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datbehard  
#1 Posted : Thursday, June 07, 2012 12:24:02 PM(UTC)
datbehard

Rank: Senior Member

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Joined: 3/1/2012(UTC)
Posts: 431

When the recipient of a request fails or refuses to respond in full to a discovery request (by objections or lapse of time), the requesting party may ask for the Board's assistance by filing a motion to compel. Parties must file motions to compel within 10 days of the date of service of objections or the expiration of the time limit for response, where no response has been received. 5 C.F.R. § 1201.73(d)(4).

a. Contents.

(1) The motion must be accompanied by a copy of the original discovery request and a copy of the response or, if no response was received, an affidavit or sworn statement to that effect. See 5 C.F.R. § 1201.73(c)(2)(i), (ii).

(2) The motion must explain the relevance and materiality of the information sought. 5 C.F.R. § 1201.73(c)(2)(i).

b. Opposition. The recipient of a discovery request may respond to the motion to compel either by complying or by explaining the failure to comply. The recipient or a party has 10 days from the date of service to respond or object to a motion to compel. 5 C.F.R. § 1201.73(d)(4). Processing problems could arise if the AJ waited for this 10-day period to elapse (plus 7 days to allow for mailing) before ruling on the motion. The AJ has a choice of two courses of action to prevent delays, as explained below.

c. Preventing Delay. Upon receipt of a motion to compel, the AJ should promptly initiate a conference call to determine the nature of opposition and to attempt to resolve it before ruling on the motion. The AJ should be prepared to grant requests for more time to respond from the opposing party due to the short time frames involved. When the motion is deniable on its face, the AJ should rule on the motion without waiting for a response.

d. Formal Action by the AJ. After a motion to compel is filed, the AJ must examine it and the underlying discovery requests to ensure that they meet all regulatory time limits and requirements. An AJ has broad discretion in rejecting motions to compel due to untimely discovery requests. See Esparza v. Department of the Air Force, 22 M.S.P.R. 186 (1984). Motions to compel must be ruled on promptly to enable the parties ample time to complete discovery.

COMPLAINANT’S MOTION TO COMPEL RESPONSES TO

INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS

AND MEMORANDUM IN SUPPORT

 

I. CERTIFICATION

Pursuant to Fed. R. Civ. P. 37(a)(2)(B), the undersigned representative hereby certifies that he has, in good faith, conferred with counsel for Respondents in an effort to secure the information and material described herein without court action. A copy of the parties’ written communications confirming the issues discussed are attached hereto as Exhibit A.

 

 

 

 

Claimant and his representative regrets that the Commission has had to become involved in these issues that were, we believe, could have been resolved among the parties’ counsel.

Complainant is not requesting Agency to provide information or documents that are duplicative of or redundant to the information or documents it has already produced.

 

The most common objection to interrogatories is that answering them would be unduly burdensome. The objecting party must do more than merely assert burden; it must specify the nature of that burden./69/ The district court has broad discretion to determine whether the search for responsive information would be unduly burdensome. It typically evaluates the nature of the information sought, whether it is available elsewhere at less burden or expense, the anticipated costs of response compared with the amount at stake in the litigation and whether the burden is self-imposed as a result of a disorganized filing system./70/ Other potentially valid objections are that the interrogatories are that they are â€œunreasonably cumulative or duplicative”/71/; ambiguous; overbroad or that they call for the disclosure of information protected by an evidentiary privilege or work product protection./72/ Objections must be stated with specificity./

 

 

From MD-110:

                                                                              a.            (2) Criteria for requests

The request should be: 1) as specific as possible, 2) reasonably calculated to discover non-repetitive, material evidence and, 3) if not self-evident, the request must indicate the materiality of the documentary or testimonial evidence sought and the manner in which the information sought will elucidate the accepted issues.

When filing a motion, the moving party must certify that s/he conferred with the opposing party, or made a good faith effort to do so, to attempt to resolve the discovery dispute. See Fed. R. Civ. P. 37(a)(2)(B); Apex Oil Co. v. Belcher Co., 855 F.2d 1009, 1020 (2d Cir. 1988) (failure to confer in good faith over discovery disputes multiplied the proceedings and justified sanctions); Prescient Partners v. Fieldcrest Cannon, 1998 WL 67672 (S.D.N.Y. 1998) (parties required to discuss discovery disputes); Charles Alan Wright & Arthur R. Miller, 8A Fed. Prac. & Proc. Civ.2d Â§ 2285 (Supp. 1999) (n. 18.1). 

