Title 11

SECTION 9409.5

9409.5 Procedures for demand for testimony or production of documents.

§ 9409.5 Procedures for demand for testimony or production of documents.

(a) A demand directed to the Commission for the testimony of a Commission employee or for the production of documents shall be served in accordance with the Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, or applicable State procedures and shall be directed to the General Counsel, U.S. Election Assistance Commission, 1335 East-West Highway, Suite 4300, Silver Spring, MD 20910. Acceptance of a demand shall not constitute an admission or waiver with respect to jurisdiction, propriety of service, improper venue, or any other defense in law or equity available under the applicable laws or rules.

(b) If a subpoena is served on the Commission or a Commission employee before submitting a written request and receiving a final determination, the Commission will oppose the subpoena on grounds that the request was not submitted in accordance with this part.

(1) The caption of the legal proceeding, docket number, name and address of the court or other authority involved; and the procedural posture of the legal proceeding.

(2) A copy of the complaint or equivalent document setting forth the assertions in the case and any other pleading or document necessary to show relevance;

(3) A list of categories of records sought, a detailed description of how the information sought is relevant to the issues in the legal proceeding, and a specific description of the substance of the testimony or records sought;

(4) A statement as to how the need for the information outweighs the need to maintain any confidentiality of the information and outweighs the burden on the Commission to produce the records or provide testimony;

(5) A statement indicating that the information sought is not available from another source, from other persons or entities, or from the testimony of someone other than a Commission employee, such as a retained expert;

(6) If testimony is requested, the intended use of the testimony, a general summary of the desired testimony, and a showing that no document could be provided and used in lieu of testimony;

(7) A description of all prior decisions, orders, or pending motions in the case that bear upon the relevance of the requested records or testimony;

(8) The name, address, and telephone number of counsel to each party in the case;

(9) An estimate of the amount of time that the requester and other parties will require of each Commission employee for time spent by the employee to prepare for testimony, in travel, and for attendance in the legal proceeding; and

(10) Whether travel by the Commission employee is required to provide the testimony; or, in lieu of in-person testimony, whether a deposition may be taken at the employee's duty station.

(d) The Commission reserves the right to require additional information to complete a request where appropriate.

(e) A request should be submitted at least 45 days before the date that records or testimony is required. Requests submitted in less than 45 days before records or testimony is required must be accompanied by a written explanation stating the reasons for the late request and the reasons for expedited processing.

(f) Failure to cooperate in good faith to enable the General Counsel to make an informed decision may serve as the basis for a determination not to comply with a request.

(g) Notification to the General Counsel:

(1) Employees shall immediately refer all inquiries and demands made on the Commission to the General Counsel.

(2) An employee who receives a subpoena shall immediately forward the subpoena to the General Counsel. The General Counsel will determine the manner in which to respond to the subpoena.

[73 FR 54271, Sept. 18, 2008, as amended at 75 FR 49814, Aug. 16, 2010; 83 FR 53802, Oct. 25, 2018]