M.A. et al v. JERSEY CITY BOARD OF EDUCATION

Filing 68

OPINION. Signed by Judge Kevin McNulty on 12/29/2016. (seb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

M.A. and E.M., individually and on
behalf of A.A.,
Civ. No. 14-6667 (KM) (MAR)
Plaintiffs,
OPINION
V.

JERSEY CITY BOARD OF
EDUCATION,
Defendant.

KEVIN MCNULTY, U.S.D.J.:
M.A. and E.M. (the “Parents”) are the parents of A.A. The Jersey
City Board of Education (the “Board”) is A.A.’s school district, although A.A.
has never attended school there.
This case follows from a decision by Administrative Law Judge
(“AU”) Kimberly Moss, dated October 3, 2014. A.A. has been diagnosed with
autism, and everyone agrees that her educational disabilities make her eligible
for a special education program. At issue is the particular kind of program that
is appropriate. After reviewing the administrative record and holding a number
of hearings, the AU found that: (1) the testimony of the witnesses employed by
the Board were credible; (2) the testimony of Bobby Newman, PhD, the Parents’
expert, was not credible; and (3) the Board’s proposed placement was
appropriate, individualized for A.A., and designed to provide A.A. with
meaningful educational benefit.
On October 24, 2014, the Parents commenced this action. Their
complaint requests that the Court (1) supplement the administrative record; (2)
find that the Board failed to comply with the terms of a settlement agreement
that resolved an earlier due process petition; (3) rule that the proposed 2013—
1

14 proposed placement did not sufficiently provide A.A. with a free appropriate
public education (“FAPE”); (4) order the Board to keep A.A. at their preferred
placement unless and until she is accepted at one of the schools identified in
the settlement agreement; and (5) award attorney’s fees and costs.
Between May 31, 2016, and July 20, 2016, the parties filed a
series of competing cross motions. Both the Parents and the Board request
summary judgment. Ordinarily, that might squarely present an issue for the
Court’s decision, based on the legal authorities cited by the parties as applied
to the administrative record.
Not so here, however. The Parents have filed a three part motion
that, in some ways, logically precedes the consideration of the summary
judgment motions:
(1) The Parents’ motion to supplement the administrative record
(ECF No. 47);
(2) The Parents’ motion to vacate the AU’s decision because the
Parents’ expert was denied reasonable access to the proposed
placement (Id.); and
(3) The Parents’ motion to vacate the AU’s decision due to
spoliation. (Id.)
The Parents’ motion has the potential to significantly alter the context and even
the appropriateness of summary judgment. I have therefore decided, within my
discretion, to limit this opinion to the Parents’ requests to supplement the
administrative record and to vacate the AU’s decision based on violations of
procedural rights and spoliation. (ECF no. 47) For the reasons stated below,
part 1 is GRANTED to the extent that the Parents will be permitted to
supplement the administrative record as specified below, but the request to
vacate the AU’s decision is based on violations of procedural rights, part 2, is
DENIED. Part 3, the motion to vacate based on spoliation, is DENIED.

2

As for the parties’ competing cross motions for summary judgment
(ECF Nos. 45, 47), I am denying relief without prejudice to resubmission. I will
order the parties to confer with the Magistrate Judge to set a schedule and
agenda for rebriefing, and to determine whether any of the arguments should
be withdrawn or reformulated in light of what has been decided here. I will
further order that any requests for judgment on the administrative record, as I
have permitted it to be supplemented, shall be presented as summary
judgment motions which observe the requirements of Local Rule 56.1. They
shall include, inter alia, a separate statement of material facts that cites
specifically, by page number, to appropriate excerpts of documents such as
administrative exhibits or hearing transcripts, which shall be sponsored by
certifications or affidavits. In general, such items as motions and memoranda
of law shall not be included. (They may be briefly excerpted to demonstrate that
a point was raised before the AU, should that be in dispute.) The parties are
cautioned that the motions should cite specifically to the most pertinent record
items. Briefs shall comply with our page limits. The parties are further advised
that oral argument will be granted, so that any points that appear to present a
difficulty may be amplified by counsel.

3

I.

BACKGROUND AND PROCEDURAL HISTORY
Initial Evaluations and Settlement’

A.

A.A., born in 2006, is classified as autistic and therefore eligible to
receive special education and related services. (RSF

¶

1) In December 2008,

when A.A. was just over two years old, Cecelia McCarton, M.D., performed a
neurodevelopmental evaluation (the “McCarton Report”) and recommended that
A.A. receive 12 months of “ABA [Applied Behavior Analysis] 1: 1 discrete trial

[1

therapy for 40 hours weekly at home.” (Pl.’s Br. 6; PA 162) I 2010, just before
her fourth birthday, A.A. was referred to the Board for an initial child study
team (“CST”) evaluation. (RSF

¶

2) The Board initially proposed to place her in

its “Preschool Disabled” program at P.s. 22 for the 2010-11 school year, later
changed to the “Autistic Program” at P.S. 31 for the 2011—12 school year. By
the Parents’ reckoning, each of these placement decisions was made without
“anyone with expertise in the evaluation, treatment or education of children
with autism or ABA.” (Pl.’s Br. 7-8) In May 2011, the Parents unilaterally
placed A.A. in the Caidwell Center for Autism and Applied Behavior Analysis

1

Citations to the record are abbreviated as follows:

“P1. Br.”
The Parents’ Second Amended Brief in Support of Plaintiff’s Motion to
Supplement the Administrative Record, to Vacate the Administrative Decision, or, In the
Alternative, to Reverse the Administrative Decision (the “Omnibus Motion”), ECF No. 49-i
—

“P1. Reply Br.”
Motion, ECF No. 60

The Parents’ First Amended Brief in Further Support of Omnibus

—

“P1. Oppo. Br.”
Judgment, ECF No. 53

—

“Def. Br.”

—

The Parents’ Brief in Opposition to the Board’s Motion for Summary

The Board’s Brief in Support of its Motion for Summary Judgment, ECF

No. 46
“Def. Reply. Br.”
Judgment, ECF No. 58
“Def. Oppo. Br.”

