In U.S. ex rel. Touhy v. Ragen, 340 U.S. 462, 468 (1951), the Supreme Court held that federal government agencies may promulgate regulations requiring litigants to make a “Touhy request” to obtain documents or testimony from a federal agency or federal agency employees during discovery where the government is not a party.  In In Williams v. C. Martin Company Inc., et al.No. 07-5692, 2014 U.S. Dist. LEXIS 91802 (E.D. La. July 7, 2014), the district court reversed the Magistrate Judge’s decision and granted the defendant’s motion to compel the Federal Emergency Management Agency (“FEMA”) to produce a witness for a 30(b)(6) deposition.

Relator, Robyn Williams, filed a qui tam action on behalf of the United States to recover damages under the FCA against two groups of defendants, the Medley Jarvis Defendants (“MJI”) and the C. Martin Defendants (“CMC”).  The claims arise out of two contracts awarded by FEMA to CMC.  On November 14, 2012 CMC filed a Touhy request with FEMA seeking documents related to the contracts, and on December 4, 2012 MJI filed its own Touhy request with FEMA.  On April 21, 2014 the United States produced over 26,000 pages of documents related to the contracts. 

On May 22, 2014, CMC requested a 30(b)(6) deposition of FEMA pertaining to the 26,000 pages of documents FEMA produced.  FEMA invoked its Touhy regulations and notified CMC that it would not appear for the deposition.  CMC responded with a Motion to Compel.  FEMA, in an attempt to avoid attending the deposition, argued that in order to challenge FEMA’s decision to withhold a witness from a deposition, sovereign immunity requires litigants to follow the Administrative Procedures Act (“APA”).  The district court held that it has jurisdiction to compel FEMA’s compliance with CMC’s subpoena, reasoning that “nearly every court faced with this issue has determined that sovereign immunity does not insulate a federal agency from complying with a Rule 45 subpoena.”  The district court further held that FEMA’s decision to decline sitting for the deposition was arbitrary and capricious.  FEMA argued that the deposition would be unduly burdensome because the United States was not a party, but the district court held: “While it is technically true that the United States is not a party to a FCA case in which it declines to intervene, it is beyond dispute that the United States is the real party in interest in this matter.  The FCA provides that the government is entitled to at least 75% of the proceeds of this action. 31 U.S.C. § 3730(d).”  Thus, the district court granted the motion to compel and ordered FEMA to appear for the deposition.