|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 of
Documents 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: for MSPB
hearing and for EEOC hearing. Click here for an actual sample.
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. (1) 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.
(2) 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
(i) To draw an adverse inference that the requested information EEOC lack's the power to enforce subpoena. There is no reason for this, as other administrative
would have reflected unfavorably on the party refusing to provide the
(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
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
- 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
- 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
How To File a Motion to Compel the Agency to Produce the Requested Information and
- 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
- 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
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).
See President Obama's Executive Order on Freedom of Information Act.