Agency Motion to Compel Discovery Responses: MSPB

Practical Law Standard Document w-015-3829 (Approx. 12 pages)

Agency Motion to Compel Discovery Responses: MSPB

by Practical Law Labor & Employment

Read This Before Using Document

In federal sector administrative hearings before a Merit Systems Protection Board (MSPB) administrative judge (AJ), an agency may file a motion to compel discovery responses if the appellant fails or refuses to respond in full to a discovery request (5 C.F.R. § 1201.73(c)). Before filing any motion to compel, the agency must discuss the anticipated motion with the appellant attempting to resolve the dispute and narrow the areas of disagreement (5 C.F.R. § 1201.73(c)).

This Standard Document is a template for the agency to file a motion to compel discovery responses in a MSPB appeal filed under:

The Civil Service Reform Act of 1978 (CSRA). For more information, see Practice Note, Civil Service Protections for Federal Employees: Overview: Prohibited and Appealable Actions Under the CSRA.
The Whistleblower Protection Act (WPA), as amended by the Whistleblower Protection Enhancement Act of 2012 (WPEA). For information about the WPA, see Practice Note, Whistleblower Protections Under the Whistleblower Protection Act.
The Uniformed Services Employment and Reemployment Rights Act (USERRA). For more information, see Practice Note, Civil Service Protections for Federal Employees: Overview: USERRA.
The Veterans Employment Opportunities Act (VEOA). For more information, see Practice Note, Civil Service Protections for Federal Employees: Overview: VEOA.

For more information about the MSPB appeal process, see Practice Note, MSPB Appeals Process: Overview.

This Standard Document assumes the agency is the party filing the motion to compel discovery responses. However, any party may file a motion to compel discovery responses and this template can be modified for use by the appellant.

This Standard Document is drafted to comply with MSPB regulations and the MSPB Judges' Handbook.

Motions to Compel Discovery Responses

Motions to compel discovery responses are common in MSPB practice. The agency representative should not overlook any opportunity to use discovery in preparing and presenting the best possible case. The agency can obtain non-privileged information during discovery about anything relevant to the matters involved in the case. Relevant information is broadly defined to cover any request that is reasonably calculated to lead to the discovery of admissible evidence. The agency can use discovery to get information and minimize the likelihood of surprise at the hearing on:

The appellant's bases for challenging the agency's decision.
The appellant's bases for affirmative defenses.
The mitigating factors the appellant may rely on.
Any procedural violations the appellant alleges occurred, such as, for example, deficiencies in providing notice of the adverse action or challenging the legitimacy of a reduction-in-force.
Allegations of discrimination.
Medical documentation.
Identity of hearing witnesses.
Identity of fact witnesses.

The MSPB expects the parties to conduct discovery with minimal intervention from the AJ (5 C.F.R. § 1201. 71). The parties should attempt to resolve their own discovery disputes before filing any motions to compel discovery responses. However, a motion to compel discovery responses may be filed when the appellant fails to respond or provides incomplete or inadequate responses to discovery requests. Nothing prevents the parties from resolving the discovery dispute after the motion to compel is filed and before the AJ's ruling.

The MSPB explains the discovery process and the scope of discovery at 5 C.F.R. § 1201.72. The Federal Rules of Civil Procedure may be used as a general guide for discovery practices before the MSPB but are instructive rather than controlling. The sequence of discovery and the motion to compel are described in the MSPB Judge's Handbook, Chapter 8.

Filing a Motion to Compel Discovery Responses

The agency may file a motion to compel discovery responses after attempting to resolve the dispute with the appellant, when the appellant:

Objects to the discovery requests.
Fails to timely respond to the requests.
Engages in repeated delay tactics.
Provides non-responsive answers.

Time Limits for Filing a Motion to Compel Discovery Responses

The agency must file a motion to compel discovery responses within:

Ten days after the other party served objections to the requests.
Ten days after the time limit for responses expired if the agency received no response.

(5 C.F.R. § 1201.73(d).)

The agency files the motion with the AJ assigned to the case and serves a copy of the motion on the appellant and representative if the appellant is represented.

For more information about the MSPB timeframes for discovery, see Deadlines for MSPB Appeals Chart.

Contents of the Motion to Compel Discovery Responses

The motion to compel discovery responses must include:

An explanation identifying the relevance and materiality of the information sought.
A copy of the original discovery request.
A copy of the appellant's response or an affidavit or sworn statement identifying that no response was received (a sample affidavit or sworn statement under 28 U.S.C. Section 1746 is found at Appendix IV of 5 C.F.R. Part 1201).
A copy of the certificate of service indicating that the agency served the motion on the appellant.

(5 C.F.R. § 1201.73.)

