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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Matthew Oskowis, individually and on
behalf of E.O.,

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Plaintiff,

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No. CV-14-08166-PCT-JAT
ORDER

v.
Sedona Oak Creek Unified School District
No. 9,

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Defendant.

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Pending before the Court is Plaintiff’s Motion to Prohibit Spoilage and Preserve

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Evidence (Doc. 15). The Court now rules on the motion.

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I.

Background

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Plaintiff Matthew Oskowis filed this action seeking judicial review of an

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administrative decision concerning his minor child, E.O. Plaintiff originally filed four due

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process complaints against Defendant pursuant to the Individuals with Disabilities

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Education Act (“IDEA”). (Doc. 1 at 2-3). The Administrative Law Judge (“ALJ”)

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consolidated these complaints, and issued a decision. (Doc. 1-3 Ex. E). The ALJ

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concluded that Defendant had denied E.O. a free appropriate public education (“FAPE”)

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with respect to four of the annual goals for E.O. set forth in his Individualized Education

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Program (“IEP”) and awarded ninety hours of compensatory education. (Id. at 38-39).

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The ALJ rejected the balance of Plaintiff’s claims. (Id. at 39). Plaintiff appeals from this

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decision. (Doc. 1).

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Because this case is a judicial review of an administrative ruling, the parties

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agreed in their Joint Proposed Case Management Plan that discovery generally did not

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apply, although Plaintiff claimed that limited discovery could apply for certain purposes.

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(Doc. 14 at 6-10). However, Plaintiff has now filed the present motion seeking “to

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prohibit spoilage” and to permit Plaintiff to conduct discovery of certain documents.

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(Doc. 15).

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Plaintiff’s basis for his motion is an alleged discrepancy between a document in

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the administrative record and Plaintiff’s own copy of that document. Specifically,

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Plaintiff takes issue with a “Prior Written Notice” from November 30, 2012 that is part of

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the administrative record, which Plaintiff attached as Exhibit A to his motion. (Doc. 15-2

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at 2). Plaintiff asserts that E.O’s teacher e-mailed Plaintiff on November 30, 2012 a

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“Prior Written Notice” that differs from the copy in the administrative record. (Doc. 15 at

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2). Plaintiff has attached this latter document as Exhibit C to his motion. (Doc. 15-2 at 7).

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Plaintiff believes the Prior Written Notice in the administrative record is the product of

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Defendant’s alteration or fabrication, and this is indicative of the Defendant’s fabrication

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of E.O’s education record in general. (Doc. 15 at 2). Exhibits A and C differ substantially

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in content but are both dated “11/30/2012.”

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II.

Legal Standard

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The IDEA provides that in civil actions for review, the district court “shall receive

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the records of the administrative proceedings” and “shall hear additional evidence at the

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request of a party.” 20 U.S.C. § 1415(i)(2)(C). In Ojai Unified School District v. Jackson,

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4 F.3d 1467 (9th Cir. 1993), the Ninth Circuit Court of Appeals (“Court of Appeals”)

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interpreted the “additional evidence” requirement as granting a district court discretion to

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supplement the administrative record in limited circumstances. 4 F.3d at 1473.

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“The starting point for determining what additional evidence should be received . .

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. is the record of the administrative proceeding.” Id. (citation omitted). Reasons to

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supplement the record include “gaps in the administrative transcript owing to mechanical

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failure, unavailability of a witness, an improper exclusion of evidence by the

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administrative agency, and evidence concerning relevant events occurring subsequent to

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the administrative hearing.” Id. However, the district court “must be careful to not allow

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[additional] evidence to change the character of the hearing from one of review to a trial

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de novo.” Id.

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III.

Analysis

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Plaintiff complains that Defendant controls the creation of E.O.’s educational

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record and did not present a complete or accurate copy of this educational record to the

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ALJ. (Doc. 15 at 2-3). Plaintiff asserts that the discrepancy between the Prior Written

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Notice in the administrative record and what Plaintiff actually received via e-mail casts

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doubts upon the veracity of the administrative record, justifying discovery. (Id. at 3).

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Plaintiff seeks to convert this discrepancy into expansive discovery, including all IEP

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meeting notes, all test results, all notes authored by Defendant’s personnel pertaining to

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E.O., all notes from specialists, and all correspondence mentioning E.O. (Doc. 15 at 1).

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Defendant denies having a record of the alleged Prior Written Notice attached as

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Exhibit C to Plaintiff’s motion, and avers that it has not modified any records in this case.

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(Doc. 17 at 10-11). Defendant devotes a substantial portion of its response to arguing that

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Plaintiff’s requested discovery is improper because the documents requested are not

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education records relevant to this case. (Id. at 7-10).

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The Court has the discretion to admit additional evidence for its consideration. See

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Ojai, 4 F.3d at 1473. The Court cannot ignore Plaintiff’s allegations because if correct, an

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erroneous administrative record would be a valid basis for the Court to admit additional

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evidence. However, Plaintiff seeks to use an alleged discrepancy to conduct broad

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discovery, and the Court is not convinced that Plaintiff has yet made the requisite

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showing that would justify such an order. In sum, each party either explicitly or implicitly

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accuses the other of fabricating evidence (or at the least, having an inaccurate record).

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Because the basis for Plaintiff’s alleged discrepancy is an e-mail sent by E.O.’s

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teacher using a school e-mail account, the Court will order Defendant to conduct a

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forensic examination of its electronically-stored data (including computers, e-mail

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servers, and backups) to ascertain whether Defendant has a copy of this e-mail.

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Defendant must either (1) file an affidavit stating, under oath, that it possesses a copy of

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this e-mail and present a copy of the e-mail and the Prior Written Notice attachment; or

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(2) file an affidavit stating, under oath, that it has forensically searched all records and

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data within its possession for this e-mail and it does not have a copy in its possession. If it

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turns out that E.O.’s teacher actually sent this e-mail, then Plaintiff may refile a request

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for discovery. Otherwise, the Court sees no basis for permitting additional discovery in

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this case. The Court recognizes this procedure will place a burden upon Defendant, but

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believes any burden is slight because the date and time of the e-mail are known, which

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will facilitate quick searching, and outweighed by the important value of having a

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complete and accurate administrative record for review. This procedure will also resolve

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the conflict between the parties as to the completeness of the administrative record in this

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case.

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IV.

Conclusion

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For the foregoing reasons,

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IT IS ORDERED denying Plaintiff’s Motion to Prohibit Spoilage and Preserve

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Evidence (Doc. 15).

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IT IS FURTHER ORDERED that within twenty days from the date of this

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Order, Defendant shall conduct a forensic search of all electronic records within its

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possession for the e-mail and e-mail attachment identified in Exhibits B and C of

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Plaintiff’s Motion at Doc. 15-2. Defendant shall within this time period file an affidavit

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with the Court that identifies, under penalty of perjury, whether Defendant has a copy of

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this e-mail and e-mail attachment within its possession. If Defendant has a copy of this e-

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mail and e-mail attachment within its possession, then Defendant must also attach these

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documents to its affidavit filed with the Court. If Defendant attests that it does not have a

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copy of this e-mail and e-mail attachment within its possession, then Defendant’s

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affidavit must list, in detail, the forensic examination steps taken to locate these

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documents and must also include a statement from a suitably-credentialed third-party

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certifying that these steps constituted a diligent search.
Dated this 21st day of April, 2015.

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