—

—

The Board’s Brief in Further Support of its Motion for Summary
The Board Brief in Opposition the Parents’ Omnibus Motion, ECF

No. 55
“PA
The Parents’ Appendices, filed in support of its omnibus motion and in
opposition to the Board’s motion for summary judgment, ECF Nos. 47-2, 47-3, 48-2, 48-3, 541, 54-2, 54-3
—“

“RSF”
ECF No. 53-I

—

—

The Parents’ Response to the Board’s Statement of Material Undisputed Facts,

4

(“Caidwell”). (RSF

¶

5) Caidwell is not accredited by the State Department of

Education for the education of children with disabilities. (RSF

¶

6)

The Parents thereafter instituted due process proceedings seeking
reimbursement and costs for A.A.’s attendance at Caidwell for the 2011—12
school year. The Parents retained Bobby Newman, PhD, who observed A.A. at
Caldwell and performed psychological and behavior evaluations of A.A. in
January and February 2012 (the “Newman Report”). (P1. Br. 8) Newman opined
that P.S. 31 was not an appropriate placement for A.A. and that she needed 12
months of at least 25 hours per week of ABA-based programming. (PA 197;
PA 203)
The Parents also retained Anne S. Holmes, M.S., C.C.C., B.C.B.A.,
who wrote a consultation report (the “Holmes Report”) on March 26, 2012.
Based on the evidence reviewed, Holmes concluded that “P.S. 31 is providing
its students with excellent services” but that the proposed placement “was not
appropriate for [A.A.] at this time.” She recommended that A.A. be placed in a
year-round program with a “philosophy that is grounded in the principles of
applied behavior analysis.” (PA 214)
In May 2012, the Board and the Parents entered into a settlement
agreement. The Board agreed to pay for A.A.’s attendance at Caidwell from July
2012 through June 30, 2013, pending A.A.’s acceptance at a school designated
under the terms of the agreement. It was also agreed that the Board would
reevaluate A.A. before the end of the 20 12—13 school year. (RSF’
B.

¶

7)

The 2013-14 Proposed IEP
From May 29, 2013 to June 14, 2013, the Board conducted

educational, psychological, speech, occupational, and social history evaluations
of A.A. (RSF

¶

8-13) Following an eligibility and IEP meeting on July 1, 2013,

it was determined that A.A.’s disability continued, and an IEP for the 2013—14
school year was proposed. Here is a summary of the 20 13—14 proposed IEP:

5

The proposed IEP recommended that A.A. be placed in
a self-contained class for children with autism, with
related services and an extended school year.
Specifically, A.A. would receive instruction in language
arts, reading, math, science, social studies, and
electives/”Specials” five times per week. A.A. would
receive speech therapy twice a week in a small group
session for thirty minutes; A.A. would also receive
occupational therapy once a week individually for
thirty minutes and once a week in a small group for
thirty minutes. A.A. would be afforded an opportunity
to integrate with general education students daily in
her Electives class period. A.A. would also receive
extended school year services. The proposed IEP
outlined objectives and goals for A.A. in the area of:
self-care, fine motor skills, language and speech
semantics and syntax, language and speech
pragmatics, social and emotional development,
language arts and literacy, mathematics, science,
social studies, and family life skills.
(RSF

¶

16) The IEP does not explicitly state that programming is to be based on

ABA or Verbal Behavior Network (“VBN”) principles. It does note, however, that
2
A.A.’s “family utilizes [an] ABA program with her and it seems to work well.” (PA
243) The proposed placement is Cordero School, P.S. 137 (“Cordero”).
(RSF

¶

23)
The Parents object categorically to placement at Cordero. Reprising

their objections to previous proposals, the Parents fault the Board for failing to
include anyone on the evaluation team with expertise in autism or ABA and for
offering a placement that lacked an “intensive ABA-based program.”
3
(P1. Br. 10) The Parents filed a petition for mediation challenging the proposed
placement on July 15, 2013. Following an unsuccessful mediation between the
2

That omission I do not consider unusual. “As noted in the Federal Register, ‘nothing in
[the IDEA]
requires an IEP to include specific instructional methodologies.
The
Department [of Educationi’s long-standing view on including methodologies in a child’s IEP is
that it is an IEP Team’s decision.’” W.D. Wat’chung Hills Regional Highschool Bd. of Educ., 602
F. Appx. 563, 568 (3d Cir. 2015) (quoting 71 Fed. Reg. 46,540, 46,665 (August 14, 2006).
.

.

.

.

.

Newman explains: “By intensive, I’m using the definition used in the research literature
when they discuss intensive programs which involves 25 to 40 hours per week of teaching
procedures, behavior management procedures, parent trainings, similar activities.” (P1. Br. 78)

6

Parents and the Board, an initial hearing before AU

Moss was scheduled for

February 5, 2014. (RSF ¶j 23-25)
C.

Proceedings Before the AU
On January 10, 2014, the Parents requested that the Board allow

their expert, Newman, (a) “to review a sample program book that includes
individual instruction programs, treatment programs, graphs and data used in
the proposed program” and (b) “talk to all staff that would be directly involved
in implementing A.A.’s IEP, including her case manager, classroom teacher,
related services providers, and any behavior specialist, supporting
professionals, or consultants.” (PA 1) The Board demurred; as for proposal (a),
federal and state law prohibited it from disclosing other students’ records, and
as for (b), allowing an “interrogation” of Cordero staff would be too disruptive.
(PA 3) Newman was permitted, however, to observe Mr. Redfern’s class at
Cordero (where A.A. would have been placed), and to ask Barbara Jo Pacifico—
Batista, A.A. ‘s case manager, questions about the proposed program. Newman
wrote a six-page report of his observations and conclusions. (PA 280)
So far as the Court is aware, the Parents never sought or obtained
an order compelling the production of sample program books or other student
data and records. On or about January 23, 2014, however, the Parents filed a
“motion in limine” seeking to preclude the Board from introducing evidence
about the placement unless it permitted Newman “reasonable access” to
4
information about the placement at Cordero. The Parents defined “reasonable
Around the same time, the Parents sought leave to file an amended due process petition
and request “an Order directing the Board to develop an IEP for A.A. which provide[s] for the
kind of intensive ABA based educational program that she requires to benefit from her
educational placement.” (PA 88). That request was denied by AU Moss, who admonished the
Parents for attempting to “broaden the claim seven days before the scheduled trial date.”
(PA 88) This ruling implies that the ALl was not considering the appropriateness of the IEP,
broadly speaking, but focusing on the placement of A.A. at Cordero. (See also Compl. 5, ECF
No. 1 (requesting an order “[fjinding the District’s proposed placement of A.A. in a class within
the District’s Autistic program would not have offered A.A. FAPE during the 2013—14 school
year”.)
The distinction between the issue of the validity of the IEP itself and the issue of
whether the IEP could be implemented at Cordero is not always carefully observed by the

7

access” as including, inter alia, the requested review of sample program books
and records pertaining to other students. They argued that confidentiality
concerns could be addressed by redaction of personal information. Finding that
Newman was not entitled to the records of other students under New Jersey
law, and that the Board had provided the Parents’ expert reasonable access to
Cordero, Judge Moss denied the Parents’ in limine motion on February 20,
2014. (RSF ¶j 26-27)
Six days of evidentiary hearings were held before the AU

between

March 20, 2014, and July 3, 2014. (PA 120) Certain evidence about prior
school years was excluded or limited. Because the Holmes Report concerned
the IEP and proposed placement for the 2011—12 school year, that report was
not admitted into administrative record. Similarly, while the AU

did admit the

McCarton and Newman Reports for the limited purpose of establishing and
documenting A.A. ‘s autism, she did not consider their recommendations

(e.g., that A.A. needed an ABA-based program), because the evaluations were
conducted in 2008 and 2012, respectively. (Def. Opp. Br. 20-24) Newman,
5
however, was allowed to testify about his current recommendations and
observations of A.A. (P1.’s Br. 26; Def. Opp. Br. 24) The AU

also heard

testimony from a number of the Board’s witnesses, including two whose
testimony is germane to the issues presented in this opinion. Those two
witnesses’ testimony may be briefly summarized as follows:
1.

