California OAH special education order · September 22, 2021
Order Denying Prehearing Discovery
OAH Case No. 2021090231 · ALJ June Lehrman
OAH denied Student's request for prehearing discovery of IEP meeting notes and a PowerPoint with metadata, because prehearing discovery is not available in special education due process proceedings.
Summary
Student served the respondents with a discovery request for minutes or notes from a September 3, 2021 IEP team meeting, and for a PowerPoint shown at that meeting along with its metadata and source data. Corona-Norco did not respond, but OAH denied the request anyway. The ALJ explained that neither the IDEA nor California law gives a right to prehearing discovery. Documents can be subpoenaed for production at the hearing on a showing of reasonable necessity. Before the hearing, parties are limited to requesting educational records under Education Code section 56504 and to the five-business-day evidence disclosure.
Why it matters
Parents cannot use formal discovery requests to get documents before a due process hearing. They should instead request educational records under Education Code section 56504, which can be done at any time, or seek a subpoena duces tecum so documents are available at the hearing.
Key authority cited
- 20 U.S.C. § 1415(h)
- Ed. Code § 56505(e)
- Cal. Code Regs., tit. 5, § 3082(c)(2)
- Ed. Code § 56504
- Burnett v. San Mateo Foster City School Dist. (9th Cir. 2018) 739 Fed.Appx. 870
- Ed. Code § 56505(e)(7)
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.
CORONA-NORCO UNIFIED SCHOOL DISTRICT AND VIRTUAL
SCHOOL OF INNOVATION.
OAH CASE NUMBER 2021090231
ORDER DENYING PREHEARING DISCOVERY
SEPTEMBER 22, 2021
On September 8, 2021, Student filed a request for due process naming Corona-Norco Unified School District and Virtual School of Innovation as respondents.
On September 13, 2021, Student served on respondents a Request for Discovery seeking two categories of documents, including minutes or notes of an individualized education program team meeting held on September 3, 2021. The request also sought a PowerPoint presentation presented at that meeting, including various metadata and source data concerning that PowerPoint. Corona-Norco has not filed any response. Nevertheless, for the reasons stated below, because pre- hearing discovery is not available in special education due process proceedings, the request must be denied.
APPLICABLE LAW
In general, there is no right to prehearing discovery in due process proceedings under the Individuals with Disabilities Education Act. (20 U.S.C. § 1400 et seq.) Rather, the IDEA provides parties with the right to present evidence and compel the attendance of witnesses at “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).)
California provides a similar right to present evidence and compel the attendance of witnesses in due process proceedings (Ed. Code, § 56505, subd. (e)), but does not confer the right to prehearing discovery.
In special education proceedings in California, to be produced at the hearing but not prior to it, “[t]he hearing officer shall have the right to issue Subpoenas (orders to appear and give testimony) and Subpoenas Duces Tecum (orders 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).) Therefore, the documents sought may be subpoenaed in time for the documents to be available for the hearing itself, upon a showing of good cause, but not prior to the hearing.
In terms of what is available prior to the hearing, 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. These records may be requested at any time. (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).)
The documents Student seeks, in this Motion, are not within these limited categories that are available prior to the hearing itself. The motion is therefore denied.
IT IS SO ORDERED.
June Lehrman Administrative Law Judge Office of Administrative Hearings