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n 2 B 4 15, 16 7 18 a 2 23 24 25 26 PILED Lake Havasu City, AZ 8646 ‘Telephone: (928) 854-8181 Facsimile: (928) 854-8190 Email: brad @rideoutlaw.com Attorney for Defendant IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MOHAVE STATE OF ARIZONA, Case No. CR-2018-01535 Plain, MOTION TO COMPEL vs YUQIN SHU, Defendant. ‘The Defendant Yugin Shu, by and through her attorney, Brad Rideout, respectfull equests the court to compel the state to provide further disclosure in this case pursuant to ‘Arizona Rule of Criminal Procedure 15.1. The Defendant has substantial need for this ‘material and information in the preparation of the Defendant's case for trial, This motion is supported by the following memorandum of points and authority. Facts: In 2018, Bullhead City Police Department and Lake Havasu City Police [Department began a combined investigation into possible sex trafficking in their ——| RIDEOUT LAW P.L.L.C. UISSEP 30 AM 9: IS rns Rida Ba Se ass ae Foun geesnct has fn 5-00 sul RSIYSUEPL respective cities. After the investigation started, local law enforcement requested assistance from Federal officers at Homeland Security Victor Valentin, Special Agent with DHS stated in his Synopsis that DHS became involved in the investigations because they believed, “the females may be victims of human trafficking.” ‘Two federal officers assisted with undercover oper 3s. The Bulthead City case officer on this investigation, Detective Jesus Alvarez, was unable to provide a last name or much information about the HSI officers. He knew them as “Arturo” and “Sergio.” The investigation was tiled, “Operation Asian Touch.” As part of their investigations, Arturo and Sergio entered a numberof Asian operated massage businesses Jon May 30, 2018, May 31, 2018 and September 17,2018 for the purpose of having sexual encounters with the Asian immigrant female employees. The employees, most of whom barely speak English, complied with the officer's requests and Arturo and Sergio aid the women fr the sex act. ‘Arturo and Sergio's sexual encounters with these immigrant women were cited by’ local law enforcement inorder to obtain search warrants for these Asian owned massage businesses in Bullhead City and Lake Havasu City. Yugin Shu, a recent Chinese immigrant, works ou of her home in Bullhead City giving massages. Her home and business were listed inthe search warrant ‘The affidavit wed to obtain a warrant for Ms. Shu's home-based busines stated that “an undercover agent with the Homeland Security Investigation team" entered Ms, SShu’s home on May 15,2018, June 21,2018 and September 17,2018 and paid Ms. Shu to perform sexual acts fr him. Asa result ofthis investigation, Ms. Shu, was arested fo numerous charges related to these encounters. Department of Homeland Security ‘The Department of Homeland Security (DHS) was formed in response tothe terrorist attacks of September 11,2001, DHS acts as an umbrelia agency over a number of other federal agencies inchuding ICE, the U.S, Secret Service and the Coast Guard. Tha top priority ofthe ageney isto protect the nation from terrorist attack, secure the border and strengthen preparedness. (DHS.gov) tis unclear how an ICE officer having sexual relations with human trafficking victims in Mokave County, Arizona protects the nation from terrorist attack or secures the borders. The departmental reports from and an interview with, Sergio and Arturo may shed light on this connection The defense has requested disclosure in writing, ‘The state has provided some disclosure, but the disclosure is incomplete. The state has disclosed the departmental reports writen by the loal law enforcement officers involved with the case and those officers have been interviewed The sate also disclosed the above referenced report writen by a Vitor Valentin of Homeland Security Investigations which appears to copy information fom a report prepared by cither Sergio or Arturo, That report is dated June 18, 2018, In response to a request for disclosure, the state provided the name of a contact person at U.S. Immigration and Customs Enforcement (ICE). Presumably this isthe agency which employs Arturo and Sergio, The e-mail provides guidance on the procedure for obtaining information. These regulations require ata bare minimum the full names ofthe officers in onder to issue a subpoena. ‘The tate cited 6 CER. §§ 5.41 = 5.49 and also Touhy v. Ragen, 340 U.S. 462 (1951). (See, Exhibit "e-mail from prosecutor and Exhibit "2," copy of 6CFR. §§ 541 ~5.49) 6 CER, 5.45(a) regres tat requests for information must be in writing and with a8 much specificity as possible. 