1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 C.R., by and through her Guardian Ad No. 2:20-cv-02296 KJM AC Litem, TIFFANY ROE , 12 Plaintiff, 13 ORDER v. 14 ELK GROVE UNIFIED SCHOOL 15 DISTRICT, CAPITOL ELEMENTARY SCHOOL, INC., MARILYN DELGADO, 16 and IRA ROSS, as individuals, and DOES1 to 10, 17 Defendants. 18 19 This matter is before the court on plaintiff’s motion to compel the production of 20 documents underlying the opinion of defendants Capitol Elementary School (“CES”) and Ira 21 Ross’s expert, Joseph S. Schwartzberg. ECF No. 106. The parties submitted the required joint 22 statement. ECF No. 122. The motion was considered on the papers. ECF No. 109. Having 23 carefully considered the arguments of the parties, the motion is DENIED for the reasons set forth 24 below. 25 I. Introduction 26 This case was filed on November 17, 2020. ECF No. 1. Plaintiff is a minor suing Elk 27 Grove Unified School District, Marilyn Delgado (Program Specialist for the District), Capitol 28 Elementary School, and Ira Ross (Executive Director and/or Principal of CES) for violations of 1 the ADA, the Rehabilitation Act, Title IX, and related state law causes of action. Id. at 3-4. 2 Capitol Elementary is a non-public school organized as a private corporation that contracts with 3 Elk Grove Unified to provide education services to children with exceptional needs as an 4 independent contractor. Id. at 3. Plaintiff, a minor with autism and fetal alcohol syndrome which 5 has resulted in developmental disabilities, was a student at CES beginning January 25, 2019. Id. 6 at 5. Plaintiff alleges that between September 11, 2019 and mid-January 2020, she was 7 repeatedly sexually harassed by other students in class, fondled in the bathroom by other students, 8 and ultimately raped in a classroom by two male students while they were left unattended during 9 the school day. ECF No. 1 at 6-10. Plaintiff alleges that although her grandmother reported the 10 incidents prior to the alleged rape to CES, the school was not responsive and failed to follow up, 11 conduct investigations, or implement corrective safety measures. Id. at 8-11. Plaintiff alleges the 12 defendants failed to take any investigative action or take any corrective measures, and plaintiff’s 13 guardian withdrew her from the school. Id. at 11. 14 II. Relevant Background 15 Fact discovery in this case was completed as of October 25, 2023. ECF No. 60. Aside 16 from one informal discovery conference unrelated to this motion, there were no discovery 17 disputes presented to the court during fact discovery. ECF No. 58. On January 24, 2024, 18 CES/Ross disclosed the expert report of Joseph S. Schwartzberg. ECF No. 122 at 10. Plaintiff 19 filed a motion for evidentiary sanctions on April 24, 2024, related to the Schwartzberg report. 20 ECF No. 85. 21 In the motion for sanctions, plaintiff asserted that CES “waited until three months after the 22 close of fact discovery to disclose material witnesses and facts in an expert report. CES then 23 waited another month to serve supplemental Rule 26 disclosures identifying over 30 new 24 witnesses or groups of witnesses and producing over 150 pages of responsive documents.” ECF 25 No. 85 at 8. Plaintiff sought evidentiary sanctions including exclusion of the late-disclosed 26 documents and witnesses, and an adverse jury instruction. Id. According to plaintiff’s brief on 27 the motion for sanctions, beginning in at least November of 2021 and January of 2022, she 28 “sought the names of teachers, aides, and students who attended CES at the same time as 1 Plaintiff” through interrogatories and requests for production. Id. at 10. Plaintiff reported that 2 defendants categorically refused to disclose information about students on privacy grounds. Id. 3 In April of 2023, plaintiff again asked for “class rosters” covering the time plaintiff was in class, 4 but those were never produced. Id. at 11. 5 In the sanctions motion, plaintiff contended that the Schwartzberg report listed two 6 teachers (Ms. Hanks and “Mr. G”) whom plaintiff asserted had not been disclosed during 7 discovery, and included documents that had not been produced containing information such as 8 “(1) the number of students and aides in Plaintiff’s classrooms from January 2019 through 9 November 2019; (2) the ages of Plaintiff’s assailants; (3) the behavioral and disciplinary history 10 of Plaintiff’s assailants; and (4) dates when Plaintiff’s assailants allegedly attended class with 11 Plaintiff.” Id. at 14, 18. Plaintiff wrote a letter demanding a supplemental disclosure from CES 12 providing all the documents disclosed to or relied on by CES experts. Id. at 12. According to 13 plaintiff, CES then served a document on February 5, 2024 that contained 34 additional witnesses 14 or groups of witnesses, expanded on the number of topics about which previously disclosed 15 witnesses would testify at trial, and removed 14 previously disclosed witnesses. Id. CES also 16 served over 150 pages of purportedly new evidence, including heavily redacted class rosters. Id. 17 at 13. 