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MSPB & EEOC: What is Discovery and How can the Federal Employee use it?

MSPB & EEOC: What is Discovery and How can the Federal Employee use it?

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.

Discovery is a very important part of your case. In an EEO case, you have the burden of proof, but the Agency has all the information you need to prove your case (documents, witnesses, etc). In an MSPB case, you don’t have the burden of proof (in Chapter 43 or Chapter 75 cases, at least), but the Agency has all the information that might well disprove their own case. In any event, discovery is a very important part of the EEOC or MSPB process.

Most pro-se Appellants at the MSPB and most pro-se Complainants at the EEOC do not take advantage of discovery in either forum. Good discovery can do a couple things for you. First, it can help you investigate whether or not discrimination actually occurred. Second, it can bolster your settlement offers if you have the evidence to back up your claims and can connect the evidentiary dots for the mediator and Agency counsel (assuming you have an Agency Counsel that is not just a bureaucrat). Third, it can increase the damages that are available to you. Fourth, it can help you control a runaway or lying government witness at hearing. There are more reasons to engage in discovery, but those are just a few.

Discovery, in my opinion, is an art and not a science. It is not something you will learn how to do by reading this Blog. Trial attorneys spend a lifetime or a career learning to use discovery, learning how to request discovery, learning how to get the right information in discovery, and learning how to use discovery to educate opposing counsel on the weakness of their client’s case, etc. You can read about it in books, you can download forms and templates, but nothing – in my opinion – is a substitute for experience in discovery (especially when engaged in discovery against the U.S. Government).

Over the next few days, I will discuss the different discovery “tools” that exist, and give the Federal Employee some ideas how to use them in your MSPB appeal or EEOC complaint. The purpose of this Blog Entry is to give you a basic familiarity with the discovery devices available to you

There are six (6) primary types of discovery in litigation in the United States. They are all available to you in your MSPB appeal or EEO Complaint, as both the Merit Systems Protection Board and the Equal Employment Opportunity Commission (loosely) follow the Federal Rules of Civil Procedure.

We will post more information about these different discovery devices over the coming days, so if you don’t see a link, come back and visit us in a couple days, or bookmark this blog entry.

1) Admissions . (Click on the underlined text to read more). Requests for Admission are simple statements of fact that you are asking the other party to admit or deny.

2) Interrogatories (Click on the underlined text to read more). Requests for Interrogatories, or “Rogs” are questions that you ask your opponent, and that they have to answer.

3) Production (Click on the underlined text to read more). Requests for Production are requests for documents and tangible evidence that your opponent has that you would like to discover.

4) Motion for Entry (Click on the underlined text to read more). Requests for Entry onto land or property are not common before the MSPB or the EEOC, but they are viable tools nonetheless. They can be used to enter, sample, test, inspect, and otherwise measure certain physical environments.

5) Depositions (Click on the underlined text to read more). Depositions are an opportunity for you to speak directly with a witness for your opponent and discuss his or her knowledge. They are taken under oath, and are different from Interrogatories in that you get to have a “dialogue” with the individual and are not necessarily “stuck” with their short or self-serving answers.

6) Depositions on Written Question. (Click on the underlined text to read more). Requests for Depos on Written Question are a blend of interrogatories and depositions, and are typically used for a very specific purpose.

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.