Rodriguez et al v. Independent School District of Boise City, No.1
Filing
47
MEMORANDUM DECISION AND ORDER. Defendant's Motion to Quash Subpoena and for Protective Order 26 and its Supplement (Dkt. 27) are GRANTED. Plaintiff's Motion to Compel 30 is DENIED. The deadline for motions to supplement the record is 11 /8/2013. Responses to any new motion to supplement the record shall be due on or before 11/22/2013. No replies will be allowed. Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
GUADALUPE RODRIGUEZ and JOSE
LOPEZ, on behalf of themselves and as
legal guardians and parents of C.L., a
minor individual with disabilities,
Case No. 1:12-cv-00390-CWD
MEMORANDUM DECISION AND
ORDER
Plaintiffs,
v.
INDEPENDENT SCHOOL DISTRICT
OF BOISE CITY NO. 1,
Defendant.
Before the Court are two motions related to Plaintiffs’ efforts to discover
additional evidence relevant to their appeal of an administrative due process hearing
conducted under the Individuals with Disabilities Education Act (“IDEA”). 20 U.S.C.
§ 1400 et seq. Plaintiffs, the parents of C.L., a 14-year-old student suffering from
significant intellectual impairment, Autism, and Anxiety Disorder, have appealed a June
21, 2012 decision by Hearing Officer Jean Uranga (“HO Uranga”). The Hearing Officer’s
Order found the Independent School District of Boise City No. 1 (“BSD”) did not violate
the IDEA and denied all relief requested by C.L.’s Parents. (Dkt. 16-2.) C.L.’s Parents
appealed that Order to the Court, and, in March 2013, the Court authorized “limited”
discovery of “additional evidence” within the meaning of the IDEA. (Dkt. 19.)
Discovery proceeded through the spring and summer of 2013. However, by
August, these efforts broke down, leading to the instant motions. Both parties have
certified, pursuant to District of Idaho Local Civil Rule 37.1, that efforts were made to
meet and confer in good faith before bringing this dispute before the Court. (Dkt. 26-2;
Dkt. 30-1 at 6.)
BSD’s Motion to Quash Subpoena and For a Protective Order (Dkt. 26), along
with its Supplement (Dkt. 27), request that the Court quash subpoenas duces tecum
received from C.L.’s Parents by two former District employees—Mary Osborn-Whitney
and Laura McCosh—both of whom worked with C.L. during 2011. BSD further requests
protective orders to prevent Plaintiffs from: (1) deposing any BSD employees who were
available during the administrative hearing and (2) accessing confidential personnel
records of BSD employees. (Dkt. 26.)
C.L.’s Parents filed a Motion to Compel, requesting production of “a variety of
documents.” (Dkt. 30 at 11.) Specifically, they request records related to (a) training or
discipline of C.L.’s teacher, Kelsie Badger; (b) documents concerning BSD employee
training, discipline, and use of a “quiet room” at Hillside Junior High School; (c)
disciplinary or training records for BSD employees related to autism, behavior
management, or the use of seclusion and similar techniques; and (d) data, test protocols,
test results, and behavior logs for C.L. that were used to prepare reports and summaries
regarding C.L.’s classroom behaviors. Some of these records, particularly those
MEMORANDUM DECISION AND ORDER - 2
pertaining to BSD employee training and discipline, fall within the ambit of BSD’s
requested protective orders.
For reasons stated below, the Court will deny Parents’ Motion to Compel and
grant BSD’s Motion to Quash Subpoena and For a Protective Order.
BACKGROUND1
C.L. is a 14-year-old student with multiple disabilities, including Autism. During
the 2010-2011 school year, C.L. attended sixth grade at Garfield Elementary School
within BSD. C.L. received special education throughout elementary school, subject to an
Individualized Education Program (“IEP”) under the IDEA from kindergarten through
the sixth grade, with the most recent IEP dated December 15, 2010. (Dkt. 1 at ¶ 16.)
