TABLE OF CONTENTS. PREFACE...i

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1 PREFACE...i CHAPTER 1: DISCOVERY: OVERVIEW AND RULES... 1 I. DEFINITION AND PURPOSE...1 II. ROLE OF THE ADMINISTRATIVE JUDGE IN INITIAL DISCOVERY MATTERS...2 III. RESPONSIBILITY OF THE PARTIES IN PURSING DISCOVERY...3 IV. OVERVIEW OF PROCEDURES...5 A. TIME LIMITS AND PROOF OF FILING Filing Using Electronic Filing Under 5 CFR Filing by Mail Filing by Facsimile Filing by Commercial Delivery Filing by Personal Delivery Proof of Filing...7 B. DISCOVERY INVOLVING NONPARTIES DIFFERENCES...7 C. INITIAL DISCOVERY REQUESTS AND RESPONSES...8 D. SUBSEQUENT DISCOVERY REQUESTS AND RESPONSES...9 E. METHODS OF OBTAINING ADDITIONAL TIME FOR DISCOVERY...9 V. THE PRICE OF NOT USING DISCOVERY OR USING IT POORLY A. FAILURE TO USE DISCOVERY B. INCOMPLETE OR DEFICIENT DISCOVERY C. HOW DISCOVERY MAY AFFECT CASE BEING JUDGED ON THE RECORD VI. METHODS OF DISCOVERY VII. THE RULES OF DISCOVERY VIII. THE CODE OF FEDERAL REGULATIONS IX. THE JUDGES HANDBOOK X. THE JUDGE S DISCRETION XI. THE FEDERAL RULES OF CIVIL PROCEDURE XII. DISCOVERY DURING JURISDICTIONAL CASES A. ENFORCEMENT PROCEEDINGS B. LAST CHANCE AGREEMENTS C. PROBATIONARY APPEALS D. INVOLUNTARY SEPARATIONS/CONSTRUCTIVE SUSPENSIONS/ALLEGED SUSPENSIONS OF OVER 14 DAYS E. UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT F. VETERANS EMPLOYMENT OPPORTUNITY ACT G. WHISTLEBLOWER REPRISAL XIII. DISCOVERY DURING A DISMISSAL WITHOUT PREJUDICE XIV. DISCOVERY DURING ENFORCEMENT PROCEEDINGS OR ATTORNEY FEES CLAIMS XV. SAMPLE MOTIONS REQUESTS FOR SUSPENSION/DISMISSAL WITHOUT PREJUDICE, OR EXTENSION OF DISCOVERY A. MOTION FOR A SUSPENSION UNDER 5 CFR B. MOTION FOR A DISMISSAL WITHOUT PREJUDICE C. MOTION TO EXTEND TIME FOR DISCOVERY CHAPTER 2: NON-DISCOVERY TOOLS I. FREEDOM OF INFORMATION ACT A. SAMPLE FREEDOM OF INFORMATION ACT REQUEST B. SAMPLE FREEDOM OF INFORMATION APPEAL LETTER II. PRIVACY ACT A. SAMPLE PRIVACY ACT REQUEST III. INFORMAL CONTACTS WITHOUT USE OF DISCOVERY PROCEDURES CHAPTER 3: INSTRUCTIONS TO PARTIES I. SAMPLE # II. SAMPLE # III. SAMPLE # iii