Rulings

Once a motion to compel discovery responses is filed, the AJ must rule on it (Raines v. USPS, 32 M.S.P.R. 56, 59 (1986)). If the AJ fails to rule or the agency believes the AJ makes an error in the ruling, the agency should preserve its concerns for the record. Failing to preserve an objection to the administrative judge's ruling on a motion to compel, coupled with a request for reconsideration of the ruling, could preclude the agency from objecting to the ruling through a petition for review (Brown v. USPS, 64 M.S.P.R. 425, 429 (1994)).

Bracketed Text

Counsel should replace bracketed text in ALL CAPS with information specific to the particular circumstances. Bracketed text in sentence case is optional or alternative language that counsel should include, modify, or delete, as appropriate. A forward slash in bracketed text indicates that counsel should choose from among two or more alternative words or phrases.

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 
 [REGIONAL/ FIELD] OFFICE

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

[NAME],

[Docket No. __________]

Appellant,

v.

[AGENCY NAME],

[Assigned Administrative Judge's Name: __________]

Agency.

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

AGENCY'S MOTION TO COMPEL DISCOVERY RESPONSES

INTRODUCTION

Pursuant to 5 C.F.R. §§ 1201.73 and 1201.74, and the Acknowledgment Order, the agency requests that the MSPB issue an order compelling the appellant's response to the agency's discovery requests.

Note: Introduction

Close Drafting Note

Introduction

The introduction is a short paragraph identifying the reason for the motion.

FACTS

In the Acknowledgment Order dated [DATE], the Administrative Judge advised that the parties were to initiate discovery within 30 calendar days of the date of the order.
The agency served discovery request[s] on the appellant on [DATE].
The appellant's responses to the agency's discovery were due no later than [DATE].
On [DATE] [having not yet received any discovery responses/having received incomplete or inadequate responses], agency counsel contacted appellant via [email/U.S. mail/FedEx/UPS/telephone] [to address the status of the discovery responses/to address the incomplete or inadequate responses to the discovery requests] and informed the appellant that if complete responses to the discovery requests are not submitted promptly the agency will file a motion to compel discovery responses with the MSPB.
As of [DATE] [the agency has not received any discovery responses from the appellant/the agency has not received complete and substantive responses to its discovery requests] and the appellant has not requested an extension of time to provide discovery responses.
The agency has attached [a copy of its original discovery requests and the appellant's response/ a copy of its original discovery requests and a [affidavit/sworn statement] identifying that no response was received].
Note: Facts
Close Drafting Note
Facts
The agency should include:
The date the discovery period began.
The date the agency served discovery requests on the appellant.
The date the appellant's responses to discovery were due.
The dates the agency contacted the appellant concerning the discovery responses.
The date indicating that discovery disputes were still unresolved.
A statement indicating that the agency attached to the motion:
a copy of the original discovery requests and the appellant's response; or
if the appellant failed to respond, an affidavit or sworn statement identifying that no response was received.
After the motion to compel is filed, the AJ will examine the motion and the underlying discovery requests to ensure all regulatory time limits and requirements are met. The AJ has broad discretion in rejecting untimely motions to compel. (See Esparza v. Dep't of the Air Force, 22 M.S.P.R. 186 (1984).) Motions to compel must be ruled on promptly to ensure the parties ample time to complete discovery.
The agency must attach a copy of its original discovery requests and the appellant's responses to the motion to compel. Failing to do so may result in denial of the motion (Gelinas v. USPS, 66 M.S.P.R. 641 (1995)).

ARGUMENT

The Agency is entitled to conduct discovery into any relevant matter including information reasonably calculated to lead to the discovery of admissible evidence (5 C.F.R. § 1201.72). The information sought in this matter is reasonably calculated to lead to the discovery of admissible evidence and is necessary for the agency to prepare for the hearing. Agency counsel has made a good faith effort to amicably resolve the dispute by contacting the appellant to determine the status of the discovery responses. The agency requests the Administrative Judge order the appellant's response because the appellant has refused or failed to respond in full to the agency's discovery requests pursuant to 5 C.F.R. § 1201.73(c)(2).

I.[INTERROGATORIES]

[INTERROGATORY AS WRITTEN IN THE ORIGINAL DISCOVERY REQUEST FOR EACH DISPUTED INTERROGATORY].

[APPELLANT'S INADEQUATE RESPONSE OR OBJECTION FOR EACH DISPUTED INTERROGATORY].

[EXPLANATION WHY THE INFORMATION SOUGHT IS RELEVANT AND MATERIAL].

[LEGAL ARGUMENT IN NARRATIVE FORM WITH CITATIONS].

II.[REQUESTS FOR ADMISSIONS]

[REQUEST FOR ADMISSION AS WRITTEN IN THE ORIGINAL DISCOVERY REQUEST FOR EACH DISPUTED REQUEST FOR ADMISSION].

[APPELLANT'S INADEQUATE RESPONSE OR OBJECTION FOR EACH DISPUTED REQUEST FOR ADMISSION].

[EXPLANATION WHY THE INFORMATION SOUGHT IS RELEVANT AND MATERIAL].

