Skinner v. Board of Trustees of Colorado School for the Deaf and Blind et al

Filing 91

ORDER: For the reasons set forth above, the Motion is granted in part and denied in part as to Interrogatory Nos. 2 and 4 and granted as to Request for Production No. 9. Defendant School Board shall produce the requested information and documents on or before October 10, 2013. By Magistrate Judge Kristen L. Mix on 10/01/13. (Attachments: # 1 Attachment) (alvsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02664-RPM-KLM
BPS, a minor and disabled person;
KATRINA L. STEWART, his parent and next friend; and
JOHN P. STEWART, his parent and next friend,
Plaintiff(s),
AND
Civil Action No. 12-cv-02666-RM-KLM
MAP, a disabled and incompetent person, and
CORINA S. SKINNER, his Guardian and Next Friend,
v.
BOARD OF TRUSTEES, COLORADO SCHOOL FOR THE DEAF AND BLIND;
COLORADO SCHOOL FOR THE DEAF AND BLIND;
LOUIS TUTT, individually and in his official capacity as principal for the
Colorado School for the Deaf and Blind; and,
DOES 1-10, who are unknown persons,
Defendant(s).
DEFENDANT BOARD OF TRUSTEES FOR THE COLORADO SCHOOL
FOR THE DEAF AND BLIND’S RESPONSE TO PLAINTIFFS’ FIRST SET
OF INTERROGATORIES AND REQUESTS FOR PRODUCTION

Defendant Board of Trustees for the Colorado School for the Deaf and
Blind, by its counsel, the Colorado Attorney General, Senior Assistant Attorneys
General Kit Spalding and Amy Colony, submit the following response to
Plaintiffs’ Interrogatories and Request for Production of Documents:
SCOPE OF RESPONSE

1.

In responding to Plaintiffs’ Interrogatories and Requests, the Board

has made a diligent search and a reasonable effort to comply with the Requests.
The following responses are based upon the Board’s state of recollection,
knowledge, and belief. Discovery and investigation are ongoing, and the Board
reserves the right to amend or supplement the responses herein at its option,
and/or to introduce at trial or other proceedings related to this action, documents
and information not described herein if such materials become known or
available to the Board subsequent to the date of this response.
2.

By stating that they will produce documents responsive to particular

demands, the Board does not represent that such documents exist or have not
already been produced, but only that the Board will search for and produce nonprivileged documents, if any, which appear responsive to the particular demands
and which have not already been produced. The Board will produce such
documents, unless otherwise noted, by making them available for inspection and
copying. At this time, the Board is not aware of the existence of any documents
in addition to the documents that have already been produced by CSDB or its
Board of Trustees as part of their respective initial disclosures pursuant to
F.R.C.P. 26(a)(1).
3.

In providing specific responses to the Requests, the Board does not

in any way waive or intend to waive, but rather intends to preserve and are
preserving:

a.

All questions as to competency, relevancy, materiality, privilege and

admissibility as evidence for any purpose of the responses or subject matter
thereof, any subsequent proceeding in or the trial of this or any other action;
b.

All rights to object on any ground to the use of any of said responses,

or the subject matter thereof, in all subsequent proceedings, including the trial of
this or any other action;
c.

All rights to object on any ground to any demand for further

responses to these or any other discovery requests involving or related to the
subject matter of the inspection demands.
GENERAL OBJECTIONS
1.

The Board objects to each and every instruction and definition to the

extent any such instruction, definition, or request seeks to impose obligations in
excess of those imposed by the Federal Rules of Civil Procedure. The Board’s
response is governed by the Federal Rules of Civil Procedure, rather than by the
Plaintiffs’ instructions and definitions.
2.

The Board objects to each and every Interrogatory and Request to

the extent that they seek information, documents or things protected by the
attorney-client privilege, the attorney work-product doctrine, privileges that
attach to educational records or any other applicable privilege or restriction upon
discovery. The Board intends to produce no information, documents or things
that are subject to any such privileges, doctrines, immunities or restrictions upon
discovery. To the extent any privileged documents are inadvertently produced,

any such documents must be immediately returned and Plaintiffs are barred
from reading or making any use of any information contained therein.
3.

The Board objects to any of the interrogatories or requests that

explicitly or implicitly call for or are based on a legal conclusion.
4.

The Board objects to any of the interrogatories or requests that

assume as true, a state of facts that have not been stipulated or demonstrated to
be true.
5.

The Board objects to any interrogatories or requests that are

ambiguous or indefinite.
6.

The Board objects to any of the interrogatories or requests that

require it to speculate about information of which each Defendant has no
firsthand knowledge or to produce documents for which the Board is not the
custodian.
7.

