Episode 177 - Lessons from the Front Lines: Touhy or Not Touhy? The Difficulties of Deposing Federal Employees

In this episode, Jim Garrity explains the procedure for deposing current or former federal government employees where the federal government isn't a party to your litigation. These are commonly known as 'Touhy witnesses." And if they're important to your case, you'd better plan for their deposition very carefully. Garrity also discusses the importance of a strong backup plan, because many such deposition requests are denied by the employing agency. Important stuff to know! And great resources in the show notes, below.SHOW NOTESBecton Dickinson and Company, et al. v. United States Department of Health and Human Services et al., No. CV-26-02379-PHX-KML, 2026 WL 2042420, --- F. Supp. 3d --- (D. Ariz. July 13, 2026) (denying request for declaratory and injunctive relief against U.S. Department of Health and Human Services in APA action to force HHS to produce certain federally-employed treating physicians for deposition)Complaint for Declaratory and Injunctive Relief [CM/ECF Doc. 1] Becton Dickinson and Company, et al. v. United States Department of Health and Human Services et al., CM/ECF Doc. 1, No. CV-26-02379-PHX-KML, (D. Ariz. filed April 6, 2026) (alleging claim for violation of the Administrative Procedure Act, on the grounds of alleged arbitrary and capricious agency action, where federal agency refused to produce subpoenaed witnesses for deposition)Motion for Preliminary Injunction [CM/ECF 12] in Support of Complaint for Declaratory and Injunctive Relief, Becton Dickinson and Company, et al. v. United States Department of Health and Human Services et al., No. CV-26-02379-PHX-KML, (D. Ariz. July 13, 2026) (motion seeking order setting aside HHS’ denial of Plaintiffs’ Touhy request as arbitrary, capricious, contrary to law, and in excess of delegated authority; requiring Defendants to authorize the depositions of Dr. Matthew Cusick and Dr. John Young within fourteen days, subject to reasonable limitations, including remote appearance, a limited duration, government counsel’s attendance, and restriction to nonprivileged factual testimony concerning Dr. Cusick and Dr. Young’s firsthand knowledge of Ms. Vincent’s care, including any device warnings and information available to Dr. Cusick; alternatively, remanding the matter to Defendants with instructions to reconsider Plaintiffs’ narrowed request within seven days under the governing regulation and IHS Delegation Memo and to provide a reasoned written decision addressing Plaintiffs’ need, unavailability, proposed limitations, and any specific disruption to IHS duties; ordering expedited production of the administrative record and expedited briefing as necessary to resolve this motion before the state-court trial; and granting such other relief as the Court deems just and proper)Response in Opposition to Motion for Preliminary Injunction [CM/ECF Doc. 1], Becton Dickinson and Company, et al. v. United States Department of Health and Human Services et al., No. CV-26-02379-PHX-KML, (D. Ariz. Filed June 24, 2026)Exxon Shipping Co. v. U.S. Dep't of Interior, 34 F.3d 774 (9th Cir. 1994) (treating request for depositions of current or former federal employees like any other discovery request)https://oig.ssa.gov/touhy-requests/ (page for Touhy requests to Social Security Administration)https://www.ecfr.gov/current/title-45/subtitle-A/subchapter-A/part-2 (Health & Human Services Touhy Regulations)28 C.F.R. § 16.21 (Department of Justice's Touhy regulations)Covington, Ben, Closing The Touhy Gap: The APA, The FRCP, And Nonparty Discovery Against Federal Administrative Agencies, https://columbialawreview.org/content/closing-the-touhy-gap-the-apa-the-frcp-and-nonparty-discovery-against-federal-administrative-agencies/ (noting an apparent and significant difference in Touhy request successes depending on where the action was filed, not on the merits of the request)