to as Touhy regulations after a Supreme Court decision by the same name, U.S. ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)) shield them from compliance with the federal rules. See, e.g., Exxon Shipping Co. v. U.S. Dep’t of the Interior, 34 F.3d 774, 780 (9th Cir. 1994) (assessing and rejecting both arguments). . . .

If obtaining highly relevant evidence from a federal agency is critical, civil litigants should be prepared to dig into the mess of case law addressing this issue and push back on federal agencies’ continued recalcitrance in seeking to immunize themselves from subpoenas. In pushing for the application of the Federal Rules, litigants would also be wise to highlight that the Federal Rules provide ample protection for agencies’ legitimate concerns of undue burden or other legitimate objections that could potentially prevent the proper functioning of government. As the 9th and D.C. Circuits have noted, by requiring courts to balance the burden of production against the importance of the information and proportionality to the case, the Federal Rules adequately protect federal agencies from having its employee resources be “commandeered into service by private litigants to the detriment of the smooth functioning of government operations,” or from “being used as a speakers’ bureau for private litigants.” Watts, 482 F.3d at 509 (quoting Exxon, 34 F.3d at 780)."

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