Order Granting Clovis Unified School District's Motion to Strike

BEFORE THE

OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

In the Matter of:

PARENT ON BEHALF OF STUDENT, OAH Case No. 2017010439 v. ORDER GRANTING CLOVIS

UNIFIED SCHOOL DISTR

CLOVIS UNIFIED SCHOOL DISTRICT MOTION TO STRIKE

AND ALUM ROCK UNION

ELEMENTARY SCHOOL DISTRICT.

On January 13, 2017, Student filed with the Office of Administrative Hearings a Request for Due Process Hearing (complaint) naming Clovis Unified School District (Clovis) and a Motion for Stay Put. 1 On January 20, 2017, OAH issued an order denying Reconsideration of the Order Denying Stay Put, and a Motion to File an Amended Complaint. On January 27, 2017, OAH granted complaint, which added Alum Rock Union Elementary School District (Alum). On January of the Order Denying Stay Put.

On January 17, 2017, Clovis filed a Motion Put and Request for Due Process. OAH denied the motion on January 23, 2017.

for Stay Put asserting that Student improperly included exhibits which were protected by attorney-client and attorney work product privileges and/or contained information in violation of the Family Educational Rights and Privacy Act (FERPA). On January 19, 2017, Student filed a Response. On January 23, 2017, Clovis filed a Reply.

filing to be an amendment to the motion to strike and informed the other parties that they were entitled to respond. On February 13, 2017, Alum filed a Notice of Non-Opposition.

On February 14, 2017, Student filed a Response and Clovis filed a Reply.

t, as discussed below.

1 Student provided OAH with the stay put motion on January 10, 2017. The motion was deemed filed concurrently with the complaint on January 13, 2017.

APPLICABLE LAW

Motion to Strike There are no statutory provisions governing a motion to strike in a special education proceeding. Therefore, like other administrative agencies in similar situations, OAH looks to the Code of Civil Procedure for guidance.

Code of Civil Procedure section 436 provides that a court in its discretion may, upon terms it deems proper, pleading . . . or any pleading not drawn or filed in conformity with the laws of this state, a court rule or a Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528, as modified on denial of reh'g (Apr. 24, 2008), the purpose of section 436 striking of a ill grant motions to strike on various grounds; for example, striking references to matters discussed in mediation that violate the mediation privilege (Cal. Code Regs., tit. 5, § 3086, subd. (b)(1)) (parties forbidden from referring to any aspect of mediation proceedings).

Attorney-Client Privilege A client has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by the holder of the privilege or by a person authorized to claim the privilege (Evid. Code, § 954).

Evidence Code section 953 defines a confidential communication between client and lawyer as one transmitted between client and his or her lawyer, in the course of that relationship, by a means which does not disclose the information to third parties. The lawyer who received or made a communication subject to the privilege is legally required to claim the privilege when the communication is sought to be disclosed (Evid. Code, § 955).

transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship (Evid. Code, § 952).

The fundamental purpose behind the privilege is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters (Mitchell v. Superior Court (1984)

37 Cal.3d 591, 599). In applying its Mitchell decision, the California Supreme Court found that the attorney- (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 735). Such confidential communication includes the legal opinion formed and the advice given by the lawyer, including a general counsel (see Costco Wholesale Corp., supra, 47 Cal.4th 725).

Whenever a lawyer ascertains that he or she has privileged attorney-client material that another inadvertently provided, that lawyer must notify the party entitled to the privilege (State Compensation Insurance Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656).2 Attorney Work Product Privilege research or theories is not discoverable under any circumstances (Code Civ. Proc., § 2018.030, (a)). Also, other work product of an attorney is not discoverable unless the court determines that denial of discovery would unfairly prejudice the party seeking discovery or will result in an injustice (Code Civ. Proc., § 2018.030, (b)). (See Coito v. Superior Court (2012) 54 Cal.4th 480, 488-494 (the Supreme Court reviews the origins and development of Waiver of Attorney-Client Privilege Evidence Code section 912, subdivision (a), states that the right to claim the attorney- client privilege is waived if any holder of the privilege, without coercion, disclosed a significant part of the communication. Courts have consistently held that the disclosure of the privileged communication must be intentional and does not include accidental, inadvertent disclosure.

For example, inadver waiving the attorney-client privilege under the Public Records Act (Cal. Const. art. 1, § [J]udicial interpretation of Evidence Code section 912 dating back nearly two decades holds that the inadvertent disclosure of documents covered by these privileges does not effect a waiver.

(Newark Unified School Dist. v. Superior Court. (2015) 25 Cal.App.4th 887, 904.)