6 CFR. 5.45(b) requires the names ofthe employees and former employees from whom discovery willbe sought. Inthe present case, the state has failed to disclose the full names of Sergio and Arturo, their badge numbers and other critical information. Request for Disclosure ‘The Defendant requests disclosure from the state of the following, which has not yet been disclosed: 1, The full names of “Arturo” and “Sergio.” 2. All departmental reports prepared by them inthis case. 3. Their badge or employee LD. numbers. 4. All other identifying information necessary to request further information from ICE or Homeland Security regarding “Sergio” and “Arturo” and their actions in this investigation. 10 12 B 15 16 "7 18, 19 a 2 23 24 25 26 Inorder to properly prepare a defense, undersigned counsel must have the full ames ofthe involved officers and the name and contact information forthe agency that Jemployed them at the time of their investigation. This information is necessary to issue he proper request othe proper agency. ‘Undersigned counsel hereby requests that this court compel the Mohave County ‘Atorney's office to diseose all identifying information regarding these officers, theic agency and location, thee reports and all other material prepared in and used inthis investigation, Law and Argument: Arizona Rules of Criminal Procedure 15.1 - Discovery Arizona Rules of Criminal Procedure 15.1 provides a broad range of material and information which is subject to discovery. The disclosure required of the State in Arizona is broader than the federal requirements under Brady v. Maryland, 373 U.S. 83 (1963). State v. Jessen, 130 Ariz. 1, 4, 633 P.2d 410, 413 (1981). In the instant case the material and information that the Defense has requested is, cither specifically listed as a disclosure requirement or is indirectly referred to in Rule 15.1. Rule 15.1 (b)3) requires disclosure of “all then existing original and supplemental reports prepared by a law enforcement agency in connection with the particular crime with which the defendant is charged.” Arizona Rules of Criminal Procedure 15.1 (b)(8) provides that {T]he Prosecutor shall make available to the defendant the following material and information within the prosecutor's possession or control: (8) All then existing material or information which tends to mitigate or negate the defendants guilt as to the offense charged, or which would tend t reduce the defendants punishment therefore Arizona Rules of Criminal Procedure 15.1(g) provides: “Disclosure by Order of the Court. Upon motion ofthe defendant showing thatthe defendant has substantial need in the preparation ofthe defendant's case for material or information not otherwise covered by Rule 15.1, and tha the defendant is unable without undue hardship to obtain the substantial equivalent by ther means, the court in its discretion may order any person] to make it avilable tothe defendant...” tems listed above as requested by the Defendant in preparation for tril are the fll names of the federal officers who investigated Ms. Sho, the name and location of their agency, badge numbers, departmental reports, supplemental reports and any other ntfying information which would allow defendant to make contact with these officers ‘The Defendant has a substantial ned for ths disclosure forthe preparation of her case as it contains possibly exculpatory evidence. The Defendant is unable to obtain this information or a substantial equivalent by other means without undue hardship. As sated ahove, the Defendant has previously requested this disclosure in writing but as of this date it has not been provided. Disclosure Requirements pursuant to Brady Brady v. Maryland, 373 U.S. 83 (1963), states: “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates [due process where the evidence is material either to guilt or to punishment, irrespective Jf the good faith or bad faith ofthe prosecution.” “The disclosure requirements of Rule 15.1 ate grounded in the due process clauses| of the state and federal constitutions.” Stare v. Meza, 203 Ariz, 50 (2002), 50 P.34 407, referring to Brady. Meza states further: “The State must disclose not only “information in the possession or control of members of the prosecutor's staff,” but also that within the [possession or contro! ‘of any other persons who have participated in the investigation or evaluation of the case.’ Ariz. R. Crim, P. 15.1 (d) (1993). Thus,” ..." ‘a law enforcement ‘agency investigating a criminal action operates as an arm of the prosecutor for purposes of obtaining information that falls within the required disclosure provisions of Rule 15.1.'Carpenter v. Saperior Court, 176 Ariz. 486, 490, 862 P.2d 246, 250 (App. 1993); see also In re Brown, 17 Cala 873, 72 Cal. Rptr.2d 698, 952 P.2d 715, 718-19 (1998) (recognizing a crime lab as part ofthe prosecution team and that any favorable evidence know to the others acting on the government’s behalf is imputed to the prosecution)."" ‘Touhy is Distinguished Under Touhy, cited by the state in its e-mail response, the state court lacks jurisdiction to compel federal agents’ compliance with subpoenas, including in criminal Jcases. Defendant's request for this court to compel disclosure is not directed at the federal agents. ‘The defendant requests that this court compel the above referenced disclosure from the state of Arizona, as represented by the County Attorney's office, Once the necessary information is received from the state, Defendant will be able to complete a Proper request to the appropriate federal agency. Conc Forte foregoing risons the Defendant equess that his Court order scosure ofthe above fisted items. The Defendant hs requested disclosure from the Statin wring. The State hs failed to provide complete disclosure, The Defendant has substantial nee fortis materia and information nthe preparation ofthe Defendant's case for tia, The requested disclosure is material and relevant. Dad this U5" day of September 2019, RinpoUTLAWP.LALC. ee Brad Rideout Attorney for Defendant ORIGINAL of the foregoing filed with the Clerk of the Court and COPY of the foregoing sent this I> day of September 2019 to: [JUDGE (via hand delivery) Honorable Derek Carlisle PROSECUTOR (via hand delivery) Mohave County Attorey’s Office pseie IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MOHAVE STATE OF ARIZONA, ) Case Nos CR 20180835 Pani, , vs. ) ORDER YUQIN SHU, } Defeat ) ; ‘Upon motion and good cause appearing, IT1S ORDERED seting an Evidentiary Hearing in this mater forthe __— day of 2019 at am. pam ITIS ORDERED Denying Defendant's motion for an Evidentiary Hearing. IT IS ORDERED DATED this. day of. +2019. HONORABLE DEREK CARLISLE Copy of the Foregoing sent ]Or hand delivered this date to: Mohave County Attorney's Office Rideout Law PLLC. EXHIBIT “1” Mail - Alison Zeusche - Outlook of ntpsoalook office cominailsearchiW/AAQKAGVIYWMOZD.. Dut svete tose mse Terbet ot santetancan> Stk natn ‘hep hain he maya heath Sper oe ‘nin hese splat caret US. aan Cat nm Cyne te cn pase {along procedures, The DHS has ened epost ours tae ota yO empleo Socata ales seen iret Srerape Prwastettstn bayeninenmcnteincdneeah aataeh ‘su ernie Sr taro oi 27 860 th OT ou Unde, APS aa (oDe HOH Secon tn ty plone ref rm ot ve ante eno et ott eredenhchomet a es Cred OO} O05 dlgpes nape mgs chases ‘ice rete capoe heparan store baa et pd sep mcg ene on tala ig ps ‘Sites maneey nts are si fp ‘be io onus tT fo rel maemo ‘Siesemmenpeso Srerh S50) eget a cre ‘me tert pane et gtd ne aL deine ee ite thc ease sey ty ma oy atae tata wes ene he ‘ay enti nace Us a GON plat wars dot cette an {fof $54 an ppp medicare at senna Pace ee Sistas Anh ren ep eon made es rau con tt 0 ype pee es apnea ert oh nler EEE ee iateninonany fanny snmay anew money eat ves oasn019, 12:36 PM EXHIBIT “2” {GCER § 5.41 - Prose and scope; definitions, |CFR | US Law | LI ips l.corell edultchexd6 5.41 oft UI > Electronic Code of Federal Regulations (e-CFR) > Title 6. Domestic Security > Chapter I. DEPARTMENT OF HOMELAND SECURITY, OFFICE OF THE SECRETARY > Part 5. DISCLOSURE OF RECORDS AND INFORMATION > Subpart C. Disclosure of Information in Litigation > Section 5.41. Purpose and scope; definitions, 6 CFR § 5.41 - Purpose and scope; definitions. CFR Table of Popular Names § 5.41 Purpose and scope; definitions. (a) This subpart C sets forth the procedures to be followed with respect to: (2) Service of summonses and complaints or other requests or demands directed to the Department of Homeland Security (Department) or to any Department employee or former employee in connection with federal or state litigation arising out of or involving the performance of official act of the Department; and ities (2) The oral or writen disclosure, in response to subpoenas, orders, et other requests or demands of federal or state judicial or quasi-judicial or administrative authority as well as state legislative authorities (collectively, demands"), whether civil or criminal in nature, or in response to requests for depositions, affidavits, admissions, responses to interrogatories, document production, interviews, or other Itigation-related matters, Including pursuant to the Federal Rules of Civil Procedure, the Federal Rules ‘of Criminal Procedure, or applicable state rules (collectively, "requests"), of, ‘any material contained in the files of the Department, any information relating to material contained in the files of the Department, or any Information acquired while the subject of the demand or request is or was ‘employed by the Department, or served as Secretary of the Department, as part of the performance of that person's duties or by virtue of that person's official status. ‘91572019. 