DR et al v. Michigan Department of Education et al

Filing 46

ORDER granting 35 and 37 Motions for Protective Order; and granting in part and denying in part 36 Motion to Stay and for Protective Order - Signed by Magistrate Judge Anthony P. Patti. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
D.R., a minor child, et al.,
Plaintiffs,
v.

Case No. 2:16-cv-13694
District Judge Arthur J. Tarnow
Magistrate Judge Anthony P. Patti

MICHIGAN DEPARTMENT
OF EDUCATION, et al.,
Defendants.
___________________________________/
OPINION AND ORDER GRANTING GENESEE AND MDOE’S MOTIONS
(DE 35 AND 37) and GRANTING IN PART AND DENYING IN PART
FLINT’S MOTION TO STAY DISCOVERY (DE 36)
This matter is before the Court for consideration of Defendant Genesee
Intermediate School District’s (“Genesee”) motion to stay discovery (DE 35), Flint
Community Schools’ (“Flint”) motion to stay discovery until resolution of pending
dispositive motions or, in the alternative, for protective order (DE 36), and the
Michigan Department of Education’s (“MDOE”) motion for protective
order/request for stay of discovery pending outcome of pending dispositive and
jurisdictional motions (DE 37), Plaintiffs’ response in opposition (DE 41), Flint’s
reply (DE 43), and the parties’ joint list of unresolved issues (DE 45). This matter
came before me for a hearing on August 17, 2017, at which all parties appeared
through counsel. For the reasons that follow, MDOE and Genesee’s motions are

GRANTED and Flint’s motion is GRANTED IN PART AND DENIED IN
PART.
I.

BACKGROUND
Plaintiffs filed their 133 page, 395 paragraph complaint in this action on

October 18, 2016, bringing four claims under the Individuals with Disabilities
Education Act, 20 U.S.C. § 1400, et seq. (“IDEA”): (1) failure to develop and
implement child find procedures; (2) failure to provide a free, appropriate public
education that confers a meaningful educational benefit in the least restrictive
environment; (3) failure to protect students’ due process procedural safeguards in
the disciplinary process; and (4) discrimination on the basis of disability and denial
of access to educational services. Plaintiffs also bring claims under the
Rehabilitation Act, the Americans with Disabilities Act, and Michigan state law.
(DE 1.) In December 2016, all Defendants filed motions to dismiss, asserting that
the Court was without subject matter jurisdiction to hear the case because Plaintiffs
failed to exhaust their administrative remedies under IDEA. (DE 22, 23, and 25.)
Those motions are fully briefed and awaiting the Court’s review.
On February 28, 2017, the parties appeared before Judge Tarnow for a status
conference. In the minute entry for the status conference, Judge Tarnow noted that
counsel were “to discuss preliminary discovery and the possibility of settling some
of the claims . . . .” (Minute entry, Feb. 28, 2017.) Defendants filed the instant

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motions in July, after being served with Plaintiffs’ first set of discovery requests.
They ask the Court to stay discovery pending resolution of the jurisdictional
motions to dismiss, or, in the alternative, enter a protective order limiting
Plaintiffs’ broad discovery requests.
II.

ANALYSIS
A.

The court will not impose a complete stay on discovery.
1.

The discovery requests are not premature.

Defendants first argue that Plaintiffs’ discovery requests are premature
because they were made prior to a conference under Federal Rule of Civil
Procedure 26(f). Pursuant to Rule 26(d), “[a] party may not seek discovery from
any source before the parties have conferred as required by Rule 26(f).” This
argument is unavailing, because, as Plaintiffs explain, Judge Tarnow’s practice
guidelines specify that he “does not enforce the stay of discovery contemplated by
Rule 26(d) pending the conference contemplated by Rule 26(f).” Practice
Guidelines for Arthur J. Tarnow, Discovery, available at
https://www.mied.uscourts.gov/index.cfm?pageFunction=chambers&judgeid=17
(last viewed August 18, 2017). Moreover, as indicated in the Court’s minute entry
following the parties’ February 28, 2017 status conference, Judge Tarnow
instructed the parties to “discuss preliminary discovery,” even with the knowledge
that the motions to dismiss were then pending. (Minute entry, Feb. 28, 2017.) As

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such, I conclude that the Court contemplated that some form of discovery would
occur prior to the conference under Rule 26(f) and find no reason to impose a stay
on the basis of prematurity.
2.

A complete stay is not warranted.