In 2011, following the completion of sixth grade, C.L. was transferred to Hillside
Junior High School within the Boise School District. C.L.’s attendance at Hillside
required a one-hour bus ride to school. (Id. ¶ 17.) Plaintiffs’ allege that, shortly after
beginning junior high at Hillside, C.L. began arriving home noticeably stressed, including
an incident in September 2011 in which C.L. arrived home with blood on his arm and
reported that a teacher had pushed him and caused him to fall. (Id. ¶¶ 16, 17.) In October
of 2011, C.L.’s Parents informed BSD in writing that C.L. was experiencing an extreme
amount of anxiety related to incidents that occurred at school and that he was refusing to
attend school due to his anxiety. (Id. ¶ 19.) C.L.’s Parents then requested an IEP meeting
to address their concerns. (Id.)
1
The following facts are taken largely from the Court’s Memorandum Decision and
Order entered March 11, 2013. (Dkt. 19.)
MEMORANDUM DECISION AND ORDER - 3
C.L. did not attend school from October 14, 2011, until June of 2012. (Id. ¶ 20.) In
November of 2011, C.L.’s Parents requested that BSD provide C.L. with homebound
services. (Id. ¶ 21.) The request was rejected. (Id.) In December 2011, C.L.’s Parents
submitted a letter to BSD from Dr. Joseph Kiehl, who recommended C.L. receive
homebound services until BSD developed a plan for C.L. to reintegrate into school. (Id. ¶
22.) BSD again rejected C.L.’s Parents’ request in February of 2012. (Id.)
In December of 2011, C.L.’s Parents received and rejected an IEP proposed by BSD,
which Plaintiffs allege significantly reduced C.L.’s individual development therapy
services. C.L.’s Parents filed a Due Process Complaint under the IDEA on February 21,
2012, requesting the Hearing Officer to find that C.L. was entitled to homebound
services. (Id. ¶ 23.) The issues before HO Uranga were: (1) whether BSD failed to
provide C.L. with an appropriate IEP, addressing his anxiety about returning to the
school; (2) whether C.L. was entitled to homebound services pending transition back to
the school environment; and (3) whether C.L. was entitled to compensatory education to
“make up for lost time” during BSD’s failure over six months to provide C.L. with any
educational services. (See Pet’rs’ Pre-Hearing Br. at 4-5, Dkt. 16-6.)
After a four-day evidentiary hearing and review of post-hearing briefs, HO Uranga
issued her Findings of Fact, Conclusions of Law and Order on June 21, 2012. (Dkt. 16-2.)
The hearing officer found in favor of BSD on every issue and denied Plaintiffs’ requested
relief. Specifically, HO Uranga reached the following five conclusions of law:
MEMORANDUM DECISION AND ORDER - 4
1.
C.L.’s Parents “failed to establish that BSD has improperly implement[ed]
the Student's existing IEP from the beginning of school September, 2011
through October 14, 2011.” (Id. at 20-21.)
2.
C.L.’s Parents did not “establish that BSD failed to provide notice of the
October 20, 2011 meeting and failed to encourage parental participation.”
(Id. at 21-22.)
3.
BSD did not improperly conduct the October 20, 2011 IEP meeting without
the C.L.’s Parents in attendance because they were unwilling to attend. (Id.
at 22.)
4.
BSD “has not violated the IDEA by refusing to provide homebound
services because the Student was not qualified to receive homebound
services.” (Id. at 23.)
5.
BSD provided an adequate IEP, functional behavior assessment, behavior
intervention plan, and plan for reintegration of the student by developing an
IEP—with parental involvement—that would place C.L. at “a structured
learning center at Les Bois Junior High School with a phased in, short
reintegration period.” (Id. at 23-24.)
In response to these findings, C.L.’s Parents filed this administrative appeal in
August 2012. The Complaint alleges HO Uranga committed legal error by: (a) finding
C.L. “was not suspended or expelled from school” and was therefore not entitled to
MEMORANDUM DECISION AND ORDER - 5
homebound services on those grounds2 (Dkt. 1 at ¶ 36,); (b) sanctioning BSD’s
inadequate efforts to reintegrate C.L. into the classroom (Id. at ¶ 37); and (c) upholding
BSD’s decision to not provide homebound services because C.L. could have returned to
school. (Id. at ¶ 38.) C.L.’s Parents also allege various factual errors in the hearing
officer’s findings related to C.L.’s credibility as a witness, the reasons for his behaviors at
school, whether C.L. perceived being sent to a “quiet room” as punishment, and the
reason for his six-month absence from school. (Id. at ¶¶ 26-34.) Notably, C.L.’s Parents
do not allege the hearing officer erred by excluding evidence or that there were any
procedural irregularities during the hearing.
