In cases in which the United States is a party, any employee of the Department receiving a subpoena is to immediately notify the attorney for the Department of Justice in charge of the case or matter. Occasionally information indicating the identity of such attorney will appear in the subpoena or demand that is served on the employee. In other cases, that information can be obtained by contacting the USAO for the district in which the demand arises or by contacting the appropriate division of the Department. It is essential that the specific attorney in charge of the case or matter be located and notified as soon as possible, as it is this attorney who is responsible for taking the appropriate actions under the regulations and who has the power to authorize testimony or the production of records in cases in which he/she deems such procedure to be appropriate. For cases handled jointly by a USAO and a litigating division of the Department, attorneys from both offices should be contacted. If testimony is sought or if it appears that the demand seeks privileged information or disclosures prohibited by 28 C.F.R. § 16.26(b), the USAO or litigating division’s Touhy Officer should also be contacted.

In cases in which the United States or an agency is a party but appropriately is represented by an agency’s own attorneys and not by the Department of Justice, the attorneys representing the federal government in the case should be contacted, as well as the United States Attorney for the district in which the demand arises. The other agency will likely have its own Touhy regulations that should be consulted.

[Updated April 2018]