Green v. Tehachapi Unified School District
Filing
31
ORDER GRANTING IN PART and DENYING IN PART 25 Plaintiff's Request for Discovery, signed by Magistrate Judge Jennifer L. Thurston on 11/22/2016. (Hall, S)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
N.G.,
Plaintiff,
12
v.
13
14
TEHACHAPI UNIFIED SCHOOL
DISTRICT,
15
Defendant.
16
)
)
)
)
)
)
)
)
)
)
Case No.: 1:15-cv-01740 LJO JLT
ORDER GRANTING IN PART AND DENYING IN
PART THE PLAINTIFF’S REQUEST FOR
DISCOVERY
(Doc. 26)
17
In this action, the child seeks review of an administrative decision unfavorable to his/her
18
19
position related to his Individuals with Disabilities Education Act claims.1 The parties agreed that no
20
discovery would occur until the child filed a motion seeking to add evidence for the Court’s
21
consideration when evaluating the administrative decision. The plaintiff has filed a motion seeking
22
discovery of email correspondence and billing records for the attorneys for the defendant.
23
24
25
1
26
27
28
On March 15, 2016, the Court issued an amended case schedule. (Doc. 11) At that time, there was a dispute as to
whether the plaintiff was entitled to additional discovery. Though the Court ordered “briefs” to be filed on the topic, it
failed to be specific that the motion for discovery needed to be set for hearing and the Court cannot fault the parties for not
doing so. However, because the motion was not set for hearing, it did not come to the Court’s attention. Through
happenstance, the motion has now been discovered. Due to the nature of the request, the Court does not believe that the
delay in ruling on the motion has posed any prejudice. However, if it has, counsel may bring this to the Court’s attention
through a joint filing.
1
1
2
I.
The Court must consider appropriate and relevant “additional evidence”
Under the Individuals with Disabilities Education Act, any aggrieved party after the due
3
process hearing conducted by the state education agency, may challenge the decision in court. 20
4
U.S.C. § 1415(i)(2). In evaluating the administrative decision, the judge must consider the
5
administrative record and “additional evidence at the request of a party,” and then grant the relief it
6
determines is appropriate. 20 U.S.C. § 1415(1)(2)(C).
7
In Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471-1472 (9th Cir. 1993), the Court
8
described the process as one that does not involve a highly deferential view and, instead, the trial court
9
merely must give “‘due weight to judgments of education policy.” Id. Nevertheless, the trial court
10
may not substitute its judgment for that of the school authorities. Id. Rather, review involves an
11
“unusual mixture of discretion and deference.” Id.
12
The obligation to consider “additional evidence” does not include allowing witnesses to
13
“repeat or embellish their prior administrative hearing testimony.” Ojai, 4 F.3d at 1472. Along these
14
lines, generally, witnesses who testified at the administrative hearing may not offer additional
15
evidence in the trial court. Id. Though “additional evidence” is left to the discretion of the court (Id.),
16
“evidence that is non-cumulative, relevant, and otherwise admissible constitutes ‘additional evidence’
17
that the district court “shall” consider pursuant to 20 U.S.C. § 1415(i)(2)(C)(ii).” In E.M. ex rel. E.M.
18
v. Pajaro Valley Unified Sch. Dist. Office of Admin. Hearings, 652 F.3d 999, 1004-1005 (9th Cir.
19
2011). In doing so, the court “must be careful not to allow such evidence to change the character of
20
the hearing from one of review to a trial de novo.” Ojai, at 1472. The court should “weigh heavily the
21
important concerns of not allowing a party to undercut the statutory role of administrative expertise,
22
the unfairness involved in one party’s reserving its best evidence for trial, the reason the witness did
23
not testify at the administrative hearing, and the conservation of judicial resources.” Id, quoting Town
24
of Burlington v. Department of Educ., 736 F.2d 773, 790-791 (1st Cir.1984).
25
Specifically, Burlington determined, “The reasons for supplementation will vary; they might
26
include gaps in the administrative transcript owing to mechanical failure, unavailability of a witness,
27
an improper exclusion of evidence by the administrative agency, and evidence concerning relevant
28
events occurring subsequent to the administrative hearing. The starting point for determining what
2
1
additional evidence should be received, however, is the record of the administrative proceeding.”
2
Burlington at 790.
3
Burlington also made clear that witnesses who testified at the administrative hearing, generally,
4
should not be permitted to testify before the Court. Burlington at 790. The Court continued that, “The
5
court should look with a critical eye on a claim, such as made here, that the credibility of a witness is a
6
central issue. The claim of credibility should not be an ‘open sesame’ for additional evidence. Such an
7
approach followed by a pretrial order that identifies who may testify and limits the scope of the
8
testimony will enable the court to avoid a trial de novo.” Id. at 791.
9
II.
