Oskowis v. Sedona Oak-Creek Unified School District #9

Filing 20

ORDER denying 15 Plaintiff's Motion to Prohibit Spoilage and Preserve Evidence. FURTHER ORDERED that within twenty (20) days from the date of thisOrder, Defendant shall conduct a forensic search of all electronic records within its possession for the e-mail and e-mail attachment identified in Exhibits B and C of Plaintiff's Motion at Doc. [15-2]. See attached Order for details. Signed by Senior Judge James A Teilborg on 4/21/2015.(TLB)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Matthew Oskowis, individually and on behalf of E.O., 10 Plaintiff, 11 12 13 No. CV-14-08166-PCT-JAT ORDER v. Sedona Oak Creek Unified School District No. 9, 14 Defendant. 15 Pending before the Court is Plaintiff’s Motion to Prohibit Spoilage and Preserve 16 17 Evidence (Doc. 15). The Court now rules on the motion. 18 I. Background 19 Plaintiff Matthew Oskowis filed this action seeking judicial review of an 20 administrative decision concerning his minor child, E.O. Plaintiff originally filed four due 21 process complaints against Defendant pursuant to the Individuals with Disabilities 22 Education Act (“IDEA”). (Doc. 1 at 2-3). The Administrative Law Judge (“ALJ”) 23 consolidated these complaints, and issued a decision. (Doc. 1-3 Ex. E). The ALJ 24 concluded that Defendant had denied E.O. a free appropriate public education (“FAPE”) 25 with respect to four of the annual goals for E.O. set forth in his Individualized Education 26 Program (“IEP”) and awarded ninety hours of compensatory education. (Id. at 38-39). 27 The ALJ rejected the balance of Plaintiff’s claims. (Id. at 39). Plaintiff appeals from this 28 decision. (Doc. 1). 1 Because this case is a judicial review of an administrative ruling, the parties 2 agreed in their Joint Proposed Case Management Plan that discovery generally did not 3 apply, although Plaintiff claimed that limited discovery could apply for certain purposes. 4 (Doc. 14 at 6-10). However, Plaintiff has now filed the present motion seeking “to 5 prohibit spoilage” and to permit Plaintiff to conduct discovery of certain documents. 6 (Doc. 15). 7 Plaintiff’s basis for his motion is an alleged discrepancy between a document in 8 the administrative record and Plaintiff’s own copy of that document. Specifically, 9 Plaintiff takes issue with a “Prior Written Notice” from November 30, 2012 that is part of 10 the administrative record, which Plaintiff attached as Exhibit A to his motion. (Doc. 15-2 11 at 2). Plaintiff asserts that E.O’s teacher e-mailed Plaintiff on November 30, 2012 a 12 “Prior Written Notice” that differs from the copy in the administrative record. (Doc. 15 at 13 2). Plaintiff has attached this latter document as Exhibit C to his motion. (Doc. 15-2 at 7). 14 Plaintiff believes the Prior Written Notice in the administrative record is the product of 15 Defendant’s alteration or fabrication, and this is indicative of the Defendant’s fabrication 16 of E.O’s education record in general. (Doc. 15 at 2). Exhibits A and C differ substantially 17 in content but are both dated “11/30/2012.” 18 II. Legal Standard 19 The IDEA provides that in civil actions for review, the district court “shall receive 20 the records of the administrative proceedings” and “shall hear additional evidence at the 21 request of a party.” 20 U.S.C. § 1415(i)(2)(C). In Ojai Unified School District v. Jackson, 22 4 F.3d 1467 (9th Cir. 1993), the Ninth Circuit Court of Appeals (“Court of Appeals”) 23 interpreted the “additional evidence” requirement as granting a district court discretion to 24 supplement the administrative record in limited circumstances. 4 F.3d at 1473. 25 “The starting point for determining what additional evidence should be received . . 26 . is the record of the administrative proceeding.” Id. (citation omitted). Reasons to 27 supplement the record include “gaps in the administrative transcript owing to mechanical 28 failure, unavailability of a witness, an improper exclusion of evidence by the -2- 1 administrative agency, and evidence concerning relevant events occurring subsequent to 2 the administrative hearing.” Id. However, the district court “must be careful to not allow 3 [additional] evidence to change the character of the hearing from one of review to a trial 4 de novo.” Id. 5 III. Analysis 6 Plaintiff complains that Defendant controls the creation of E.O.’s educational 7 record and did not present a complete or accurate copy of this educational record to the 8 ALJ. (Doc. 15 at 2-3). Plaintiff asserts that the discrepancy between the Prior Written 9 Notice in the administrative record and what Plaintiff actually received via e-mail casts 10 doubts upon the veracity of the administrative record, justifying discovery. (Id. at 3). 