2 IV. SAMPLE # V. SAMPLE # CHAPTER 4: DEPOSITIONS I. DEFINITION AND PURPOSE A. REASONS TO TAKE DEPOSITIONS B. REASONS FOR CONSIDERING NOT TO TAKE DEPOSITIONS C. DEPOSITIONS IN LIEU OF LIVE TESTIMONY D. PROCEDURE AND OPTIONS ON RECORDING A DEPOSITION E. RIGHT TO ATTEND A DEPOSITION II. FAILURE TO APPEAR III. DEPOSITION OF A NONPARTY DIFFERENCES IV. DEPOSITION OF A NONPARTY OUTSIDE OF THE UNITED STATES V. TIPS FOR TELEPHONIC AND VIDEOCONFERENCE DEPOSITIONS A. AUDIO DEPOSITIONS-CONSIDERATIONS B. VIDEO CONFERENCE DEPOSITIONS-CONSIDERATIONS VI. DEPOSITIONS UPON WRITTEN QUESTIONS VII. DUCES TECUM DEPOSITIONS VIII. PREPARING FOR THE DEPOSITION A. PREPARING THE WITNESS B. HOW TO PREPARE IF YOU ARE TAKING THE DEPOSITION C. HOW TO PREPARE IF YOU ARE TAKING THE DEPOSITION OF AN EXPERT WITNESS D. UNDERSTAND THE BURDENS OF PROOF AND THE ISSUES INVOLVED E. RIGHT TO REVIEW TRANSCRIPTS IX. SAMPLE DEPOSITION NOTICES A. DEPOSITION NOTICE BETWEEN PARTIES B. DUCES TECUM DEPOSITION NOTICE TO A PARTY C. MOTION TO THE JUDGE FOR A SUBPOENA DUCES TECUM Serving the Subpoena The Order From the Judge D. DEPOSITION NOTICE FOR VOLUNTARY NONPARTY DEPOSED IN LIEU OF LIVE TESTIMONY AT THE HEARING CHAPTER 5: INTERROGATORIES I. DEFINITION AND PURPOSE II. SIGNING OF RESPONSES III. DRAFTING INTERROGATORIES IV. SAMPLE INTERROGATORIES A. SAMPLE OF AN INTERROGATORY, WITH AN OBJECTION AND RESPONSE B. APPEAL THAT DOES NOT IDENTIFY CLAIMS C. QUESTIONS TO AGENCY TO IDENTIFY INDIVIDUALS D. FALSIFICATION AND MISREPRESENTATION E. MISUSE OF A GOVERNMENT OWNED VEHICLE Agency to Appellant Appellant to Agency F. ABSENCE WITHOUT LEAVE Agency to Appellant Appellant to Agency G. DISPARATE PENALTY BASED ON DOUGLAS FACTORS Appellant to Agency H. UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT DISCRIMINATION CLAIMS I. DISPARATE PENALTY BASED ON DISCRIMINATION Agency to Appellant J. DISPARATE PENALTY BASED ON REPRISAL FOR EEO ACTIVITY Agency to Appellant Appellant to Agency K. FAILURE TO ACCOMMODATE A MEDICAL CONDITION Appellant to Agency Agency to Appellant L. PROBATIONARY PERIOD MARITAL STATUS CLAIM OR PARTISAN POLITICAL REASONS M. DOUGLAS FACTOR ASSESSMENTS iv DISCOVERY PRACTICE BEFORE THE MSPB

3 1. Agency to Appellant Appellant to Agency; Rewording for Either Party N. WITNESS INFORMATION O. WITNESS STATEMENT RELATED INFORMATION Agency to Appellant Appellant to Agency P. OTHER EMPLOYMENT THAT MAY AFFECT AGENCY ACTION OR BACK PAY Q. HARMFUL ERROR R. COMPENSATORY DAMAGES S. WHISTLEBLOWER REPRISAL Appellant to Agency Agency to Appellant T. PERFORMANCE CASES Agency to Appellant Appellant to Agency Performance Standard Questions Performance Improvement Period Questions U. QUESTIONS TO AGENCY PERSONNEL OFFICES V. CLEAN-UP INTERROGATORIES CHAPTER 6: REQUESTS FOR DOCUMENT PRODUCTION I. DEFINITION AND PURPOSE II. PROCEDURE III. SAMPLES OF INSTRUCTIONS FOR PRODUCTION OF DOCUMENTS A. SAMPLE # B. SAMPLE # IV. SAMPLES OF SPECIFIC REQUESTS A. FOLLOW-UP TO INTERROGATORIES B. GENERAL CLOSE-OUT REQUESTS C. APPELLANT TO AGENCY D. AGENCY TO APPELLANT E. PAIRING DOCUMENT REQUESTS TO INTERROGATORIES CHAPTER 7: PHYSICAL AND MENTAL EXAMS I. DEFINITION AND PURPOSE II. RULE 35 THE FEDERAL RULES OF CIVIL PROCEDURE III. THE HASLER DECISION IV. HINTS ON USING RULE V. SAMPLE MOTION FOR A RULE 35 EXAM VI. SAMPLE MEDICAL RELEASE FORM CHAPTER 8: REQUESTS FOR ADMISSIONS I. DEFINITION AND PURPOSE II. SAMPLES A. AWOL CASE B. FALSIFICATION/MISREPRESENTATION C. DISCRIMINATION D. INABILITY TO PERFORM/LIGHT DUTY CHAPTER 9: MOTIONS TO COMPEL DISCOVERY I. DEFINITION II. PURPOSE III. JUDGE S RESPONSIBILITIES IN DISCOVERY MATTERS IV. PROCEDURES A. STEPS TO TAKE BEFORE FILING A MOTION B. BOARD TREATMENT OF PRO SE APPELLANTS C. BE TIMELY IN FILING ANY MOTION AND ANY OPPOSITION TO THE MOTION D. WHAT A MOTION TO COMPEL MUST CONTAIN E. THE JUDGE S RULING AND PRESERVING OBJECTIONS TO RULINGS F. WHAT IF THE JUDGE FAILS TO RULE ON A MOTION? v