120 PM SSCFR §541- Purpose and scope; eins, | CFR ]US Law | LI pst a cone edt. 48 of (b) The provisions established by this subpart shall apply to all Department ‘components that are transferred to the Department. Except to the extent a Department component has adopted separate guidance governing the subject ‘matter of a provision of this subpart, the provisions of this subpart shall apply to each component of the Department. Departmental components may issue their own guidance under this subpart subject to the approval of the General ‘Counsel of the Department. (€) For purposes of this subpart, and except as the Department may otherwise determine in a particular case, the term employee includes all former Secretaries of Homeland Security and all employees of the Department of Homeland Security or other federal agencies who are or were appointed by, or subject to the supervision, jurisdiction, or control of the Secretary of Homeland Security, whether residing or working in the United States or abroad, including United States nationals, foreign nationals, and contractors. The procedures established within this subpart also apply to former employees of the Department where specifically noted, (A) For purposes of this subpart, the term litigation encompasses all pre-trial, trial, and post-trial stages of all judicial or administrative actions, hearings, Investigations, or similar proceedings before courts, commissions, boards {{ncluding the Board of Appellate Review), grand juries, or other judicial or quasi-judicial bodies or tribunals, whether criminal, civil, or administrative in nature. This subpart governs, inter alla, responses to discovery requests, depositions, and other pre-trial tral, or post-trial proceedings, as well as, responses to informal requests by attorneys or others in situations involving litigation. However, this subpart shall not apply to any claims against the Department by Department of Homeland Security employees (present or former), or applicants for Department employment, for which jurisdiction resides with the U.S. Equal Employment Opportunity Commission; the U.S. Merit Systems Protection Board; the Office of Speclal Counsel; the Federal Labor Relations Authority; the Foreign Service Labor Relations Board; the Foreign Service Grievance Board; or a labor arbitrator operating under a collective bargaining agreement between the Department and a labor organization representing Department employees; or thelr successor agencies or entities. (e) For purposes of this subpart, official information means all information of any kind, however stored, that Is in the custody and control of the Department, relates to information In the custody and control of the Department, or was acquired by Department employees, or former employees, as part of thelr official dutles or because of their official status within the Department while such individuals were employed by or served on behalf of the Department. ansisnie. 1240 PAE {CFR § 5.41 - Purpose and scope: definitions. [CFR | US Law Li upsifwww aw cornell detrei 41 4 (f) Nothing in this subpart affects disclosure of information under the Freedom of Information Act (FOIA), § U.S.C. 552, the Privacy Act, 5 U.S.C. 5522, Executive Order 12958 on national security information (3 CFR, 1995 Comp., p. 333), the Government in the Sunshine Act, 5 U.S.C. 552b, the Department's Implementing regulations oF purauent to congressional subpoene, Nothing this subpart permits disclosure of information by the Department, its present land former employees, or the Secretary, that is protected or prohibited by statute or other applicable law. (g) This subpart is intended only to inform the public about Department. Procedures concerning the service of process and responses to demands or requests and is not intended to and does not create, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by a party against the Department or the United States. (h) Nothing in this subpart affects the rules and procedures, under applicable U.S. law and international conventions, governing diplomatic and consular Immunity. () Nothing in this subpart affects the disclosure of official information to other federal agencies or Department of Justice attorneys in connection with litigation corducted on behalf or in defense of the United States, its agencies, officers, and employees, or litigation in which the United States has an interest; or to federal, state, local, or foreign prosecuting and law enforcement ‘authorities in conjunction with criminal law enforcement investigations, prosecutions, or other proceedings, e.g., extradition, deportation. '& CFR Toolbox Laveabout... Articles from Wex ‘Table of Popular Names Parallel Table of Authorities How current Is this? ‘ons2o19. 