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The Importance of Discovery During an MSPB Appeal

August 18, 2014

During the discovery phase of a Merit Systems Protection Board (MSPB) appeal, it is very important for federal employees (Appellants) to request documents, recordings, video and/or electronic data from their federal agency. Discovery is the legal process in which a federal employee or an agency can legally obtain previously unknown information related to the MSPB appeal from the opposing party.

Types of Documents an Appellant Can Request

An Appellant can request various documents from a federal agency during the discovery phase of an MSPB appeal.  The formal request is generally referred to as “Production of Documents and Things” (Production Requests) under 5 C.F.R. § 1201.72 (c).  Production Requests can include items such as copies of relevant e-mail messages, policies, memorandums, correspondence, audio or video recordings, and copies of investigative reports, if they are relevant to a federal employee’s MSPB appeal.  For instance, in disciplinary actions for federal employees we often request copies of e-mail messages between supervisors or investigators connected with the disciplinary investigation.  Sometimes it may be possible to uncover bias, which was the root cause of a disciplinary action (and not the misconduct alleged), or other issues that can be instrumental in defending a federal employee in the MSPB appeals process.

Examples of Production Requests

The following are a few examples of how Production Requests can be used at the MSPB:

Example 1: A federal employee is removed from employment for allegedly assaulting another federal employee in the agency lobby.

Production Request: A copy of all videotape footage of the federal agency’s lobby area during the date of the incident, all statements taken of witnesses to the event (not just those provided at the proposed removal stage), and any investigation summary or report prepared.

Example 2: A federal employee is removed from employment based on alleged dishonesty during an investigative interview.

Production Request: A copy of any video or audio recordings of the interview, any transcripts made, all of the questions asked by the investigators, and any summary, notes, e-mails or documents prepared by the investigator that references the interview.

Example 3: A federal employee is removed from employment for alleged sexual harassment at work.

Production Request: A copy of all witness statements taken by investigators as to the alleged sexual harassment, all recordings made of witness interviews, and all e-mails generated or received by the complainant that reference the alleged sexual harassment.

Utilizing the Production Request

It is important for a federal employee to take advantage of the discovery process during an MSPB appeal by utilizing Production Requests.  The amount of information that one can uncover through this process can make all the difference in pursuing a successful appeal.  Federal employees should not be under the impression that they have received all of the information available just because their federal agency had provided them with some information at the proposal stage (i.e., during a proposed removal).

Prior to a final decision, a federal agency is only required to provide an employee with the materials it has relied upon in proposing the action.  This is not the same as providing an employee with all available information.  For instance, an agency might provide a federal employee with all of the witness statements that demonstrate misconduct in a proposed removal case but not other witness statements that could help the employee disprove the conduct. This is one of the most important reasons that a federal employee should seek information through the discovery process.

Contact Us

When facing the MSPB discovery process, it is important for a federal employee to have legal advice and representation.  Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.  Please also visit us on Facebook at www.facebook.com/BerryBerryPllc.

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