California OAH special education order · November 4, 2014

Order Granting in Part Motion to Examine Witnesses at Hearing by Telephone

OAH Case No. 2014080942 · ALJ Laurie Gorsline

OAH let five named out-of-area witnesses for Student testify by telephone but denied the request for unnamed 'other' treatment team members because Student did not identify them by name.

Granted in part Evidence and witnesses

Summary

Student asked to have several witnesses testify by telephone at the due process hearing, including doctors and a psychologist from Student's treatment team at Heritage School, because they were out of state, outside the county, or committed to caring for other patients. San Rafael did not oppose the motion. OAH granted the motion for the five named witnesses, on conditions: each must testify by land-line phone while alone in a private room, and Student must give each witness complete duplicate exhibit binders. OAH denied the request, without prejudice, for unnamed 'other members' of the treatment team because Student did not name them.

Why it matters

A request to have witnesses testify by phone should name each witness. A general request covering unnamed team members will be denied. Parties should also be ready for conditions like land-line use, a private room, and supplying full exhibit binders to each remote witness.

Key authority cited

Cal. Code Regs., tit. 5, § 3082, subd. (g)

People named in the order

Dr. Laura Gilley, Student witness (treatment team)
Dr. Sandra Whitehouse, Student witness (treatment team)
Dr. Richard Melney, Student witness (treatment team)
Dr. Erin Heath, Psychologist, Student witness
Mark Hutchinson, Student witness (treatment team)

Topics

telephone testimony witnesses residential treatment out-of-state witnesses hearing procedure

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. 2014080942

v. ORDER GRANTING IN PART

MOTION TO EXAMINE WITNESSES

SAN RAFAEL CITY SCHOOLS. AT HEARING BY TELEPHONE

On August 22, 2014, Student filed a Request for Due Process Hearing (complaint)

with the Office of Administrative Hearings (OAH), naming San Rafael City Schools (San Rafael) as respondent.

On October 2, 2014, OAH continued the due process hearing in this matter to December 16, 2014. The hearing is scheduled to take place at San Rafael City Schools located at 310 Nova Albion Way, San Rafael, California 94903.

On October 22, 2014, Student filed a Motion to Examine Witnesses at Hearing by Telephone, seeking permission to have several witnesses testify by telephone, including Dr.

Laura Gilley, Dr. Sandra Whitehouse, Dr. Richard Melney, Dr. Erin Heath, psychologist, Mark Hutchinson, and other “other members of Student’s Treatment Team at Heritage School.” Student argues these witnesses are located out of state or outside the county in which the hearing will be held or have commitments for the care and treatment of other patients, which necessitates that these witnesses testify at the hearing by telephone. San Rafael filed no opposition to the Motion.

Whether a witness may appear by telephone is a matter within the discretion of the Administrative Law Judge. The hearing officer may conduct all or part of a hearing by telephone “if each participant in the hearing has an opportunity to participate in and to hear the entire proceeding while it is taking place and to observe exhibits.” (Cal. Code Regs., tit.

5, § 3082, subd. (g).)

Student’s motion is granted as to Dr. Laura Gilley, Dr. Sandra Whitehouse, Dr.

Richard Melney, Dr. Erin Heath, and Mark Hutchinson in the event those persons are called as witnesses and are permitted to testify by the ALJ presiding over the hearing. Each witness shall testify on a land-line telephone while alone in a private room. San Rafael shall ensure that the hearing room has sound equipment that allows everyone in the hearing room to hear the witness, and the witness to hear objections and rulings. Prior to the hearing, Student shall provide each witness with a complete set of duplicate exhibit binders from each party which shall contain all of each party’s exhibits and instruct the witness not to remove any documents from the exhibit binders.

To the extent Student seeks to have “other members of Student’s Treatment Team at Heritage School” testify by telephone, the motion is denied without prejudice because Student has failed to specify the witnesses by name.

Any party seeking to have additional witnesses testify by telephone shall move in advance of the hearing for leave to do so, unless the opposing party has stipulated that the witness may appear by telephone.