12:40 PM. SFR F542. Service ofsummontes and complain | CFR | US. naps fwu ia. corell edule 42 ot LII > Electronic Code of Federal Regulations (e-CFR) > Title 6. Domestic Security > Chapter I. DEPARTMENT OF HOMELAND SECURITY, OFFICE OF THE SECRETARY > Part 5. DISCLOSURE OF RECORDS AND INFORMATION > Subpart C. Disclosure of Information in Litigation > Section 5.42. Service of summonses and complaints. 6 CFR § 5.42 - Service of summonses and complaints. ‘CFR. § 5.42 Service of summonses and complaints. (a) Only the Office of the General Counsel Is authorized to receive and accept (on behalf of the Department summonses or complaints sought to be served upon the Department, the Secretary, or Department employees. All such documents should be delivered or addressed to the Office of the General Counsel, United States Department of Homeland Security, Washington, DC, 20528. The authorization for receipt shall in no way affect the requirements of service elsewhere provided in applicable rules and regulations. (b) In the event any summons or complaint described in § §.41(a) Is delivered to an employee of the Department other than In the manner speciied in this part, the recipient thereof shall decline to accept the proffered service and may notify the person attempting to make service of the Departmental regulations set forth herein (€) Except as otherwise provided §§ 5.42(d) and 5.43(c), the Department Is not an authorized agent for service of process with respect to civil litigation ‘against Department employees purely in their personal, non-official capacity. Copies of summonses or complaints directed to Department employees in connection with legal proceedings arising out of the performance cf official duties may, however, be served upon the Office of the General Counsel. (d) Although the Department is not an agent for the service of pracess’upon 972572019, 1241 POE SER £542- Sorc of summonses nd complains, | CFR | US. ups:dwww aw cornell edt. Its employees with respect to purely personal, non-official tigation, the Department recognizes that its employees should not use thelr official positions to evade their personal obligations and will, therefore, counsel and encourage Department employees to accept service of process in appropriate (e) Documents for which the Office of the General Counsel accepts service in official capacity only shall be stamped “Service Accepted In Official Capacity Only”. Acceptance of service shall not constitute an admission or waiver with respect to jurisdiction, propriety of service, improper venue, or any other {defense in law or equity avallable under applicable laws or rules. CER Toolbox Law about... Arties ont ‘25/2019. 1241 PM SCER 9543. Serio eubpoona, er order, and other dona lore tips ws cornell dle 43 LI > Electronic Code of Federal Regulations (e-CFR) > Title 6, Domestic Security > Chapter 1. DEPAKIMEN OF HOMELAND SECURITY, OFFICE GF THE SECRETARY > Part 5, DISCLOSURE OF RECORDS AND INFORMATION > Subpart C. Disclosure of Information in Litigation > Section 5.43. Service of subpoenas, court orders, and other demands or requests for official information or action. 6 CFR § 5.43 - Service of subpoenas, court orders, and other demands or requests for official information or action. CFR § 5.43 Service of subpoenas, court orders, and other demands or requests for official information or action. (a) Except in cases in which the Department is represented by legal counsel who have entered an appearance or otherwise given notice of thelr representation, only the Office of the General Counsel is euthorized to receive and accept subpoenas, or other demands or requests directed to the Secretary, the Department, or any component thereof, or its employees, whether civil or criminal in nature, for: (2) Material, including documents, contained in the files of the Department; (2) Information, including testimony, affidavits, declarations, admissions, responses to interrogatories, or informal statements, relating to material contained in the files of the Department or which any Department employee acquired in the course and scope of the performance of his official duties; (3) Garnishment or attachment of compensation of current or former employees; or (4) The performance or non-performance of any official Department duty. ‘97s2018, 12:41 PM CFR § 5.43 Service of subpoenas, cou exer, and other dem.. nsw a coreledutenuis 8 (b) In the event that any subpoena, demand, or request Is sought to be delivered to @ Department employee other than in the manner prescribed in paragraph (a) of this section, such employee shall, after consultation with the Office of the General Counsel, decline service and direct the server of process to the Departmental regulations. If the subpoena, demand, or other request is. nonetheless delivered to the employee, the employee shall immediately forward a