 

                             A.             

                                                      1.             

                                                                              a.            A motion to compel compliance with a request for discovery must be addressed to the Administrative Judge and the moving party must certify that a copy was served on the opposing party.

                                                                              b.            Any statement in opposition to the motion must be filed within ten (10) calendar days of service of the motion and the responding party must certify that a copy was served on the moving party.

                                                      2.            The Administrative Judges Will Rule Expeditiously on Discovery Issues

Following the filing of an opposition, if any, to the motion to compel discovery, the Administrative Judge will rule expeditiously on the request for discovery. In the alternative, the Administrative Judge may, in the interest of expediting the hearing, order that the document(s), witness(es), or other evidence at issue be produced at the hearing. Where the Administrative Judge finds that the request for discovery that is the subject of the motion to compel is irrelevant, overburdening, repetitious, or privileged, the Administrative Judge will deny the motion to compel and may, upon the request of the party opposing the motion to compel, or upon the Administrative Judge's own initiative, issue such protective orders as the Administrative Judge determines appropriate.

                                                      3.            Administrative Judge's Orders to Comply

                                                                              a.            In considering a motion to compel compliance, the Administrative Judge will consider whether the following factors apply:

(1) the discovery is calculated to produce or lead to the production of material evidence that is not repetitious of facts or documents already in the complaint file,

(2) the discovery does not concern privileged or restricted information, and

(3) the discovery is not overly burdensome.

                                                                              b.            Where a motion to compel discovery is approved, in whole or in part, the Administrative Judge shall issue a written order to comply with the request. The parties shall have 15 calendar days or such other time period ordered by the Administrative Judge to comply with a discovery order.

                                                      4.            Failure to Respond or Comply With Administrative Judge's Order May Result in Sanctions

A failure to respond or follow an order to comply with a request for discovery may result in sanctions. See Section III.D, of this Chapter.

 
****************************************************************
 
 
PUT CASE CATION HERE!!!! (EEO Case#, You vs. Agency, Judges name etc.) See Examples in Admissions of Fact post.
 
(document title)
COMPLAINANT’S MOTION TO COMPEL RESPONSES TO  REQUESTS FOR PRODUCTION OF DOCUMENTS  

 

 

Complainant moves for an Order compelling Respondent to provide complete responses to Complainant’s Requests for Production of Documents and Agency’s response (as shown below and attached hereto as Exhibits A and B). As grounds for this Motion, Complainant shows as follows:

 

     I. CERTIFICATION

Pursuant to Fed. R. Civ. P. 37(a)(2)(B), the undersigned representative hereby certifies that he has, in good faith, conferred with counsel for Respondents in an effort to secure the information and material described herein without court action. A copy of the parties’ written communications confirming the issues discussed are attached hereto as Exhibit X. Exhibit X will show all correspondence between you and Agency Counsel, whether it be phone calls, emails, first class mail etc, giving Agency time and Notice to them of their lack of PRODUCTION.  Thsi must be done to show the AJ you tried to get them to produce before you filed this motion. You only have 10 days to get Agency to cough up any Request that are lacking, so as soon as you get any response, look it over, mail, email and call Agency in first five days and send out Motion to Compel on 9th day....MAKE SURE YOU'R TIMELY, SEND IT DELIVERY CONFIMATION.....YOU GET A DATED FORM FOR PROOF.

 

 

 

Complainant is not requesting Agency to provide information or documents that are duplicative of or redundant to the information or documents it has already produced.

 

 

The Complainant, through his designated representative moves that the

EEOC Administrative Judge issue an order compelling the agency to provide complete answers to Complainant's June 4, 2012 Production of Documents.

The Complainant’s Production of Documents is referenced in Exhibit A. The Complainant’s Production of Documents, the Agency’s response to the discovery request and Claimant’s argument in support of the Motion to Compel are listed below, starting with RFPN 5.

 

 If Agency refuses to provide complete answers to deficient RFP #’s  5-8, 12, 13-16, 24 and 26-30, complainant respectfully request Agency be sanctioned for failing to produce complete discovery.

 

The information sought by these Documents is calculated to produce or lead to the production of material evidence. The Documents are not repetitious of facts or documents already in the ROI file, as each request was written with a specific time frame and on subjects that need additional discovery.  Further, though Respondent did use burdensome as a reason not to provide documents, Respondent never specified to the nature of that burden.

