In all cases in which a Department of Justice employee informs the appropriate Departmental trial attorney or Assistant United States Attorney that he/she has been served with a demand for oral testimony, the assigned attorney should seek to clarify the demand by seeking, where possible, an affidavit or, if that is not feasible, a statement setting forth a summary of the testimony or other information sought from the party making the demand. 28 C.F.R. § 16.23(c). The attorney should consider controlling precedent and local practice in determining whether a court, in cases where the United States is a party, will enforce this regulatory requirement.

In cases in which the United States is a party and the demand is for information other than oral testimony, the regulation does not direct the United States Attorney to request that the demanding party provide a summary of the information sought or its relevance to the proceeding.

In cases in which the United States is a party, the designated attorney should refer to the discussion in JM 1-6.220 on the use of appropriate options and the efficacy of negotiations to narrow a demand. Those considerations are generally applicable, but the attorney should bear in mind the special considerations that are necessary in dealing directly with a litigative adversary. 28 C.F.R. § 16.24(c).

[Updated April 2018]