California OAH special education order · December 8, 2021
Order Granting Motion to Quash Subpoena
OAH Case No. 2021100290, 2021110001 · ALJ Penelope S. Pahl
OAH quashed Student's subpoenas for documents from nine Tamalpais staff members and five school board trustees because they demanded production before hearing, and there is no right to prehearing discovery.
Summary
Student served subpoenas duces tecum on nine Tamalpais staff members and all five school board trustees. The subpoenas required documents by December 7, 2021, which became 21 days before the rescheduled hearing. Tamalpais moved to quash, arguing the subpoenas were untimely and that the trustee subpoenas sought irrelevant information, and Student did not respond. OAH granted the motion because special education due process gives no right to prehearing discovery, and it did not reach the district's relevance or necessity arguments.
Why it matters
Subpoenas for documents in special education hearings cannot be used as prehearing discovery. Before hearing, parents can get the student's education records within five business days and must receive the other side's exhibits at least five business days before hearing; other subpoenaed documents should be due at the hearing itself.
Key authority cited
- 20 U.S.C. § 1415(h)
- Ed. Code § 56505, subd. (e)
- Ed. Code § 56504
- Cal. Code Regs., tit. 5, § 3082, subd. (c)(2)
- Cal. Code Regs., tit. 5, § 3089
People named in the order
- Isaias Franco, Subpoenaed witness (district staff member or board trustee)
- Amira Mostafa, Subpoenaed witness (district staff member or board trustee)
- Lisa Maibaum, Subpoenaed witness (district staff member or board trustee)
- Connor Snow, Subpoenaed witness (district staff member or board trustee)
- Kelly Lara, Subpoenaed witness (district staff member or board trustee)
- Meredith Hanrahan, Subpoenaed witness (district staff member or board trustee)
- Kate Kritz, Subpoenaed witness (district staff member or board trustee)
- Sandra Pula, Subpoenaed witness (district staff member or board trustee)
- Alysoun Quinby, Subpoenaed witness (district staff member or board trustee)
- Leslie Harlander, Subpoenaed witness (district staff member or board trustee)
- Cynthia Roenisch, Subpoenaed witness (district staff member or board trustee)
- Dan Oppenheim, Subpoenaed witness (district staff member or board trustee)
- Kevin Saavedra, Subpoenaed witness (district staff member or board trustee)
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 CONSOLIDATED MATTERS INVOLVING:
PARENT ON BEHALF OF STUDENT,
and
TAMALPAIS UNION HIGH SCHOOL DISTRICT,
OAH CASE NUMBER 2021100290
OAH CASE NUMBER 2021110001
ORDER GRANTING MOTION TO QUASH SUBPOENA
DECEMBER 8, 2021
On October 8, 2021, Student filed a request for due process with the Office of Administrative Hearings, also called OAH, naming Tamalpais Union High School as respondent. On October 28, 2021, Tamalpais filed a request for due process hearing naming Student as respondent. The two cases were consolidated on November 3, 2021.
Pursuant to an order granting continuance, the cases were scheduled for hearing December 7, 2021.
On November 17, 2021, Student issued subpoenas duces tecum, or SDTs, on nine Tamalpais staff members and all five school board trustees for documents to be produced on December 7, 2021. On November 19, 2021, Tamalpais filed a motion to quash the subpoenas on the grounds that they were not timely, and that the SDT’s issued for documents and testimony from the School Board Trustees sought information that was not relevant to the issues raised in the consolidated cases. No response to the motion to quash was received by OAH.
On November 22, 2021, Tamalpais’ motion to amend its complaint was granted along with a continuance, re-scheduling the consolidated cases for hearing on December 28, 29, and 30, 2021. The subpoenas were not reissued.
NO RIGHT TO PREHEARING DISCOVERY
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.
Education Code, section 56505, subdivision (a), provides that “[t]he state hearing shall be conducted in accordance with regulations adopted by the board,” and under that authority the Department of Education promulgated section 3082, subdivision (c)(2), of title 5 of the California Code of Regulations, which authorizes the issuance of subpoenas and subpoenas duces tecum. These regulations specifically disallow the provisions of the Administrative Procedures Act that provide broader authority for the use of subpoenas in other administrative hearings. (5 Cal. Code Regs., tit. 5, § 3089, [inapplicability of Govt. Code, §§ 11450.05-11450.30 to due process hearing procedures].) While subpoenas duces tecum are authorized in special education hearings, their use must be consistent with the legislative and regulatory framework of these proceedings, which accord prehearing access to only two types of documents: (i)
parents have the right to request and receive the pupil’s educational records within five business days at any time (Ed. Code § 56504), and (ii) the parties are entitled to receive copies of all the documents the parties intend to use at hearing, not less than five business days prior to the hearing. (Ed. Code § 56505, subd. (e)(7))
Student’s subpoena directs the subpoenaed witnesses to produce the subpoenaed records no later than December 7, 2021. As issued, the subpoenas provide for the production of documents 21 days prior to the first day of hearing. Student has no statutory right to pre-hearing discovery. Tamalpais’ motion to quash is granted. As the motion to quash is granted due to a procedural defect, no ruling is made regarding Tamalpias’ substantive arguments such as reasonable necessity.
ORDER
1. Tamalpais’ motion to quash Student’s subpoenas duces tecum is granted.
Subpoenas to the following witnesses are hereby quashed:
a. Isaias Franco
b. Amira Mostafa
c. Lisa Maibaum
d. Connor Snow
e. Kelly Lara
f. Meredith Hanrahan
g. Kate Kritz
h. Sandra Pula
i. Alysoun Quinby j. Leslie Harlander k. Cynthia Roenisch l. Dan Oppenheim m. Kevin Saavedra - NOTE: Two identical subpoenas were issued to Kevin Saavedra. They are both quashed.
2. Counsel for Student shall immediately serve a copy of this order on each
person subpoenaed.
IT IS SO ORDERED.
Penelope S. Pahl Administrative Law Judge Office of Administrative Hearings