 

COMPLAINANT’S MOTION TO COMPEL RESPONSES TO  REQUESTS FOR PRODUCTION OF DOCUMENTS

RFPN 5:  All Emails that were exchanged between party X and party Y during the 1st 6 months of 2012, regarding complainant's work evaluations. 

 

AGENCY RESPONSE: The Agency objects to...

datbehard  
#2 Posted : Thursday, June 07, 2012 12:54:18 PM(UTC)
datbehard

Rank: Senior Member

Groups: Registered
Joined: 3/1/2012(UTC)
Posts: 431

Notice in the Motion to compel, that each disputed RFPN has 3 parts, (1)the Complainant's original question for documents (2) The Agency's Response to that request for documents (3) The Complainant's Motion to Compel for that particular RFPN # and why the AJ should make Agency produce. Be SPECIFIC!!!
Do this for each and every RFPN you were not satisfied with.
datbehard  
#3 Posted : Monday, June 25, 2012 11:07:32 PM(UTC)
datbehard

Rank: Senior Member

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Joined: 3/1/2012(UTC)
Posts: 431

Once you file a MOTION TO COMPEL  the Agency has only TEN days to submit its' reason to the AJ why it shouldn't have to respond. If they fai to do that then you as the Complainant needs to file a MOTION FOR SANCTIONS  to the AJ for their lack of responding to Discovery.
 
OK, that's what the MD-110 says; Now in real life the AJ will probably just ignore your Motions and you will get frustrated as you file another Motion or a Pre-Hearing conference.  The more they ignore you, the better your case is, as they are like deers in a headlight. They're FROZEN, they figure just standing there and staying motionless is the best course of action.  You have to assume the AJ is LAZY and WORTHLESS, as they surely are and just wait for your appeal to OFO or onto Federal District Court.
Key here is to PREVAIL.
RAgentCancer  
#4 Posted : Monday, June 25, 2012 11:28:44 PM(UTC)
RAgentCancer

Rank: Rookie

Groups: Registered
Joined: 6/19/2012(UTC)
Posts: 38















Datbehard,

For most who have never been through the process, they will never believe what you're saying - that the judge is lazy and worthless - till they experience it.  I totally believe you since I've lived it.


 The EEO upheld the IRS' refusal to mediate when the IRS presented the fraudulent probatioary document, forcing me to MSPB where the MSPB judge again (incredibly) accepted the IRS' fraudulent probation document even though I had plenty of proof that I was career tenured and nonprobationary (in fact, the judge never asked for more than what I provided as proof).  He claimed to be shocked by the IRS' abuses, but he blindly accepted their fraudulent probationary argument, which means he never allowed me to present my case, as I now know he was required to do.  I now have it in writing from the experts at Passman and Kaplan that there is no question I was non-probationary and career tenured when the judge denied me all due process rights.  Of course,  the federal circuit backed up the MSPB judge - said basically, "tough luck, you settled." And I never even got the "clean 50" that was promised at settlement.  

I would never have believed this had I not experienced it myself.  What's even more maddening is that my taxpayer dollars are paying the salaries of these criminals and often (at least at IRS) their entire families.  With 1/2 to 1/3 of trainees terminated in certain locations at IRS, these relatives of the hiring manager, territory manager, etc... are moving right into those positions, adding to the corruption.  Also, they are wasting at least $ 80,000 per trainee training these people for an entire year, when they have no intention of keeping them since they can be let go without any reason whatsoever as long as they are probationary or fraudulently mislabelled probationary (as was done to me, a career tenured employee with nothing but excellent evaluations for my entire career - my career ended just prior to becoming eligible for retirement).  CPA/MBA's with 20 years experience are being replaced by library workers (relatives) in my location.

So my settlement is all based on fraud (even the front page states it's only due to my being probationary).  Had I been properly ruled an employee by the judge, I'd still have my job and my health.

To make matters worse, the hiring manager's unqualified daughter moved right into my position soon after settlement, but even that would probably not have mattered at the MSPB, since they looked at nothing - the agency didn't even identify the correct person for firing, and discussed another agent's cases in my file, with memos to the wrong agent, etc... Incredibly, none of this fraud was even looked at since I was denied all due process rights, denied oral testimony at federal circuit (I would have gone to DC to testify had I been allowed).  The manager had a long history of similar abuses and even constantly mixing up his employees - so severe that he was actually removed from management back when we had good management in this area (the current horrific management brought him back).  