Early in these proceedings, Plaintiffs requested discovery to the full extent allowed
by Federal Rule of Civil Procedure 26(b). (Dkt. 14.) Defendant opposed the request and
argued that discovery in IDEA appeals is limited by 20 U.S.C. § 1415(i)(2)(C), which
requires the court to base its decision on a preponderance of evidence contained in the
administrative record and “additional evidence at the request of a party.” (Dkt. 15.) The
Court considered these arguments in light of decisions by the United States Court of
Appeals for the Ninth Circuit that interpret the “additional evidence” provision, and, on
March 11, 2013, issued a Memorandum Decision and Order (“March Order”) defining
the scope of discovery in this case. (Dkt. 19.)
2
Title 20, Section 1412(a)(1)(A) of the United States Code requires a State, as a
condition on federal funding under the IDEA, to ensure “[a] free appropriate public education is
available to all children with disabilities residing in the State between the ages of 3 and 21,
inclusive, including children with disabilities who have been suspended or expelled from
school.”
MEMORANDUM DECISION AND ORDER - 6
The March Order permitted the parties to conduct “limited” discovery for the
purpose of supplementing the administrative record on appeal. (Dkt. 19 at 10.)
Underlying this limited scope of discovery is the mandate that the district courts “‘be
careful not to allow [evidence added to the record on appeal] to change the character of
the hearing from one of review to a trial de novo.’” (Id. at 7, quoting Ojai Unified Sch.
Dist. v. Jackson, 4 F.3d 1467, 1473 (9th Cir. 1993).) The March Order also set a July 31,
2013 goal for the completion of all discovery, (Id.), a deadline that later was extended to
September 5, (Dkt. 25), and then suspended pending resolution of the instant motions.
(Dkt. 33.)
Following the March Order, the parties exchanged discovery requests in late
March 2013 and exchanged responses in April. However, in its April 21 response, BSD
raised seventeen general objections to Parents’ requests, as well as specific objections to
each of Parents’ twenty-six requests for production. (Dkt. 30-5.) BSD took particular
exception to requests for the contents of certain BSD employees’ personnel files,
specifically, C.L.’s teacher, Kelsie Badger, and two paraprofessionals who had contact
with C.L. (Id.) C.L.’s Parents responded with a letter relating their concerns about the
objections, and the parties eventually met on May 8, 2013, to discuss the dispute. (Dkt.
30-1 at 3.) This meeting led to BSD’s disclosure of the full names of three
paraprofessionals who worked with C.L.: Marcia Wagner, Laura McCosh, and Mary
Osborn-Whitney. 3 (Id. at 4.) The names of these individuals were at least partially
3
The instant discovery dispute focuses on Ms. McCosh and Ms. Osborn-Whitney. At the
hearing on this dispute, neither party addressed what, if any, information was sought from Ms.
MEMORANDUM DECISION AND ORDER - 7
disclosed in discovery at the administrative level—for example, behavior logs in the
administrative record are signed by “Ms. Mary” and “Ms. Laura”—but C.L.’s Parents
contend this was not enough information for them to identify and subpoena the
paraprofessionals. (Dkt. 32 at 2.) The parties discussed using a stipulated protective order
to protect information in the personnel files from unauthorized disclosure, but that
proposal also failed. (Dkt. 30-1 at 4.)
C.L.’s Parents later attempted to depose Ms. McCosh and Ms. Osborn-Whitney
ahead of the Court’s July 31 discovery deadline. (Id. at 5.) After several unsuccessful
attempts to schedule these depositions, C.L.’s Parents, in early August, served subpoenas
duces tecum on both paraprofessionals. (Id.) BSD’s Motion to Quash Subpoena and for
Protective Order came shortly thereafter, followed by Parents’ Motion to Compel. The
Court heard oral argument on both motions on September 6, 2013. (Dkt. 40.)
From the briefing and arguments during the hearing, it was apparent that a
“chicken and egg” problem was afoot. In other words, C.L.’s Parents could not
determine, absent disclosure BSD would not allow, whether the requested personnel
records contain additional evidence within the meaning of the IDEA. To address this
concern, the Court ordered BSD to lodge the personnel files of Mrs. Badger, Ms. OsbornWhitney, and Ms. McCosh for in camera review. (Dkt. 41.) The Court has completed its
review of these documents and the matter is now ripe for resolution.
