PART 713—PRODUCTION OF NONPUBLIC RECORDS AND TESTIMONY OF EMPLOYEES IN LEGAL PROCEEDINGS Authority: 5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 702; 18 U.S.C. 207; 18 U.S.C. 641; 22 U.S.C. 2199(d); 28 U.S.C. 1821; Pub. L. 115-254, sections 1401-1470. Source: 64 FR 8241, Feb. 19, 1999, unless otherwise noted. Editorial Note: Nomenclature changes to part 713 appear at 84 FR 37752, Aug. 2, 2019. § 713.1 What does this part prohibit? This part prohibits the release of nonpublic records for legal proceedings or the appearance of an DFC employee to testify in legal proceedings except as provided in this part. Any person possessing nonpublic records may release them or permit their disclosure or release only as provided in this part. (a) Duty of DFC employees. (2) If a court or other appropriate authority orders or demands from you expert or opinion testimony or testimony beyond authorized subjects contrary to the Vice-President/General Counsel's instructions, you must immediately notify the Vice-President/General Counsel of the order and then respectfully decline to comply with the order. You must decline to answer questions on the grounds that this part forbids such disclosure. You should produce a copy of this part, request an opportunity to consult with the Vice-President/General Counsel, and explain that providing such testimony without approval may expose you to disciplinary or other adverse action. (b) Duty of persons who are not DFC employees. (2) After you notify the Vice-President/General Counsel of the subpoena, respond to the subpoena by appearing at the time and place stated in the subpoena, unless otherwise directed by the Vice President/General Counsel. Unless otherwise authorized by the Vice-President/General Counsel, decline to produce any records or give any testimony, basing your refusal on this part. If the issuing court or authority orders the disclosure of records or orders you to testify, decline to produce records or testify and advise the Vice-President/General Counsel. (c) Penalties. § 713.2 When does this part apply? This part applies if you want to obtain nonpublic records or testimony of an DFC employee for a legal proceeding. It does not apply to records that DFC is required to release, records which DFC discretionarily releases under the Freedom of Information Act (FOIA), records that DFC releases to federal or state investigatory agencies, records that DFC is required to release pursuant to the Privacy Act, 5 U.S.C. 552a, or records that DFC releases under any other applicable authority. [79 FR 8619, Feb. 13, 2014] § 713.3 How do I request nonpublic records or testimony? To request nonpublic records or the testimony of an DFC employee, you must submit a written request as described in § 713.4 to the Vice-President/General Counsel of DFC. If you serve a subpoena on DFC or an DFC employee before submitting a written request and receiving a final determination, DFC will oppose the subpoena on the grounds that you failed to follow the requirements of this part. [79 FR 8619, Feb. 13, 2014] § 713.4 What must my written request contain? Your written request for records or testimony must include: (a) The caption of the legal proceeding, docket number, and name of the court or other authority involved. (b) 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. (c) 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. (d) A statement as to how the need for the information outweighs the need to maintain the confidentiality of the information and outweighs the burden on DFC to produce the records or provide testimony. (e) A statement indicating that the information sought is not available from another source, such as the requestor's own books and records, other persons or entities, or the testimony of someone other than an DFC employee, such as retained experts. (f) A description of all prior decisions, orders, or pending motions in the case that bear upon the relevance of the records or testimony you want. (g) The name, address, and telephone number of counsel to each party in the case. (h) An estimate of the amount of time you anticipate that you and other parties will need with each DFC employee for interviews, depositions, and/or testimony. § 713.5 When should I make my request? Submit your request at least 45 days before the date you need the records or testimony. If you want your request processed in a shorter time, you must explain why you could not submit the request earlier and why you need such expedited processing. DFC retains full discretion to grant, deny, or propose a new completion date on any request for expedited processing. If you are requesting the testimony of an DFC employee, DFC expects you to anticipate your need for the testimony in sufficient time to obtain it by deposition. The Vice-President/General Counsel may well deny a request for testimony at a legal proceeding unless you explain why you could not have used deposition testimony instead. The Vice-President/General Counsel will determine the location of a deposition, taking into consideration DFC's interest in minimizing the disruption for an DFC employee's work schedule and the costs and convenience of other persons attending the deposition. [79 FR 8619, Feb. 13, 2014] § 713.6 Where should I send my request? Send your request or subpoena for records or testimony to the attention of the Vice-President/General Counsel, DFC, 1100 New York Avenue NW, Washington, DC 20527. § 713.7 What will DFC do with my request? (a) Factors DFC will consider. (1) Whether disclosure would assist or hinder DFC in performing its statutory duties or use DFC resources unreasonably, including whether responding to the request will interfere with DFC employees' ability to do their work. (2) Whether disclosure is necessary to prevent the perpetration of a fraud or other injustice in the matter. (3) Whether you can get the records or testimony you want from sources other than DFC. (4) Whether the request is unduly burdensome. (5) Whether disclosure would violate a statute, executive order, or regulation, such as the Privacy Act, 5 U.S.C. 552a. (6) Whether disclosure would reveal confidential, sensitive or privileged information, trade secrets or similar, confidential commercial or financial information, or would otherwise be inappropriate for release and, if so, whether a confidentiality agreement or protective order as provided in § 713.9(a) can adequately limit the disclosure. (7) Whether the disclosure would interfere with law enforcement proceedings, compromise constitutional rights, or hamper DFC programs or other DFC operations. (8) Whether the disclosure could result in DFC's appearing to favor one litigant over another. (9) Any other factors DFC determines to be relevant to the interests of DFC. (b) Review of your request. (c) Final determination. § 713.8 If my request is granted, what fees apply? (a) Generally. (b) Fees for records. (c) Witness fees. (d) Certification of records. (e) Waiver of fees. § 713.9 If my request is granted, what restrictions may apply? (a) Records. (b) Testimony. § 713.10 Definitions. For purposes of this part: Legal proceedings Nonpublic records DFC employee Subpoena Testimony