California OAH special education order · May 6, 2024
Order Granting in Part Motion to Quash Subpoena Duces Tecum for Dr. Lisa Davidson
OAH Case No. 2023100812 · ALJ Rommel P. Cruz
OAH quashed only the part of Classical Academy's subpoena seeking Student's attorneys' protected work product and ordered Student's independent evaluator to produce everything else, finding the records reasonably necessary and not overbroad.
This case went to decision
Student v. Classical Academy High School: Classical Academy High School must provide 68 hours of compensatory services and fund a behavior IEE; private school reimbursement denied. (2024)
Summary
Classical Academy subpoenaed records from Dr. Lisa Davidson, who did Student's independent neuropsychological evaluation and was scheduled to testify as Student's expert. Student moved to quash, arguing the subpoena was vague, overbroad, burdensome, and oppressive, lacked a showing of reasonable necessity, and sought attorney work product through its request for communications with Student's attorneys. OAH barred production of writings that reflect Student's attorneys' impressions, conclusions, opinions, or legal theories, because those are absolutely protected. It ordered production of all other requested records, finding the district's affidavit showed they were reasonably necessary to challenge Dr. Davidson's findings and that the requests were specific enough and not unduly burdensome.
Why it matters
When a family relies on an independent evaluator as an expert, the district can usually subpoena the evaluator's full file, including drafts, protocols, notes, data, and invoices. Only the attorneys' own mental impressions and legal theories in communications with the expert are reliably protected.
Key authority cited
- 20 U.S.C. § 1415(h)
- Cal. Code Regs., tit. 5, § 3082(c)(2)
- Code Civ. Proc. § 1985(b)
- Code Civ. Proc. § 1987.1
- Code Civ. Proc. § 2018.030
- BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240
People named in the order
- Dr. Lisa Davidson, Independent neuropsychological evaluator and Student's expert witness
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:
PARENT ON BEHALF OF STUDENT,
v.
CLASSICAL ACADEMY HIGH SCHOOL.
OAH CASE NUMBER 2023100812
ORDER GRANTING IN PART MOTION TO QUASH
SUBPOENA DUCES TECUM FOR DR. LISA DAVIDSON
MAY 6, 2024
On October 20, 2024, Parent of behalf of Student filed a due process hearing request, called a complaint, with the Office of Administrative Hearings, naming Classical Academy High School, El Dorado County Charter Special Education Local Plan Area or SELPA, and El Dorado Union High School District. The Office of Administrative Hearings is called OAH.
On November 8, 2023, OAH dismissed El Dorado County Charter SELPA and El Dorado Union as parties in this matter. OAH granted a continuance of the due process hearing on November 15, 2023, and again on February 5, 2024, scheduling this matter for hearing to begin on April 30, 2024. The due process hearing was held on April 30, and May 1 and 2, 2024, and continued to May 7, 2024.
On April 26, 2024, Classical Academy issued a subpoena duces tecum on Dr. Lisa Davidson for testimony and documents. A Notice to Consumer was sent to Student advising Student of the subpoena duces tecum directed to Dr. Davidson. A copy of the subpoena was sent to Student with the Notice to Consumer. The subpoena to Dr. Davidson sought:
1. all drafts and final versions of all formal or informal assessment and
evaluation reports of Student completed by Dr. Davidson;
2. all documents Dr. Davidson considered when assessing/evaluating
Student’s strengths and weaknesses, academics, and to assist with diagnostic clarity and appropriate treatment and intervention planning;
3. all documents Dr. Davidson considered regarding Student’s educational
history, background and placement;
4. all documents related to Student’s progress or lack of progress, including
but not limited to progress reports and test scores;
5. all documents related to Student’s behaviors;
6. all documents related to Student’s social-emotional and mental health;
7. all documents related to remedies, including research-based programs
and interventions and related services;
8. all documents pertaining to Dr. Davidson being retained as an expert
witness related to the due process hearing in OAH case number 2023100812, including but not limited to all invoices and contracts or agreements;
9. all documents used by Dr. Davidson in the course of preparing her opinion
as a percipient or expert witness, in OAH case number 2023100812;
10. all documents, including notes and emails, of communications with
Parents, Family’s attorney, Alexander F. Rodriguez, Rodriguez’s firm, the Law Offices of Hirji and Chau, LLP;
11. all testing protocols, including observation notes, related to all
assessments and evaluations, both informal and formal, of Student completed by Dr. Davidson;
12. all notes related to any meetings held regarding Student;
13. all notes of any observations of Student;
14. all data collected regarding Student; and
15. all invoices and payment records related to Dr. Davidson’s services.
The subpoena duces tecum ordered Dr. Davidson to produce the requested documents on May 7, 2024. Classical Academy included an affidavit by Classical Academy’s attorney with the subpoena duces tecum that described the records sought and why the records sought are relevant and material. Classical Academy’s attorney also asserted there is a reasonable necessity for the documents and things described in the subpoena duces tecum.