Wagner. In addition, one of eighteen documents attached to Parent’s Motion to Compel states
Parents determined not to take Ms. Wagner’s deposition. (Dkt. 30-16.)
MEMORANDUM DECISION AND ORDER - 8
DISCUSSION
1.
Standards for Discovery of Additional Evidence
The March Order discussed in detail the parameters for discovery in this matter.
The crux of the instant discovery dispute is whether the discovery sought by C.L.’s
Parents is within the scope of discovery delineated by the Court’s Order. The March
Order requires that discovery in this case be calculated to lead to a viable motion to
supplement the administrative record. (Dkt. 19 at 11.)
A viable motion to supplement the administrative record seeks to add “evidence
that is non-cumulative, relevant, and otherwise admissible.” E.M. v. Pajaro Valley Unif.
Sch. Dist., 652 F.3d 999, 1005 (9th Cir. 2011). Although the determination of what
constitutes “additional evidence” is left to a trial court’s discretion, the Ninth Circuit has
instructed the district courts to “be careful not to allow such evidence to change the
character of the hearing from one of review to a trial de novo.” Ojai Unified Sch. Dist. v.
Jackson, 4 F.3d 1467, 1473 (9th Cir. 1993). Further, the Ojai court provided the
following examples of relevant, non-cumulative, and otherwise admissible evidence:
“gaps in the administrative transcript owing to mechanical failure, unavailability of a
witness, an improper exclusion of evidence by the administrative agency, and evidence
concerning relevant events occurring subsequent to the administrative hearing.” Id.
(citing Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206
(1982)).
All of these examples focus on evidence that is either after-acquired or omitted
from the record due to some error in the hearing process. Notably absent from the list is
MEMORANDUM DECISION AND ORDER - 9
evidence that was available but—for some reason apart from mechanical problems,
witness unavailability, or improper exclusion—not introduced during the due process
hearing. Allowing a party to introduce new evidence on appeal that it simply failed to
introduce below would render the administrative hearing a nullity and convert this
proceeding into a trial de novo. Indeed, the Court is mindful that it “should weigh heavily
the important concerns of not allowing a party to undercut the statutory role of
administrative expertise, the unfairness involved in one party’s reserving its best evidence
for trial, the reason the witness did not testify at the administrative hearing, and the
conservation of judicial resources.” Id.
Another critical consideration is whether the discovery is relevant to this
proceeding. Discovery in this matter is not an opportunity for free-ranging explorations
of tangential issues. Instead, the discovery sought must be “relevant to [an] issue properly
before the district court.” S.M. v. Bd. of Educ. of Albequerque Pub. Sch., 565 F.3d 1232,
1241(10th Cir. 2009). Only the assignments of error raised in Parents’ Complaint are
properly before this Court. See id. And, just as allowing the introduction of evidence
known to but withheld by a party at the administrative level would nullify the hearing and
create a trial de novo, so too would supplementing the administrative record with
evidence unconnected to errors alleged in the Complaint. After all, the party making the
appeal assigns error with full knowledge of the administrative proceedings. For these
reasons, the Court limited discovery and gave the party seeking to compel discovery the
burden of explaining how the materials sought relate to the assignments of error raised in
the Complaint. (Dkt. 19 at 11.)
MEMORANDUM DECISION AND ORDER - 10
2.
C.L.’s Parents’ Motion to Compel
A party may move to compel disclosure of discoverable material, including
responses to specific requests for production. Fed. R. Civ. P. 37(a). By default,
discoverable material includes “any nonprivileged matter that is relevant to any party’s
claim or defense.” Id. 26(b)(1). But the default scope of discovery may be modified by
court order, as is the case here. See id. As described above, the Court’s March 2013 Order
clearly limited the scope of discovery in this matter to relevant, noncumulative, and
otherwise admissible evidence that directly pertains to the assignments of error in the
Complaint.
In their Motion to Compel, C.L.’s Parents take issue with BSD’s response to
requests for four categories of materials. Specifically, C.L.’s Parents request: (a)
“discipline or training records for C.L’s teacher, Kelsie Badger, from August 1, 2009 to
present”; (b) documentation of BSD staff training or discipline regarding implementation
of C.L.’s IEP or use of the “quiet room”; (c) disciplinary and training records for BSD
employees regarding autism, behavior management, the use of restraints, the use of
seclusion, or the use of other similar techniques; and (d) “raw data, test protocols, test
results, behavior logs and other similar documents regarding C.L.” (Dkt. 30-1 at 8-11.)
