§ 102.118 Present and former Board employees prohibited from producing documents and testifying; production of witnesses' statements after direct testimony.

(a) Prohibition on producing files and documents. Except as provided in § 102.117 respecting requests cognizable under the Freedom of Information Act, no present or former employee or specially designated agent of the Agency will produce or present any files, documents, reports, memoranda, or records of the Board or of the General Counsel, whether in response to a subpoena duces tecum or otherwise, without the written consent of the Board or the Chairman of the Board if the document is in Washington, DC, and in control of the Board; or of the General Counsel if the document is in a Regional Office of the Board or is in Washington, DC, and in the control of the General Counsel. A request that such consent be granted must be in writing and must identify the documents to be produced, the nature of the pending proceeding, and the purpose to be served by the production of the documents.

(b) Prohibition on testifying. No present or former employee or specially designated agent of the Agency will testify on behalf of any party to any cause pending in any court or before the Board, or any other board, commission, or other administrative agency of the United States, or of any State, territory, or the District of Columbia, or any subdivisions thereof, with respect to any information, facts, or other matter coming to that person's knowledge in that person's official capacity or with respect to the contents of any files, documents, reports, memoranda, or records of the Board or of the General Counsel, whether in answer to a subpoena or otherwise, without the written consent of the Board or the Chairman of the Board if the person is in Washington, DC, and subject to the supervision or control of the Board or was subject to such supervision or control when formerly employed at the Agency; or of the General Counsel if the person is in a Regional Office of the Agency or is in Washington, DC, and subject to the supervision or control of the General Counsel or was subject to such supervision or control when formerly employed at the Agency. A request that such consent be granted must be in writing and must identify the person whose testimony is desired, the nature of the pending proceeding, and the purpose to be served by the testimony of the official.

(c) Motion to quash subpoena. Whenever any subpoena ad testificandum or subpoena duces tecum, the purpose of which is to adduce testimony or require the production of records as described above, has been served on any present or former employee or specially designated agent of the Agency, that person will, unless otherwise expressly directed by the Board or the Chairman of the Board or the General Counsel, as the case may be, move pursuant to the applicable procedure, whether by petition to revoke, motion to quash, or otherwise, to have such subpoena invalidated on the ground that the evidence sought is privileged against disclosure by this Rule.

(d) Prohibition on disclosure of personal information. No present or former employee or specially designated agent of the Agency will, by any means of communication to any person or to another agency, disclose personal information about an individual from a record in a system of records maintained by this Agency, as more fully described in the notices of systems of records published by this Agency in accordance with the provisions of Section (e)(4) of the Privacy Act of 1974, 5 U.S.C. 552a(e)(4), or by the Notices of Government-wide Systems of Personnel Records published by the Civil Service Commission in accordance with those statutory provisions, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be in accordance with the provisions of Section (b)(1) through (11), both inclusive, of the Privacy Act of 1974, 5 U.S.C. 552a(b)(1) through (11).

(e) Production of statement for cross-examination. Notwithstanding the prohibitions of paragraphs (a) and (b) of this section, after a witness called by the General Counsel or by the Charging Party has testified in a hearing upon a complaint under Section 10(c) of the Act, the Administrative Law Judge must, upon motion of the Respondent, order the production of any statement, as defined paragraph (g) of this section, of such witness in the possession of the General Counsel which relates to the subject matter as to which the witness has testified.

(1) If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the Administrative Law Judge must order the statement to be delivered directly to the respondent for examination and use for the purpose of cross-examination.

(2) If the General Counsel claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the Administrative Law Judge will order the General Counsel to deliver the statement for the inspection of the Administrative Law Judge in camera. Upon delivery, the Administrative Law Judge will excise the portions of such statement which do not relate to the subject matter of the testimony of the witness except that the Administrative Law Judge has discretion to decline to excise portions which, although not relating to the subject matter of the testimony of the witness, do relate to other matters raised by the pleadings. With the material excised, the Administrative Law Judge will then direct delivery of the statement to the Respondent for use on cross-examination. If any portion of the statement is withheld and the Respondent objects to the withholding, the General Counsel will preserve the entire text of the statement, and, if the Respondent files exceptions with the Board based upon such withholding, make the entire text available to the Board for the purpose of determining the correctness of the ruling of the Administrative Law Judge. If the General Counsel elects not to comply with an order of the Administrative Law Judge directing delivery to the Respondent of any statement, or portion thereof as the Administrative Law Judge may direct, the Administrative Law Judge will strike from the record the testimony of the witness.

(f) Production of statement in postelection hearings. The provisions of paragraph (e) of this section will also apply after any witness has testified in any postelection hearing pursuant to § 102.69(d) and any party has moved for the production of any statement, as defined in paragraph (g) of this section, of the witness in possession of any agent of the Board which relates to the subject matter as to which the witness has testified. The authority exercised by the Administrative Law Judge under paragraph (e) of this section will be exercised by the Hearing Officer presiding.

(g) Definition of statement. The term statement as used in this section means:

(1) A written statement made by the witness and signed or otherwise adopted or approved by the witness; or

(2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by the witness to an agent of the party obligated to produce the statement and recorded contemporaneously with the making of the oral statement.

[82 FR 11768, Feb. 24, 2017, as amended at 82 FR 43699, Sept. 19, 2017]