Discovery
Applicable Law | Pleadings | Representation | Time Limits for Filing | Exhaustion & Jurisdiction | Discovery | Burdens of Proof | Hearing | Relief | Right to Further Review | Mediation
What is discovery?
Discovery is the process by which you may obtain facts and information about your case from the FBI in order to assist your preparation in arguing the substance of the claims underlying your request for corrective action. Similarly, during the discovery process, the FBI may obtain evidence from you that may be necessary for it to prepare its own case in response to your request for corrective action.
What is the purpose of discovery?
Proceedings before OARM will be conducted as expeditiously as possible with due regard to the rights of the parties. Discovery is designed to enable a party to obtain relevant information needed to prepare the party's case. Parties are expected to start and complete discovery with a minimum of OARM intervention. Discovery requests and responses thereto are not to be filed in the first instance with OARM. They are only filed with OARM in connection with a motion to compel discovery or as substantive evidence to be considered in the case.
What is the scope of discovery?
Discovery covers any non-privileged matter that is relevant to the issues involved in the request for corrective action, including the existence, description, nature, custody, condition, and location of documents or other tangible things, and the identity and location of persons with knowledge of relevant facts. Relevant information includes information that appears reasonably calculated to lead to the discovery of admissible evidence.
When is discovery permitted?
Discovery between the parties may be permitted after the Director of OARM finds, in writing, that OARM has jurisdiction over your request for corrective action.
What are the methods for conducting discovery?
Parties may use one or more of the methods provided under the Federal Rules of Civil Procedure for conducting discovery, including, but not limited to:
- Requests for the identification of potential witnesses;
- Depositions upon oral and written questions;
- Written interrogatories and requests for admission; and
- Requests for the production of documents or things for inspection or copying.
The Federal Rules of Civil Procedure, as well as the practices and procedures of the U.S. Merit Systems Protection Board may be used as a general guide for discovery practices in proceedings before OARM; however, those rules and procedures are instructive rather than controlling.
How does the discovery process begin and what are the applicable time limits?
A party seeking discovery from another party must start the discovery process by serving an initial request for discovery on the other party (or the party’s representative, if any) within 30 calendar days after the date on which the Director of OARM issues a written decision finding jurisdiction over your request for corrective action. A party’s response to an initial discovery request must be filed no later than 20 calendar days after the date of service of the request.
Are there any limits on the number of discovery requests a party may serve?
Yes. Absent prior approval by OARM, interrogatories served by parties upon another party may not exceed 25 in number, including all discrete subparts, and each party may not take more than 10 depositions. Requests to exceed these discovery limitations may be granted at the discretion of OARM.
What if my request for discovery is not honored by the other party?
The Director of OARM is authorized to compel the attendance and testimony of, or the production of documentary or other evidence from, any person employed by the Department of Justice if doing so appears reasonably calculated to lead to the discovery of admissible evidence, is not otherwise prohibited by law or regulation, and is not unduly burdensome. If a party fails or refuses to respond in full to a discovery request, the party requesting the discovery may file with the Director of OARM (and serve a copy on the other party from whom the discovery is sought) a written motion for an order to compel discovery.
Does the Director of OARM’s authority to compel a witness’ testimony apply to depositions?
Yes. The Director of OARM’s authority to compel the attendance and testimony of any person employed by the Department of Justice under § 27.4(e)(3) is not limited to attendance and testimony at a hearing before the Director. The Director of OARM’s authority to compel the attendance and testimony of Department employees applies with equal force to Department employees’ attendance and testimony at a deposition if doing so appears reasonably calculated to lead to the discovery of admissible evidence, is not otherwise prohibited by law or regulation, and is not unduly burdensome.
When must my motion to compel discovery be filed?
A motion for an order to compel discovery must be filed with the Director of OARM within 10 calendar days of the date of service of any objections to your discovery request, or, if no response to your discovery request is received, within 10 calendar days after the time limit for a response has expired. Any pleading in opposition to a motion to compel discovery must be filed with OARM within 5 calendar days of the date of service of the motion.
What must my motion to compel discovery contain?
A motion for an order to compel discovery must include:
- A copy of your original discovery request and a statement showing that the information sought is relevant and material;
- A copy of the other party’s response to your discovery request (including the objections to discovery) or, if no response was received, a statement by you that no response has been received, along with an affidavit or sworn statement supporting your statement; and
- A statement that the parties have discussed the anticipated motion and have made a good faith effort to resolve the discovery dispute and narrow the areas of disagreement
May I seek to obtain discovery documents from the Conducting Office?
Yes. Either party may seek to obtain discovery documents from the Conducting Office (i.e., the Department of Justice’s Office of Professional Responsibility or Office of the Inspector General). Such request must be made in writing to OARM and must include a statement identifying the relevancy and materiality of the documents sought. After providing the other party with an opportunity to respond to the request, OARM will make a determination as to the relevancy and/or materiality of the requested documents. OARM will then forward its determination to the Conducting Office, along with a written directive that the Conducting Office produce the relevant documents to OARM. Unless advised by the Conducting Office otherwise, OARM will release copies of the documents to the parties for their review. Any documents that may contain law enforcement sensitive material will first be sent to the FBI’s Discovery Processing Unit for prepublication review and release.
How much time do the parties have to complete discovery?
Discovery must be completed within the time OARM designates.
What happens after discovery is completed?
Within 25 calendar days of the completion of discovery, you shall file written arguments detailing the evidence in support of your request for corrective action. The FBI may respond with its own written arguments within 20 calendar days of the date of service of your written arguments. OARM may also afford you and the FBI additional time to file any respective reply/surreply briefs. Thereafter, the Director of OARM will adjudicate your request for corrective action, either based on the written record, or following a hearing.