California OAH special education order · December 16, 2019

Order Denying Motion to Quash Subpoena

OAH Case No. 2019101198 · ALJ June Lehrman

OAH denied Student's motion to quash Upland's subpoena duces tecum without prejudice because neither side provided a copy of the actual subpoena for the judge to review.

Denied without prejudice Subpoenas, motions to compel, and records

Summary

Upland issued a subpoena duces tecum in early December 2019, and Student moved to quash it, arguing there was no reasonable necessity for the documents and that it was improper pre-hearing discovery. Upland opposed and argued about the subpoena's contents, timing, and the categories of documents it sought. Neither party attached the subpoena itself. OAH denied the motion without prejudice and allowed Student to refile with the actual subpoena attached so its contents and the parties' arguments could be addressed.

Why it matters

A party challenging a subpoena at OAH must attach the actual subpoena, or the judge cannot rule on the merits. Subpoenas duces tecum in special education cases require a showing of reasonable necessity, meaning a factual showing of why the documents are material to the issues.

Key authority cited

  • 20 U.S.C. § 1415(h)
  • 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
  • Johnson v. Superior Court (1968) 258 Cal.App.2d 829

Topics

subpoena duces tecum motion to quash reasonable necessity discovery procedural defect

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.

UPLAND UNIFIED SCHOOL DISTRICT.

OAH CASE NUMBER 2019101198

ORDER DENYING MOTION TO QUASH SUBPOENA

On October 30, 2019, Student filed a request for due process naming Upland Unified School District. On October 30, 2019, a scheduling order was issued scheduling the case for hearing on January 2, 2020.

On or about December 6, 2019, Upland issued a subpoena duces tecum, which is the subject of this motion to quash.

On December 13, 2019, Student filed a motion to quash the subpoena on various grounds including lack of reasonable necessity for the requested information, and arguing that it seeks pre-hearing discovery. Student did not provide a copy of the actual subpoena. On December 16, 2019, Upland opposed the motion to quash, making various arguments about the contents of the subpoena, its timing, and the categories of documents it seeks, but without supplying the actual subpoena.

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).)

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, Office of Administrative Hearings, referred to as 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.

Here, the motion to quash is denied without prejudice. The motion may be brought again, attaching the copy of the actual subpoena at issue, such that its contents and the parties’ arguments may be addressed.

IT IS SO ORDERED.

DATED: December 16, 2019 June Lehrman Administrative Law Judge Office of Administrative Hearings