[LEGAL ARGUMENT IN NARRATIVE FORM WITH CITATIONS].

III.[REQUEST FOR PRODUCTION OF DOCUMENTS]

[REQUEST FOR PRODUCTION OF DOCUMENTS AS WRITTEN IN THE ORIGINAL DISCOVERY REQUEST FOR EACH DISPUTED REQUEST FOR PRODUCTION OF DOCUMENTS].

[APPELLANT'S INADEQUATE RESPONSE OR OBJECTION FOR EACH DISPUTED REQUEST FOR PRODUCTION OF DOCUMENTS].

[EXPLANATION WHY THE INFORMATION SOUGHT IS RELEVANT AND MATERIAL].

[LEGAL ARGUMENT IN NARRATIVE FORM WITH CITATIONS].

Note: Argument

Close Drafting Note

Argument

To present the motion in an organized manner, the agency should:

Provide a brief background explaining the reason for the motion and the necessity of the information sought.
List each discovery request in dispute by number (interrogatories, requests for admissions, or requests for production of documents) as written in the original discovery request.
List each incomplete or inadequate answer from the appellant summarized or repeated verbatim under each request.
Explain for each discovery request why the information sought is relevant and material.
Provide a legal argument with citations to legal authority supporting the agency's position for each disputed request.

If the appellant objected to any of the agency's discovery requests, the agency should respond to the objection citing legal authority supporting its position.

The AJ has the authority to order the parties, including agency employees, to respond to motions for production of documents and requests for admissions (5 C.F.R. § 1201.41 (b)(4)).

The AJ may have delegated authority to:

Issue subpoenas for the appearance of witnesses and production of documentary or other evidence.
Order depositions.
Order responses to written interrogatories.

After filing the motion to compel, the agency may contact the AJ to request a conference call to resolve the dispute immediately. For general information on MSPB cases, see Practice Notes:

When citing legal authority to support discovery-related arguments before the MSPB, agency counsel should rely primarily on:

MSPB regulations and the Judge's Handbook, Chapter 8.
US Supreme Court cases.
Decisions from the US Court of Appeals for the Federal Circuit.
MSPB decisions.

CONCLUSION

For the foregoing reasons, the agency respectfully requests that the MSPB issue an order compelling answers to the agency's discovery requests. Because the hearing date is approaching, the agency requests that the appellant be ordered to respond no later than [DATE], by fax or email.

Note: Conclusion

Close Drafting Note

Conclusion

The conclusion is a short paragraph that provides both:

A statement of the relief sought.
The date when the appellant's response should be made.

The appellant may respond to the motion to compel by complying or by explaining the failure to comply. The appellant has ten days from the date of service to respond to the motion to compel (5 C.F.R. § 1201.73(d)(4)).

If the agency believes that the appellant's discovery responses received after the AJ's ruling are still inadequate, the agency should file a second motion to compel discovery responses or a motion for sanctions (Schroeder v. Dept. of Trans., 60 M.S.P.R. 566, 572-73 (1994)). The agency can combine both motions. The appellant's failure to produce the discovery responses in the face of an MSPB order compelling responses can subject the appellant to sanctions that may result in:

Drawing an inference in favor of the agency.
Prohibiting the appellant from introducing evidence concerning the information sought.
Permitting the agency to introduce secondary evidence concerning the information sought.
Eliminating any appropriate part of the appellant's pleadings or other submissions.

(5 C.F.R. § 1201.43(a).)

For more information on discovery sanctions, see Standard Document, Agency Motion for Discovery Sanctions: MSPB.

Dated:

[DATE]

[CITY], [STATE]

Respectfully submitted,

______________________________

[AGENCY REPRESENTATIVE'S NAME]

[AGENCY]

[ADDRESS 1]

[ADDRESS 2]

[CITY], [STATE] [ZIP CODE]

[PHONE NUMBER]

[EMAIL ADDRESS]

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above, AGENCY'S MOTION TO COMPEL DISCOVERY RESPONSES, was sent by [METHOD OF SERVICE] on [DATE], addressed to the following:

MSPB

[AJ'S NAME]

[ADDRESS LINE 1]

[ADDRESS LINE 2]

[PHONE NUMBER]

[EMAIL ADDRESS]

Appellant Representative

[NAME]

[LAW FIRM NAME]

[ADDRESS LINE 1]

[ADDRESS LINE 2]

[PHONE NUMBER]

[EMAIL ADDRESS]

Appellant

[NAME]

[ADDRESS LINE 1]

[ADDRESS LINE 2]

______________________________

[AGENCY REPRESENATIVE'S NAME]

Agency Representative

Note: Certificate of Service

Close Drafting Note

Certificate of Service

The agency's counsel must serve the motion to compel discovery responses on the appellant or if represented on the appellant's representative. 5 C.F.R Section 1201.26(b)(2) does not require a particular method of service. The agency counsel should also send a copy to the represented appellant for their records.

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