4 G. STEPS TO TAKE AFTER A MOTION IS FILED V. DRAFTING A MOTION TO COMPEL VI. SAMPLE MOTIONS PARTIES A. AGENCY TO APPELLANT INSUFFICIENT RESPONSE; CERTIFICATE OF SERVICE B. APPELLANT TO AGENCY INSUFFICIENT RESPONSE C. NO DISCOVERY RESPONSE RECEIVED D. MOTION TO COMPEL PRODUCTION OF DOCUMENTS OR THINGS E. MOTION TO COMPEL DEPOSITION F. FILING AN EXCEPTION TO A JUDGE S RULING TO PRESERVE IT FOR PETITION FOR REVIEW VII. SAMPLE MOTIONS NONPARTIES A. MOTION FOR A SUBPOENA FOR A NONPARTY B. MOTION FOR THE ISSUANCE OF SUBPOENA DUCES TECUM VIII. RESPONSE TO MOTION TO COMPEL A. SAMPLE RESPONSE TO MOTION TO COMPEL TOO BROAD, NOT RELEVANT B. SAMPLE RESPONSE TO MOTION TO COMPEL DEPOSITION OF WITNESS NOT IN CONTROL OF PARTY C. SAMPLE OBJECTIONS TO MOTION TO COMPEL ASSERTION OF PRIVILEGE CHAPTER 10: PROTECTION AGAINST DISCOVERY I. GENERAL GUIDANCE AND REGULATIONS II. WHAT TO DO IF DISCOVERY REQUESTS SEEM IMPROPER III. AREAS THAT MAY NOT BE PROPER FOR DISCOVERY IV. TYPES OF PRIVILEGES A. PRIVACY ACT Asserted by an Agency Asserted by Appellant B. GOVERNMENT PRIVILEGES Executive Privilege State Secrets Privilege Deliberative Process Criminal Proceeding Pending Law Enforcement Privilege OSC Communications to Appellant C. OTHER TYPES OF PRIVILEGE Attorney-Client Privilege or Work Product Attorney Work Product Attorney Client Privilege Attempts to Call an Attorney as a Witness Doctor-Patient Privilege V. DISCOVERY THAT IS BURDENSOME, OVERLY BROAD, UNDULY REPETITIOUS, IRRELEVANT A. DISCOVERY INFORMATION NOT POSSESSED B. INFORMATION ALREADY IN THE POSSESSION OF THE REQUESTOR C. HIGH LEVEL OFFICIALS D. PRIVILEGE AGAINST SELF-INCRIMINATION VI. METHODS OF RESPONDING TO REQUESTS WHICH MAY BE IMPROPER A. PROTECTIVE ORDERS B. IN CAMERA REVIEW C. MOTIONS TO QUASH OR LIMIT SUBPOENAS D. LIMITING DEPOSITIONS OF PARTIES E. REDACTION VII. SAMPLES A. OBJECTION TO DEPOSITION B. MOTION FOR A PROTECTIVE ORDER AND SEALING OF RECORD C. UNDULY BURDENSOME AND IRRELEVANT CHAPTER 11: SANCTIONS I. DEFINITION AND USE II. PROCEDURES AND GUIDANCE III. RANGE OF SANCTIONS A. SANCTION AGAINST THE AGENCY B. SANCTIONS AGAINST THE APPELLANT vi DISCOVERY PRACTICE BEFORE THE MSPB

5 IV. SAMPLES A. BASIC FORMAT B. MOTION FOR SANCTIONS NO RESPONSE RECEIVED C. MOTION FOR SANCTIONS FAILURE TO APPEAR FOR DEPOSITION D. MOTION FOR SANCTIONS BAD FAITH RESPONSE E. OBJECTION TO MOTION FOR SANCTIONS CHAPTER 12: USE OF DISCOVERED INFORMATION APPENDIX: FEDERAL RULES OF CIVIL PROCEDURE TABLE OF CASES vii