California OAH special education order · March 26, 2020
Order Granting Motion to Quash Subpoena
OAH Case No. 2019120313 · ALJ Tiffany Gilmartin
OAH quashed Student's subpoenas duces tecum to four Los Altos administrators and staff because Student's supporting declaration only listed the documents and did not show reasonable necessity or relevance.
Summary
Student served subpoenas duces tecum on the Los Altos superintendent, special education director, school principal, and school psychologist. The subpoenas sought incident reports, harassment and complaint records, notes, emails, school work, assessment protocols, and communications with the district's attorney. Los Altos moved to quash, and Student opposed. OAH granted the motion and quashed the subpoenas entirely because Student's declaration only recited the documents requested and gave no facts showing why they were material and relevant, so there was no basis to modify the subpoenas instead.
Why it matters
A subpoena for records in an OAH case must come with a declaration that explains, with facts, why each category of documents is relevant to the hearing issues. A bare list of documents can get the whole subpoena thrown out rather than narrowed.
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
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:
LOS ALTOS SCHOOL DISTRICT,
v.
PARENT ON BEHALF OF STUDENT.
OAH CASE NUMBER 2019120313
ORDER GRANTING MOTION TO QUASH SUBPOENA
MARCH 26, 2020
On December 9, 2019, Los Altos School District filed a request for due process naming Student. An order following prehearing conference was issued on March 6,
2002. Parties indicated at the time no prehearing motions were contemplated. On
March 16, 2020 the scheduled due process hearing was continued until April 26, 2020 as a result of the statewide shelter-in-place directive issued by the Governor.
On March 1, 2020, Student issued a subpoena duces tecum and subpoena to the school superintendent, special education director, school principal, and the school psychologist. None of the subpoenas indicate the method of service; however, Los Altos is not challenging whether the subpoenas were appropriately served. The subpoena to school superintendent sought for school years 2018-2019 and 2019-2020 all incident reports concerning Student, all universal complaint procedure investigations concerning Student, and all documentation related to allegations of sexual harassment involving Student.
The subpoena duces tecum issued to the special education director requested production of all written notes personally drafted at any meeting attended regarding Student. Any and all memos, notes, emails or other communication related to Student.
Further, special education director was to produce, all evaluations, quizzes, progress reports, assessments, tests, school work related to Student from 2017 until present.
Finally, the special education director was directed to produce all communication or notes made during any communication with any employee or representative of Los Altos, including its attorney.
The subpoena duces tecum issued to the school principal requested production of all notes, memos, emails related to Student. Further, the school principal was to produce all evaluations, quizzes, progress reports, assessments, tests, school work related to Student from 2017 until present. The school principal was also to produce all communication or notes made during any communication with any employee or representative of Los Altos, including its attorney.
The final subpoena duces tecum was issued to the school psychologist requested production of all original protocols for all assessments and evaluations of Student dating back to 2016. Further, the school psychologist was to produce all evaluations, quizzes, progress reports, assessments, tests, school work related to Student from 2017 until present. The school psychologist was also to produce all communication or notes made during any communication with any employee or representative of Los Altos, including its attorney.
On March 17, 2020, Los Altos filed a motion to quash, arguing Student failed to establish a reasonable necessity the documents requested were relevant to the due process hearing.
On March 20, 2020 Student filed an opposition to Los Altos’ 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 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.
REASONABLE NECESSITY FOR THE RECORDS
Los Altos argues that the subpoenas duces tecum should be quashed because Student fails to make the requisite showing of reasonable necessity for the requested documents with a statement of facts showing the material and relevant information sought. (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.)
Student’s declaration in support of the subpoena fails to articulate the necessity for the documents requested. Student’s declaration states no facts to support a good cause determination the documents subpoenaed are material and relevant. It is merely a recitation of the documents requested.
The subpoena that was issued failed to comply with the requirement that it be accompanied by a declaration establishing reasonable necessity for production of the records. Here, Student made no statement of the basis for the need for the records.
While section 1987.1 of the Code of Civil Procedure, provides that a court may make an order quashing a subpoena entirely, modifying it, or directing compliance with it; as no good cause for production of the records has been established, the subpoena cannot be modified.
ORDER
1. Los Altos’ motion to quash Student’s subpoena duces tecum issued to the
school superintendent, district special education director, school principal, and school psychologist is GRANTED. The subpoena duces tecum is hereby quashed.
Tiffany Gilmartin Administrative Law Judge Office of Administrative Hearings