Student Privacy The Family Educational Rights and Privacy Act (FERPA) requires that personally not return inadvertently sent attorney-client privileged documents but, instead, uses the documents to the detriment of the other party. OAH does not have jurisdiction to consider with OAH.

Similarly, state law prohibits public disclosure of pupil records except in limited circumstances (Ed. Code §§ 49060-49079). Pupil records include information directly related to an identifiable pupil that is maintained by a school district or employee, such as a teacher, in the performance of duties (Ed. Code, § 49061,(b)).

DISCUSSION

Exhibits D and G to Motion for Stay Put Exhibit D is an October 14, 2016 email from attorney Kathleen McDonald, whose law firm was retained by Clovis to represent its interests regarding claims being made by Parents. The letter begins by thanking the recipients for attending a lengthy meeting the night before to discuss strategy and appropriate the meeting and includes direc to provide additional input regarding the matters reviewed in the email.

Exhibit G to or Stay Put consists of an October 18, 2016 email conversation and that, as a result, Ms. Samman requests that the RSP teacher provide going to send the documentation to outside counsel. The resource teacher responded the same day, summarizing h copies of her block plans and RSP schedule, containing information pertaining to both Student and many other students identified by first name.

or Stay Put improperly includes these two exhibits which are protected by the attorney-client privilege and attorney work product doctrine, and includes information in violation of FERPA. Clovis asserts that Exhibit D and Exhibit G, with attachments, were inadvertently produced by District employees on requests that the two exhibits and attachments be stricken from the Motion for Stay Put and, further, that any citation, quote, or reference to the exhibits in the motion also be stricken.

In her response, Student argues that the exhibits are not attorney-client privileged documents because they are not marked as an attorney-client communication, Parents were not represented by counsel at the time of the emails, Student had not yet filed a due process request, Ms. McDonald had not sent a notice of representation, and that Exhibit D was a was entitled.

and G are not protected as attorney-client privileged communication or attorney work product.

These arguments are unpersuasive. The attorney-client confidential communication nature of the exhibits are not dependent upon or affected by whether Parents had yet obtained counsel, if Student had filed a due process request, if Ms. McDonald gave notice of meant for Parents, they would have been recipients.

regarding requests or concerns made my Parents in a confidential meeting. The general counsel then summarized the meeting, including her legal recommendations in the October Further, Ms. Samman referred to attorney Ms. McDonald by name, sent her a copy, and invited her further input. Recipients did not include any third party; all were Clovis employees or attorneys. A cursory review of the letter, especially by an attorney and falls within the statutory definition of an attorney-client confidential communication.

In Exhibit G, general counsel indicated she had been in communication with outside counsel and, as a result, was asking the resource teacher for specific information, which she intended to forward to outside counsel. Again, the email clearly reads as if the parties relied upon the confidential nature of the communication. Exhibit G falls within the statutory definition of an attorney-client confidential communication.

Exhibits D and G contain s, conclusions, opinions, and/or legal research or theories and is, therefore, not discoverable under any circumstances (Code and opinion based upon a meeting with the recipients. In Exhibit G, general counsel seeks additional information and documentation based upon a conversation with outside counsel, to whom she intended to forward the requested materials. Exhibits D and G are protected attorney work product.

Clovis demonstrated that the disclosure of Exhibits D and G was inadvertent. The Special Education Local Plan Area Administrator for Clovis SELPA, Theresa Pafford, with -client privilege or work product doctrine were not included in or part of student files. She first became aware that privileged or protected documents were in Stude inadvertently transmitted to Parents when Clovis sent Stude content of Exhibits D and G indicate that the writer and recipients had an expectation of confidentiality in their communication and that the emails were not intended for any person other than Clovis attorneys and employees. Therefore, Clovis did not waive the attorney- client privilege, as envisioned by Evidence Code section 912, subsection (a). As noted in Newark Unified School District, supra, 239 Cal.App.4th 33, inadvertent disclosure of an attorney-client privileged document is not a waiver. Here, the disclosure of the Exhibits D and G was inadvertent and the privilege has not been waived.

In Exhibit G, the resource teacher included two documents with her October 18, 2016 13 weekly RSP block plans for all her -page RSP schedule. The RSP block plans identify students, including Student and others, by first name. Student is the only pupil name on her RSP schedule. Since the documents produced here were part of a confidential attorney-client communication, which was also attorney work product, the attachments are similarly stricken. 3 exhibits, any reference to the exhibits, or any argument based upon the exhibits and their contents, because they are attorney-client confidential communication and attorney work product.