BSD objects to all of these requests on various grounds, but primarily argues Parents
have failed to articulate how these materials qualify as additional evidence under the
IDEA. (Dkt 38.)
With regard to requests (a) through (c) above, during the September 6, 2013
hearing on the instant motions, the Court asked Parents’ counsel to identify BSD
MEMORANDUM DECISION AND ORDER - 11
employees whose records were sought. Based on counsel’s response and the briefing in
this matter, the Court ordered BSD to lodge for in camera review “personnel files, for
Ms. Kelsie Badger, Ms. Mary Osborn-Whitney, and Ms. Laura McCosh, including any
disciplinary records for these employees or former employees of the Defendant Boise
School District.” (Dkt. 41.) On September 19, 2013, BSD lodged personnel files for Ms.
Badger, Ms. Osborn-Whitney, and Ms. McCosh, and the Court has reviewed the all of the
records submitted. (Dkt. 43.) The purpose of the Court’s in camera review was to
simultaneously allay Parents’ concern that BSD was unilaterally withholding relevant
materials while respecting BSD’s contention that the materials sought do not qualify as
additional evidence. To the extent the in camera review uncovered relevant, noncumulative, and otherwise admissible evidence, C.L.’s Parents would be given the
opportunity to ask the Court to supplement the record with such evidence.
None of the personnel files contain information that would qualify as additional
evidence in this case. In particular, there are no records of disciplinary action against
Badger, McCosh, or Osborn-Whitney. Nor is there any mention of use of the “quiet
room,” seclusion, or restraints. Neither C.L. nor his IEP are mentioned in any of the
records. Indeed, these findings by the Court are consistent with the affidavits of Ms.
Badger, Ms. Osborn-Whitney, and Ms. McCosh, which BSD attached to its Response to
Parents’ Motion to Compel. (See Dkt. 38-2 (Badger); 38-4 (Osborn-Whitney); 38-5
MEMORANDUM DECISION AND ORDER - 12
(McCosh).) Thus, the records BSD could produce in response to requests (a) through (c)
above would not provide Parents with relevant additional evidence.4
In addition, C.L.’s Parents also request raw data, test protocols, test results,
behavior logs, and similar documents regarding C.L. Contending they have had access to
only summaries and reports prepared by BSD employees, C.L.’s Parents argue it is
“impossible for Plaintiffs or this Court to consider whether those summaries and reports
fairly reflect C.L.’s needs.” (Dkt. 30-1 at 10.) Further, C.L.’s Parents allege this
information is relevant to “the scope of C.L.’s needs, whether appropriate evaluations
were conducted, and whether BSD took appropriate steps to address those needs.” (Id. at
9-10.)
BSD counters, arguing C.L.’s Parents are not entitled to copies of raw data and
test protocols. Moreover, BSD notes that Parents are already in possession of the test
results and behavior logs. Indeed, the exhibit list for the due process hearing shows that
both sides introduced numerous behavior logs and reports. (Dkt. 16-43.) And, although
HO Uranga denied Parents’ motion to compel production of additional records, including
data and test protocols, (Dkt. 16-12 at 2-3), the Complaint does not allege this ruling was
in error. Rather, C.L.’s Parents first argued these materials were improperly excluded in
the context of this discovery dispute.
C.L.’s Parents have not demonstrated how raw data, test protocols, test results, or
behavior logs qualify as additional evidence. HO Uranga admitted and considered a
4
This finding relates to Plaintiff’s Request for Production 8, 16, 17, 18, 22, 23, and 24.
(Dkt. 30-4 at 10-12).
MEMORANDUM DECISION AND ORDER - 13
substantial amount of such evidence during the due process hearing.5 To the extent C.L.’s
Parents believe BSD did not fully disclose C.L.’s educational records, they have not
persuasively shown HO Uranga improperly excluded any evidence. Nor did C.L.’s
Parents show they articulated on the record the need for such evidence to HO Uranga
such that the Court could assign legal error. Instead, Parents only vaguely describe the
evidence sought and only briefly address its relevance by broadly paraphrasing every
legal error alleged in the Complaint. (Dkt. 30-1 at 9-10.) General labels and speculative
conclusions do not satisfy Parents’ burden to articulate how the evidence sought is
relevant to issues properly before the Court.
