Both the MSPB and the EEOC afford Appellants (or Complainants) the opportunity to pursue discovery. While the timelines and the amounts of discovery allowed are quite different, the basic ideas of what discovery is and how it should be used are very similar.
There are six (6) primary types of discovery in litigation in the United States (click on the links for the particular type of discovery you want to read about:
Requests for Admission (Click on link to read more about Requests for Admission in MSPB and/or EEO Complaints)
Requests for Interrogatories (Click on link to read more about Requests for Interrogatories in MSPB and/or EEO Complaints)
Requests for Production (Topic of this Blog Entry)
Motion for Entry
Depositions on Written Question.
Today’s topic is the Requests for Production. This is the Discovery tool by which one Party asks another Party to produce its tangible evidence. What is tangible evidence:
b) Electronic files
d) Notes and files
e) Reports and communications
f) Video and audio recordings
g) Much more
If you can touch it, you can request in a Request for Production. The Requests for Production are one of three (3) types of discovery tools in MSPB and EEOC litigation that can be quite helpful. (The other two are Requests for Admission and Depositions)
When deciding what to request, you should start with what you need to prove (or disprove). Make a chart that lists the legal elements of your claim in the first column. In the second column, list the facts that you think prove the element in your favor. In the third column, list what physical, tangible things you might need to prove that element in your favor (or disprove the element if the Agency has the burden of proof).
The more specific your request, the less likely it is to draw an objection. However, if you make it too specific, the request may be denied (particularly if you are so specific that you have asked for something that doesn’t exist).
I recommend waiting to take your depositions until after you’ve gotten your requests for production and have filed a motion to compel, if necessary. Most times, you want to ask key witnesses about certain documents in a deposition.
Requests for Production will draw objections, but not as many as Requests for Interrogatories. I have seen three different approaches by Agency attorneys in EEOC and MSPB litigation:
Approach Number 1: Give the other side what they need to prove their claim, on the theory that they will get it anyway and the Agency looks bad withholding it.
Approach Number 2: Give the Appellant or Complainant nothing at all, and force them to file a Motion to Compel. Maybe they’ll miss their timeline for the Motion, or maybe the Judge won’t order you to produce the really damaging information. This approach is, unfortunately increasingly common, particularly as government in-house counsel get younger, more aggressive, and less-supervision.
Approach Number 3: Give the Appellant or Complainant only a little bit that they might otherwise get, but make it look like a lot. For example, I know one attorney that photocopied the same email no less than 40 times, and provided it in response to several Requests for Production.
Approach Number 4:Don’t file any responses, wait for the Motion to Compel and then provide responses. The gamble here is that the Agency doesn’t have to respond to discovery if you don’t move to compel their failure to answer in a certain timeframe. Their is a risk to this approach for the Agency – and for you. Be mindful of your timeframes and file any motion to compel within the proper time.
No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.
If you are a Federal Employee with questions about discovery before the Merit Systems Protection Board (MSPB) and/or the Equal Employment Opportunity Commission (EEOC) and would like to speak with a lawyer about discovery at the MSPB or at the EEOC, or if you would like to discuss legal representation with an attorney before the MSPB or EEOC, contact the Law Office of Eric L. Pines, PLLC.