18 Plaintiff argued in her sanctions motion that pursuant to Federal Rule of Civil Procedure 19 37(c)(1), defendants should be prohibited from using any of the late-disclosed witnesses and 20 documents at trial, and that the court should give an adverse jury instruction. ECF No. 85 at 14. 21 Additionally, plaintiff asked the court to craft an appropriate adverse inference jury instruction. 22 Id. at 15. The court denied the motion largely on the grounds that it was unfounded and untimely 23 because plaintiff had never moved to compel any documents during the discovery period. ECF 24 No. 98 at 1. In that order, the court rejected plaintiff’s argument that the burden is not on her to 25 move to compel, but on defendants to produce in good faith. Id. at 6. The undersigned explained 26 that the law conditions the receipt of federal funding by educational institutions or agencies on 27 their compliance with certain procedures concerning the maintenance of student educational 28 records and restricting release of such records to third parties without parental consent. See 20 1 U.S.C. § 1232g; Morgan Hill Concerned Parents Ass’n v. California Dep’t of Educ., No. 2:11- 2 CV-03471 KJM AC, 2015 WL 10939711, at *3 (E.D. Cal. July 2, 2015). Accordingly, the court 3 concluded, defendants were within their rights (if not legally required) to withhold third party 4 student records until the court ordered their disclosure; it was entirely predictable that defendants 5 would refuse to disclose student information without a court order and that a motion to compel 6 would be required to obtain that information. See Morgan Hill, 2015 WL 10939711 at *3 (noting 7 exception to parental consent requirement where disclosure is necessary to comply with a judicial 8 order or subpoena, citing 34 C.F.R. § 99.31(a)(9)). 9 After the court found that defendants had not improperly withheld any documents and 10 denied the motion for sanctions, the parties stipulated to extend the expert discovery deadline 11 from July 25, 2024 to August 30, 2024 in order for the parties to complete expert depositions. 12 ECF No. 99. The stipulation was adopted on July 18, 2024. ECF No. 103. Plaintiff filed the 13 present motion to compel on July 31, 2024 (ECF No. 106) and the matter became ripe for 14 decision on the papers on August 28, 2024. ECF No. 109. 15 III. Motion to Compel 16 A. Standard on Motion to Compel 17 The scope of discovery in federal cases is governed by
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 C.R., by and through her Guardian Ad No. 2:20-cv-02296 KJM AC Litem, TIFFANY ROE , 12 Plaintiff, 13 ORDER v. 14 ELK GROVE UNIFIED SCHOOL 15 DISTRICT, CAPITOL ELEMENTARY SCHOOL, INC., MARILYN DELGADO, 16 and IRA ROSS, as individuals, and DOES1 to 10, 17 Defendants. 18 19 This matter is before the court on plaintiff’s motion to compel the production of 20 documents underlying the opinion of defendants Capitol Elementary School (“CES”) and Ira 21 Ross’s expert, Joseph S. Schwartzberg. ECF No. 106. The parties submitted the required joint 22 statement. ECF No. 122. The motion was considered on the papers. ECF No. 109. Having 23 carefully considered the arguments of the parties, the motion is DENIED for the reasons set forth 24 below. 25 I. Introduction 26 This case was filed on November 17, 2020. ECF No. 1. Plaintiff is a minor suing Elk 27 Grove Unified School District, Marilyn Delgado (Program Specialist for the District), Capitol 28 Elementary School, and Ira Ross (Executive Director and/or Principal of CES) for violations of 1 the ADA, the Rehabilitation Act, Title IX, and related state law causes of action. Id. at 3-4. 