Pacifico-Batista

Barbara J Pacifico-Batista, a Board employee, has worked as a
0
CST case manager for approximately 10 years. She testified that she has been
parties—or even by the AU, who at one point in her decision states that “the issue in this
matter is whether the education offered in the 2013—14 IEP to A.A. would have provided FAPE
to A.A.” (PA 146) In any renewed motions for summary judgment, the parties must clarify
whether the validity of the 2013—14 IEP was in dispute before the AU, and whether it is being
challenged (or even can be challenged) here. For purposes of this opinion, which is preliminary
to the merits, I will take the broader view and assume that this appeal relates to the validity of
the 20 13—14 IEP.
I go by the description in the briefs. Apparently there is no record of these evidentiary
rulings. (P1. Br. 26 n. 11 & 12)

8

involved with the development of over a 1,000 IEPs. As case manager, she
evaluated A.A. on three occasions: in 2010, for the initial evaluation; in 2011,
when A.A. was aging out of preschool; and in 2013, pursuant to the parties’
settlement agreement. Pacifico—Batista generally opined that A.A. ‘s skills had
improved and that she was ready to join her peers in a less restrictive
environment. (RSF
2.

¶J

29, 33, 36-37, 40)

Mr. Redfern

Richard Redfern would have been A.A.’s teacher pursuant to the
proposed placement at Cordero. He holds degrees in special education, as well
as a certificate from the New Jersey Department of Education as a Teacher of
the Handicapped. Redfern was supported by behavioral analysists from VBN
who were contracted to support the autism programs in the school district. At
the time of the hearing, his class consisted of five autistic students. Redfern
testified that his program is individualized as to each student and has a low
student-to-staff ratio. He testified—although the Parents dispute this—that he
instructs students using “100%” evidence-based, or ABA or VBN-based,
techniques and methodologies; that he collects data daily from the students
pursuant to those techniques; and that he would have been equipped to
implement A.A.’s JEP at Cordero. (RSF ¶j 52-78)
D.

The AU’s Decision
On October 3, 2014, AU

Moss issued a final decision and ruled

that “the placement proposed by the District for A.A. was appropriate,
individualized for A.A., and designed to provide A.A. with a meaningful benefit.”
(PA 147) Based on the evidence presented, she made the following findings:
First, the AU

found the witnesses employed by the Board credible.

In particular, the AU credited testimony that the proposed program uses an
ABA methodology; that A.A.’s needs had changed since the initial evaluation in
2010; and that A.A. needed services, like speech and occupational therapy,
that the Parents’ selected facility, Caidwell, cannot provide. (PA 141)

9

Second, the AU found the Parents’ expert, Newman, not credible.
The AU found that Newman had a “business and social relationship” with
Sharon Reeve, the executive director of Caidwell, which “greatly diminishes” his
credibility and “lessens his objectivity.” The AU

also pointed out that Newman

and Reeve had worked and presented a paper together; were co-authors of a
book from which Newman receives all the royalties; and might have plans to
work together in the future. The AU

added that, unlike a number of the

Board’s witnesses, Newman had not evaluated A.A. since 2012. (Id.)
Third, the AU

found that the proposed JEP outlined individualized

objectives and goals in self-care, fine motor skills, language and speech, social
and emotional development, language arts, mathematics, science, social
studies, and family life skills. The AU

also found that the proposed IEP

addressed problem behaviors and identified strategies to prevent those
behaviors.
The AU

found, in short, that the IEP and placement at Cordero

satisfied the requirement of IDEA that A.A. be provided with a FAPE.
(PA 142, 147)
E.

This District Court Action
On October 24, 2014, the Parents filed a complaint and requested

that the Court (1) supplement the administrative record; (2) find that the Board
failed to comply with the terms of a settlement agreement that resolved an
earlier due process petition; (3) rule that the proposed placement at Cordero for
the 2013—14 school year did not provide A.A. with a FAPE; (4) order the Board
to keep A.A. at Caldwell unless she is accepted at one of the schools identified
in the settlement agreement; and (5) award attorney’s fees and costs. The
Board answered the complaint on December 8, 2014. (ECF Nos. 1,

6

3)6

All parties agree that the settlement agreement is not relevant to the pending motions. I
also note that the Board’s alleged violation of the settlement agreement was not included in the
Parents’ request for mediation. Nor was it a subject of the administrative proceedings. See 20
U.S.C. § 1415(f)(3)(B); id.at (i)(2)(A).

10

Discovery, and discovery-related battles, ensued. As they did
before the AU, the Parents sought documents that contained “data related to
the performance or behavior of students” enrolled in the Cordero program for
the 20 13—14 school year. (PA 101) Eventually, the Board relented and turned
over a “sample” of redacted student records and data, consisting of all of the
records then available. The “records that were not produced were either
sent home with the parent(s) or

.

.

.

destroyed at the close of the school year.”

(Def. Opp. Br. 16) In total, the Board produced redacted copies of Verbal
Behavior Milestones Assessment and Placement Programs, (“VB-MAPPs”), IEPs,
quarterly progress reports, sample graphs, activity and instruction sheets,
Mand data, and reinforcement assessment forms for three students, all of
whom attended Mr. Redfern’s class in the 20 13—14 school year. (PA 110-11)
On May 31, 2016, the deadline to file dispositive motions, the
parties filed cross motions. (ECF Nos.45, 47) The Board moves for summary
judgment and straightforwardly requests affirmance of the AU’s decision. For
their part, the Parents have filed a 114-page omnibus motion to “supplement
the administrative record, to vacate the administrative decision, or, in the
alternative, to reverse the administrative decision.” In the Parents’ words, the
7
motion is “essentially three motions, one to supplement the administrative
record, a second to vacate the administrative decision based on the denial of
reasonable access to proposed placement by Plaintiff’s expert and the
destruction of evidence by the District, and a third for reversal on the merits
based on a preponderance of the evidence.” (ECF no. 44)
On June 8, 2016, the Board belatedly filed what purports to be a
statement of undisputed material facts pursuant to Local Rule 56.1.
(ECF No. 50) This, however, fails to include any accompanying affidavits or the

This massively exceeds the page limitations of Local Rule 7.2. The Parents requested
permission to file an overlength brief the same day the brief was filed. (ECF 44) See Local Rule
7.2(b) (Judge or Magistrate Judge’s “special permission” to exceed page limit must be not just
sought, but “obtained prior to submission of the brief’).