In any action, the Court must construe the Federal Rules of Civil Procedure
to “secure the just, speedy, and inexpensive determination of every action and
proceeding.” Fed. R. Civ. P. 1. Here, there is a tension between allowing
discovery now, to ensure a “speedy” disposition, and staying it, so as to foster
“inexpensive determination” of the pending jurisdictional motions. Neither party
contends that the proposed discovery would shed light on the jurisdictional issues
before the Court, although both parties conceded at oral argument that “[t]rial
courts have broad discretion and inherent power to stay discovery until
preliminary questions that may dispose of the case are determined.” Hahn v. Star
Bank, 190 F.3d 708, 719 (6th Cir. 1999). Staying discovery until jurisdictional
motions are resolved can be an efficient way to reduce or eliminate any
unnecessary usage of resources. See Harlo v. Fitzgerald, 457 U.S. 800, 818
(1982) (staying discovery until the “threshold immunity question [was]
resolved.”). However, a complete stay is not warranted in this matter, despite the
pending jurisdictional motions to dismiss.

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I am persuaded by Plaintiffs’ argument that the Court anticipated some
preliminary discovery in this matter, as evidenced by Judge Tarnow’s practice
guidelines, his notation that preliminary discovery should be discussed, and the
fact that he made that minute entry after the jurisdictional motions had been filed
and fully briefed. In addition, and bearing in mind that all of Plaintiffs’ claims are
for equitable relief, Plaintiffs’ assertion that some discovery is appropriate
because another school year is beginning is well-taken. As such, I conclude that
some limited discovery is warranted, even while the jurisdictional motions are
pending.
B.

The court will limit Plaintiffs’ discovery requests.
1.

Plaintiffs’ discovery requests are relevant to Flint.

As Defendants correctly point out, nearly all of Plaintiffs’ discovery is
related to “Student Assistance Teams” (“SAT”). Specifically, Plaintiffs explain
that they have received information indicating that Flint requires an SAT review
before students can be evaluated for a suspected disability, and that there is a
“quota” (DE 41 at 6, 10)--defined in Black’s Law Dictionary (9th ed.) as a
“quantitative restriction; a minimum or maximum number,” in this context a
maximum number--on the number of SAT meetings per month, thereby potentially
limiting the number of students who are screened for disability. However, there is
no reference to “Student Assistance Team,” “SAT,” any combination of the words,

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or the word “quota” in the complaint. This seems remarkable in light of Plaintiffs’
present argument that SAT is at the heart of their suit, not to mention the near
abandonment of notice pleading and Rule 8’s requirement of “a short and plain
statement of the claim” in favor of the fact pleading exhibited in their complaint.
Fed. R. Civ. P. 8(a)(2).
Nevertheless, the information seems to be relevant to Plaintiffs’ claims
related to the “child find” process. The “child find” process requires that children
with disabilities be “identified, located, and evaluated” and that “a practical
method [be] developed and implemented to determine which children with
disabilities are currently receiving needed special education and related services.”
20 U.S.C. § 1412(a)(3). If it is true that an SAT must determine whether a child
can be evaluated for a suspected disability (which Flint emphatically denies), then
that would be part of the district’s child find process, which is mentioned
frequently in Plaintiffs’ complaint. Moreover, determining whether there is a
“quota” system in place could be one way of proving Plaintiffs’ theory under its
IDEA claim. See Wysong v. Dow Chem. Co., 503 F.3d 441 (6th Cir. 2007)
(finding the district court’s approach in granting summary judgment to be “overly
rigid,” because the plaintiff was not asserting a new claim, but merely a new theory
under her original claim). As such, I conclude that some discovery into this area is
relevant and timely, although it is rightfully curtailed until the jurisdictional

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motions have been decided.1 However, as it is currently proposed, the requests are
overbroad and out of proportion to the needs and posture of the case, as addressed
below.
2.

Plaintiff’s discovery requests are not proportional.

Pursuant to Rule 26, parties may obtain discovery on any
nonprivileged matter that is relevant to any party’s claim or defense
and proportional to the needs of the case, considering the importance
of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources,
the importance of the discovery in resolving the issues, and whether
the burden or expense of discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). Here, Plaintiffs’ discovery directed at learning more
about the SAT process seems important to “resolving the issues.” Id. In sum,
Plaintiffs could either learn that there is a quota system, thus advancing their
claims under IDEA, or that there is not, and therefore other theories should be
pursued. Knowing whether the quota system theory has any merit may also help to
clarify reasonable settlement positions.
However, the importance of this discovery wanes with respect to
Defendants MDOE and Genesee. The discovery requests to the MDOE involve
SATs, but the requests directed to Flint, the only defendant shown to be utilizing

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The Court makes no definitive ruling at this time as to the propriety of the
discovery requests which will be effectively stayed by this order, although it
observes that several of them appear to be overbroad as written and cautions
Plaintiffs that they may well be in violation of Fed. R. Civ. P. 33(a)(1), as argued
by Defendants.

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and setting the policy for SATs directly at issue here, are of more importance to the
case. Likewise, Genesee’s counsel stated on the record at the hearing that it does
not use SATs, and Plaintiffs make no showing otherwise.
III.

