Facing Agency Discovery? A Federal Employee's Guide to MSPB & EEOC Requests

When you file an appeal with the Merit Systems Protection Board (MSPB) or an EEO complaint with the Equal Employment Opportunity Commission (EEOC), you expect to gather evidence from the agency. You file discovery requests—like interrogatories, requests for production of documents, and requests for admissions—to build your case.

But what happens when the tables are turned?

Many federal employees are surprised to learn that discovery is a two-way street. The federal agency you are in litigation against has the same right to serve discovery requests on you.

This isn't just a minor hurdle; it can be a significant burden. Some employees face what feels like an intentional tactic to "bury" them in overly burdensome requests. Regardless of the agency's intent, one thing is certain: you are obligated to respond in good faith.

Failing to do so, or failing to formulate a legitimate legal objection, can have catastrophic consequences for your case.

Your Responsibility: Complying with Federal Agency Discovery Requests

If you are served with a discovery request, you must comply in a timely and responsive manner. You cannot simply ignore it. If you fail to cooperate, you risk sanctions from the Administrative Judge (AJ). Judges do not take these failures lightly. Typically, warnings will be issued first, indicating the judge is becoming perturbed and is prepared to issue sanctions.

For example, in EEOC cases, the rules are clear. Sanctions for failing to cooperate can only be imposed if the party was properly warned that failure to comply could result in sanctions (EEOC MD-110, Chapter 6). This warning is your sign to take the request seriously.

The Path to Sanctions: The Motion to Compel

An agency won't just let an ignored discovery request go. If the agency believes you have failed to adequately respond, its first step will be to file a Motion for an Order to Compel Discovery.

This legal motion asks the judge to formally order you to provide the requested information. This process sets the foundation for sanctions if you continue to be non-compliant.

It's important to remember that this tool is also available to you. If your agency is ignoring your discovery requests, you can (and should) file your own Motion to Compel.

⚖️ Real-World Consequences: How Judges Use Sanctions

While it's true that sanctions are often imposed on agencies—as they typically have greater control over evidence and witnesses—employees are absolutely not immune. Judges in both the EEOC and MSPB have wide discretion to sanction appellants and complainants for failing to participate in the discovery process.

These aren't just slaps on the wrist. A sanction can mean losing your right to a hearing or even losing your case entirely.

Here are a few real-world examples:

• Sanction Against the Employee (Hearing Denied):

  In Nakesha D. v. Department of Health and Human Services, Indian Health Service (EEOC OFO 2017), an administrative judge denied the complainant's request for a hearing as a sanction because the complainant failed to cooperate with the agency's discovery requests.

• Sanction Against the Employee (Hearing Canceled):

  Similarly, in Barabara C. v. Department of Health and Human Services, Food and Drug Administration (EEOC OFO 2017), the judge canceled the hearing as a sanction for the complainant's failure to provide just five documents and two interrogatories requested by the agency.

Conversely, judges will also sanction agencies for failing to comply, demonstrating the seriousness of the process for both parties:

• Sanction Against the Agency (Adverse Inference):

  In Prevo v. Federal Deposit Insurance Corporation (EEOC OFO 2000), the EEOC drew an adverse inference (a sanction) against the agency for its failure to produce relevant evidence. This sanction helped the complainant ultimately win her case.

• Sanction Against the Agency (Default Judgment):

  In a more extreme case, Mirta Z. v. Social Security Administration (EEOC OFO 2018), an EEOC judge issued a default judgment in favor of the complainant, effectively handing her the win because the agency repeatedly failed to comply with a discovery order.

Don't Risk Your Case: How InformedFED Can Help

As these cases show, employees litigating before the EEOC or MSPB risk losing their cases or facing significant sanctions for failing to respond to federal agency discovery requests. Of course, you have the right to object to certain requests—perhaps they are overly broad, unduly burdensome, or seek privileged information. However, this is a complex administrative practice area. Simply stating "I object" is not enough; your objections must be timely and based on a valid legal foundation. This process can become complicated very quickly.

You do not have to navigate this process alone. Before you risk your appeal or complaint, it is highly recommended that you obtain adequate consultation.

The experienced consultants at InformedFED specialize in guiding federal employees through the complexities of MSPB and EEOC litigation including preparing discovery requests and formulating responses to agency discovery requests. In many cases, affected employees only need proper guidance and recommendations on how to respond to discovery, which can be obtained in a cost-efficient and effective manner. We can help you understand your obligations, formulate proper responses, and draft objections to protect your rights—and your case.

Request a free consultation by clicking here.