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

Filing 30

ORDER - ORDERED resetting the briefing schedule as follows: Plaintiff's openingbrief is due 8/17/2015. Defendant's responsive brief is due 9/17/2015. Plaintiff's reply brief is due 10/19/2015. ORDERED denying 28 Plaintiff's Motion for Sanctions. ORDERED granting 22 Plaintiff's Motion for Extension of Time. See attached Order. Signed by Senior Judge James A Teilborg on 5/13/2015.(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,

No. CV-14-08166-PCT-JAT
Plaintiff,

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v.

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ORDER

Sedona Oak-Creek Unified School District
#9,

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Defendant.

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Pending before the Court are Plaintiff’s Motion for Extension of Time (Doc. 22)

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and Motion for Sanctions (Doc. 28). The Court now rules on the motions.

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I.

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Background
As the Court summarized in its previous order:
Plaintiff Matthew Oskowis filed this action seeking judicial
review of an administrative decision concerning his minor
child, E.O. Plaintiff originally filed four due process
complaints against Defendant pursuant to the Individuals with
Disabilities Education Act (“IDEA”). (Doc. 1 at 2-3). The
Administrative Law Judge (“ALJ”) consolidated these
complaints, and issued a decision. (Doc. 1-3 Ex. E). The ALJ
concluded that Defendant had denied E.O. a free appropriate
public education (“FAPE”) with respect to four of the annual
goals for E.O. set forth in his Individualized Education
Program (“IEP”) and awarded ninety hours of compensatory
education. (Id. at 38-39). The ALJ rejected the balance of
Plaintiff’s claims. (Id. at 39). Plaintiff appeals from this
decision. (Doc. 1).

(Doc. 20 at 1).
Although the parties initially agreed in their Joint Proposed Case Management

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Plan that discovery did not apply to this appeal from an administrative decision, Plaintiff

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filed a motion “to prohibit spoilage” and to permit Plaintiff to conduct discovery of

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certain documents. Plaintiff pointed out a discrepancy between a document in the

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administrative record and Plaintiff’s own copy of that document. (Doc. 15). Specifically,

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Plaintiff alleged that E.O.’s teacher, Ken Baumgartner, had e-mailed Plaintiff on

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November 30, 2012 a “Prior Written Notice” (a type of document relating to E.O.’s

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educational plan) that differed from the November 30, 2012 Prior Written Notice

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included in the administrative record. (Id. at 2). The contents of both documents differed

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substantially but were both dated “11/30/2012.” The Prior Written Notice at issue is an

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education record for an Individualized Education Program (“IEP”) meeting that occurred

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on November 15, 2012. (Doc. 24 at 2).

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Because the accuracy of the administrative record was in question, the Court

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ordered Defendant to forensically examine its computer systems for a copy of the

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November 30, 2012 e-mail and e-mail attachment. (Doc. 20 at 3-4). Defendant did so,

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found the e-mail and attachment, and produced them in the same form as alleged by

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Plaintiff. (Doc. 24). Significantly, as Defendant states in its response to the Court’s order:

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The “Baumgartner” email and attachment are not contained in
the District’s educational record for the Plaintiff’s student,
nor were these documents ever transmitted to the District’s
Special Education Office, nor were they provided to Mr. Scott
Keller, Special Education Director. Until Plaintiff provided
copies of these documents as part of Plaintiff’s motion to this
Court, neither the District’s Special Education Office nor Mr.
Killer were aware of their existence.

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(Doc. 24 at 2). Mr. Keller, the Director of Student Services, attests that he was unaware

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of the November 30, 2012 e-mail and attachment until December 2014, when Plaintiff

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filed his motion for spoilage and discovery, and at that time he contacted a support

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analyst for the software program used to store E.O.’s educational record. (Doc. 25 at 1-3).

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Mr. Keller further attests that the support analyst informed him that the “IEP Pro”

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software used could not track when a Prior Written Notice was changed or how its

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contents changed, that Mr. Baumgartner last modified the Prior Written Notice on

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February 1, 2013 (two months after the date of the notice), and IEP Pro could not track

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when a user printed copies of a Prior Written Notice. (Id. at 3-4).

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Mr. Keller attests that after the Court’s April 21, 2015 Order for an examination of

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its computer records, he further investigated with the maker of the IEP Pro software and

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discovered that the Prior Written Notice created on November 30, 2012 had been

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modified by Mr. Baumgartner sometime between January 26, 2013 and February 2, 2013.

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(Id. at 5). This modified version is the version included in E.O.’s education records and

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the administrative record. (Id.)

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II.

Motion for Extension of Time

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Plaintiff’s opening brief in this case is currently due on May 15, 2015. (Doc. 16).

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Plaintiff has moved for a ninety-day extension of time to the briefing deadlines so that he

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may complete any discovery necessary in this case and ensure an accurate educational

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record prior to briefing. (Doc. 22). The Court is troubled by the demonstrated disparity

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between the Prior Written Notice as sent to Plaintiff and the Prior Written Notice as

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recorded by Mr. Baumgartner in E.O.’s educational records. However, it does not follow

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that the Court automatically orders Defendant to conduct a lengthy examination of all

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electronic records. Plaintiff bears the burden of demonstrating entitlement to discovery;

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Plaintiff must show that this examination would meaningfully contribute to the resolution

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of this case.

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Therefore, the Court will extend the briefing schedule by approximately three

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months, and will permit Plaintiff to file a motion for discovery. Plaintiff must provide a

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specific list of documents currently in the administrative record for which a forensic

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examination of Defendant’s computer records is sought, and for each document

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requested, must articulate specific reasons showing both (1) the reasons for Plaintiff’s

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good-faith belief that the version of the document provided in the educational record

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differs from another version of the same document elsewhere provided, with the latter

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purported to be a final version, and (2) why any such discrepancy will materially affect

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the Court’s decision on the merits of Plaintiff’s appeal.

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III.

Motion for Sanctions

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Plaintiff admits in his motion for sanctions that he failed to serve it on Defendant’s

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counsel at least twenty-one days before filing with the Court, as Federal Rule of Civil

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Procedure 11(c)(2) requires. (Doc. 28 at 4). Accordingly, this motion is denied.

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IV.

Conclusion

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For the foregoing reasons,

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IT IS ORDERED resetting the briefing schedule as follows. Plaintiff’s opening

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brief is due August 17, 2015. Defendant’s responsive brief is due September 17, 2015.

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Plaintiff’s reply brief is due October 19, 2015.

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IT IS ORDERED denying Plaintiff’s Motion for Sanctions (Doc. 28).

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IT IS ORDERED granting Plaintiff’s Motion for Extension of Time (Doc. 22).

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Dated this 13th day of May, 2015.

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