Discovery Requests
Once you have received an Acknowledgment Order from the administrative judge (AJ), discovery should begin within 20 days. See MSPB hearing proceeding and EEOC hearing proceeding.
Discovery requests involve serving the Interrogatories and the Request for Production ofDocuments to the Agency. You may also include the Request for Admission. Agency will most likely serve the discovery requests to you, the Complainant (EEOC) or the Appellant (MSPB).
See a blank sample of an Interrogatories and a Request for Production of Documents:
➤The following §1614.204(f) governing discovery in the EEOC hearing process may also be applicable to the same in the MSPB hearing process:
(f) Obtaining evidence concerning the complaint.
The administrative judge notify the agent and the agency representative of the time period that will be allowed both parties to prepare their cases. This time period will include at least 60 days and may be extended by the administrative judge upon the request of either party. Both parties are entitled to reasonable development of evidence on matters relevant to the issues raised in the complaint. Evidence may be developed through interrogatories, depositions, and requests for admissions, stipulations or production of documents. It shall be grounds for objection to producing evidence that the information sought by either party is irrelevant, overburdensome, repetitious, or privileged.
If mutual cooperation fails, either party may request the administrative judge to rule on a request to develop evidence. If a party fails without good cause shown to respond fully and in timely fashion to a request made or approved by the administrative judge for documents, records, comparative data, statistics or affidavits, and the information is solely in the control of one party, such failure may, in appropriate circumstances, caused the administrative judge:
(i) To draw an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information;
(ii) To consider the matters to which the requested information pertains to be established in favor of the opposing party;
(iii) To exclude other evidence offered by the party failing to produce the requested information;
(iv) To recommend that a decision be entered in favor of the opposing party; or
(v) To take such other actions as the administrative judge deems appropriate.
EEOC lack's the power to enforce subpoena. There is no reason for this, as other administrative agencies such as DOL have it. See an AJ testimony at EEOC's Strategic Enforcement Plan meeting in 2012 recommending that EEOC adapt the Administrative Procedures Act (APA) that allows for subpoena power:
➤ How to Write Interrogatories and Request for Production of Documents:
Identify to whom the Interrogatories are posed. You want to pose the questions to the "real" decision makers, someone who knew the details of the situation and who had the control over the situation (the act of harm) you are complaining about, usually your supervisor and his superior(s). You also want to pose questions to a witness who is part of the management (usually the Human Resources personnel). (If a witness is non-management personnel, you might want to send a questionnaire to his/her home to respond to you.)
Your questions should be specific in facts and be limited in terms of time range. Don't ask: "Was the Complainant ever deficient in her work performance in her entire career?" But ask: "For the last three years prior to her termination, was the Complainant even deficient in her work performance? If so, please identify the date, the nature of deficiencies...." You may want to follow up: "Was she issued any discipline or warning due to the deficiencies just identified?" Then, you might want to request under Request for Production of Documents: "Please provide copies of any and all disciplinary records on Complainant for the last three years prior to her termination, including but not limited to warning, counseling notes, suspension, and termination."
In addition to being specific and narrowly focused, your request must be relevant to the case. If not, you will most likely get a response such as following: "The Agency objects to this interrogatory on the grounds that it is overly broad and unduly burdensome and on the grounds that it seeks information not relevant to this action and is not reasonably designed to discover relevant evidence." (This kind of responses are common even if your requests were specific, relevant, and reasonable.)
Make sure you request information and documents on the comparators or the "similarly situated individuals." Most discrimination cases are won or lost on the findings related to the "similarly situated individuals." If you are terminated allegedly for excessive absences, for example, you want to request information and documents on the absences of others in similar rank and with similar responsibilities under the same or similar supervisor as yours during the similar time frame at issue. Make sure to request information on race,
age, sex on each (if your case involves race, age, and sex claims), or if any had history of EEO activities (if your case involves retaliation claims), or if any had any known disabilities (if your case involves disability discrimination claims).Agencies won't voluntarily provide you with vital information and documents without a fight. They will generally object to your requests on the grounds just mentioned above as example.
Make sure you set a deadline for Agency's response/production. It is usually within 30 calendar days of receipt for EEOC hearing process, within 20 days of issuance for MSPB hearing process.
Serve the Interrogatories and Request for Production of Documents to the Agency's designated counsel. Prove your service by attaching a Certificate of Service. Do not serve the requests to the administrative judge (AJ).
➤ How to Force the Agency to Respond to Your Discovery Requests or to Produce the Information and Documents You Requested:
In order to force the Agency to respond to your requests (at all) or to respond properly and sufficiently, you can send a Motion to Compel to the administrative judge (along with the certificate of service).
