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Discovery and the MSPB
It has often been said that knowledge is power. Litigation is no exception. The most important consideration when litigating before the Merit Systems Protection Board (MSPB) is how to take full advantage of the rules governing discovery in order to get access to information and documents that can help you defend against an adverse action and/or carry your burden of proof on affirmative defenses that were raised. The information obtained can be used both to defend against an adverse action such as removal and to prove claims that a federal employee may have brought against a Federal Agency independently. In this sense, discovery can effectively be used as both a shield and a sword.
Discovery, to be effective, requires the assistance and advice of an attorney familiar with MSPB discovery procedures. Litigation against the Federal Government is unique, federal employees are necessarily challenging the largest employer; an employer who wields an unlimited amount of resources and power. Every federal employee should consider consulting with a federal employment attorney who is familiar with litigation before the MSPB before proceeding and potentially overlooking an avenue that will assist you prevailing against your employing Federal Agency.
Engaging in Discovery with a Federal Agency
Following the filing of an MSPB appeal, a federal employee/appellant will usually receive an "Acknowledgement Order" from the Administrative Judge assigned to the case. The Acknowledgment Order will set forth the deadlines applicable at all stages of the litigation.
Usually, the time to commence formal discovery is 25 days from the date on the acknowledgement order. An appellant, however, should never wait this long to begin the discovery process, including serving Interrogatories (Questions), Requests for Production of Documents, Requests for Admissions, and Noticing Depositions (requests to interview an Agency Employee under oath).
If Discovery is not sent to the opposing counsel within the time period required, you may forfeit your right to take advantage of the Discovery Process.
Why is it important to take Depositions?
Depositions allow Federal Employees to question key witnesses (supervisors, co-workers) employed by the agency, under oath to obtain facts and sworn testimony helpful to an employee's appeal. You may also question the "Deciding" and "Proposing Official," under oath, to determine why they sustained or proposed a disciplinary action against the appellant/federal employee and to evaluate whether there were any violations of due process rights or failure to take the Douglass Factors into consideration. Depositions are also helpful in determining why the Agency believes that a lesser penalty would not "promote the efficiency of the service."
What if the Agency Fails to Respond to my Discovery requests?
It is often the case that appellants, especially if they are not represented by counsel, can have a difficult time not only in drafting the necessary discovery requests in their case, but also may have real difficulties in obtaining a meaningful response from the agency's attorney. It is critical when this occurs to have the federal employment attorney that is representing you communicate with opposing counsel immediately to resolve these discovery problems and if unsuccessful, to file a "Motion to Compel" with the MSPB to ensure that your rights are protected.