11 Plaintiff seeks to convert this discrepancy into expansive discovery, including all IEP 12 meeting notes, all test results, all notes authored by Defendant’s personnel pertaining to 13 E.O., all notes from specialists, and all correspondence mentioning E.O. (Doc. 15 at 1). 14 Defendant denies having a record of the alleged Prior Written Notice attached as 15 Exhibit C to Plaintiff’s motion, and avers that it has not modified any records in this case. 16 (Doc. 17 at 10-11). Defendant devotes a substantial portion of its response to arguing that 17 Plaintiff’s requested discovery is improper because the documents requested are not 18 education records relevant to this case. (Id. at 7-10). 19 The Court has the discretion to admit additional evidence for its consideration. See 20 Ojai, 4 F.3d at 1473. The Court cannot ignore Plaintiff’s allegations because if correct, an 21 erroneous administrative record would be a valid basis for the Court to admit additional 22 evidence. However, Plaintiff seeks to use an alleged discrepancy to conduct broad 23 discovery, and the Court is not convinced that Plaintiff has yet made the requisite 24 showing that would justify such an order. In sum, each party either explicitly or implicitly 25 accuses the other of fabricating evidence (or at the least, having an inaccurate record). 26 Because the basis for Plaintiff’s alleged discrepancy is an e-mail sent by E.O.’s 27 teacher using a school e-mail account, the Court will order Defendant to conduct a 28 forensic examination of its electronically-stored data (including computers, e-mail -3- 1 servers, and backups) to ascertain whether Defendant has a copy of this e-mail. 2 Defendant must either (1) file an affidavit stating, under oath, that it possesses a copy of 3 this e-mail and present a copy of the e-mail and the Prior Written Notice attachment; or 4 (2) file an affidavit stating, under oath, that it has forensically searched all records and 5 data within its possession for this e-mail and it does not have a copy in its possession. If it 6 turns out that E.O.’s teacher actually sent this e-mail, then Plaintiff may refile a request 7 for discovery. Otherwise, the Court sees no basis for permitting additional discovery in 8 this case. The Court recognizes this procedure will place a burden upon Defendant, but 9 believes any burden is slight because the date and time of the e-mail are known, which 10 will facilitate quick searching, and outweighed by the important value of having a 11 complete and accurate administrative record for review. This procedure will also resolve 12 the conflict between the parties as to the completeness of the administrative record in this 13 case. 14 IV. Conclusion 15 For the foregoing reasons, 16 IT IS ORDERED denying Plaintiff’s Motion to Prohibit Spoilage and Preserve 17 Evidence (Doc. 15). 18 IT IS FURTHER ORDERED that within twenty days from the date of this 19 Order, Defendant shall conduct a forensic search of all electronic records within its 20 possession for the e-mail and e-mail attachment identified in Exhibits B and C of 21 Plaintiff’s Motion at Doc. 15-2. Defendant shall within this time period file an affidavit 22 with the Court that identifies, under penalty of perjury, whether Defendant has a copy of 23 this e-mail and e-mail attachment within its possession. If Defendant has a copy of this e- 24 mail and e-mail attachment within its possession, then Defendant must also attach these 25 documents to its affidavit filed with the Court. If Defendant attests that it does not have a 26 copy of this e-mail and e-mail attachment within its possession, then Defendant’s 27 affidavit must list, in detail, the forensic examination steps taken to locate these 28 documents and must also include a statement from a suitably-credentialed third-party -4- 1 2 certifying that these steps constituted a diligent search. Dated this 21st day of April, 2015. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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