California OAH special education order · December 13, 2019

Order Granting in Part and Denying in Part Motion to Quash Subpoena Duces Tecum

OAH Case No. 2019081052 · ALJ Cynthia Fritz

OAH quashed Student's subpoena to Turlock's special education director as duplicative and narrowed the records-custodian subpoena to 2017-2018 onward, excluding texts and phone messages and requiring redaction of other students' information.

Granted in part Subpoenas, motions to compel, and records

This case went to decision

Student v. Modesto City Schools et al.: Modesto City Schools wins dismissal of claims over refused in-home behavior services as barred by two-year statute of limitations. (2020)

Summary

Turlock moved to quash two identical subpoenas duces tecum from Student seeking all Turlock employee communications about Student. Turlock argued the requests were overbroad, sought records Parent already had, and covered other students' private information. OAH quashed the subpoena to the special education director because it duplicated the one to the custodian of records. It limited the custodian subpoena to the 2017-2018 school year forward, matching the complaint's claims, and excused production of phone and text messages as overbroad discovery-type requests. It ordered communications about Student's IEP development, placement, assessment, behavior supports, home or home hospital instruction, and academics to be produced at hearing, with privileged documents withheld and other students' information redacted.

Why it matters

Subpoenas duces tecum in OAH cases must show reasonable necessity. A request will be trimmed to the time period at issue in the complaint, and duplicate subpoenas or broad requests for texts and phone messages are likely to be quashed as improper discovery. Emails and other communications about the student's IEP, placement, and services can still be obtained for the hearing.

Key authority cited

  • 20 U.S.C. § 1415(h)
  • Ed. Code, § 56504
  • Ed. Code, § 56505, subd. (e)
  • Cal. Code Regs., tit. 5, § 3082, subd. (c)(2)
  • Code Civ. Proc., § 1985, subd. (b)
  • Code Civ. Proc., § 1987.1

Topics

subpoena duces tecum motion to quash emails and communications reasonable necessity student records discovery limits

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,

v.

TURLOCK UNIFIED SCHOOL DISTRICT AND MODESTO CITY

SCHOOLS.

OAH CASE NUMBER 2019081052

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO QUASH

SUBPOENA DUCES TECUM

On August 27, 2019, Student filed a due process hearing request naming Turlock Unified School District and Modesto City Schools. On September 16, 2019, the Office of Administrative Hearings, known as OAH, granted Student’s request to file a first amended complaint.

On November 25, 2019, Student issued a subpoenas duces tecum to Turlock’s director of special education and to the custodian of records. Both subpoenas request the same records from Turlock.

On December 4, 2019, Turlock filed a motion to quash the subpoenas asserting that the requests show no apparent necessity for such breadth, seek documents already in Parent’s possession, and request documents which pertain to protected educational and disability-related information of other students.

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 in “a hearing conducted pursuant to subsection (f) or (k)” of section 1415 of title 20 of the United States Code. (20 U.S.C. § 1415(h); see also Ed. Code, § 56505, subd. (e).)

Pre-hearing discovery in special education cases at the administrative hearing stage is limited. Parents or adult students are entitled to request copies of the educational records, relating to the student in question, that are maintained by the school district. (Ed. Code, § 56504; Burnett v. San Mateo Foster City School District, (9th Cir. 2018) 739 Fed. Appx. 870, 873.) The parties are also entitled to disclosures of any evidence an opposing party plans to introduce at hearing 5 business days prior to the date of the first day of hearing. (Ed. Code, 56505(e)(7).)

In special education proceedings in California, “[t]he hearing officer shall have the right to issue Subpoenas (order to appear and give testimony) and Subpoenas Duces Tecum (order to produce document(s) or paper(s) upon a showing of reasonable necessity by a party).” (Cal. Code Regs., tit. 5, § 3082, subd. (c)(2).) This requirement mirrors that required by Code of Civil Procedure section 1985, subdivision (b), which requires:

A copy of an affidavit shall be served with a subpoena duces tecum . . ., showing good cause for the production of the matters and things described in the subpoena, specifying the exact matters or things desired to be produced, setting forth in full detail the materiality thereof to the issues involved in the case, and stating that the witness has the desired matters or things in his or her possession or under his or her control.

The good cause requirement is met by a factual showing of why the requested documents or things are material and relevant to the litigated issues. (Johnson v.

Superior Court (1968) 258 Cal. App.2d 829, 835-836; see also Seven Up Bottling Company v. Superior Court (1951) Cal. App.2d 71, 77.)

Special education law does not specifically address motions to quash subpoenas or subpoenas duces tecum. In ruling on such motions, OAH relies by analogy on the relevant portions of the Code of Civil Procedure. Code of Civil Procedure section 1987.1 provides that a 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

On November 25, 2019, Student sought documents through two subpoena duces tecum directed at Turlock’s director of special education and the custodian or records, to be produced at the commencement of the due process hearing.

In the subpoenas, Student requests any and all communications (i.e. email, text messages, recorded interviews, phone messages) by any Turlock employee related to her held by it from 2017 through the present date. Specifically, Student requests all communications related to Student’s individualized education program development, placement, assessment, behavior supports, home or home hospital instruction, and academic instruction. Student further states that the documents sought are not considered student records, and she is not seeking documents that are protected by the attorney client privilege.

Student’s declaration in support of the subpoenas states that the documents sought are material to the proper presentation in the case. Further, the documents are reasonably necessary for Student to present evidence on the issues raised in the complaint. Conversely, Turlock argues that the subpoenas duces tecum do not meet the higher standard of reasonable necessity for production at a due process hearing.

Turlock’s objection as to the subpoenas duces tecum is granted in part. Student contends in her first amended complaint that Turlock denied Student a free appropriate public education from Turlock for the 2017-2018 school year through the present.

Student fails to establish that documents earlier than the beginning of the 2017-2018 school year are relevant or necessary. Thus, Turlock’s motion to quash the subpoenas duces tecum before the commencement of the 2017-2018 school year is granted.

Further, Student seeks the same records from the custodian or records and the special education director. Thus, the requests are cumulative and accordingly, Turlock’s motion to quash Student’s subpoena duces tecum as to the special education director is granted as not a reasonable necessity.

Additionally, it can easily be presumed that communications related to Student’s individualized education program development, placement, assessment, behavior supports, home or home hospital instruction, and academic instruction are at issue in this matter and are potentially relevant as to whether Turlock provided her with a free appropriate public education. The custodian or records, however, is not required to produce phone messages or text messages, as these requests are overbroad, and more akin to discovery requests which are not authorized in special education due process hearings. Further, any potentially or protected educational and disability-related information related to other students should be redacted before production.

ORDER

1. Turlock’s motion to quash Student’s subpoena duces tecum as to the special

education director is granted.

2. Turlock’s motion to quash Student’s subpoena duces tecum as to the

custodian of records is granted in part and hereby modified. Student’s request is limited to the commencement of the 2017-2018 school year to the present. The custodian of records is not required to produce phone messages or text messages as to any Turlock employee. Any privileged documents do not need to be produced. Any documents that would divulge other student information should be redacted.

3. Turlock shall deliver Student’s records to the hearing location in this matter at

9:30 a.m. on December 17, 2019.

4. Counsel for Student shall immediately serve a copy of this order on Turlock

on the school site from which documents would be found.

DATED: December 13, 2019 Cynthia Fritz Administrative Law Judge Office of Administrative Hearings