California OAH special education order · March 7, 2018
Order Removing Attorney Work Product From Exhibit S-1
OAH Case No. 2017110983 · ALJ Alexa J. Hohensee
OAH removed page 1 from Student's admitted Exhibit S-1 because it was Student's counsel's attorney work product, not part of the baseline data sheets, and warned counsel that future lapses could bring sanctions.
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
After the hearing, while reviewing the evidence, the ALJ found that page 1 of Student's admitted Exhibit S-1 was not one of the baseline data sheets. It was attorney work product from Student's counsel. The remaining six pages were internally numbered '1 of 6' through '6 of 6', and the audio record showed witness Elaine Sun did not recognize page 1 and laid a foundation only for pages 2 through 7. On its own, OAH removed page 1 and ordered it destroyed. It also admonished Student's counsel that failing to flag work product included by mistake, or including it on purpose to mislead, could lead to sanctions against counsel and the client.
Why it matters
Attorneys should check every exhibit page before filing, because pages without a proper foundation can be struck after admission. Mixing work product into evidence risks an admonishment and possible sanctions.
People named in the order
- Elaine Sun, 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 REMOVING ATTORNEY
WORK PRODUCT FROM EXHIBIT S-1
ETIWANDA SCHOOL DISTRICT.
On February 21, 2017, during the due process hearing in this matter, Student’s Exhibit S-1, baseline data sheets consisting of pages 1 through 7, was admitted into evidence.
Upon review of the evidence, the undersigned ALJ discovered that page 1 of Exhibit S-1 was not a part of the baseline data sheets, but the attorney work product of Student’s counsel. Upon closer examination, only pages 2 through 7 of Exhibit S-1 consist of the baseline data sheets, and those six pages are internally marked “1 of 6”, “2 of 6”, etc.
Upon review of the audio record, Elaine Sun testified that she did not recognize page 1 of Exhibit S-1, and laid a foundation for pages 2 through 7 of that exhibit only.
Accordingly, page 1 of Exhibit S-1, which is the work product of Student’s counsel, is removed from Exhibit S-1 and will be destroyed. Exhibit S-1 will consist of pages 2 through 7 only.
Student’s counsel is admonished to be diligent in ensuring that confidential attorney work product is not embedded within documentary evidence in any future proceeding.
Failure to bring inadvertent inclusion of work product in an exhibit to the attention of the hearing judge, or intentional inclusion of work product in a document with the intent to mislead, may subject counsel and his client to sanctions.
IT IS SO ORDERED.
DATE: March 7, 2018
ALEXA J. HOHENSEE
Administrative Law Judge Office of Administrative Hearings