California OAH special education order · December 14, 2017
Order Denying Without Prejudice Student's Motion for Telephonic Testimony
OAH Case No. 2017110983 · ALJ Darrell Lepkowsky
OAH denied without prejudice Student's request for an expert to testify by phone because the motion did not show whether the witness lived in Colorado or was only temporarily away.
This case went to decision
Student v. Etiwanda School District: Etiwanda School District prevails on all claims; special day class placement and October 2017 IEP offered a FAPE. (2018)
Summary
Student asked OAH to let Dr. Dian Tackett testify by telephone at hearing, saying only that she "is in" Denver, Colorado. The motion had no supporting declaration from Dr. Tackett or Student's attorney, and District did not respond. The ALJ said that allowing phone testimony is up to the hearing judge. Without information on whether Dr. Tackett lives out of state or could testify in person after returning to California, the ALJ denied the motion without prejudice and allowed Student to renew it in the prehearing conference statement.
Why it matters
A request for a witness to testify remotely should explain why the witness cannot appear in person, such as where the witness lives, and should include a supporting declaration, even if the other side does not oppose it.
Key authority cited
- Cal. Code Regs., tit. 5, § 3082, subd. (g)
People named in the order
- Dr. Dian Tackett, Student's proposed 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 Matter of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2017110983 v. ORDER DENYING WITHOUT
PREJUDICE STUDENT’S MOTION
ETIWANDA SCHOOL DISTRICT. FOR TELEPHONIC TESTIMONY
On November 27, 2017, Parent on behalf of Student filed a request for due process hearing with the Office of Administrative Hearings naming the Etiwanda School District.
On December 4, 2017, Student filed a motion to allow telephonic testimony at hearing of Dr. Dian Tackett. In her motion, Student states that Dr. Tackett “is in” Denver, Colorado.
Student did not include a declaration by Dr. Tackett or by Student’s attorney in support of the motion. Student’s motion does not indicate if Dr. Tackett resides in Colorado or is only there temporarily. District did not file an opposition or other response to Student’s motion.
Whether a witness may appear by telephone is a matter within the discretion of the ALJ hearing the case. (Cal. Code Regs., tit. 5, § 3082, subd. (g).) Here, Student failed to provide sufficient information to determine whether telephonic testimony is required due to Dr. Tackett’s residency in Colorado, or if Dr. Tackett is only temporarily out-of-state and therefore her testimony could be presented when she returned to California.
Student’s motion for telephonic testimony is denied without prejudice. Student may renew her motion in her prehearing conference statement for ruling by the Administrative Law Judge assigned to the PHC, which is presently scheduled for January 12, 2018.
IT IS SO ORDERED.
DATE: December 14, 2017
DARRELL LEPKOWSKY
Administrative Law Judge Office of Administrative Hearings