2 Capitol Elementary is a non-public school organized as a private corporation that contracts with 3 Elk Grove Unified to provide education services to children with exceptional needs as an 4 independent contractor. Id. at 3. Plaintiff, a minor with autism and fetal alcohol syndrome which 5 has resulted in developmental disabilities, was a student at CES beginning January 25, 2019. Id. 6 at 5. Plaintiff alleges that between September 11, 2019 and mid-January 2020, she was 7 repeatedly sexually harassed by other students in class, fondled in the bathroom by other students, 8 and ultimately raped in a classroom by two male students while they were left unattended during 9 the school day. ECF No. 1 at 6-10. Plaintiff alleges that although her grandmother reported the 10 incidents prior to the alleged rape to CES, the school was not responsive and failed to follow up, 11 conduct investigations, or implement corrective safety measures. Id. at 8-11. Plaintiff alleges the 12 defendants failed to take any investigative action or take any corrective measures, and plaintiff’s 13 guardian withdrew her from the school. Id. at 11. 14 II. Relevant Background 15 Fact discovery in this case was completed as of October 25, 2023. ECF No. 60. Aside 16 from one informal discovery conference unrelated to this motion, there were no discovery 17 disputes presented to the court during fact discovery. ECF No. 58. On January 24, 2024, 18 CES/Ross disclosed the expert report of Joseph S. Schwartzberg. ECF No. 122 at 10. Plaintiff 19 filed a motion for evidentiary sanctions on April 24, 2024, related to the Schwartzberg report. 20 ECF No. 85. 21 In the motion for sanctions, plaintiff asserted that CES “waited until three months after the 22 close of fact discovery to disclose material witnesses and facts in an expert report. CES then 23 waited another month to serve supplemental Rule 26 disclosures identifying over 30 new 24 witnesses or groups of witnesses and producing over 150 pages of responsive documents.” ECF 25 No. 85 at 8. Plaintiff sought evidentiary sanctions including exclusion of the late-disclosed 26 documents and witnesses, and an adverse jury instruction. Id. According to plaintiff’s brief on 27 the motion for sanctions, beginning in at least November of 2021 and January of 2022, she 28 “sought the names of teachers, aides, and students who attended CES at the same time as 1 Plaintiff” through interrogatories and requests for production. Id. at 10. Plaintiff reported that 2 defendants categorically refused to disclose information about students on privacy grounds. Id. 3 In April of 2023, plaintiff again asked for “class rosters” covering the time plaintiff was in class, 4 but those were never produced. Id. at 11. 5 In the sanctions motion, plaintiff contended that the Schwartzberg report listed two 6 teachers (Ms. Hanks and “Mr. G”) whom plaintiff asserted had not been disclosed during 7 discovery, and included documents that had not been produced containing information such as 8 “(1) the number of students and aides in Plaintiff’s classrooms from January 2019 through 9 November 2019; (2) the ages of Plaintiff’s assailants; (3) the behavioral and disciplinary history 10 of Plaintiff’s assailants; and (4) dates when Plaintiff’s assailants allegedly attended class with 11 Plaintiff.” Id. at 14, 18. Plaintiff wrote a letter demanding a supplemental disclosure from CES 12 providing all the documents disclosed to or relied on by CES experts. Id. at 12. According to 13 plaintiff, CES then served a document on February 5, 2024 that contained 34 additional witnesses 14 or groups of witnesses, expanded on the number of topics about which previously disclosed 15 witnesses would testify at trial, and removed 14 previously disclosed witnesses. Id. CES also 16 served over 150 pages of purportedly new evidence, including heavily redacted class rosters. Id. 17 at 13. 18 Plaintiff argued in her sanctions motion that pursuant to Federal Rule of Civil Procedure 19 37(c)(1), defendants should be prohibited from using any of the late-disclosed witnesses and 20 documents at trial, and that the court should give an adverse jury instruction. ECF No. 85 at 14. 21 Additionally, plaintiff asked the court to craft an appropriate adverse inference jury instruction. 22 Id. at 15. The court denied the motion largely on the grounds that it was unfounded and untimely 23 because plaintiff had never moved to compel any documents during the discovery period. ECF 24 No. 98 at 1. In that order, the court rejected plaintiff’s argument that the burden is not on her to 25 move to compel, but on defendants to produce in good faith. Id. at 6. The undersigned explained 26 that the law conditions the receipt of federal funding by educational institutions or agencies on 27 their compliance with certain procedures concerning the maintenance of student educational 28 records and restricting release of such records to third parties without parental consent. See 20 1 U.S.C. § 1232g; Morgan Hill Concerned Parents Ass’n v. California Dep’t of Educ., No. 2:11- 2 CV-03471 KJM AC, 2015 WL 10939711, at *3 (E.D. Cal. July 2, 2015). Accordingly, the court 3 concluded, defendants were within their rights (if not legally required) to withhold third party 4 student records until the court ordered their disclosure; it was entirely predictable that defendants 5 would refuse to disclose student information without a court order and that a motion to compel 6 would be required to obtain that information. See Morgan Hill, 2015 WL 10939711 at *3 (noting 7 exception to parental consent requirement where disclosure is necessary to comply with a judicial 8 order or subpoena, citing 34 C.F.R. § 99.31(a)(9)). 