California OAH special education order · August 22, 2018
Order Granting Motion to Quash Subpoena Duces Tecum
OAH Case No. 2018070628 · ALJ Rommel P. Cruz
OAH quashed Student's subpoena duces tecum to Orinda because it sought records before the hearing, which is improper pre-hearing discovery not allowed in special education due process cases.
Summary
Orinda moved to quash a subpoena duces tecum Student served on its Director of Student Services and Personnel. Orinda argued the subpoena was untimely, incomplete, improper pre-hearing discovery, and did not show reasonable necessity. Student opposed, pointing to the subpoena's affidavit and an earlier attorney letter asking for the records within five business days. OAH granted the motion because the subpoena sought documents before the hearing, and a party cannot use a subpoena to compel production before hearing; OAH did not reach Orinda's other arguments.
Why it matters
Parents cannot use a subpoena to get district documents before a due process hearing. To get records ahead of time, they should request the student's educational records under Education Code section 56504 and rely on the five-business-day evidence exchange before hearing.
Key authority cited
- 20 U.S.C. § 1415(h)(2)
- Ed. Code, § 56506, subd. (e)(3)
- Ed. Code, § 56504
- Ed. Code, § 56505, subd. (e)(7)
- Code Civ. Proc., § 1987.1
People named in the order
- Jennifer Woodman, Orinda Director of Student Services and Personnel (subpoenaed)
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:
PARENTS ON BEHALF OF STUDENT, OAH Case No. 2018070628 v. ORDER GRANTING MOTION TO
QUASH SUBPOENA DUCES TECUM
ORINDA UNION SCHOOL DISTRICT.
On August 16, 2018, Orinda Union School District filed a motion to quash a subpoena duces tecum served on Orinda by Student on August 13, 2018.
On August 17, 2018, OAH granted Student’s request to amend his complaint. OAH issued a new scheduling order, resetting the due process hearing to October 11, 2018.
On August 18, 2018, Parents on behalf of Student filed an opposition to the motion to quash.
APPLICABLE LAW
A party to a due process hearing under the Individuals with Disabilities in Education Act has the right to present evidence and compel the attendance of witnesses at the hearing (20 U.S.C §1415(h)(2); Ed. Code, § 56506, subd. (e)(3).) There is, however, no right to pre- hearing discovery under the IDEA or the Education Code.
While subpoena duces tecums are authorized in special education hearings, their use must be consistent with the legislative and regulatory framework of these proceedings.
Parents have the right to request and receive the pupil’s educational records. (Ed. Code, § 56504.) Additionally, a party to a due process proceeding is entitled to be served, five business days before the hearing, with copies of all the documents the other party or parties intend to use at the hearing, and a list of all witnesses intended to be called with a statement of the general areas of their expected testimony. (Ed. Code, § 56505, subd. (e)(7).) These required disclosures are the only mechanisms by which a party may obtain documentary information from another party prior to hearing.
Special education law does not specifically address motions to quash subpoenas. In ruling on such motions, the Office of Administrative Hearings relies by analogy on the relevant portions of California Code of Civil Procedure, section 1987.1, which provides that parties or consumers, among others, may make a motion to quash a subpoena duces tecum, and the court may make an order quashing a subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders.
DISCUSSION
Orinda contends Student’s subpoena duces tecum is untimely, incomplete, constitutes improper pre-hearing discovery, and fails to make a showing of reasonable necessity for the records requested. Orinda attached a copy of the subpoena duces tecum to its motion to quash. The subpoena was served on Orinda’s Director of Student Services and Personnel, Jennifer Woodman. Section 2 of the subpoena is incomplete as it fails to provide a date, time, and location to which Ms. Woodman was to appear and/or produce the records described in the accompanying affidavit.
Student attached to his opposition the same copy of the subpoena duces tecum, along with a letter to Orinda dated July 30, 2018, from Student’s attorney. The July 30, 2018 letter described the records that Student seeks and requests Orinda provide the records to Student’s counsel within five business days of the letter. Student argues that the subpoena’s accompanying affidavit, along with his attorney’s July 30, 2018 letter, provided Orinda with sufficient information as to the time and manner to which Ms. Woodman was to produce the records.
However, Student’s subpoena seeks production of records prior to the hearing.
Accordingly, production of documents for a date prior to hearing would constitute improper pre-hearing discovery. A party to a due process hearing in California does not have the power to use a subpoena to compel the production of documents before hearing. Therefore, Orinda’s motion to quash is granted.1
ORDER
1. Orinda’s motion to quash is granted.
DATE: August 22, 2018
ROMMEL P. CRUZ
Administrative Law Judge Office of Administrative Hearings This order does not address any of the other grounds in Orinda’s motion to quash.