11

documents to which it cites. The Parents have not filed a Rule 56.1 statement.
8
The Parents have given the Court over 600 pages’ worth of “supplemental
appendices”—a collection of emails, briefs, expert reports, transcript excerpts,
and other documents, selected on some basis that is not quite apparent.
(ECF Nos. 47-2, 47-3, 48-2, 48-3, 54-1, 54-2, 543)9 Both sides, apparently
assuming the administrative record is before the Court, cite to documents that
I do not have.
In short, the papers before the court do not furnish a practical
basis on which to decide cross-motions for summary judgment, and it would be
a waste of everyone’s time to try to do so. I will instead decide what can be
decided now; namely, the Parents’ motion to supplement the administrative
record and vacate the AU’s decision based on procedural violations and
spoliation.
II.

THE IDEA STATUTE
IDEA’s purpose is “to ensure that all children with disabilities have

available to them a free appropriate public education that emphasizes special
education and related services designed to meet their unique needs and
prepare them for further education, employment, and independent living[.]” 20
U.S.C.

§ 1400(d)(1)(A).

8

The Parents offer the following explanation: “Plaintiffs do not seek summary judgement
based on undisputed facts, but rather, that the decision below be either: 1) vacated because of
the unreasonable denial of expert access to the proposed placement or the improper
destruction of evidence, or 2) reversed because a preponderance of the evidence demonstrates
that the proposed IEP and placement were not appropriate for A.A. Consequently, Plaintiffs did
not file a motion for summary judgement, and, therefore, did not err by not filing a L.C.R. 56.1
statement of undisputed facts.” (Pl.’s Reply Br. 2) It is true that, in an IDEA/FAPE case,
summary judgment is “simply the procedural vehicle for asking the judge to decide the case on
the basis of the administrative record.” Heather S. v. State of Wis., 125 F.3d 1045, 1053 (7th
Cir. 1997). All the same, it is summary judgment that the Parents have requested; if it was not
clear before, I am making it clear now that unless a party seeks and obtains leave in advance
for some other procedure, I will always require compliance with the usual summary judgment
procedures. Noncompliance may result in dismissal.

9

For what it is worth, I note that the Board attempted to treat the statement of facts
section from the Parents’ omnibus motion as a 56.1 statement to which it could respond. (ECF
No. 55-1) This valiant, alas failed, experiment only underscores the importance of a separately
filed statement of numbered, undisputed material facts that do not contain legal arguments or
conclusions of law.

12

States have an obligation to ensure that children with disabilities
receive FAPE,” 20 U.S.C.

§

1412(a)(1), in the form of special education

“provided at public expense, under public supervision and direction.” 20 U.S.C.

§

140 1(8). Such special education will be provided “in conformity with the

individualized education program [“IEP”] required under Section 1414(d) of this
title.” Id.
A “child with a disability” is a “child

[J

with intellectual disabilities,

hearing impairments (including deafness), speech or language impairments,
visual impairments (including blindness)
specific learning disabilities, and

[1

.

.

other health impairments, or

who, by reason thereof, needs special

education and related services.” 20 U.S.C.
III.

.

§

140 1(3).

DISCUSSION
A.

Standards of Review
1.

Plenary v. Due Weight

District courts must give “due weight’ to the underlying
administrative proceedings.” D.K. v. Abington Sch. Dist., 696 F.3d 233, 243 (3d
Cir. 2012) (citations omitted). A reviewing court must “accept the state agency’s
credibility determinations unless the nontestimonial, extrinsic evidence in the
record would justify a contrary conclusion.” Id. (internal quotations and
citations omitted). Conclusions of law are given plenary review. Factual
findings, such as whether a school district fulfilled its FAPE obligations, are
reviewed for clear error. Id. Such AU findings “are to be considered prima facie
correct, and if [a court does] not adhere to those findings, [it] must explain
why.” Id. (internal quotations and citations omitted). “[A] finding is ‘clearly
erroneous’ when although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” Anderson v. City of Bessemer City, N. C., 470

U.S. 564, 573 (1985) (internal quotations and citations omitted). “Where there
are two permissible views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.” Id. at 574.
13

2.

Supplementing the Administrative Record

The IDEA provides that a District Court shall hear additional
evidence at the request of either party. 20 U.S.C.A. 1415(i)(2)(C)(ii). The right
§
to supplement the record is not absolute; rather, the decision to admit
additional evidence is committed to the discretion of the trial court. See

Susan
N. v. Wilson Sch. Dist., 70 F.3d 751, 760 (3d Cir.1995). New evidence should
be
admitted if it would “assist the court in ascertaining whether Congress’
goal
has been and is being reached for the child involved.” Id. at 760. “Afteracquired evidence, such as information received through the experience of
an
alternative placement, should be used by the court only in assessing the
reasonableness of the district’s initial decisions regarding a particular IEP.
Courts must be vigilant to heed Judge Garth’s warning that ‘[n]either the

.

statute nor reason countenance ‘Monday Morning Quarterbacking’ in
evaluating the appropriateness of a child’s placement.” Id. (quoting Fuhrm
arin
v. East HanoverBd. of Ethic., 993 F.2d 1031, 1040 (3d Cir. 1993). The burden
of establishing the admissibility of additional evidence rests on the offerin
g
party and such evidence must be shown to be relevant, non-cumulative and
useful. See id., Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1471 (9th
Cir.
1993).

14

B.

Analysis
1.

Additional evidence

The Parents ask the Court to supplement the administrative record
with three categories of evidence: (1) the expert reports AU Moss excluded
either in whole or in part; (2) interrogatory responses acquired in discovery in
this action; and (3) an expert report from Newman based on after-acquired
information. I agree with the Parents’ first request, and will permit them to
supplement the record with the expert reports. I also grant the Parents’ second
request that I consider the interrogatory responses. The Parents’ third request,
regarding the supplemental Newman report, is more problematic, but I will
consider the report for limited purposes.
i.

