California OAH special education order · August 29, 2018
Order Denying Request for Telephonic Testimony and Requiring Personal Appearance of Witness
OAH Case No. 2018070224 · ALJ Penelope S. Pahl
OAH denied Student's last-minute request for a subpoenaed doctor to testify by phone, finding no good cause, and ordered him to appear in person or explain why he cannot.
This case went to decision
Summit Public Schools-Denali v. Student: Summit Public Schools-Denali may not assess without consent through a "diagnostic placement" or implement its June 2018 IEP. (2018)
Summary
The day before hearing, Student asked that Dr. Michael Loughran, who had been subpoenaed by Summit-Denali, be allowed to testify by telephone. Student cited a scheduled hand surgery and the travel distance from Menlo Park to Oakland. Summit-Denali objected because the surgery did not conflict with the subpoenaed date, the location was stipulated and reasonable, and it wanted to judge the witness's credibility in person. The ALJ found Student offered no evidence of good cause, since nothing was presented about the surgery, the recovery period, or why the surgery date was moved. Because the doctor had disregarded the subpoena, the ALJ ordered him to appear in person on August 30, 2018, or provide evidence by then of why he could not.
Why it matters
A party seeking remote testimony from a subpoenaed witness needs timely, documented good cause, especially when the other side wants to assess credibility in person. OAH will enforce subpoenas against witnesses who simply fail to appear.
People named in the order
- Dr. Michael Loughran, Subpoenaed 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:
OAH Case No. 2018070224
SUMMIT PUBLIC SCHOOLS: DENALI,
ORDER DENYING REQUEST FOR
v. TELEPHONIC TESTIMONY AND
REQUIRING PERSONAL
PARENT ON BEHALF OF STUDENT. APPEARANCE OF WITNESS
On August 27, 2018, Student filed a motion requesting the telephonic testimony of Dr. Michael Loughran in the hearing scheduled to being August 28, 2018. On August 27, 2018, Summit-Denali opposed the request for telephonic testimony. Both parties supplemented their pleadings with oral argument on the first morning of hearing, August 28, 2018.
On August 2, 2018 a subpoena duces tecum was issued seeking records and requiring the testimony of Dr. Loughran at the first day of hearing in this matter, August 28, 2018. A motion to quash filed by Student was granted as to the production of documents only. The order, issued by the undersigned on August 17, 2018, clearly stated that Dr. Loughran was still subject to subpoena as a witness. As the parties had stipulated to a new hearing location, Summit Denali issued a new subpoena on August 21, 2018 designating the new address for the hearing. The new subpoena also required the appearance of Dr. Loughran at hearing on August 28, 2018. The subpoena was served on Dr. Loughran on August 23, 2018. The subpoena directed Dr. Loughran to contact counsel for Summit-Denali with any questions regarding the scheduling of his testimony.
On August 27, 2018, counsel for Student requested permission to have Dr. Loughran testify by telephone due to the fact that he had hand surgery scheduled for August 29, 2018;
and that the distance to the OAH offices in Oakland was an unreasonable distance for the witness to travel. The witness is located in Menlo Park, California. Dr. Loughran had not contacted counsel for Summit Denali about the scheduling of his testimony. Counsel for Summit-Denali objected to having the witness testify telephonically on the grounds that he was subpoenaed to testify on Tuesday, August 28, 2018 for which the scheduled surgery posed no conflict and that the location was the subject of a stipulation by counsel as well as being a reasonable distance to travel. Counsel sought the opportunity to evaluate the witness’ testimony in person.
At hearing on August 28, 2018, Student’s counsel informed the undersigned that Dr.
Loughran had changed his surgery to Tuesday August 28, 2018, in order to be available for telephonic testimony on Wednesday, August 29, 2018. No evidence was presented as to the type of surgery involved, the recovery period anticipated or when the surgery was originally scheduled; nor was evidence presented as to the reason for the change in the surgery schedule. Student has presented no evidence of good cause supporting this late motion for telephonic testimony. In this matter, Summit-Denali established it has the right to question the witness and evaluate his credibility in person.
On August 29, 2018 at approximately 9:15 a.m., the undersigned attempted to contact Dr. Loughran by telephone, on the record, to discuss his failure to appear as a witness. When no answer was received, a message was left indicating that an order would be issued with further instructions regarding his appearance.
ORDER
1. Dr. Loughran has disregarded a subpoena requiring his appearance before this
tribunal. He is ordered to appear in person to testify on Thursday, August 30, 2018, at 9:00 a.m. or provide evidence no later than August 30, 2018 at 9:00 a.m. as to why his appearance is not possible on that date.
2. Summit-Denali is ordered to immediately serve a copy of this order on Dr.
Loughran.
IT IS SO ORDERED.
DATE: August 29, 2018
PENELOPE S. PAHL
Administrative Law Judge Office of Administrative Hearings