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

§ 102.118 Present and former Board employees prohibited from producing files, records, etc., pursuant to subpoena ad testificandum or subpoena duces tecum; prohibited from testifying in regard theretodocuments and testifying; production of witnesses' statements after direct testimony.

(a)

(1)

Prohibition on producing files and documents. Except as provided in § 102.117

of these rules

respecting requests cognizable under the Freedom of Information Act, no present or former

Regional Director, field examiner, administrative law judge, attorney,

employee or specially designated agent

, General Counsel, Member

of the

Board, or other officer or employee of the Agency shall

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

Agency

Board or is in Washington, DC, and in the control of the General Counsel.

Nor shall any such person testify in

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

his or her

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

shall

must be in writing and

shall

must identify the

documents to be produced, or the

person whose testimony is desired, the nature of the pending proceeding, and the purpose to be served by the

production of the document or 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

hereinabove

above,

shall have

has been served on any

such person or

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

other officer or employee of the Board, that person will, unless

otherwise, to have such subpoena invalidated on the ground that the evidence sought is privileged against disclosure by this

rule

Rule.

(

2) No regional director, field examiner, administrative law judge, attorney, specially designated agent, general counsel, member of the Board, or other officer or employee of the Board shall,

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

Agency, as more fully described in the notices of systems of records published by this

agency

Agency in accordance with the provisions of

section

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

Section (b)(1) through (11), both inclusive, of the Privacy Act of 1974, 5 U.S.C. 552a(b)(1) through (11).

(

b)(1)

e) Production of statement for cross-examination. Notwithstanding the prohibitions of

paragraph

paragraphs (a) and (b) of this section, after a witness called by the

general counsel

General Counsel or by the

charging party

Charging Party has testified in a hearing upon a complaint under

section

Section 10(c) of the

act

Act, the

administrative law judge shall

Administrative Law Judge must, upon motion of the

respondent

Respondent, order the production of any statement

(

, as

hereinafter

defined paragraph (g) of this section, of such witness in the possession of the

general counsel

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 shall order it

Administrative Law Judge must order the statement to be delivered directly to the respondent for

his

examination and use for the purpose of cross-examination.

(2) If the

general counsel

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 shall

Administrative Law Judge will order the

general counsel

General Counsel to deliver

such

the statement for the inspection of the

administrative law judge

Administrative Law Judge in camera. Upon

such

delivery

the administrative law judge shall

, 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

he may, in his discretion,

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

such

the material excised

the administrative law judge shall

, the Administrative Law Judge will then direct delivery of

such

the statement to the

respondent

Respondent for

his

use on cross-examination. If

, pursuant to such procedure,

any portion of

such

the statement is withheld

from the respondent

and the

respondent

Respondent objects to

such withholdings

the withholding, the General Counsel will preserve the entire text of

such statement shall be preserved by the general counsel

the statement, and,

in

if the

event the respondent

Respondent files exceptions with the Board based upon such withholding,

shall be made

make the entire text available to the Board for the purpose of determining the correctness of the ruling of the

administrative law judge

Administrative Law Judge. If the

general counsel

General Counsel elects not to comply with an order of the

administrative law judge

Administrative Law Judge directing delivery to the

respondent

Respondent of any

such

statement, or

such

portion thereof as the

administrative law judge

Administrative Law Judge may direct, the

administrative law judge shall

Administrative Law Judge will strike from the record the testimony of the witness.

(

c)

f) Production of statement in postelection hearings. The provisions of paragraph (

b

e) of this section

shall

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

hereinafter

defined in paragraph (g) of

such

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

Administrative Law Judge under paragraph (

b

e) of this section

shall

will be exercised by the

hearing officer

Hearing Officer presiding.

(

d

g) Definition of statement. The term statement as used in

paragraphs (b) and (c) of

this section means:

(1) A written statement made by

said

the witness and signed or otherwise adopted or approved by

him

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

said

the witness to an agent of the party obligated to produce the statement and recorded contemporaneously with the making of

such

the oral statement.

[33 82 FR 9819, July 9, 196811768, Feb. 24, 2017, as amended at 35 82 FR 10658, July 1, 1970; 40 FR 7291, Feb. 19, 1975; 40 FR 50662, Oct. 30, 1975; 52 FR 27990, July 27, 198743699, Sept. 19, 2017]