[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR1201.73]

[Page 24-25]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
               CHAPTER II--MERIT SYSTEMS PROTECTION BOARD
 
PART 1201--PRACTICES AND PROCEDURES--Table of Contents
 
                Subpart B--Procedures for Appellate Cases
 
Sec. 1201.73  Discovery procedures.

    (a) Discovery from a party. A party seeking discovery from another 
party must start the process by serving a request for discovery on the 
representative of the other party or the party if there is no 
representative. The request for discovery must state the time limit for 
responding, as prescribed in Sec. 1201.73(d), and must specify the time 
and place of the taking of the deposition, if applicable.
    When a party directs a request for discovery to an officer or 
employee of a Federal agency that is a party, the agency must make the 
officer or employee available on official time to respond to the 
request, and must assist the officer or employee as necessary in 
providing relevant information that is available to the agency.
    (b) Discovery from a nonparty, including a nonparty Federal agency. 
Parties should try to obtain voluntary discovery from nonparties 
whenever possible. A party seeking discovery from a nonparty Federal 
agency or employee must start the process by serving a request for 
discovery on the nonparty Federal agency or employee. A party may begin 
discovery from other nonparties by serving a request for discovery on 
the nonparty directly. If the party seeking the information does not 
make that request, or if it does so but fails to obtain voluntary 
cooperation, it may obtain discovery from a nonparty by filing a written 
motion with the judge, showing the relevance, scope, and materiality of 
the particular information sought. If the party seeks to take a 
deposition, it should state in the motion the date, time, and place of 
the proposed deposition. An authorized official of the Board will issue 
a ruling on the motion, and will serve the ruling on the moving party. 
That official also will provide that party with a subpoena, if approved, 
that is directed to the individual or entity from which discovery is 
sought. The subpoena will specify the manner in which the party may seek 
compliance with it, and it will specify the time limit for seeking 
compliance. The party seeking the information is responsible for serving 
any Board-approved discovery request and subpoena on the individual or 
entity, or for arranging for their service.
    (c) Responses to discovery requests. (1) A party, or a Federal 
agency that is not a party, must answer a discovery request within the 
time provided under paragraph (d)(2) of this section, either by 
furnishing to the requesting party the information or testimony 
requested or agreeing to make deponents available to testify within a 
reasonable time, or by stating an objection to the particular request 
and the reasons for the objection.
    (2) If a party fails or refuses to respond in full to a discovery 
request, or if a nonparty fails or refuses to respond in full to a 
Board-approved discovery order, the requesting party may file a motion 
to compel discovery. The requesting party must file the motion with the 
judge, and must serve a copy of the motion on the other party and on any 
nonparty entity or person from whom the discovery was sought. The motion 
must be accompanied by:
    (i) A copy of the original request and a statement showing that the 
information sought is relevant and material; and
    (ii) A copy of the response to the request (including the objections 
to discovery) or, where appropriate, a statement that no response has 
been received, along with an affidavit or sworn statement under 28 
U.S.C. 1746 supporting the statement. (See appendix IV.)
    (3) The other party and any other entity or person from whom 
discovery was sought may respond to the motion to compel discovery 
within the time limits stated in paragraph (d)(4) of this section.
    (d) Time limits. (1) Parties who wish to make discovery requests or 
motions must serve their initial requests or motions within 25 days 
after the date on which the judge issues an order to the respondent 
agency to produce the agency file and response.

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    (2) A party or nonparty must file a response to a discovery request 
promptly, but not later than 20 days after the date of service of the 
request or order of the judge. Any discovery requests following the 
initial request must be served within 10 days of the date of service of 
the prior response, unless the parties are otherwise directed. 
Deposition witnesses must give their testimony at the time and place 
stated in the request for deposition or in the subpoena, unless the 
parties agree on another time or place.
    (3) Any motion to depose a nonparty (along with a request for a 
subpoena) must be submitted to the judge within the time limits stated 
in paragraph (d)(1) of this section or as the judge otherwise directs.
    (4) Any motion for an order to compel discovery must be filed with 
the judge within 10 days of the date of service of objections or, if no 
response is received, within 10 days after the time limit for response 
has expired. Any pleading in opposition to a motion to compel discovery 
must be filed with the judge within 10 days of the date of service of 
the motion.
    (5) Discovery must be completed within the time the judge 
designates.