The Board objects to the interrogatories or requests to the extent

they fail to describe the required documents with reasonable particularity as
required by F.R.C.P. 34(b).
8.

The Board objects to the extent that the number of Interrogatories

and Requests for Production exceed that permitted by the Rules of Civil
Procedure or the Scheduling Management Order.
INTERROGATORIES
INTERROGATORY 1:

a. Describe with specificity the nature of the relationship between the
Superintendent and the Board, including whether the Superintendent is an
ex-officio member of the Board.
b. Describe with specificity the nature of the relationship between the
Director of Special Education, including whether the Director of Special
Education is an ex-officio member of the Board.
RESPONSE:
CSDB objects to Interrogatory No. 1 as vague and overbroad. CSDB
further objects to this Interrogatory because the term “ex officio” is vague
and ambiguous as employed by Plaintiffs and not reasonably capable of
interpretation within the context of this Response.
a.

Without waiving the objections, Defendant refers Plaintiffs to

CSDB Policies located at www.csdb.org:
BBA – School Board Responsibilities and Governance; BC – Board of
Trustees Conduct; BCA-E1 – Code of Ethics for Board of Trustees;
CBA/CBC – Qualifications/Powers and Responsibilities of Superintendent;
CBI- Evaluation of Superintendent; CH- Policy Implementation.
b.

The Board does not have supervisory authority over the Director of

Special Education, rather, the Superintendent has direct supervisory authority
over the Director of Special Education. Defendant refers Plaintiffs to the Job
Description for the Special Education Director, Position No. 23618.
INTERROGATORY 2:

a. State the date, place, and circumstances in which the Board held
an executive session during the 2009-2010 and 2010-2011 school season.
b. Describe with specificity any executive session held by the Board
during the 2009-2010 and 2010- 2011 school season that relates to the
incidents that occurred on October 7, 2009, November 19, 2009, and March 4,
2010.
RESPONSE:
Defendant objects to Interrogatory No. 2 to the extent that it seeks
confidential information related to discussions held during Board meetings in
executive session. The Board of Trustees is subject to Colorado’s Open Meetings
Law, set forth at §24-6-401, C.R.S., et seq. However, state public bodies are
authorized to meet in executive session for certain purposes. Section 24-6402(3)(a). These discussions are exempt from disclosure pursuant to state law.
Certain common law protections also apply to the substance of these meetings,
including but not limited to, the attorney-client privilege, see Upjohn v. United
States, 449 U.S. 383, 389 (1981), and deliberative process privilege, see
Department of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8
(2001); Casad v. U.S. Dep't of Health & Human Servs., 301 F.3d 1247, 1251 (10th
Cir.2002), and are therefore, not subject to disclosure.
Finally, Defendant objects to Interrogatory No. 2 to the extent that it seeks
information concerning students that are not parties to this litigation and are

therefore protected by federal laws pertaining to the confidentiality of
educational records. See 20 U.S.C. 1232g(b)(1) and (2); and 34 C.F.R. §99.31.
Without waiving the objections, Defendant refers Plaintiffs to the Board
meeting minutes that are available at www.csdb.org and that identify the
subjects discussed in executive session, as required by §24-6-402(2)(d)(1).
INTERROGATORY 3:
a. Explain with specificity the admission process of a student into the
Colorado School for the Death and Blind.
b. Describe the documents reviewed by the Board when determining
whether a student should be admitted into the Colorado School for the Deaf
and Blind.
RESPONSE:
Defendant objects to Interrogatory No. 3 as vague, overbroad, unduly
burdensome and not calculated to lead to the discovery of admissible
evidence.
Without waiving the objections, Defendant states the following:
a.

Defendant refers Plaintiffs to the admissions policies available on

the CSDB website at www.csdb.org.
JF – Admission and Denial of Admission; JF-R – Admission and Denial of
Admission Regulation.
b.

The Board approves admission and denial of admission policies. It

does not determine the admission or denial of admission of individual students;

nor does it review any documents to determine the eligibility of a student for
admission to CSDB. The Special Education Director supervises the admission
process at CSDB. See Job Description for Special Education Director, Position
No. 23618.
INTERROGATORY 4:
a. Describe reports to the Board from the Colorado School for the
Death and Blind regarding student conduct during the 2009-2010 and
2010-2011 school seasons.
RESPONSE:
Defendant objects to Interrogatory No. 4 as vague, overbroad, unduly
burdensome and not calculated to lead to the discovery of admissible
evidence. Defendant further objects to the Interrogaory because the term
“reports” is vague and ambiguous as employed by Plaintiffs and not
reasonably capable of interpretation within the context of this Response.
Defendant objects to Interrogatory No. 4 to the extent that it seeks
confidential information related to discussions held during Board meetings in
executive session. See §24-6-401, C.R.S., et seq. Defendant objects to the extent
that the Interrogatory seeks information entitled to the protections of attorneyclient privilege and deliberative process privilege, and is therefore not subject to
disclosure.
Finally, Defendant objects to Interrogatory No. 2 to the extent that it seeks
information concerning students that are not parties to this litigation and are

