You may be reading this because you received a Touhy letter from the Department of Veterans Affairs, Social Security or another federal agency that does not want to comply with your state-court subpoena. They are citing the Supreme Court’s Decision in Touhy, where the Court stated that the Federal housekeeping statute prohibited an FBI agent from being compelled by subpoena and contempt into bringing in his testimony and agency documents to testify regarding a state inmate’s claims. See Touhy v. Ragen, 340 U.S. 462.
There are several ways to both attack this request while and attempt to get your witness in Court. First and foremost, you should write a letter to the head of the agency requesting the witness, and they can consent to his appearance. Next, get a copy of the agency’s regulations to see if the witness meets the definition of “employee” under the regulations and the Housekeeping Statute. If all else fails, you will most likely end up in a United States District Court to review how Touhy applies to your particular fact situation. Remember that Touhy involved a full-time FBI agent and his records of investigation. The further we get from that, the more likely the witness should be amenable to a state-court subpoena.