Before you file a Motion to Compel, however, you must offer the Agency a chance to provide you what you requested. This means, usually, a courtesy letter is sent to the Agency counsel reminding him or her of the deadline. (Send the letter a few days before the deadline.) If the Agency's response is timely but insufficient or inadequate (i.e., mostly objecting to your request based on irrelevance, broadness, or undue hardship), you need to inform the counsel of your intent to file a Motion to Compel within certain time frame by sending a (or another) courtesy letter indicating your intent to file the Motion.
Your "courtesy letter" may result in two things: 1) no response or blatant refusal to respond or produce; 2) a diplomatic response by the Agency stating, for example, the request is too broad and asking to narrow it down, etc.. This diplomatic letter from the Agency may be designed to delay the process or to withhold the information or documents or it may be a genuine attempt to work out the requests.
In the event of no response or blatant refusal to you requests (even after your reminder or the follow up "courtesy letter" you sent after receiving deficient response/production from the Agency), you can then immediately file a Motion to Compel to the administrative judge.
A Motion to Compel must be filed within 10 days of deficient/no response or within 10 days of failure to work out the production of information or documents you requested.
In the event that you receive a "diplomatic letter" and if the reasons for non production is valid, you may need to revise your requests to focus it more narrowly or to make it more relevant (by providing, for example, the context or reason for the request).
If and when you serve your second and revised discovery requests, you might want to give a shorter deadline.
➤ How To File a Motion to Compel the Agency to Produce the Requested Information and Documents:
File a Motion to Compel to the administrative judge (AJ) within 10 days of deficient or no response or within 10 days of failure to resolve the dispute with the Agency.
In your Motion, you must prove that you made the timely discovery requests and that Agency failed to respond or respond sufficiently or adequately. (Attach as exhibits your discovery request and Agency's response thereto.)
You must show that you made a reasonable attempt to work out the dispute with the Agency (i.e., cite and attach your "courtesy letter" and Agency's response thereto, if any).
You need to argue (to the administrative judge) on each and every item of your request as to why your request was relevant, pertinent, and reasonable (or not too burdensome); and/or, if applicable, why Agency's response is insufficient and/or inadequate (i.e., lacking certain documents or illegible documents or, in rare cases, forgery).
After waiting for and receiving Agency's response to your Motion to the judge, the judge (AJ) will rule on the dispute. She may grant your Motion fully or partially or she may deny your Motion.
If your Motion to Compel is granted (fully or partially), the judge (AJ) will set a deadline for the Agency to comply with your request. If the Motion is granted partially, AJ may eliminate some requests (on the grounds of irrelevancy, burdensomeness, etc.) while upholding some others. In granting your Motion, AJ will issue an Order for the Agency to comply.
If the Agency fails to comply with AJ's Order, it can be sanctioned. File a Motion to sanction the Agency by requesting, for example, the following:
Bar Agency from introducing any new evidence into the record.
Bar Agency from introducing any witnesses at the hearing.
Or, render a judgment against the Agency and require Agency to provide a full and applicable remedy to you.
Discovery dispute is where most of the battle is waged in the hearing proceeding before the hearing ever takes place. Once you obtained the information or documents through the discovery process, you may introduce some of them as evidence to be used at the hearing.
➤ Introduction of new evidence may be made for documents not contained in the Agency's Investigative File (for EEOC hearing) or Agency Narrative (for MSPB hearing), which is submitted to the administrative judge (AJ) at the outset of the hearing process and which is usually accepted into the record in its entirely for either party to later cite and to refer to in the Motions or during the hearing. You may introduce a new evidence when filing a pre-hearing report, if requested by AJ, or when you cite and attach it as exhibit to your Motion to the AJ (usually in response to Agency's Motion to Dismiss or in some other Motions you may initiate). See MSPB hearing process or EEOC hearing process.
➤ The discovery right is the only tool at the Complaint's disposal to force the Agency to produce relevant documents and information. This tool is available only within the AJ's authority, which takes effect when Acknowledgment Order is issued. The only other tool Complainant has independently of the hearing process is the Freedom of Information Act (FOIA).
Disclaimer
Mr. Lee is not an attorney but can represent clients in federal administrative processes, including EEOC hearings and MSPB hearings.
Mr. Lee does not practice law and cannot provide attorney-client protection privileges. However, as any union shop steward can, Mr. Lee can represent federal employees at any administrative proceeding including those referenced above.
Mr. Lee cannot and does not represent clients at court proceedings.