California OAH special education order · November 28, 2018
Order Following Status Conference
OAH Case No. 2018090025 · ALJ Charles Marson
OAH let Student's East Coast witness testify by phone over Orinda's objection and ordered the parties to fill a 35- to 40-minute gap in OAH's hearing recording using their own recordings.
Summary
After Student reported a 35- to 40-minute gap in OAH's official audio of the first hearing day, the ALJ confirmed the gap. He ordered the parties to give OAH the better of their own recordings to complete the record, and ordered Orinda to promptly give its recording to Student's counsel. Over Orinda's objection, the ALJ granted Student's renewed motion for telephonic testimony by Katrina Martin, subject to conditions in the prehearing conference order. The ALJ declined to rule in advance on Student's newly produced evidence binders, but warned that the evidence may be admissible through witnesses who have not yet testified or for legitimate rebuttal, and would be excluded if used to relitigate the first two days of hearing.
Why it matters
Parties should make their own recordings of hearings, because they can fill gaps in OAH's official record. New counsel who add evidence mid-hearing may use it with new witnesses or for rebuttal, but cannot use it to reopen testimony already completed.
People named in the order
- Katrina Martin, Witness (telephonic testimony)
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:
ORINDA UNION SCHOOL DISTRICT, OAH Case No. 2018090025 v. ORDER FOLLOWING STATUS
CONFERENCE
PARENT ON BEHALF OF STUDENT.
On November 27, 2018, a telephonic status conference was held before Administrative Law Judge Charles Marson, Office of Administrative Hearings.
Geralyn M. Clancy, Attorney at Law, appeared on behalf of Student. Jennifer N. Baldassari, Attorney at Law, appeared on behalf of the Orinda Union School District. The status conference was recorded. This Order memorializes the matters discussed and rulings made.
Gap in Audio Recording The ALJ convened the conference in response to Student’s notice, filed earlier in the day, that a 35- to 40 minute gap exists in OAH’s official audio recording of the first day of due process hearing in this matter, October 17, 2018. The ALJ’s independent investigation revealed that the gap does exist and that Student has accurately described it.
After discussion, two solutions were ordered. To complete the administrative record, the parties shall compare their recordings of the afternoon of October 17, 2018 hearing day and furnish the better recording of those missing 35- to 40 minutes of proceedings to OAH, which will be added to the administrative record and deemed part of OAH’s official recording.
Additionally, to prepare for the hearing scheduled to resume on December 4, 2018, Orinda shall promptly furnish its recording of the missing 35- to 40 minutes to counsel for Student to prepare for hearing.
Telephonic Testimony by Katrina Martin Student renewed his motion to permit the telephonic testimony of Katrina Martin, who resides on the East Coast. Orinda opposed the motion but the ALJ granted it subject to the conditions set forth in the Order Following Prehearing Conference issued on September 28, 2018; namely, that 1) OAH’s recording is the only official recording; 2) the parties’ recordings will be turned on and off at the same time as the ALJ’s recording, in order to avoid recording conversations while off the record; 3) no part of the recordings shall be played to any witness or potential witness while the hearing is proceeding; and 4) operation of the parties’ recording mechanisms will not be allowed to delay the hearing. The parties will attempt to agree upon a time for Ms. Martin’s telephonic appearance. The requirements of paragraph 7(b) of the Order Following Prehearing Conference shall apply to Ms. Martin’s testimony; namely: “The proponent of any witness appearing by telephone shall provide the proposed witness with a complete set of exhibit binders from all parties, containing all of each party’s exhibits, prior to the hearing; and shall ensure that the hearing room has sound equipment that allows everyone in the room to hear the witness, and the witness to hear objections and rulings.”
New Evidence Binders Produced by Student Orinda objected to Student’s recent delivery to it of additional binders of evidence not disclosed in Student’s original binders provided by Student’s previous counsel. The ALJ declined to make any ruling on the admissibility of any particular document or category of documents in advance of an attempt to introduce such evidence at hearing. However, the ALJ indicated generally that such evidence, if otherwise admissible, may be admissible during the testimony of a witness who has not yet testified; and may, if otherwise admissible, be admissible for the purpose of legitimate rebuttal. However, the ALJ indicated an intent to exclude such evidence if used for the purpose, or with the effect, of re-opening or re- litigating the first two days of hearing.
DATE: November 28, 2018.
CHARLES MARSON
Administrative Law Judge Office of Administrative Hearings