California OAH special education order · August 17, 2018
Order Re Documents Filed Under Seal
OAH Case No. 2018030412 · ALJ Marian H. Tully
OAH kept District counsel's handwritten hearing notes sealed in the administrative record. The ALJ had ruled them attorney work product, and only a reviewing court on appeal may order them sent or released.
This case went to decision
Student v. Los Angeles Unified School District: Los Angeles Unified did not predetermine autism as a ninth-grader's primary eligibility category; Student's claim denied. (2018)
Summary
During the hearing, Student's counsel asked for a copy of handwritten notes District counsel prepared during the hearing. District counsel objected that the notes were her work product. After oral argument and briefing, the ALJ found the notes were attorney work product and denied Student's request. At Student's request, the notes were placed in a sealed envelope in the administrative record. After OAH received a request for the administrative record transcript, it explained that the envelope stays sealed unless a reviewing court on appeal orders OAH to send it to the court or release it to the parties.
Why it matters
A party who loses a privilege dispute at hearing can still preserve the issue for appeal by asking that the withheld material be sealed and kept in the administrative record. Attorney notes made during a hearing are likely to be protected as work product.
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. 2018030412 v. ORDER RE DOCUMENTS FILED
UNDER SEAL
LOS ANGELES UNIFIED SCHOOL
DISTRICT.
OAH received a Special Education Transcript of Administrative Record Request on July 2, 2018. The Administrative Record in this matter includes a sealed envelope containing handwritten notes prepared by counsel for Los Angeles Unified School District during the course of the hearing.
The issue of whether the notes were privileged attorney work product arose during the hearing when counsel for Student requested a copy of the notes. Counsel for Los Angeles Unified School District objected on the grounds the notes were her work-product. The ALJ heard oral argument and allowed the parties to file briefs. The ALJ determined the notes were attorney work product and denied Student’s request to produce the notes. Student requested the notes be made part of the administrative record for appeal. The ALJ placed the notes in a sealed envelope labeled with the case name and number and OAH holds the envelope. If the matter is appealed, the parties may request an order from the reviewing court directing OAH to send the sealed envelope to the court or to release it to the parties.
IT IS SO ORDERED.
DATE: August 17, 2018
MARIAN H. TULLY
Presiding Administrative Law Judge Office of Administrative Hearings