Excluded Expert Reports

The Parents request that I consider the expert opinions of Drs.
McCarton (written in 2008), Holmes (2012), and Newman (2012). All three, the
Parents say, recommended an “intensive” ABA-based program for A.A. The
Board counters that the AU correctly excluded these reports, either in whole
or in part, because they were more than a year old at the time of the 20 13—14
IEP and proposed placement. Even so, the Parents say, these reports
demonstrate that A.A.’s persistent need for an “intensive” ABA-based program
has been noted consistently by a number of consultants in different disciplines
over time. (P1. Br. 21)
There is no doubt that an opinion based on a January 2012
evaluation (let alone an opinion based on A.A.’s needs as a two-year-old in
2008) is less probative of A.A.’s educational needs in 2013—14 than an opinion
based on a May 2013 evaluation. It is also true that the Holmes report is
geared towards assessing the Board’s proposal for the 2011—12 school year,
which involved an entirely different placement. Nevertheless, to the extent that
these reports corroborate A.A.’s need for some sort of ABA-based program, they
are useful and relevant, if somewhat cumulative. Mindful of the lenient
standard for the admission of new evidence on appeal of an AU’s decision in
15

an IDEA case, I will consider the McCarton, Holmes, and Newman opinions for
the limited purpose stated.
ii.

Interrogatory Responses

Interrogatory no. 3: The Parents also request that I consider an
interrogatory response, Interrogatory no. 3, obtained after the AU’s decision,
which allegedly contradicts the Board witnesses’ hearing testimony. The
Parents point to Pacifico-Batista’s testimony before the AU that Redfern’s
2013—14 class would be supported by a board certified behavior analyst
(“BCBA”); now, they say, the Board has furnished an interrogatory response to
the effect that Redfern never consulted with that BCBA during the 2013—14
school year. (PA 99-100; PA 108) The Board concedes the contradiction. It
points out, however, that A.A. didn’t end up actually attending the Cordero
program in 2013—14, and that Cordero did provide appropriate behavioral
support services for the students who did attend. (Def.

Opp.

Br. 11) Pivoting,

the Parents argue that the information is nevertheless relevant because it goes
to “whether the proposed placement [was] capable of implementing the kind of
ABA-based program” that A.A. needs. (P1. Reply Br. 7)
AU

Moss noted that a staff BCBA was slated to work in Redfern’s

classroom for at least part of the 2013—14 school year. (PA 128, 132) To the
extent a full-time staff BCBA would have been required in order to implement
the goals of A.A. 20 13—14 IEP, it would indeed be useful to know whether the
Board committed itself—or, as the Board implies, would have committed itself,
had A.A. attended—to employing such resources at Cordero. In that limited
sense, the interrogatory response could be somewhat relevant.
As after-acquired evidence, however, this interrogatory answer
must be handled with great care. It can properly be used only to determine “the
reasonableness of the district’s initial decisions regarding a particular IEP or
the provision of special education services at all.” Susan N., 70 F.3d 751;
Furhmann, 993 F.2d at 1041 (“[T[he appropriateness of a student’s placement
must be assessed in terms of its appropriateness at the time it is created and
16

not at some later data when one has the benefit of the child’s actual
experience.”) Here, the Parents do not argue—and the Court is not aware of any
evidence that suggests—that the Board knew or intended at the time it
proposed to place A.A. at Cordero that a staff BCBA would not provide
behavioral support services to Redfern’s class. Nor is there any evidence that
into thinking that A.A. would receive behavioral

the Board duped the AU

support services at Cordero, when it knew she would not. And surely the Board
was not required to supply phantom BCBA services for a student who wasn’t
there in order to preserve its position for this appeal.
The Parents’ request comes very close to a demand that I evaluate
the Cordero placement based on facts and events of which the Board, Parents,
or AU

Moss were not aware even as late as July 2014—a full year after the

Board settled on the proposed IEP and Cordero. If projected back in time, this
would be just the kind of post hoc determination prohibited by Susan N. I do
not exclude this evidence from consideration, however; I have considered it,
and do consider it. I find, however, that its minimal probativeness is limited to
what the Board knew and thought when, in 2013, it developed the 2013—14
IEP, or as to what the BCBA situation would have been if A.A. had attended.
Interrogatory no. 6: The Parents argue that another interrogatory
response, Interrogatory no.6, contradicts Redfern’s testimony that he used
individualized behavior reduction plans and skill acquisition programs for the
students in his class. (P1. Br. 29-30) Once again, I will not exclude the
interrogatory response from my consideration. The contradiction, however,
seems at best to be minor and generic. The interrogatory read: “State whether
the District developed any individualized instruction programs
the students enrolled in

.

.

.

.

.

.

for any of

Redfern’s class during the 20 13—14 school year.”

The Board replied: “[T]he District developed individualized educational
programs, or ‘IEPs,’ for each student.

.

.

The IEPs included behavior plans,

when required, and individualized goals and objectives.” (PA 101, 109-10)

17

That statement does not show, as the Parents suggest, that
Redfern did not use individualized programming in his class. Rather, it appears
consistent with the testimony cited by the Parents that Redfern uses
individualized programming to the extent required by a particular child’s needs.
(PA 369-71; 382-84) I will consider this statement, but I find that that it is not
particularly probative of the issue of whether Cordero was an appropriate
placement for A.A.
iii.

Supplemental Newman Opinion

Third, and finally, the Parents urge the Court to consider the
supplemental opinion prepared by their expert, Newman. The supplemental
opinion is based on the Board’s interrogatory responses and a sample of
redacted student records from the 20 13—14 school year. The gist of Newman’s
opinion is that this evidence undermines the Board’s claim that “everything” in
Redfern’s “classroom [is] data-driven” and demonstrates that “the program is
not in fact data-based or data-driven or operated in manner consistent with
principles of ABA.” (RSF ¶ 65; P1. Oppo. Br. 30) As I have already said, I do not
consider the Board’s interrogatory responses to be irrelevant, but neither do I
find them to be central to the issues here. I therefore focus on the portions of
Newman’s opinion that rely on other students’ records.’°
This additional evidence is not typical of what has been found
germane to an IDEA dispute. Most commonly, a district court is requested to
consider “evidence of a child’s progress—or lack thereof—in an alternative
placement” following a school district’s IEP and placement decisions. See, e.g.
L.G. ex rel E.G. v. Fair Law Bd. of Ecluc., 486 Fed. Appx. 967, 975 (3d Cir.
2015); T.L. v. Lower Marion School Dist., Civ. No. 15-0855, 2015 WL 7252886,
at *45, 15-22 (E.D. Pa. Nov. 17, 2015); Dudley v. Lower Merion School Dist.,
Civ. No. 10-2749, 2011 WL 5525343, at *67 (.D. Pa. Nov. 14, 2011); R.P. v.
10
The Board principally argues that Newman’s supplemental report should not be
admitted because the AU found him not credible, I will not consider that issue at the level of
admissibility of the report, although it may go to the weight I ultimately decide to give it.