therefore protected by federal laws pertaining to the confidentiality of
educational records. See 20 U.S.C. 1232g(b)(1) and (2); and 34 C.F.R. §99.31.
Without waiving the objections, Defendant refers Plaintiffs to the Board
meeting agendas and minutes that are available at www.csdb.org.
INTERROGATORY 5:
a. State the circumstances under which a student may be suspended or
expelled from the Colorado School for the Deaf and Blind.
b. Identify all persons involved in determining whether a student
should be suspended or expelled from the Colorado School for the Deaf and
Blind.
c. Explain with specificity the reason Chu Scott was not suspended or
expelled from the Colorado School for the Deaf and Blind after the May 5, 2011
incident.
RESPONSE:
Defendant objects to Interrogatory No. 5 to the extent that it seeks
information concerning a student, Chu Scott, that is not a party to this litigation
and whose educational records are protected by federal laws pertaining to the
confidentiality of educational records. See 20 U.S.C. 1232g(b)(1) and (2); and 34
C.F.R. §99.31.

Without waiving the above objection, Defendant refers Defendant refers
Plaintiffs to the suspension and expulsion policies available on the CSDB website
at www.csdb.org.
JKD/JKE – Suspension and Expulsion of Students; JKD/JKE-R –
Suspension and Expulsion of Students Procedure.
Defendant further states that the Board of Trustees has no involvement
with decisions concerning the suspension or expulsion of individual students.
INTERROGATORY 6:
a. State the date, place and circumstances under which the Board
became aware that student-on-student sexual behavior occurred during 20092010 and 2010-2011 school seasons.
RESPONSE:
Superintendent Carol Hilty notified the Board members on May 18, 2011,
via e-mail, of the peer-to-peer sexual incidents that are the subject of this
litigation.
INTERROGATORY 7:
a. Identify all persons who conducted and/or were part of the
investigation initiated by the Pueblo County Department of Human Services
and later transferred to the El Paso County Department of Human Services in
2010 relating to student-on-student sexual behavior.
b. Describe any and all internal investigations conducted by the Board
in 2010 relating to student-on-student sexual behavior.

RESPONSE:
a.

Defendant Board objects to Interrogatory No. 7 to the extent that it

seeks materials that are not within the custody and control of the Board but
rather are records maintained by the Pueblo and El Paso County Departments of
Human Services. Moreover, Defendant Board objects to Interrogatory No. 7 to
the extent that it seeks information that is confidential and is not subject to
disclosure, pursuant to § 19-1-303(2)(a), (d) and §19-1-307(e.5)(I)(J) and (III),
C.R.S.
Defendant objects to the remainder of Interrogatory No. 7 as vague, overly
broad and not calculated to lead to the discovery of admissible evidence
b.

With respect to the request for materials and information related to

any internal investigations of student-on-student sexual behavior in 2010,
Defendant objects because the Interrogatory seeks records concerning students
that are not parties to this litigation and are therefore protected by federal laws
pertaining to the confidentiality of educational records. Pursuant to 20 U.S.C.
1232g(b)(1) and (2), and 34 C.F.R. §99.31, which requires prior written release of
the student and/or parent or legal guardian, the records sought by Interrogatory
No. 7 are not subject to disclosure.
Without waiving the above objections, Defendant states there were no
internal investigations initiated by the Board of Trustees with respect to peer-topeer sexual behavior in 2010.
REQUESTS FOR PRODUCTION:

1. All documents that report, describe, summarize, analyze, discuss,
or comment on the training or educating of staff members and supervisors at
the Colorado School for Deaf and Blind that relates to the identification,
investigation, and reporting of child abuse, and student-on-student sexual
behavior.
RESPONSE:
See Defendant CSDB’s Response to Interrogatory No. 2.
2. All documents that report, describe, summarize, analyze,
discuss, or comment on the internal investigation of the Colorado School
for the Deaf and Blind that occurred in 2010 relating to student-onstudent sexual behavior.
RESPONSE:
Defendant objects to Request for Production No. 2 because it seeks
information concerning students that are not parties to this litigation whose
educational records are protected by federal laws pertaining to the confidentiality
of educational records, see 20 U.S.C. 1232g(b)(1) and (2) and 34 C.F.R. §99.31,
and are therefore, not subject to disclosure.
3. All documents created by Carol Hilty that report, describe,
summarize, analyze, discuss or comment on the student-on-student sexual
behavior that occurred during the 2009-2010 and 20 I 0-2011 school season.