On April 25, 2024, Student filed a motion to quash the subpoenas duces tecum for Dr. Davidson on the grounds that the request was vague, overboard, burdensome, and oppressive. Student also contends Classical Academy failed to establish the records sought were reasonably necessary. Furthermore, Student contends request number 10 of the subpoena duces tecum regarding Dr. Davidson’s communications with Student’s attorney and the attorney’s firm, seeks improper production of records protected by the attorney work product doctrine. Student’s motion to quash included an affidavit by Student’s attorney, the Notice to Consumer, and the subpoena duces tecum. On April 30, 2024, Classical Academy filed an opposition to the motion to quash.
Student’s due process hearing request states that Dr. Davidson completed an independent neuropsychological evaluation of Student on June 2, 2023. Dr. Davidson’s findings, conclusions, and recommendations were presented in an evaluation report, which Student intends to rely on at hearing. At the hearing, Student confirmed he intends to have Dr. Davidson testify as an expert. Dr. Davidson is scheduled to testify on May 7, 2024.
A party to a due process hearing under the Individuals with Disabilities 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, the hearing officer shall have the right to issue a subpoena, which is an order to appear and give testimony, and a subpoena duces tecum which is an order to produce documents or papers 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, 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.
RECOREDS PROTECTED BY THE ATTORNEY WORK PRODUCT DOCTRINE
Student contends request number 10 of the subpoena duces tecum seeks records that may include the impressions, conclusions, opinions, or legal research or theories of Student’s attorneys, which are protected by the attorney work product doctrine, and are therefore, not discoverable. Classical Academy did not offer in its opposition, an argument against Student’s contention.
California Code of Civil Procedure section 2018.030, subdivision (a), states that a writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. However, subdivision (b) of that section states that the work product of an attorney, other than a writing described in subdivision (a), is discoverable if the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice. The attorney work product rule in California creates a qualified privilege against discovery of general work product and an absolute privilege against disclosure of writings containing the attorney’s impressions, conclusions, opinions or legal theories. (BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1250.)
Student’s motion to quash is granted in part to the extent request number 10 of the subpoena duces tecum seeks production of writings containing the impressions, conclusions, opinions, or legal research or theories of Student’s attorneys. Such records are barred from discovery under any circumstances. (Code of Civ. Pro., § 2018.020, subd.
(a).) Accordingly, Student’s motion to quash the subpoena duces tecum is granted in part and the request for records containing the impressions, conclusions, opinions, or legal research or theories of Student’s attorneys is quashed.
REASONABLE NECESSITY FOR THE RECORDS
The affidavit in support of the subpoena duces tecum claims the records sought are reasonably necessary to question Dr. Davidson’s findings, conclusions, and recommendations, which Student intends to rely on to support his claim that Classical Academy denied him a free appropriate public education. Student argues the subpoenas duces tecum should be quashed because it 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.) Classical Academy contends the records sought are reasonably necessary to question Dr. Davidson’s findings, conclusions, and recommendations, and to challenge Student’s claim that Classical Academy denied him a free appropriate public education.
The affidavit in support of the subpoena duces tecum for Dr. Davidson established the records sought, with the exception of the privileged writings protected by the attorney-work product doctrine as describe above, are reasonably necessary for Classical Academy to question Dr. Davidson’s findings, conclusions, and recommendations. The denial of discovery of the non-privileged requested records would unfairly prejudice Classical Academy in preparing its defense. Accordingly, Student’s motion to quash the subpoenas duces tecum for Dr. Davidson on the grounds that the subpoena failed to establish good cause for production of the records, with the exception of privileged attorney work product, is denied.
SCOPE OF THE SUBPOENA
Student contends the requests for any and all documents of the records described in the supporting affidavit are vague, overly broad, burdensome, and oppressive. In its opposition, Classical Academy contends the subpoena is sufficiently specific, and compliance is not unduly burdensome.
The supporting affidavit describes with sufficient specificity the documents sought to be produced. Classical Academy’s requests for any and all documents related to Student within the control of Dr. Davidson are not overly broad. Further, locating and copying the requested documents is not so burdensome or oppressive to warrant quashing the subpoenas. Accordingly, Student’s motion to quash the subpoenas duces tecum on the basis that the subpoenas are vague, overly broad, burdensome, and oppressive is denied.
ORDER
1. Student’s motion to quash Classical Academy’s subpoena duces tecum for
Dr. Davidson is granted in part and the subpoena is hereby modified.
Dr. Davidson shall produce documents as described in the subpoena duces tecum with the exception of documents that contain the impressions, conclusions, opinions, or legal research or theories of Student’s attorneys.
Dr. Davidson shall not produce any records relating to impressions, conclusions, opinions, or legal research or theories of Student’s attorneys.
2. Counsel for Classical Academy shall immediately serve a copy of this Order on
Dr. Davidson.
Rommel P. Cruz Administrative Law Judge Office of Administrative Hearings