18

Ramsey Rd. of Educ., Civ. No. 06-5788, 2008 WL 4371368, at *3,
10-11 (D.N.J.
Sept. 17, 2008). The additional evidence here, by contrast, is
an expert opinion
based on a sample of after-acquired records of non-party studen
ts, from a
school A.A. never attended. Newman’s opinion is thus multiple
steps removed
from the central merits of this dispute.
I am of course mindful of the Parents’ theory here: that these
records are offered, not to demonstrate the educational progre
ss of those

other
children, but rather to demonstrate the instructional methodologi
es employed
by Cordero staff during the 20 13—14 school year. I therefore will
accept
Newman’s report for that limited purpose. Once again, I stres
s to the parties
that the collection of data (or not) regarding other students,
with other
educational abilities and disabilities, may turn out to say very
little about what
would have occurred if A.A. had attended Cordero in 20 13—1
4. And it may say
even less about the reasonableness of the Board’s decision in
2013, based on
what the Board knew in 2013. Accordingly, Newman’s supple
mental opinion
will be added to the administrative record for the limited purpos
es identified
here. I will grant the Board leave to submit a rebuttal report
if it wishes to do
so.
2.

The Parents’ Motion to Vacate

The Parents argue that the AU’s failure (1) to permit Newm
an
access to a “sample program book that includes individual instruc
tional
programs, treatment programs, graphs and data used in the
proposed
program” and (2) “to talk to all staff that would be directly
involved in
implementing A.A.’s IEP, including her case manager, classro
om teacher,
related services providers and any behavioral specialist, suppor
ting
professionals or consultants” rendered them unable to “prese
nt evidence and
confront, cross-examine, and compel the attendance of witnes
ses. (P1. Br. 36);
20 U.S.C. § 14 15(h)(2). A violation of the IDEA’s procedural
requirements is
actionable “only if it
seriously deprives parents of their participation
rights.” D.S. v. Bayonne Bd. of Educ., 602 F.3d 553, 565 (3d
Cir. 2010).
.

.

.

19

i.

Access to Student Records

The Parents argue that Newman should have been permitted to
review other students’ records because they are the type of information that is
generally used in evaluating ABA—based educational programs and any
sensitive information could have been redacted to protect the identities of the
students. (P1. Br. 39-40) The Board counters that the AU got it right: Newman
was not authorized under New Jersey law to access these records, which in any
case are irrelevant to whether the proposed placement provided a FAPE to A.A.
(Def.

Opp.

Br. 9-12) To some degree, this dispute is mooted by

supplementation of the record on this appeal, but I nevertheless discuss it as it
bears on the AU’s decision.
Both New Jersey and federal law obligate schools to protect the
privacy of their students’ records. See 20 U.S.C.

§ 1232g; N.J.S.A. § 18A:36-19.

Under New Jersey’s law, “student record” is broadly defined as “information
related to an individual student gathered within or outside the school district
and maintained within the school district.” N.J.A.C

§ 6A:32—2. 1. Access to

student records is limited to authorized organizations or individuals; generally,
“[p]ersons outside the school” are authorized to view confidential student
records if the students’ parents consent (and consent to any third—party
disclosure) or a court orders it. Id. at 7.5(e)(14),(15). Similarly, under the
Family Educational Rights and Privacy Act (“FERPA”), federal law prohibits the
disclosure of an “educational record” that contains information “directly related
to a student”, including her name, address, or “other information that, alone or
in combination, is linked or linkable to a specific student that would allow a
reasonable person in the school community, who does not have personal
knowledge of the relevant circumstances, to identify the student with
reasonable certainty” to an unauthorized individual. See generally 20 U.S.C.

§

1232g; 34 C.F.R. 99.3. FERPA likewise allows for the disclosure of such records

20

with parental consent or as a result of a court order. 20 U.S.C. §
1232(g)(b)(2).”
Here, the Parents do not argue that they were wrongly denied
access to the records of other students, despite parental consent or a court
order. The argument seems to be a more amorphous one that the Board could
have given Newman student records, if they had been redacted. Cf N.J.A.C.
6A:32-7.5(g) (incorporating the requirements of New Jersey’s Open Public
Records Act, N.J.S.A. § 47: lA-i. 1, which prohibits the disclosure of student
records “to the extent disclosure would reveal the identity of the student”); see
Ragusa v. Marveme Union Free School Dist., 549 F. Supp. 2d 288, 293
(E.D.N.Y. 2008) (“[T}here is nothing in FERPA that would prohibit Defendants
from releasing education records that had all ‘personally identifiable
information’ redacted.”). That is true—under certain circumstances. Had the
Parents secured a court order, for example, the Board could have produced
redacted records under federal and state law. Absent such an order, the Board
had no obligation to give Newman indisputably confidential records—especially
ones that it contends (though the Parents say otherwise) are irrelevant to
whether Cordero and the 20 13—14 IEP provided a FAPE to A.A.’
2
The Parents might have forced the Board’s hand as to redaction by
obtaining an order to compel. 13 But they didn’t. Instead, the Parents tried to
11
New Jersey law expressly incorporates the requirements of FERPA. N.J.A.C. 6A:32§
7.5(g). There appears to be no dispute that the information is covered under both statutes.
12
Under Section 1:6A-l0. 1 of the New Jersey Administrative Code, “[e]ach party shall
disclose to the other party any documentary evidence and summaries of testimony intended to
be introduced at the hearing.” To the extent the Board did not intend to rely on the records of
other students at the hearing, it was not obliged to hand them over.
13

To that end, I note that it does not appear that the Parents ever attempted to serve or
enforce a subpoena to collect the student records it sought prior to filing their motion in limine.
See N.J.A.C. § 1:6A-10. 1(d) (providing that discovery in IDEA cases shall be informal and
prohibiting interrogatories, requests for admissions, and depositions); 1:6A- 1.1(a) (providing
that New Jersey’s Uniform Administrative Rules apply on issues on which New Jersey’s special
rules for IDEA cases are silent); 1:1-11.1 (rules for subpoenas); 1:1-1-10.4 (rules for motions to
compel). By any measure, it would have been unduly harsh for the AU to order the wholesale
exclusion of the Board’s proofs unless it vaguely provided the Parents with “reasonable access”
to information the Parents never subpoenaed or moved to compel.