However, Education Code section 56504 gives parents an opportunity to examine all of their student's school records and to receive copies within five business days of parents' ding information. Clovis is therefore ordered to provide Student within five days of this order, with her RSP schedule and the properly redacted RSP block plans.

Motion to Strike References to, and Argument Based upon, Exhibits D and G, in Motion for Stay Put ay Put that quote or refer to the protected privileged communications of Exhibits D and G. Student quotes and cites Exhibit D throughout her Motion to Strike. She similarly refers to Exhibit G, and its attachments. The exhibits are protected confidential attorney-client communications and attorney work product, have been stricken from the motion, and may not be introduced as evidence in this hearing. Further, consistent with the protections accorded by the Evidence Code discussed above, Student may not cite, quote, refer, or make argument based upon the excluded documents.

3 se of the RSP block plans in their present form improperly reveals private educational information and violates the privacy protections of FERPA and the Education Code. Before attaching the RSP block schedule plans to a motion, Student should students are identified by first name that quote or otherwise refer to Exhibit D or Exhibit G is granted.

Those portions of the Motion for Stay Put which are hereby stricken are as follows:

Page 5, lines 7 through 12.

Page 6, lines 7 through 14.

Page 9, lines 3 through 19.

Page 11, line 22, through page 12, line 22.

Page 13, lines 1 through 5.

Page 15, lines 14 through 16.

Exhibit D.

Exhibit G, in its entirety.

Motion for Stay Put and the removal of Exhibits D and G are consistent with the ruling herein.

Before OAH ruled upon its motion to strike, Clovis through 16; page 19, lines 19 through 20; and page 39, lines 16 through 25. Clovis asserts that these sections of the amended complaint specifically cite, quote, or refer to Exhibit D, Exhibit G, and/or the attachments to Exhibit G.

Student contends that Clovis cannot move to strike portions of the amended complaint that the request does not sufficiently state the basis for the request, and that Student has a right to assert issues in her complaint that she wants determined in the due process.

filing an amended complaint; it did not indicate it otherwise agreed with the amended complaint or its contents. Also, Clovis clearly states in its addition to its motion that the basis for the request is that Student improperly uses the confidential and privileged material referred in its motion to strike; namely, Student While Student is correct that she is entitled to assert the issues alleged in the complaint, Student may not refer to the confidential and privileged communications. These three portions of the amended complaint, as discussed below, are stricken.

quotes, and refers to the confidential communications in Exhibit G, which has been stricken and which cannot be used by Student as evidence in this due process. Therefore, this section is properly stricken.

At page 19, Student makes a parenthetical cite to the confidential attorney-client communication contained in Exhibit D, which begins at the end of line 19. This section is similarly stricken.

At page 39, Clovis seeks to have lines 16 through 25 (the entire paragraph) stricken because Student cites and discusses the contents of the confidential attorney-client communication in Exhibit D. Student begins the paragraph by asserting that District predetermined its offer, without making direct reference to the Exhibit D email. This section is not stricken. However, the remainder of the paragraph, beginning at line 19 with summarizes, and argues the Exhibit D email and its contents and is accordingly stricken.

s Amended Complaint are redacted, as shown in the attachment to this order.

- page amended complaint remain.

ORDER

1. Exhibits D and G is

granted.

2. Clovis shall provide Student with her RSP schedule and the properly redacted

RSP block plans, as described above, within five business days from the date of this Order.

3. otion to Stay Put that contain

references to, and argument based upon, Exhibits D and G, is granted. Those portions of the Motion for Stay Put that are hereby stricken are as follows:

Page 5, lines 7 through 12.

Page 6, lines 7 through 14.

Page 9, lines 3 through 19.

Page 11, line 22, through page 12, line 22.

Page 13, lines 1 through 5.

Page 15, lines 14 through 16.

Exhibit D.

Exhibit G, in its entirety.

4.

references to, and argument based upon, the privileged and protected information contained s Exhibits D and G, is granted. Those portions of the Amended Complaint that are hereby stricken are as follows:

Page 19, parenthetical cite to the confidential attorney-client communication contained in Exhibit D, which begins at the end of line 19.

Page 39, line 19 from paragraph at line 25.

5.

further order of OAH, federal court, or state court.

6. for Stay Put, with exhibits, shall be

filed as if filed on January 17, 2017.

may be unsealed only by further order of OAH, federal court, or state court.

8. The redacted versio as shown in the

attachment hereto) shall be filed as if filed on January 27, 2017.

IT IS SO ORDERED.

DATE: March 1, 2017

CLIFFORD H. WOOSLEY

Administrative Law Judge Office of Administrative Hearings Attachment of Order OAH Case No. 2017010439 Redacted Portions of Student s Amended Complaint