9 After the court found that defendants had not improperly withheld any documents and 10 denied the motion for sanctions, the parties stipulated to extend the expert discovery deadline 11 from July 25, 2024 to August 30, 2024 in order for the parties to complete expert depositions. 12 ECF No. 99. The stipulation was adopted on July 18, 2024. ECF No. 103. Plaintiff filed the 13 present motion to compel on July 31, 2024 (ECF No. 106) and the matter became ripe for 14 decision on the papers on August 28, 2024. ECF No. 109. 15 III. Motion to Compel 16 A. Standard on Motion to Compel 17 The scope of discovery in federal cases is governed by Federal Rule of Civil Procedure 18 26(b)(1). The Rule states: 19 Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged 20 matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of 21 the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, 22 the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely 23 benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 24 25 Fed. R. Civ. P. 26(b)(1). Evidence is relevant if: (a) it has any tendency to make a fact more or 26 less probable than it would be without the evidence; and (b) the fact is of consequence in 27 determining the action. Fed. R. Evid. 401. Relevancy to the subject matter of the litigation “has 28 been construed broadly to encompass any matter that bears on, or that reasonably could lead to 1 other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. 2 v. Sanders, 437 U.S. 340, 351 (1978). Relevance, however, does not establish discoverability; 3 Rule 26 also requires that discovery be proportional to the needs of the case. 4 B. Discussion 5 The court is not persuaded that defendants improperly withheld any discovery, and the 6 motion to compel is denied. As a preliminary matter, the court notes that the parties agree that 7 Schwartzberg did not rely on any documents that were not made available to plaintiffs. ECF No. 8 122 at 10-11, 12. Plaintiff’s argument is that Schwartzberg was provided information verbally 9 from Ross, and plaintiff assumes that there must be some documents that Ross verbally relayed 10 the contents of, which were not provided to plaintiff. Id. at 11. Plaintiff moves to compel the 11 production of documents that, plaintiff assumes, Ross relied on in communicating information to 12 Schwartzberg. Id. 13 This motion fails for many reasons. First, the court will not compel the production of 14 documents on the basis that they were relied upon by defendants’ expert when all parties agree 15 that defendants’ expert did not review any documents that were not supplied to plaintiff. There is 16 nothing to compel. Second, even if the court were to take as true plaintiff’s argument that Ross 17 reviewed documents that were improperly withheld and “spoon-fed” that information to 18 Schwartzberg (ECF No. 122 at 17), the information at issue (the alleged assailants’ ages, CES’s 19 supervision and training policies, and the makeup of the classroom at issue) is basic information 20 that should have been sought during discovery, and is the same type of information that was at 21 issue in the motion for sanctions. As with the motion for sanctions discussed above, the court 22 rejects plaintiff’s attempt to conduct much belated basic fact discovery at this juncture. Third, 23 plaintiff had the opportunity to depose Schwartzberg about the substance of his conversation with 24 Ross, and the conversation was indeed discussed at length at Schwartzberg’s deposition. ECF 25 No. 122-9 at 43:25-54:25, 105:4-16, 106:20-109:9, 113:1-4, 117:20-22, 119:23-120:2, 126:11-15, 26 127:3-10, 128:19-24, 175:9-176:3, 220:21-221:19, 233:1-14, 240:12-16. Plaintiff has had a full 27 and fair opportunity to conduct discovery in this case, and the motion to compel is denied. 28 //// 1 IV. Conclusion 2 For the reasons explained above, the motion to compel (ECF No. 106) is DENIED. 3 IT IS SO ORDERED. 4 | DATED: September 25, 2024 5 Htttenr— Lhar—e_ ALLISON CLAIRE 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28