ELR Citation: ELR 21380
No(s). 94-35140 (9th Cir. Aug 29, 1994)

The court holds that §301 of the Federal Housekeeping Statute does not authorize federal agencies to refuse to comply with proper discovery requests, and that federal courts should apply the federal rules of discovery when ruling on discovery requests made against government agencies, regardless of whether the United States is a party to the underlying action. In an action against Exxon seeking compensation and punitive damages for injuries plaintiffs allegedly suffered as a result of the Exxon Valdez oil spill, Exxon issued a notice of deposition and subpoena to 10 federal employees who work for five federal agencies. Relying on regulations promulgated under 5 U.S.C. §301, which generally provide that an employee may not be deposed unless an agency head authorizes it, the agencies instructed 8 of the 10 employees not to submit to a deposition. The court holds that §301 does not, by its own force, authorize federal agency heads to withhold evidence sought under valid federal court subpoena. Moreover, neither the statute's legislative history nor U.S. Supreme Court case law supports such a claim. The court rejects the agencies' claim that principles of sovereign immunity authorize agency heads to determine conclusively whether government employees may testify. The exercise of such authority would raise serious separation of powers questions. For this reason, the court declines to hold that federal courts cannot compel federal officers to give actual testimony. Also, such authority would violate the fundamental principle that the public has a right to every man's evidence. The Federal Rules of Civil Procedure strongly favor full discovery, and district courts are capable of balancing under the general rules of discovery the government's serious and legitimate concern that its employee resources not be commandeered into service by private litigants to the detriment of the smooth functioning of government operations. Further, the government may raise any possible claims of privilege from testimonial compulsion that may rightly be available to it under the Federal Rules of Evidence.

[Appellate briefs in this action are digested at ELR PEND. LIT. 66335.]

Counsel for Plaintiffs
E. Edward Bruce, Robert A. Long Jr.
Covington & Burling
1201 Pennsylvania Ave. NW, Washington DC 20044
(202) 662-6000

Counsel for Defendants
Andrew C. Mergen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Nelson and Hall, JJ.