California OAH special education order · February 13, 2013
Order Quashing Subpoena Duces Tecum
OAH Case No. 2012100238 · ALJ Peter Paul Castillo
OAH quashed a subpoena duces tecum that California Children's Services served on Student's attorney, because demanding documents before hearing is prohibited prehearing discovery in special education cases.
This case went to decision
Student v. Tuolumne County California Children's Services: Tuolumne County California Children's Services must restore direct OT and PT and provide 90 compensatory therapy hours after unilateral cuts. (2013)
Summary
CCS served a subpoena duces tecum on Student's attorney seeking records about Student, to be produced to CCS weeks before the hearing. Student moved to quash it as vague, overly broad, and burdensome, and CCS opposed. OAH granted the motion without reaching Student's specific objections, because neither federal nor California special education law allows prehearing discovery. OAH also found that the Government Code and title 1 regulations CCS relied on do not apply to special education hearings, though CCS may re-serve the subpoena and Student may raise evidentiary objections at the prehearing conference.
Why it matters
Parents do not have to hand over records to an agency before hearing just because they were served a subpoena, since there is no prehearing discovery in special education due process. Agencies can still seek documents for the hearing itself, and parents keep their right to the student's records and to the five-day disclosure of the other side's evidence.
Key authority cited
- 20 U.S.C. § 1415(h)(2)
- Ed. Code § 56505(e)
- Ed. Code § 56504
- Cal. Code Regs., tit. 5, § 3082(c)(2)
- Cal. Code Regs., tit. 5, § 3089
- Code Civ. Proc. § 1987.1
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Matter of:
PARENT ON BEHALF OF STUDENT, OAH CASE NO. 2012100238
v. ORDER QUASHING SUBPOENA
DUCES TECUM
TUOLUMNE COUNTY CALIFORNIA
CHILDREN’S SERVICES.
On October 5, 2012, Student filed a Due Process Hearing Request (complaint) against the Tuolumne County California Children’s Services (CCS) with the Office of Administrative Hearings (OAH). 1 This matter is set for a prehearing conference for March 6, 2013, and hearing on March 19 and 20, 2013.
On January 24, 2013, Attorney for CCS served a Subpoena Duces Tecum (SDT) on the Attorney for the Student, which requested specific records regarding Student, which were to be produced to CCS by February 12, 2013. On February 5, 2013, Attorney for Student filed a Motion to Quash the SDT on the grounds that the SDT was unduly vague and overly broad and burdensome. On February 6, 2013, CCS filed an opposition to the Motion to Quash.
APPLICABLE LAW
A party to a due process hearing under the Individuals with Disabilities in Education Act (IDEA) has the right to present evidence and compel the attendance of witnesses at the hearing (20 U.S.C §1415(h)(2); Ed. Code, § 56505, subds. (e)(2) and (3).) There is, however, no right to pre-hearing discovery under the IDEA. A parent may obtain his/her child’s educational records (Ed. Code § 56504).) Additionally, parents are entitled to receive copies of all the documents the responsible public agency intends to use at hearing, no less than five days prior to the hearing (Ed. Code § 56505, subd. (e)(7).)
Those provisions of the Administrative Procedure Act governing subpoenas do not apply to special education hearings. (Cal Code Regs., tit. 5, § 3089.) Subdivision (c)(2) of section 3082 of title 5 of the California Code of Regulations provides in pertinent part that in 1 Student dismissed the Sonora Elementary School District and the Tuolumne County Office of Education pursuant to a settlement agreement with these parties.
special education proceedings in California, “[t]he hearing officer shall have the right to issue Subpoenas (order to appear and give testimony) and Subpoenas Duces Tecum (SDT)
(order to produce document(s) or paper(s) upon a showing of reasonable necessity by a party).”
Special education law does not specifically address motions to quash subpoenas or SDT’s. In ruling on such motions, the OAH relies by analogy on the relevant portions of California Code of Civil Procedure, section 1987.1, which provides that a court may make an order quashing a subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders.
DISCUSSION
CCS’ SDT requests various documents relating to Student, and that the documents be produced to CCS’ attorney by February 12, 2012. While Student raises numerous grounds to quash the SDT, those grounds need not be addressed here because CCS’ SDT request the production of documents before hearing and applicable Federal and California statutes and regulations do not provide for prehearing discovery in special education proceedings. In opposing Student’s motion to quash, CCS incorrectly cites to Government Code, section 11450.20, and section 1024 of title 1 of the California Code of Regulations, which are not applicable to special education due process hearings. (Cal Code Regs., tit. 5, § 3089.)
Accordingly, Student’s motion to quash is granted because CCS’ SDT constitute prohibited prehearing discovery. 2
ORDER
Student’s Motion to Quash the Subpoena Duces Tecum is granted.
Dated: February 13, 2013 /s/
PETER PAUL CASTILLO
Administrative Law Judge Office of Administrative Hearings 2 Nothing in this order prevents CCS’ attorney from re-serving the SDT.
Additionally, Student may raise any evidentiary objections to the SDTs at the March 6, 2013 prehearing conference.