10
The e-mail correspondence
The child seeks discovery of all email correspondence that refers to the child and/or the child’s
11
parents that was sent or received by any Tehachapi employee, board member or independent
12
contractor of Tehachapi, between August 14, 2012 and August 14, 2015. (Doc. 25 at 4) In the opening
13
brief, the child fails to explain how the e-mail bears on the questions the Court must decide. Id.
14
However, in the reply brief, the child explains,
15
16
17
18
19
20
21
22
The Administrative record includes testimony regarding the timing of what TUSD
employees knew or did not know regarding N.G.’s behaviors at certain relevant
periods, specifically student’s behaviors when he enrolled in 2013 that would have
prompted assessment consideration or delays in the 2014-2015 school year where
Student claims that TUSD did not timely assess student and or otherwise delayed
assessments.
The email correspondence Plaintiff requests during this period could help fill in many
of the uncertainties and typical human errors involved with past years memory
recollection during testimony and possibly provide some light regarding who may have
also had knowledge regarding what TUSD knew or did not know regarding N.G.’s
behaviors and delayed assessments. Plaintiff is not specifically seeking evidence only
to support its appeal, but rather to provide the Court with the complete TUSD records
regarding Student during the relevant period and not just the limited and filtered
evidence that the Defendant chose to produce to Plaintiff and OAH at hearing.
23
Notably, however, the child fails to provide any portion of the record that would allow the Court to
24
evaluate how this discovery could bear on the issues it must decide. Burlington at 790. For example,
25
the Court is unaware if there were any witnesses with uncertainties as to particular dates or events or
26
what testimony the child thinks may have been subject to “typical human error.” Moreover, while
27
asserting that the discovery request is narrowly tailored, the child does not report when the evaluation
28
occurred, whether there was more than one and what conduct was at issue that the child believes
3
1
should have alerted the defendant of the need for the evaluation. Rather, it appears that child merely
2
hopes to determine whether there is evidence that could impeach these witnesses. However, as noted
3
above, merely hoping there will be evidence that bears on a witnesses’ credibility is insufficient to
4
justify discovery.
5
On the other hand, because the child has not provided pertinent parts of the record, the Court
6
cannot determine whether the discovery sought is narrowly tailored as the child contends. On its face,
7
it appears that the requests may be overbroad because the discovery is not limited to discussion related
8
to the conduct that he believes triggered the obligation to conduct the evaluation. Thus, because the
9
Court finds the child has not demonstrated that the records may bear on the issues the Court must
10
decide, the request for this discovery is DENIED.
11
III.
12
Attorney time records
The child seeks discovery of the time records of Tehachapi’s attorneys. The child contends—
13
rightly so, in the Court’s view—that these records could counter arguments that the plaintiff’s
14
attorney’s bills are unreasonable.
In the complaint, the child specifically alleges that, “In District’s case, District’s speech and
15
16
language assessment did not comply with the IDEA. Plaintiff is entitled to an independent educational
17
evaluation in speech and language at public expense pursuant to Parent’s May 14, 2015 request.”
18
(Doc. 1 at 5) In addition, the child prays that the Court, “Declare Plaintiff to be the prevailing party in
19
the Hearing Office Decision and award reimbursement for reasonable attorneys’ fees and costs
20
incurred in connection with the proceedings before the Hearing Office in an amount as determined in
21
the discretion of this court as authorized by 20 U.S.C. § 1415(i)(3)(B).” Thus, regardless of whether
22
the child prevails here on the two issues the child lost at the due process hearing, it appears the
23
plaintiff may be entitled to the attorney’s fees incurred related to the due process hearing.
24
Consequently, the child is entitled to discover timekeeping information to prepare for possible attacks
25
the defendant may lodge on the fee request.
26
As a result, the Court will permit limited discovery related to the time spent on tasks that are
27
reasonably similar to those undertaken by private counsel.
28
///
4
1
ORDER
2
For the reasons set forth, the Court ORDERS:
3
1.
4
The plaintiff’s motion for discovery is GRANTED in PART and DENIED in PART
as follows:
5
a.
The request for Tehachapi to produce e-mail correspondence is DENIED;
6
b.
The request for time-keeping records for Tehachapi’s attorney related to the due
7
process hearing is GRANTED;
8
i.
9
Within five court days, the plaintiff’s attorney SHALL provide a copy
of the time records related to the due process hearing;
10
ii.
As to any entry or set of entries that Tehachapi contends is
11
unreasonable, no later than 21 days after receipt for the records from the plaintiff’s
12
attorney, Tehachapi’s attorney SHALL produce time records for the equivalent and/or
13
corresponding work, if there is any. Tehachapi may redact privileged information but,
14
in this event, must provide a privilege log.
15
16
17
18
IT IS SO ORDERED.
Dated:
November 22, 2016
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
19
20
21
22
23
24
25
26
27
28
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?