Commerce Trims the Red Tape on Employee Testimony Rules
Published Date: 10/19/2026
Rule
Summary
The Department of Commerce is making its rules about employee testimony and document sharing in legal cases simpler and clearer. These changes cut out confusing or extra words but don’t change anyone’s rights or duties. The new rules start on October 19, 2026, making legal processes smoother without costing extra money or time.
Analyzed Economic Effects
9 provisions identified: 2 benefits, 7 costs, 0 mixed.
Current employees barred from expert testimony
Current Department of Commerce employees may not provide expert or opinion testimony in legal proceedings about Department information, subjects, or activities for parties other than the United States (or a party represented by the Department of Justice) unless they have prior written authorization from the General Counsel or appropriate agency counsel. If asked during a proceeding for unapproved expert testimony, the employee must decline and request an opportunity to consult with counsel; if ordered without that opportunity, the employee shall decline to comply.
No electronic-only subpoena service
Subpoenas for Department of Commerce employees must be served in person or by mail in accordance with the Federal Rules of Civil or Criminal Procedure or applicable state procedure; service solely by electronic means is not authorized. If a subpoena is served on someone other than the General Counsel or appropriate agency counsel, a contemporaneous copy must also be sent to the General Counsel or agency counsel.
Where to send demands and contact info
Demands for testimony or Department documents must be in writing and addressed to the Assistant General Counsel for Employment, Litigation, and Information at 1401 Constitution Avenue NW, Room 5896, Washington, DC 20230, or emailed to [email protected], or addressed/emailed to the appropriate agency counsel. The rule reserves other notification subsections.
Former employees may testify as experts under conditions
A former Department employee may provide expert or opinion testimony for a party other than the United States under the conditions set out in Sec. 15.14(e)(2) (as referenced in the rule). Current employees remain restricted from doing so without authorization.
Department may require reimbursement for testimony expenses
When an attorney representing or acting under the authority of the United States seeks documents, testimony, or consultation from a Department employee in a proceeding where the United States is a party, the General Counsel or appropriate agency counsel may require reimbursement to the Department of expenses associated with that employee giving testimony or providing consultation.
Requests cannot force creation of new documents
The rule defines 'document or information' broadly but explicitly states that nothing in the definition shall be interpreted to require the creation of a new document to respond to any demand. Requesters cannot compel the Department to create new records to satisfy a demand.
Contractors may be treated as 'employees'
The rule's definition of 'employee' includes current or former employees or officers and notes that contractors may be included, meaning contractors who worked for the Department could fall within the subpart's restrictions on testimony and document production.
USPTO demands must go to USPTO directly
Demands for testimony of United States Patent and Trademark Office (USPTO) employees or for the production of USPTO documents do not fall under this subpart and must be sent directly to the USPTO. The Department removed redundant cross-references but retained the clarification that USPTO matters go to USPTO.
No substantive changes; no new paperwork
The Department states these amendments remove redundant or unnecessary regulatory text to streamline Part 15, Subpart B, and that the changes 'do not significantly alter any entitlements, obligations, or processes' and will not impose additional reporting or recordkeeping under the Paperwork Reduction Act. The Department characterizes the rule as deregulatory and not imposing new costs.
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