California OAH special education order · September 11, 2015
Order Denying Motion to Exclude Documents
OAH Case No. 2015060412, 2015030745 · ALJ Chris Butchko
OAH denied District's motion to exclude all of Student's documents served one day late, finding exclusion too severe a sanction for a non-willful delay that caused little prejudice.
Summary
District asked OAH to bar Student from presenting any documents or recordings at hearing because Student served the exhibits four business days before hearing instead of the required five. Student explained that the documents were mailed late because the postal service was closed on the holiday. OAH denied the motion, holding that exclusion of evidence is a severe sanction reserved for serious or willful violations, and this one-day delay was neither. To ease District's concern about preparing for Student's neurological expert, OAH directed that the expert not testify on the first day of hearing and said the issue could be revisited at the start of hearing.
Why it matters
A short, non-willful miss of the five-business-day evidence disclosure deadline will not usually lead OAH to throw out a party's evidence, especially when scheduling adjustments can cure any prejudice. Parties should still serve exhibits on time to avoid this kind of fight.
Key authority cited
- Ed. Code, § 56505, subd. (e)(7)
People named in the order
- Dr. Simun, Student's neurological expert witness
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 Consolidated Matters of:
PARENTS ON BEHALF OF STUDENT, OAH Case No. 2015060412 v.
TORRANCE UNIFIED SCHOOL DISTRICT ,
TORRANCE UNIFIED SCHOOL DISTRICT, OAH Case No. 2015030745 v.
ORDER DENYING MOTION TO
PARENTS ON BEHALF OF STUDENT. EXCLUDE DOCUMENTS
On September 9, 2015, Torrance Unified School District filed a motion to exclude Student from presenting “any documents or recordings” at the hearing in this matter. Student filed opposition to the motion on the same day. District filed a reply on September 10, 2015.
APPLICABLE LAW
Education Code section 56505, subdivision (e)(7), provides for disclosure of witnesses and exhibits “at least” five business days prior to the hearing. That requirement is stated within the September 9, 2015, Order Following Prehearing Conference issued in this matter. The Order continues to note that no additions to those listed shall be allowed after that time, absent extraordinary circumstances as determined in the discretion of the administrative law judge. Further, it is noted at the conclusion of the Order that failure to comply with the Order may result in the exclusion of evidence or other sanctions.
DISCUSSION
Student served his exhibit list upon District on September 8, 2015, and served the District the documents on the following day. The hearing is set to begin on September 15,
2015. As a consequence, delivery of the documents took place four business days before the
commencement of the hearing. District requests that OAH exclude all of Student’s evidence.
Student asserts that the documents were mailed to District on September 8, and therefore delivered late, because the postal service was closed on September 7, 2015.
District contends that this is not excusable error and that it has been prejudiced by the one- day delay in obtaining the documents. District suggests in its Motion that, if the documents are not excluded, the start of the hearing should be delayed by one day.
Exclusion of evidence is a severe sanction, and should be reserved for serious or willful violations. Student’s missed deadline appears to be neither. District’s proposal to delay the hearing is a fair resolution, but is not workable given the necessary coordination among OAH, counsel, and the witnesses.
District’s expressed prejudice largely consists of its lack of time to prepare for the unfamiliar testimony of Student’s neurological expert Dr. Simun. The parties have been directed in the September 9, 2015, Order Following Prehearing Conference to meet and confer to settle a witness schedule. Student should not schedule Dr. Simun’s testimony on the first day of hearing so as to allow District sufficient preparation time. In addition, this matter may be revisited at the start of the hearing if the parties are not able to reach a suitable accommodation. There is insufficient prejudice to District to justify barring Student from presenting documents in support of her case.
ORDER
The District’s motion to exclude evidence is denied.
DATE: September 11, 2015
/ S/
CHRIS BUTCHKO
Administrative Law Judge Office of Administrative Hearings