Should I Depose Agency Witnesses in an MSPB Case? A Guide for Federal Employees

When federal employees face adverse personnel actions—such as demotion, suspension, or removal—and decide to appeal to the Merit Systems Protection Board (MSPB), one of the most critical decisions they’ll need to make is whether to depose agency witnesses. Depositions can be powerful tools in MSPB cases, allowing appellants to gather crucial testimony and clarify facts before a hearing. However, they also come with potential risks and costs. There are pros and cons of deposing agency witnesses, and below, we share relevant guidance and insights needed to make informed decisions.

What Is a Deposition?

A deposition is a formal process where a witness provides sworn testimony under oath outside of the hearing. Here’s a brief synopsis of what happens during a typical deposition:

  • Questions are asked by the opposing party or their attorney. The testimony is recorded by a court reporter and sometimes videotaped.
  • The testimony is given under penalty of perjury. It carries the same weight as testimony given in court.
  • The information gathered can be used at the MSPB hearing. Deposition transcripts can help impeach a witness or solidify evidence.

Depositions are a standard part of the discovery process in MSPB cases and are governed by the Board’s procedural rules.

Why Depose Agency Witnesses?

Depositions provide appellants with the opportunity to:

Learn the Agency’s Case

Depositions allow you to understand the agency’s version of events, including:

  • The rationale for the adverse action
  • Key evidence or documentation they’ll rely on
  • The witness’s role and knowledge of the situation

By deposing agency witnesses, you can uncover information that might not have been included in the initial case file.

Assess Witness Credibility

Depositions provide an opportunity to evaluate how a witness might perform at the hearing. Does the witness seem credible, consistent, or confident? Witness demeanor during a deposition can give you a sense of how persuasive they might be in front of an administrative judge.

Lock Down Testimony

When a witness testifies under oath during a deposition, their statements are recorded. If the witness changes their testimony during the hearing, you can use the deposition transcript to challenge their credibility.

Shape Your Legal Strategy

The information gained during a deposition can help you identify strengths and weaknesses in your case. You can:

  • Refine your arguments
  • Decide whether to subpoena additional documents or witnesses
  • Prepare for cross-examination

Risks and Challenges of Depositions

While depositions can be advantageous, they also come with potential downsides:

1. Cost and Time

Depositions can be expensive and time-consuming. You’ll need to:

  • Hire a court reporter and, potentially, a videographer
  • Pay for transcript preparation
  • Dedicate significant time to preparing questions and reviewing the testimony

For many federal employees, the financial burden can be a significant consideration, especially if they’re already facing job-related stress.

2. Over-Preparation of Agency Witnesses

Depositions can inadvertently help the agency prepare its witnesses. Once the deposition is complete, agency attorneys may coach their witnesses to address weaknesses or inconsistencies revealed during the deposition.

3. Limited Scope of Discovery

In MSPB cases, discovery rules are narrower compared to civil litigation. The administrative judge may limit the scope of the deposition or deny requests if they deem the information duplicative or irrelevant.

4. Potential Harm to Your Case

If not handled skillfully, depositions can backfire. For example:

  • A poorly framed question might elicit damaging testimony
  • An unprepared appellant might struggle to follow up on evasive answers

Key Considerations Before Deposing Agency Witnesses

To determine whether to depose agency witnesses, federal employees should evaluate the following several factors:

Relevance of the Witness’ Testimony

Is the witness likely to provide critical information? Key witnesses might include:

  • The decision-maker responsible for the adverse action
  • Supervisors who provided input into the disciplinary process
  • HR personnel who processed the action

Strength of the Existing Record

Review the case file and evidence already available. If the agency’s case appears weak based on the existing documentation, you may not need a deposition.

Likelihood of Impeachment

Depositions are particularly valuable if you suspect a witness might give inconsistent testimony at the hearing. By locking in their statements beforehand, you can more effectively impeach them during cross-examination.

Your Legal Representation

Deposing witnesses requires skill and experience. An experienced federal employment attorney can:

  • Craft precise and effective questions
  • Handle objections raised by opposing counsel
  • Identify inconsistencies or evasive answers

If you’re representing yourself, you may need to weigh the risks more carefully

Administrative Judge’s Preferences

Some administrative judges view depositions as unnecessary in simpler cases. Before proceeding, consider whether the judge assigned to your case has a reputation for limiting discovery.

Tips for Conducting Effective Depositions

If you decide to depose agency witnesses, preparation is key. Here are five key tips:

1. Prepare Thoroughly

Review all relevant documents, including emails, personnel files, and policies. Also, develop a detailed outline of questions to ensure you cover all critical points.

2. Ask Open-Ended Questions

Encourage witnesses to provide detailed answers. For example, instead of asking, “Did you approve the disciplinary action?” ask, “What role did you play in the disciplinary action?”

3. Stay Professional

Maintain a calm and respectful tone, even if the witness is evasive or hostile. Aggressive or confrontational behavior can undermine your credibility.

4. Focus on Key Issues

Avoid tangents or irrelevant topics. Keep your questions focused on the facts that will matter most to the administrative judge.

5. Work with Your Attorney

If you have legal representation, collaborate closely with your attorney to craft a strong deposition strategy.

Alternatives to Depositions

If you decide not to depose agency witnesses, there are other discovery tools available, such as:

  • Interrogatories: Written questions the agency must answer under oath.
  • Requests for Production: Requests for documents or other records.
  • Requests for Admissions: Requests asking the agency to admit or deny specific facts.

These methods can be less costly and time-consuming while still providing valuable information.

Have Questions? Our Federal Employment Lawyer Has Answers

Depositions can be a powerful tool in an MSPB case, but they’re not always necessary or advisable. For federal employees, the decision to depose agency witnesses should be based on the specific circumstances of the case, the relevance of the witnesses’ testimony, and the resources available.

If you’re considering depositions as part of your MSPB appeal, consult with an experienced MSPB attorney. They can help you weigh the pros and cons, craft effective questions, and ensure that your discovery efforts strengthen your case. With the right strategy, you can navigate the complexities of the MSPB process and improve your chances of achieving a favorable outcome.

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