21

leverage the Board’s failure to turn over the records into an in limine ruling
precluding the Board from introducing other evidence.’ That maximalist
4
position had a potentially large strategic payoff, but also a slim chance of
success. The Parents did not present their motion as one to compel production,
and the AU was not required to recast it as one. The first hint that the Parents
desired an order to compel occurred only after the Board pointed out the
Parents’ failure to seek such relief. (Compare PA 10-24 with PA 45, PA 80) 1
cannot, in short, fault the AU for ruling on the motion that was before her. In
that context, the AU plainly did not err in ruling that Newman was not a
person authorized under New Jersey law to inspect those third-party records,
and to deny the Parents’ motion in limine to preclude the Board from
presenting its case.
Even if the Parents had clearly presented a motion to compel,
however, the AU would not have erred in denying it. The Parents claim that
they have a strong interest in other students’ records because those records
are needed to determine whether Cordero is sufficiently ABA-based for A.A.’s
needs. See Ragusa, 549 F. Supp. 2d at 291 (noting that the party “seeking
disclosure of education records protected by FERPA bears a significantly
heavier burden to justify disclosure than exists with respect to discovery of
other kinds of information, such as business records”) (quoting Rios v. Read,
73 F.R.D. 589, 598 (E.D.N.Y. 1977)).’5 As the AU pointed out, however, the
14

The Parents requested the following relief in their motion in limine:
1. Petitioners’ Motion in Limine is granted; and
2. Respondent Jersey City Board of Education shall be precluded
from introducing any evidence regarding the class and program it
has proposed as a special education placement for A.A., unless it
permits Petitioners’ expert, Dr. Bobby Newman, reasonable access
to the proposed placement, including an opportunity to observe
the proposed class, review a sample student program book
(including individual programs, data and graphs), and talk to staff
directly involved in the implementation of the proposed class.

(PA 9)
15

Although there the Court is not aware of any decisions addressing the circumstances in
which a school district may order the disclosure of student records under New Jersey law, I will

22

records of the other students who attended Cordero would have
very little, if
any, bearing on whether the Board provided A.A. with FAPE. That
ruling is
sound.
FAPE, as a matter of law, is personalized to the student so the
instructional methods used for one child have little bearing on
whether another
child would receive a FAPE. See Hendrick Hudson Cent. Sch. Dist.
Bd. of Educ.
v. Rowley, 458 U.S. 176, 181, 203 (1983) (“The [FAPE] required
by [IDEA] is
tailored to the unique needs of the handicapped child.
[The state] satisfies
this requirement by providing personalized instruction with suffici
ent support
.

.

services to permit the child to benefit educationally from that
instruction.”).
The data collected and instructional methods used for the stud
ents who did
attend Cordero for the 20 13—14 school year was pursuant to
each child’s
personalized IEP. Encouraging satellite litigation over whether
the IEP and
instructional methods used for one student is congruent with
needs of another
is hardly consistent with Congress’ goal that each student be
provided with a
FAPE “designed to meet their unique needs.” 20 U.S.C. 1400(d
)(1)(A). Indeed,
§
the Parents cite to no IDEA case in which the plaintiffs’ expert
was permitted to
review other students’ records in order to determine the suitabi
lity of a
proposed placement for the child involved. (Pl.’s Br. 46-48) (citing
Ragusa, 549
F. Supp. 2d at 290 (employment discrimination); Furley v. Wolfe,
Civ. No. 101820, 2011 WL 597038 (E.D. Pa. Feb. 18, 2011) (42 U.S.C.
§ 1983 civil rights
claim); Natasia v. New Fairfield Sch. Dist., No. Civ. 3:04-9245,
2006 WL
1699599 (D. Conn. June 19, 2006) (Title IX sexual harassment);
Davids

v.
Cedar Falls Community Schools, Civ. No. C96-2071, 1998 WL
34112767 (N.D.
Iowa Oct. 28, 1998) (racial discrimination); Rios, 73 F.R.D. 589
(Title VI and the
equal protection clause). In sum, to the extent that the Parent
s’ motion in

assume for the purpose of argument that they are similar, not
if
the same, as those under
federal law. Cf C.G. Winslow Tp. Bd. of Educ., 443 N.J. Super.
415, 428 (Sup. Ct. Law. Div.
2015) (“The unofficially-named ‘Pupil Records Act’ operates
in conjunction with FERPA to
safeguard pupil records. The PRA attempts to balance the compe
ting interests of access to
records and ‘reasonable privacy.’)

23

limine is read as a request for an order to compel redacted student records, the
AU would not have erred in declining to grant it.
At any rate, particularly in light of the supplementation of the
record on appeal, the Parents cannot demonstrate prejudice. See Section
Ill.B.2.iii, infra.
ii.

Access to Cordero Staff

The Parents also say the AU

abused her discretion in denying

Newman “access to staff directly involved in implementing the proposed
placement.” (P1. Br. 49-55) While Newman was permitted to observe and
discuss the program with Pacifico-Batista, a Cordero staff member, the Parents
contend that Newman should have also been allowed to interview other staff
members who would have had “the kind of information needed to properly
evaluate the program.” (P1. Br. 55) There is no evidence, however, that Pacifico
Batista was unable answer Newman’s questions or provide the information he
needed in order to offer an opinion about Cordero at the time of the observation
in March 2014. If anything, Newman’s write-up of his two-hour observation of
Cordero indicates that the opposite is true. (See, e.g., PA 280 (“Barbara Pacifico
sat with me and answered all questions, although occasionally Mr. Redfern
would provide information as well in response to a direct question from Mrs.
Pacifico, or hearing the question I had asked Mrs. Pacifico.”))’ Newman had
6
adequate access to Cordero. The Parents’ participation rights were not
7
violated.’

16

This also contradicts the Parents’ claim that they were not afforded access to a staff
member who was “involved in delivering or supervising instruction for students”—Redfern, in
fact, was the teacher of the proposed class.
S.B. and K.B. v. Park Ridge Board of Education, on which the Parents heavily rely in
making both of their access arguments, is inapposite. EDS 138 13-08, 2009 WL 1574247 (N.J.
Admin. Apr. 21, 2009) There, AU Richard Gill excluded all of a school district’s evidence
concerning a proposed placement as a sanction for its refusal to allow the plaintiff’s expert
access to the proposed placement after the court had ordered such access. The Parents, because
they did not seek a court order, cannot obtain an S.B.—style sanction based on disobedience of
such an order. Rather than support the Parents’ position on appeal, S.B. highlights its
deficiencies.

24

Finally, as in the case of the student records, the Parents cannot
demonstrate prejudice. See III. B .2. iii, immediately following.

iii.