The entire judicial process is a SHAM!!! I cannot emphasize that more!!!! I could not have imagined to what extent my government would have gone in order to illegally deny me my due process rights.  A terrorist is treated far better by our government than an employee with nothing but excellent evaluations for their entire career - close to 20 years! The terrorist gets a free lawyer, all paid for by us taxpayers.  In the state of MA at the state level, the same nepotism is going on at the state gov level, and people are finally going to jail, but it took an investigation by the Boston Globe spotlight team - at the federal level, nothing will be done since there's no oversight, and the problem has really worsened in this unemployment crisis, with so many of the managers' families needing jobs.

MSPB is the biggest waste of taxpayer dollars, and victims need to be warned never to go there since it will only prolong and worsen what they've already experienced! Taxpayers should demand that MSPB be eliminated.





 















RAgentCancer2012-06-26 08:31:17
StellaMaris  
#5 Posted : Tuesday, June 26, 2012 5:34:56 AM(UTC)
StellaMaris

Rank: Senior Member

Groups: Registered
Joined: 7/9/2008(UTC)
Posts: 660

One thing the judges do like is simplicity.  I get a kick out of one judge who keeps telling the agency attorney that he makes no sense.
 
Keep it simple....I learned the hard way too.  Evil Smile
Great Spirit, let me not judge another until I have walked in his moccasins a moon or two.
datbehard  
#6 Posted : Sunday, July 01, 2012 11:36:59 PM(UTC)
datbehard

Rank: Senior Member

Groups: Registered
Joined: 3/1/2012(UTC)
Posts: 431

LET'S MAKE THE AJ'S GET OFF THE BEACH AND BACK ONTO THE BENCH!!! TWENTY DAYS TO ANSWER MOTIONS AJ!!!......NOT INDEFINITE.
 
Ruling on Motions to Compel and Protective Orders

Motions to Compel

Administrative Judges should rule on a motion to compel within twenty days of receipt of the other party's statement in opposition to the motion or the deadline for such opposition if none is ultimately filed. The Administrative Judge should deny the motion to compel when it does not include the following: (1) a copy of the request in dispute; (2) the response to the discovery request, if any; and (3) the argument in support of the motion. In addition, where the motion to compel does not include certification that the moving party conferred with the opposing party or made a good faith effort to do so to attempt to resolve the dispute, then the Administrative Judge has the discretion to deny the motion without further consideration. In denying a motion to compel, the Administrative Judge should include a brief explanation for the basis of his/her ruling.

An Administrative Judge may deny a motion to compel if the discovery request is irrelevant, over-burdensome, repetitious, or if the information sought is privileged. These determinations must be made on a case-by-case basis. In making these determinations, the Administrative Judge should consider Commission policy and precedent and established federal case law.

datbehard  
#7 Posted : Thursday, September 20, 2012 12:29:26 PM(UTC)
datbehard

Rank: Senior Member

Groups: Registered
Joined: 3/1/2012(UTC)
Posts: 431

bepatient, another one
datbehard  
#8 Posted : Tuesday, October 23, 2012 10:48:21 PM(UTC)
datbehard

Rank: Senior Member

Groups: Registered
Joined: 3/1/2012(UTC)
Posts: 431

bump
neice1  
#9 Posted : Tuesday, October 23, 2012 11:00:51 PM(UTC)
neice1

Rank: Senior Member

Groups: Registered
Joined: 6/25/2011(UTC)
Posts: 709

Datbehard - I'm glad you're bumping these!



militarybrat  
#10 Posted : Monday, November 05, 2012 8:33:57 AM(UTC)
militarybrat

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Joined: 7/25/2010(UTC)
Posts: 51

Datbehard: What is OFO? ("....just wait for your appeal to OFO or onto Federal District Court") Thanks.
datbehard  
#11 Posted : Monday, November 05, 2012 1:16:55 PM(UTC)
datbehard

Rank: Senior Member

Groups: Registered
Joined: 3/1/2012(UTC)
Posts: 431

Office Of Federal Operations. If your EEO case does not go formal, is not won in front of AJ or AJ decision is ignored by agency you have the rights (and will definetly be informed when and how) to Appeal any EEOC decision to them for a de novo review.

You have 30 days to file a form 573 for an Appeal and another 30 days to file an Appeal brief.

You are a long, long ways from that so just put this info on back burner for now.
Do some google research if you want.
Read the EEOC bible MD110!!!!!!!!!!!!!!!......12 chapters!!
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