ORDER
Accordingly, discovery directed at Defendants MDOE and Genesee is out of

proportion to the needs of the case at this time, and, in light of their pending
motions to dismiss on jurisdictional grounds, their motions to stay discovery are
GRANTED. (DE 35 and 37.).
As to Flint, its motion to stay discovery is GRANTED IN PART AND
DENIED IN PART. (DE 36.) The following limited discovery will be permitted
prior to the Court’s resolution of the pending motions to dismiss. If the motions
are denied and the Court retains jurisdiction over this matter, discovery will
proceed pursuant to Judge Tarnow’s scheduling order, the Federal Rules of Civil
Procedure and the Local Rules of this District. The Relevant Time Periods for all
responses are the 2015/2016 and 2016/2017 school years.
Within THIRTY DAYS OF THE DATE OF THIS ORDER, Flint must
respond to the following discovery requests, as modified herein, in accordance
with Fed. R. Civ. P. 33:
Int. 2: For the Relevant Time Period, identify the members of the Building
Learning Support Services (“LSS”) Ancillary Teams at a representative

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sampling of three schools (one elementary, one middle, and one high
school), as chosen by Plaintiffs, and describe the role(s) of these Building
LSS Ancillary Teams, including without limitation the full process that such
teams follow when reviewing and considering a student’s case.

Int. 6: For the Relevant Time Period, identify for a representative sampling
of three schools (one elementary, one middle, and one high school), as
chosen by Plaintiffs: (a) the constitution and members of the SAT; (b) the
frequency of SAT meetings at the school; (c) the process by which a typical
student’s case is, or was, slated for consideration by the SAT at the school,
including the source of the request or referral for an evaluation or SAT
meeting and the role of the school administrators such as school principals in
this process; (d) the amount of time that students at the school must wait for
an SAT meeting from the time that the referral or request for evaluation or
SAT meeting was made; (e) how long the SAT at the school typically spends
considering the case of each child who secures a meeting; and (f) the role of
any FCS personnel, including but not limited to the members of the SAT,
the building school psychologist, the Building LSS Ancillary Team, and
administrators such as school principals, who must give permission and/or
clearance and/or recommend an evaluation before an evaluation for special

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education eligibility can proceed, including when the request or referral is
made by any source other than a parent and/or guardian.

Int. 7: Identify the FCS district-wide policies, practices, and procedures
with respect to how SAT resources, including the personnel constituting the
SAT, are allocated, and, if these vary from school to school, identify the
same for three schools (one elementary, one middle, and one high school) of
Plaintiff’s choosing.

Int. 9: For three representative schools of Plaintiffs’ choosing (one
elementary, one middle, and one high school), identify how initial and/or
follow-up SAT meetings are scheduled, and set forth the policies, practices,
and procedures for that school for allocating available SAT meeting slots.

Int. 13: For the Relevant Time Period, identify all of the students who have
been evaluated for the first time and/or who have received an SAT meeting
for the first time at the middle or high school level at one middle school or
high school of Plaintiffs’ choosing. [Note that identifiers other than student
names are acceptable, as long as each student can be properly differentiated].

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Int. 14: Identify the FCS Birth to 5 Coordinator and describe his or her role
with respect to coordinating child find activities in the FCS schools during
the Relevant Time Period.
Within 60 DAYS OF THE DAYS OF THIS ORDER, Flint must produce
Melinda Carroll, who was identified during the hearing as the person most
knowledgeable about Flint’s SAT procedures, for a limited deposition on this
topic, without prejudice to re-deposing her on a broader range of topics should the
case survive the pending dispositive motions.
Finally, Defendants’ requests for fees or costs are DENIED. As to Flint,
pursuant to Federal Rule of Civil Procedure 37, if a motion to compel is granted in
part and denied in part, the Court may apportion reasonable expenses for the
motion. Fed. R. Civ. P. 37(a)(5)(C). Here, both sides’ positions were substantially
justified and required rulings from the Court. In addition, neither Plaintiffs nor
Flint fully prevailed, and an award of costs would be unjust under the
circumstances.
As to MDOE and Genesee, where a motion is granted the court “must, after
giving an opportunity to be heard, require the party . . . whose conduct necessitated
the motion . . . to pay the movant’s reasonable expenses” unless, among other
reasons, “other circumstances make an award of expenses unjust.” Fed. R. Civ. P.
37(a)(5)(A)(iii). Here, I conclude that because of Judge Tarnow’s practice

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guidelines, as well as the February 28, 2017 minute entry, Plaintiffs were
substantially justified in assuming that some early discovery was appropriate and
motion practice was necessary to determine the issues. Under these circumstances,
an award of expenses would be unjust. Accordingly, no costs are awarded to these
defendants.
IT IS SO ORDERED.

Dated: August 24, 2017

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE
PROOF OF SERVICE

I hereby certify that a copy of this Notice was served upon the parties
and/or counsel of record on this date by electronic and/or first class mail.
s/ Lisa C. Bartlett for Michael Williams
Case Manager

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