Relevance aside, C.L.’s Parents have identified no purpose for this evidence other
than to retrospectively rehash or counter summaries and reports in the administrative
record. Evidence offered for this purpose is not additional evidence. See Ojai, 4 F.3d at
1473. C.L.’s Parents do not seek to compel production of new tests or data developed
after the due process hearing. Rather, Parents apparently seek these materials to relitigate
the issue of whether the summaries and reports considered by HO Uranga “fairly reflect
C.L.’s needs.” (Dkt. 30-1 at 10.) In this sense, the data, protocols, logs, and results
underlying the summaries and reports in evidence are cumulative of testimony and
exhibits already in the administrative record.
5
In particular, C.L.’s Parents presented two exhibits containing logs that detail C.L.’s
behaviors from August 24 through October 14. (Exs. 103 & 105, Dkt. 16.) It is unclear from
Parents’ briefs whether they contend additional relevant logs exist and are for some reason being
withheld.
MEMORANDUM DECISION AND ORDER - 14
After all, raw data, test protocols, and test results can only be interpreted by
professionals. At the due process hearing, both sides offered extensive expert testimony
and exhibits regarding the reports and summaries, C.L.’s needs, and BSD’s efforts to
meet those needs. (See Dkt. 16-2 at 3-19.) Again, Parents do not allege HO Uranga’s
denial of administrative motion to compel precluded their experts from challenging how
BSD’s professionals assessed C.L.’s needs. Mandating disclosure of raw data underlying
the existing testimony and exhibits invites de novo review by other professionals or
experts when it is well established that “actions of the school systems… cannot be judged
exclusively in hindsight.” Adams v. State of Oregon, 195 F.3d 1141, 1149 (9th Cir.
1999). Accordingly, the Court also will not compel disclosure of the materials sought by
request (d) above.6
3.
BSD’s Motion to Quash and For Protective Order
BSD, pursuant to Rule 45(d), seeks to quash subpoenas C.L.’s Parents served on
Mary Osborn-Whitney and Laura McCosh. (Dkt. 26; Dkt. 27.) Invoking Rule 26(c), BSD
also moves for protective orders to prevent C.L.’s Parents from (1) accessing confidential
personnel records of BSD employees and (2) deposing BSD employees who were
available during the administrative hearing. (Id.)
The Court must quash or modify a subpoena that “requires disclosure of…
protected matter, if no exception or waiver applies.” Fed. R. Civ. P. 45(d)(3)(A)(iii). For
the purposes of this case, the term “protected matter” includes material that does not
6
Request (d) above corresponds to Parent’s Request for Production 11. (Dkt. 30-4 at 10-
12).
MEMORANDUM DECISION AND ORDER - 15
qualify as additional evidence within the meaning of the IDEA, as detailed in the March
Order. Thus, the Court must quash a subpoena that does not seek relevant, noncumulative, and otherwise admissible evidence.
As noted above, the Court’s in camera review revealed nothing in the personnel
records of Ms. McCosh and Ms. Osborn-Whitney relevant to C.L.’s Parent’s claims. BSD
provided affidavits of both paraprofessionals that buttress this conclusion. The affidavits
directly contradict Parents’ asserted grounds for deposing Ms. McCosh and Ms. OsbornWhitney—specifically, that they worked with C.L. and could speak to his inappropriate
treatment at Hillside Junior High School. (Dkt. 38-4 (Osborn-Whitney); Dkt. 38-5
(McCosh).)7 Contrary to Parents’ assertion that these paraprofessionals could know
whether C.L. was mistreated by BSD personnel, (Dkt. 32 at 4), both deny knowledge of
any mistreatment, and their personnel records lend credence to their affidavits. Moreover,
C.L.’s teacher, Kelsie Badger, testified at length about C.L.’s treatment during the due
process hearing, (Dkt. 16-44 at 10-111), and nothing in the paraprofessionals’ files or
affidavits contradicts that testimony. The Court will quash the subpoenas served on Ms.
McCosh and Ms. Osborn-Whitney because their depositions will not produce additional
evidence.