copy of that document to the Office of the General Counsel, (c) Except as otherwise provided in this subpart, the Department is not an agent for service, or otherwise authorized to accept on behalf of its employees, ‘any subpoenas, show-cause orders, or similar compulsory process of federal or state courts, or requests from private Individuals or attorneys, which are not related to the employees’ official duties except upon the express, written authorization of the individual Department employee to whom such demand or request is directed. (d) Acceptance of such documents by the Office of the General Counsel does ‘not constitute a waiver of any defenses that might otherwise exist with respect to service under the Federal Rules of Civil or Criminal Procedure or other applicable rules. (e) Copies of any subpoenas, show cause orders, or similar compulsory process of federal or state courts, or requests from private Individuals or attorneys, directed to former employees of the Department in connection with legal proceedings arising out of the performance of offical duties shall also be ‘served upon the Office of the General Counsel. The Department shall not, however, serve as an agent for service for the former employee, nor is the Department otherwise authorized to accept service on behalf of ite former ‘employees. If the demand involves thelr offical duties, former employees who receive subpoenas, show cause orders, or similar compulsory process of federal or state courts should also notify in the component of the Department. in which they were employed if the service involves their official duties while so employed. (f) If the subpoena, demand, or other request is nonetheless delivered to the employee, the employee shall immediately forward a copy of that document to the Office of the General Counsel. oft ‘9psroi9, 1241 PM. SFR 65.48 Teimony and production of documents prohibited ups aw corel edufeteteu6s 44 LIL > Electronic Code of Federal Regulations (e-CFR) > Title 6. Domestic Security > Chapter I. DEPARTMENT OF HOMELAND SECURITY, OFFICE OF THE SECRETARY > Part 5. DISCLOSURE OF RECORDS AND INFORMATION > Subpart C. Disclosure of Information in Litigation > Section 5.4%. Testimony and production of documents prohibited unless approved by appropriate Department official. 6 CFR § 5.44 - Testimony and production of documents prohibited unless approved by appropriate Department officials, CFR § 5.44 Testimony and production of documents prohibited unless approved by appropriate Department officials. (a) No employee, or former employee, of the Department shall, In response to ‘a demand or request, including in connection with any litigation, provide oral ‘or written testimony by deposition, declaration, affidavit, or otherwise ‘concerning any information acquired while such person Is or was an employee of the Department as part of the performance of that person's official duties or by virtue of that person's official status, unless authorized to do so by the Office of the General Counsel, or as authorized in § §.44(b). (b) No employee, or former employee, shall, in response to a demand or request, including in connection with any litigation, produce any document or ‘any material acquired as part of the performance of that employee's duties or by virtue of that employee's offical status, unless authorized to do so by the Office of the General Counsel or the delegates thereof, as appropriate. tots 9252019, 1241 PM {6CFR § 5.8. Procedure when testimony option of docu Ings lansaelLedaiteny3.43 off UI > Electronic Code of Federal Regulations (e-CFR) > Title 6. Domestic Security. > Chapter I. DEPARTMENT OF HOMELAND SFCURITY, OFFICE OF THE SECRETARY > Part 5. DISCLOSURE OF RECORDS AND INFORMATION > Subpart C. Disclosure of Information in Litigation > Section 5.45. Procedure when testimony or production of documents is sought; general. 6 CFR § 5.45 - Procedure when testimony or production of documents is sought; general. CFR § 5.45 Procedure when testimony or production of documents is sought; general. (a) If official information Is sought, through testimony or otherwise, by a request or demand, the party seeking such release or testimony must (except {as otherwise required by federal law or authorized by the Office of the General Counsel) set forth in writing, and with as much specificity as possible, the nature and relevance of the official information sought. Where documents or ‘other materials are sought, the party should provide a description using the types of identiying information suggested in § 5.3(b). Subject to § 5.47, Department employees may only produce, disclose, release, comment upon, or testify concerning those matters which were specified In writing and Properly approved by the appropriate Department offical designated In § 5.44, ‘See United States ex rel. Touhy v. Ragen 340 U.S. 462 (1951), The Office of ‘the General Ccunsel may waive the requirement of this subsection in appropriate circumstances. (b) To the extent it deems necessary or appropriate, the Department may also ‘require from the party seeking such testimony or documents a plan of all reasonably foreseeable demiands, including but not limited to the names of all ‘employees anc former employees from whom discovery will be sought, areas ‘ans, 1249 Ne CFR § 5.45 Proce when etimony or prtction af come hap: corel 48 ot of inquiry, expected duration of proceedings requiring oral testimony, and Identification of potentially relevant documents. (c) The appropriate Department official designated in § 5.42 will notify the Department employee and such other persons as circumstances may warrant ofits decision regarding compliance with the request or demand. (A) The Office of the General Counsel will consult with the Department of Justice regaraing legal representation for Department employees in ‘appropriate cases. 8 CFR Toolbox Law about.. Articles from Wex Table of Popular Names Parallel Tabe of Authorities How currents tis? ‘98019, 1242 PM. {SCPR $ 546 Procedure when response to demand i oquired pb, haps law cornell elton 46 UT > Electronic Code of Federal Regulations (e-CFR) > Title 6. Domestic Security > Chapter I. DEPARTMENT OF HOMELAND SECURITY, OFFICE OF THE SECRETARY > Part 5. DISCLOSURE OF RECORDS AND INFORMATION > Subpart C. Disclosure of Information in Litigation > Section 5.46. Procedure when response to demand is required prior to recelving Instructions. 6 CFR § 5.46 - Procedure when response to demand is required prior to receiving instructions. CFR § 5.46 Procedure when response to demand is required prior to receiving instructions. (2) tf a respence to a demand Ie required before the appropriate Department official designated in § 5.44 renders a decision, the Department, if necessary, will request that the Department of Justice or the appropriate Department attorney take appropriate steps to stay, postpone, or obtain relief from the demand pending decision. If necessary, the attorney wil: (21) Appear with the employee upon whom the demand has been made; (2) Furnish the court or other authority with a copy of the regulations contained in this subpart; (3) Inform the court or other authority that the demand has been, or is being, as the case may be, referred for the prompt consideration of the appropriate Department official; and (4) Respectfully request the court or authority to stay the demana pening receipt of the requested instructions. (b) In the event that an immediate demand for production or disclosure is ‘made In circumstances which would preclude the proper designation or of anennio 499M CFR 95.46. Procecure when respons o demand is required pro hupssiwww lawcorel edule 46 appearance of a Department of Justice or appropriate Department attorney on ‘te employee's benaif, tne employee, if necessary, shall respectfully request {rom the demanding court or authority for a reasonable stay of proceedings for the purpose of obtaining Instructions from the Department. CFR Toolbox Law about. Articles from Wex a3 -anspois, 0:49 PM (CFR 9547. Procedure in he event ofan adverse ring. | CFR | hupsiiwww lw corel edultent5. <7 LIT > Electronic Code of Federal Regulations (e-CFR) > Title 6, Domestic Security > Chapter I. DEPARTMENT OF HOMELAND SECURITY, OFFICE OF THE SECRETARY > Part 5, DISCLOSURE OF RECORDS AND INFORMATION > Subpart C. Disclosure of Information in Litigation > Section 5.47. Procedure in the event of an adverse ruling 6 CFR § 5.47 - Procedure in the event of an adverse ruling. crR § 5.47 Procedure in the event of an adverse ruling. Ifa stay of, or other relief from, the effect of the demand in response to a request made pursuant to § 5.46 is declined or not obtained, or if the court or ‘ther judicial or quasi-judicial authority declines to stay the effect of the ‘demand in response to a request made pursuant to § 5.46, or If the court or ‘other authority rules that the demand must be complied with irrespective of the Department's instructions not to produce the material or disclose the Information sought, the employee upon whom the demand has been made shall respectfully decline to comply with the demand, citing this subpart and United States ex rel. Touhy v. Ragen,340 U.S. 462 (1951). = cFR Toolbox Lawabout... Articles ots ‘apsn019, 12:42PM CFR 95.48 - Considerations i detuning who the Depart, Ipsitwwelow corel edulethent548 of LII > Electronic Code of Federal Regulations (e-CFR) > Title 6. Domestic Security > Chapte” I. DEPARTMENT OF HOMELAND SECURITY, OFFICE OF THE SECRETARY > Part 5. DISCLOSURE OF RECORDS AND INFORMATION, > Subpar: C. Disclosure of Information In Litigation > Section 5.48, Considerations in determining whether the Department will comply with a ‘demand or request. 