California OAH special education order · June 8, 2021
Order Granting Motion to Quash Subpoena
OAH Case No. 2021030859 · ALJ Sabrina Kong
OAH quashed Student's subpoena for San Benito's Superintendent to testify because Student did not show he knew anything about Student's FAPE issues, and general district policymaking was not before OAH.
This case went to decision
Student v. San Benito High School District: San Benito High School District prevails on all five distance-learning claims brought by a ninth grader with a learning disability. (2021)
Summary
Student served a subpoena on San Benito's Superintendent, Shawn Tennenbaum, to testify at hearing. San Benito moved to quash it, arguing he had no knowledge of Student's issues and that other designated witnesses, including Paulette Cobbs, could speak to the district's distance learning policy. Student filed no opposition, but had told San Benito during a meet and confer that the Superintendent created the district's policy for students with special needs. OAH granted the motion because Student did not show the Superintendent's testimony was reasonably necessary to Student's FAPE issues, and general policymaking was irrelevant to the hearing.
Why it matters
To subpoena a high-level administrator, a party must show the witness has personal knowledge relevant to the student's own FAPE claims. Saying the administrator wrote district-wide policy is not enough, especially when other witnesses can cover that policy.
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
- Johnson v. Superior Court (1968) 258 Cal.App.2d 829
- Sehlmeyer v. Dept. of General Services (1993) 17 Cal.App.4th 1072
People named in the order
- Shawn Tennenbaum, Superintendent, San Benito High School District (subpoenaed witness)
- Paulette Cobbs, Witness designated by Student
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,
V.
SAN BENITO HIGH SCHOOL DISTRICT .
OAH CASE NUMBER 2021030859
ORDER GRANTING MOTION TO QUASH SUBPOENA
JUNE 8, 2021
On March 24, 2021, Student filed a request for due process with the Office of Administrative Hearing naming San Benito High School District. Office of Administrative Hearing is called OAH. San Benito High School District is called San Benito. The May 10, 2021 Order Following Prehearing Conference allowed San Benito to accept service of subpoenas for witnesses under its control. On May 27, 2021, OAH granted a continuance scheduling the case for hearing on June 8, 9, and 10, 2021.
On May 28, 2021, Student emailed a subpoena duces tecum to San Benito for San Benito’s Superintendent, Shawn Tennenbaum’s, hearing testimony. On June 2, 2021, San Benito filed a motion to quash the subpoenas on the grounds that Superintendent Tennenbaum’s testimony was irrelevant to the proceedings because he had no knowledge of the issues before OAH about Student. Further, San Benito argued that other witnesses Student already designated to testify at hearing, including Paulette Cobbs, would have information regarding San Benito’s distance learning policy and its impact on Student. Therefore, San Benito asserted that Student failed to make the requisite showing of relevance, and reasonable necessity, to subpoena Superintendent Tennenbaum for hearing testimony.
Student did not file an opposition to the motion to quash. In a meet and confer, Student informed San Benito that Superintendent Tennanbaum’s testimony was needed because he created San Benito’s policy for students with special needs.
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.)
California Code of Regulations, title 5, section 3082, subdivision (c)(2), specifies the right of the parties in a special education hearing to compel the attendance of witnesses at hearing. That regulation states, "[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)." Thus, subpoenas are available to require the production of information that is reasonably necessary for a party to present their case at hearing.
In the absence of regulations pertaining to the details of subpoena processes in administrative hearings, the Office of Administrative Hearings requires parties to comply with procedures described in California Civil Code. California Civil Code section 1985 governs the issuance of subpoenas. In accordance with the California Civil Code, OAH allows attorneys to issue subpoenas to witnesses to require their attendance at hearing with documents and to excuse the attendance of witnesses if documents are produced.
Parties must also comply with the consumer protections of California Civil Code 1985.3 when seeking the production of the personal records of a consumer. (Sehlmeyer v.
Dept. of General Services (1993) 17 Ca. App. 4th 1072.) A subpoena for the attendance of a witness must also meet the good cause requirement by a factual showing of why the testimony and/or production of records 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.)
Student did not show that Superintendent Tennenbaum has any information or knowledge regarding Student’s free appropriate public education, the only issues before OAH. A free appropriate public education is called a FAPE. San Benito represented that Student’s other witnesses have knowledge about San Benito’s special education policy, including distance learning services provided to other students during the COVID-19 pandemic, and its impact on Student’s FAPE issues. San Benito’s general policymaking issues are not before OAH, and therefore irrelevant to this hearing. Therefore, Student did not show that Superintendent Tennenbaum’s testimony was reasonably necessary to the issues before OAH. San Benito’s motion to quash Superintendent Tennenbaum’s hearing testimony is granted.
ORDER
1. San Benito’s motion to quash Student’s subpoena to Shawn Tennenbaum to
appear at hearing as a witness is GRANTED.
Sabrina Kong Administrative Law Judge Office of Administrative Hearings