For good cause shown, the Court may issue a protective order that forbids the
disclosure or discovery of certain matters or materials. Fed. R. Civ. P. 26(c)(1). BSD has
shown good cause with respect to the personnel records because, as discussed above, the
7
The Court considers these affidavits only for the limited purpose of corroborating the
records provided for in camera review. The Court will not consider the affidavits as additional
evidence.
MEMORANDUM DECISION AND ORDER - 16
records do not qualify as additional evidence. There is also good cause for a protective
order relating to School District employees who were available to testify at the due
process hearing.
The Court finds the paraprofessionals who worked with C.L. at Hillside Junior
High School were available to testify during the due process hearing. C.L.’s Parents
received and offered into evidence behavior logs that included the first names of Marcia
Wagner, Mary Osborn-Whitney, and Laura McCosh. (Exs. 103 & 105, Dkt. 16.) The logs
demonstrate these paraprofessionals knew about C.L.’s behaviors and treatment at
Hillside and should at least have prompted inquiry into the paraprofessionals’ full names.
Parents’ argument that BSD was hiding the paraprofessionals’ identities defies logic and
common sense, especially considering the behavior logs and the close contact between
parties in the period leading up to the due process hearing. What C.L.’s Parents
characterize as intentional obstruction by BSD, the Court views as a lack of follow-up by
Parents. A letter, phone call, or question during one of the many meetings between the
parties (or during the due process hearing itself) would have resolved this issue. But,
despite ample opportunity and clear notice, C.L.’s Parents failed to act on the information
in their possession. 8 Hence, there is good cause for a protective order.
Further, the Court’s review of the Ms. McCosh’s and Ms. Osborn-Whitney’s
personnel records supports this decision. Even if C.L.’s Parents had no prior knowledge
8
Parents’ counsel was present at many of the IEP team meetings and otherwise heavily
involved in the negotiations between Parents and BSD. (Dkt. 16-2 at 11-14.) So this is not a
situation where an unrepresented party failed recognize the significance of evidence and develop
the administrative record.
MEMORANDUM DECISION AND ORDER - 17
of these paraprofessionals’ identities, the Court is convinced their depositions would not
lead to discovery of additional evidence.
With regard to Marcia Wagner or any other BSD employee, Parents’ conduct in
this proceeding provides good cause for a protective order. The issue of which BSD
employees or personnel files might contain additional evidence is squarely presented in
this discovery dispute, and C.L.’s Parents have consistently focused on Ms. Badger, Ms.
McCosh, and Ms. Osborn-Whitney. Although C.L.’s Parents apparently intended to
depose Ms. Wagner, they later decided not to proceed. (Dkt. 30-16.) No other BSD
employees have been mentioned in the context of this discovery dispute. Therefore, the
Court will prohibit (a) C.L.’s Parents from deposing any BSD employee available during
the administrative hearing and (b) discovery of what otherwise are maintained as
confidential personnel records of BSD employees.
CONCLUSION
C.L’s Parents have not shown the discovery they seek to compel would lead to a
viable motion to supplement the record. After the Court’s in camera review of
employment records for School District personnel who worked with C.L., it is clear that
these materials are not relevant to the assignments of error in this appeal. In addition,
C.L.’s Parents have not carried their burden with regard to raw data, test protocols, test
results, or additional behavior logs. The administrative record is replete with references to
such materials, and Parents have not persuasively argued that similar relevant evidence
was improperly excluded, after-acquired, or otherwise unavailable to them during the due
process hearing. Likewise, the Court will prohibit depositions of BSD employees who
MEMORANDUM DECISION AND ORDER - 18
were available, with a modicum of follow-up, at the hearing—not only because Parents
did not offer their testimony below, but also because their testimony here would not be
relevant, noncumulative, and otherwise admissible. In short, Parents’ requests exceed the
limited scope of discovery in this matter.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)
Defendant’s Motion to Quash Subpoena and for Protective Order (Dkt. 26)
and its Supplement (Dkt. 27) are GRANTED.
2)
Plaintiff’s Motion to Compel (Dkt. 30) is DENIED.
3)
The deadline for motions to supplement the record is November 8, 2013.
4)
Responses to any new motion to supplement the record shall be due on or
before November 22, 2013. No replies will be allowed.
October 28, 2013
MEMORANDUM DECISION AND ORDER - 19
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