6 CFR § 5.48 - Considerations in determining whether the Department will comply with a demand or request. rR, § 5.48 Considerations in determining whether the Department will comply with a demand or request. (a) In deciding whether to comply with a demand or request, Department ‘officials and attorneys shall consider, among any other pertinent “considerations: (2) Whether such compliance would be unduly burdensome or otherwise Inappropriate under the applicable rules of discovery or the rules of procedure governing the case or matter in which the demand arose; (2) Whether compliance is appropriate under the relevant substantive law concerring privilege or disclosure of information; (3) The public interest; (4) The need to conserve the time of Department employees for the conduct of official business; (5) The need to avoid spending the time and money of the United States for private purposes; (6) The need to maintain impartiality between private litigants in cases where a substantial government interest Is nat implicated; onsnnis. 1288 PM {CER 4 5.48 Concideation in daterining whether the Depart bpsow lan snl elutiteS 48 ons (7) Whether compliance would have an adverse effect on performance by the Department of its mission and duties; and (8) The need to avoid involving the Department in controversial Issues not related to its mission. (b) Among those demands and requests in response to which compliance will ‘ot ordinarily be authorized are those with respect to which any of the following factors, inter alia, exist: (2) Compliance would violate a statute or a rule of procedure; (2) Compliance would violate a specific regulation or Executive order; (3) Compliance would reveal information properly classified in the interest of national security; (4) Compliance would reveal confidential commercial or financial information or trade secrets without the owner's consent; (5) Compliance would reveal the internal deliberative processes of the Executive Branch; or (6) Compliance would potentially Impede or prejudice an on-going law enforcement investigation. CFR Toolbox Law about... Articles from Wex “Table of Popular Names Parallel Table of ‘Authorities nt is this? ‘CER § 5.49 Prohibition on providing exper opinion testimony. hapsitwwnlav.corelLeduesinexut.49 of LIL > Electronic Code of Federal Regulations (e-CFR) > Title 6. Domestic Security > Chapter I. DEPARTMENT OF HOMELAND SECURITY, OFFICF OF THF SECRETARY. > Part 5. DISCLOSURE OF RECORDS AND INFORMATION > Subpart C. Disclosure of Information in Litigation > Section 5.49. Prohibition on providing expert or opinion testimony. 6 CFR § 5.49 - Prohibition on providing expert or opinion testimony. CFR § 5.49 Prohibition on providing expert or opinion testimony. (a) Except as provided in this section, and subject to 5 CFR 2635.805, Department employees shall not provide opinion or expert testimony based upon information which they acquired in the scope and performance of their official Department duties, except on behalf of the United States or a party represented by the Department of Justice. (b) Any expert or opinion testimony by a former employee of the Department shall be excepted from 5.49(a) where the testimony involves only general expertise gained while employed at the Department. (©) Upor a showing by the requestor of exceptional need or unique circumstances and that the anticipated testimony will not be adverse to the Interests of the United States, the appropriate Department official designated In § 5.44 may, consistent with 5 CFR 2635.805, in their discretion and with the ‘concurrence of the Office of the General Counsel, grant special, written authorization for Department employees, or former employees, to appear and testify a5 expert witnesses at no expense to the United States, (4) If, despite the final determination of the appropriate Department official designated In § 5.44, a court of competent jurisdiction or other appropriate nso. 12613 PM. GFR 9 549. Prohibition on providing expen o pion teinoy. nap corel ales. 49 of3 authority orders the appearance and expert or opinion testimony of a current or former Department employee, that person shall immediately inform the Office of the General Counsel of such order. If the Office of the General Counsel determines that no further legal review of or challenge to the court's ‘order will be made, the Department employee, or former employee, shall comply with the order. It so directed by the Office of the General Counsel, however, the employee, or former employee, shall respectfully decline to testity CFR Toolbox Law atout... Articles trom Wex ‘Table of Popular Names Paralle Table of Authortles How current is this?