Defendant objects to Request for Production No. 3 because it seeks
information concerning students that are not parties to this litigation whose
educational records are protected by federal laws pertaining to the confidentiality
of educational records, see 20 U.S.C. 1232g(b)(1) and (2) and 34 C.F.R. §99.31,
and are therefore, not subject to disclosure.
4. All documents created by Timothy Elstad that report, describe,
summarize, analyze, discuss or comment on the student-on-student sexual
behavior that occurred during the 2009-2010 and 2010-2011 school season.
RESPONSE:
Defendant objects to Request for Production No. 4 because it seeks
information concerning students that are not parties to this litigation whose
educational records are protected by federal laws pertaining to the confidentiality
of educational records, see 20 U.S.C. 1232g(b)(1) and (2) and 34 C.F.R. §99.31,
and are therefore, not subject to disclosure.
5. All documents that report, describe, summarize, analyze, discuss, or
comment on the internal investigation of the Colorado School for the Deaf and
Blind that occurred in 2010 relating to student-on-student sexual behavior.

RESPONSE:
Defendant objects to Request for Production No. 5 because it seeks
information concerning students that are not parties to this litigation whose
educational records are protected by federal laws pertaining to the
confidentiality of educational records, see 20 U.S.C. 1232g(b)(1) and (2) and 34
C.F.R. §99.31, and are therefore, not subject to disclosure.
6. All documents relating to any communication with a parent or legal
guardian of a student regarding the student-on-student sexual behavior that
occurred during the 2009-2010 and 2010-2011 school season.
RESPONSE:
Defendant objects to Request for Production No. 6 to the extent that it
seeks information concerning students that are not parties to this litigation and
whose educational records are protected by federal laws pertaining to the
confidentiality of educational records, see 20 U.S.C. 1232g(b)(1) and (2); and 34
C.F.R. §99.31, and are therefore, not subject to disclosure.
Without waiving the objections, Defendant attaches the May 20, 2011
letter that was issued by CDSB to all parents of currently enrolled CSDB
students regarding the allegations of peer-to-peer sexual incidents.

7. All documents relating to BPS’s education record in addition to personal
notes or records of Louis Tutt, Carol Hilty, Ellen Trapp, John Vigne, and Timothy
Elstad relating to BPS.
RESPONSE:
Defendant states that there are no documents responsive to this Request
in addition to those already released to counsel pursuant to correspondence from
Director of Special Education Jon Vigne and dated August 13, 2012. See
Plaintiff BPS’s Initial Disclosures, bates numbers 0000155-292.
8. All documents relating to MAP's education record in addition to
personal notes or records of Louis Tutt, Carol Hilty, Ellen Trapp, John Vigne and
Timothy Elstad relating to MAP.
RESPONSE:
Defendant states that there are no documents responsive to this Request
in addition to those already released to counsel pursuant to correspondence from
Director of Special Education Jon Vigne and dated August 13, 2012. See
Plaintiff MAP’s Initial Disclosures, bates numbers 0000155-325.
9. All documents relating to any executive session that occurred
during the 2009-2010 and 2010--2011 school seasons.
RESPONSE:
See Defendant Board’s Response to Interrogatory No. 2.
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10.

Provide a copy of the self-evaluation of the Board from 2009-2010

and 2010-2011sessions.
RESPONSE:
See attached, Board of Directors Self-Evaluation Form Summer 2011;
CASB Monthly Measuring February 2010.
JOHN W. SUTHERS
Attorney General
s/ Kathleen L. Spalding
KATHLEEN L. SPALDING*
AMY COLONY*
Senior Assistant Attorneys General
Civil Litigation and Employment Law
Section
Attorneys for Defendants
1525 Sherman Street, 7th Floor
Denver, Colorado 80203
Telephone: [phone]
FAX: [phone]
E-Mail: [e-mail]
[e-mail]
*Counsel of Record

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I certify that on September 3, 2013 I served the foregoing DEFENDANT
BOARD OF TRUSTEES FOR THE COLORADO SCHOOL FOR THE
DEAF AND BLIND’S RESPONSE TO PLAINTIFFS’ FIRST SET OF
INTERROGATORIES AND REQUESTS FOR PRODUCTION upon all
parties herein via e-mail:
Stephen A. Brunette
Kristopher C. Miller
Matthew B. Drexler
128 S. Tejon Street, Suite 100
Colorado Springs, Colorado 80903
[e-mail]
[e-mail]
[e-mail]
Rachel Morris
Wood Ris & Hames, P.C.
1775 Sherman St., Suite 1600
Denver, CO 80203

s/ Amy Colony

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