Supplementation of Record/Lack of Prejudice

As to both the access to records and the access to Cordero, see
supra, I am persuaded—particularly in light of the supplementation of the
record on appeal—that the Parents will not be prejudiced.
The Parents have been granted access to Cordero and its student
records sufficient to test their contention that Cordero was not equipped to
provide A.A. with a FAPE. At the administrative level, their expert was
permitted to observe and interview Pacifico-Batista and Redfern. See Section
III.B.2.ii, supra. Although the AU justifiably denied access to other students’
records and data, see Section III.B.2.i, supra, that is not the end of the story.
As noted above, see Section I.E, supra, in connection with federal court
discovery the Board has turned over student records that it still possesses.’ I
8
have permitted the Parents to introduce a supplemental expert report based on
those records, see Section III.B. 1 .iii, supra.
To look at it another way, if this had been an evidentiary dispute in
federal court, the balancing test of Fed. R. Evid. 403 would have applied.
Considering the probativeness of the evidence, the privacy concerns involved,
and the potential for diversion from the main issues, a court would likely have
led to the same result reached by the AU. At any rate, the supplementation of
the record before this Court should remove any likelihood of prejudice.

18

As noted above, in federal court discovery, the Board turned over a “sample” of redacted
student records and data. That sample comprised all of the available records for
the 20 13—14
school year. In total, the Board produced redacted copies of Verbal Behavior Milestones
Assessment and Placement Programs, (“VB-MAPPs”), IEPs, quarterly progress
reports, sample
graphs, activity and instruction sheets, Mand data, and reinforcement assessment
forms for
three students, all of whom attended Mr. Redfern’s class in the 2013—14 school
year. (PA 11011)

25

3.

Spoliation

Apart from various allegations of violations of their procedural
rights under the IDEA, the Parents claim reversal is warranted because the
board destroyed or otherwise disposed of student records from the 20 13—14
school year. Spoliation occurs where: “(1) the evidence was in the party’s
control; (2) the evidence is relevant to the claims or defenses in the case; (3)
there has been actual suppression or withholding of evidence; and (4) the duty
to preserve the evidence was reasonably foreseeable to the party.” Bull v. United
Parcel Serv., 665 F.3d 68, 73 (3d Cir. 2012). The Parents cannot make the
required showing.’
9
As to factors 2, 3, and 4, which are interrelated, I note that the
student records the Parents seek became unavailable in the ordinary course of
business, as a result of the school’s reasonable compliance with its duties to
other students and their parents. The Board’s terminology—that it provided a
“sample” of the relevant documents—is perhaps not well chosen; the “sample”
comprised all of the documents then available.
In accordance with the school’s policies, at the end of the school
year, the records were either sent to the parents or, if unclaimed, destroyed.
°
2
That even-handed policy is consistent with New Jersey law, and does not
bespeak an intent to destroy evidence. N.J.A.C. § 6A:32-7:8(b) (“Student
records

may be disposed of after the information is no longer necessary to
provide educational services to a student.”) (emphasis added). To be sure, the
.

.

.

Parents sought these third-party records in connection with the AU
proceedings, and then made them the subject of a motion in limine. The AU
ruled that the documents were not discoverable, and I would not disturb that
ruling. See Sections I.D, III.B.2.i, supra. Moreover, as noted above, the Parents
never made an unequivocal request to compel their production or to obtain a
19

Factor one is undisputed.

20

1 make no finding on the point, but it appears that the documents that remained
available were those that were in student files maintained by Mr. Redfern.

26

court order to that effect. We therefore are not prese
nted with a case of
noncompliance with a court order, or even an AU orde
r. First Sr. Financial
Group LLC v. Watchdog, 12-cv-1247, 2014 WL 1327
584, at 9 (E.D. Pa. Apri

l 3,
2014) (finding bad faith where party acted recklessly
“without notification or
care for compliance” with a court order).
More generally, the Board seems to have complied with
a
reasonable document retention policy, and it had no reaso
nable expectation,
based on established law, that it would be required to
maintain other students’
records in connection with this student’s claims. Spec
ifically with respect to
factor three, the Parents concede that “they do not know
if Redfern or anyone
from the District intentionally destroyed the evidence
to keep it from the
Plaintiffs,” and offer no evidence to suggest otherwis
e. (Pl.’s Br. 62); Bull, 665
F.3d at 68 (“[A] finding of bad faith is pivotal to a spol
iation determination....
Withholding requires intent.”) See also Bozic, 912 F.
Supp. at 270 (“Almost all
of the district court cases applying Bull of which this
court is aware have
declined to find spoliation where the party’s conduct
was no worse than
negligent, or where the evidence was lost in the norm
al course of daily business
or other similar activity.”)
’
2
Given the total mix of information and the circumsta
nces, I am
unable to conclude that the Board’s conduct, “consider
ed as a whole, rises well
above the inadvertence, negligence, inexplicable fooli
shness, or part of the
normal activities of business or daily living, any of whic
h arguably fall outside
the spoliation definition set forth in Bull.” Bozic, 912
F. Supp. at 270. The
picture that emerges is that the District complied with
its usual policy of
returning records, in which parents have a vital inter
est, to the parents; that
the school produced records that Redfem, as the stud
ents’ teacher, had
21

The Parents instead argue that the Board acted “with
a reckless disregard” towards the
importance of other students’ records to the case
of A.A. Bozic v. City of Washington, Pa., 912 F.
Supp. 2d 257, 269 (W.D. Pa. 2012). Assuming arguen
do that a bad faith finding may be
predicated on something less than specific intent to
prevent evidence from being used by an
adverse party, see United States v. Nelson, 481 Fed.
Appx. 40, 42 (3d. Cir. 2012), it cannot be
found on these facts.

27

maintained; that the records are in any event marginall
y relevant; and that
they post-date, and were not part of the basis for, the Boar
d’s 2013 decision.
The claim of spoliation seems to be in part an attempt
to undo the
AW’s ruling that this material was not discoverable in the
first place. I have
affirmed the AU’s discovery rulings, but the spoliation claim
is broader than
that. The spoliation claim also seems to relate to disco
very requests served in
this Court. Out of caution, the Magistrate Judge and I
have granted the
Parents some leeway in supplementing discovery and expa
nding the record on
appeal. In doing so, I do not vacate the AU’s well-con
sidered discovery decision
or open the door to a claim of spoliation before the AU.
For the reasons
expressed above, I further deny any independent claim
of spoliation with
regard to federal court discovery.
IV.

CONCLUSION

For the foregoing reasons, the cross-motions for summary
judgment (ECF nos. 45, 47) are DENIED as presented
, without prejudice. The
Parents’ associated motion to supplement the record
is GRANTED on the
limited basis discussed above. The Parents’ motion to vaca
te the AU’s decision
on the grounds of violations of procedural rights or spol
iation is DENIED. I
reserve ruling on all other issues pending a conferen
ce before the Magistrate
Judge and any resubmitted motions for summary judg
ment, which shall
conform with my instructions at
p. 3 of this Opinion, supra, and shall conform
in every respect with the Local Rules of this Court.
Dated: December 29, 2016

C\J J
KEVIN MCNULTY
United States District Jude

28