1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 D. G., by and through her Guardian Ad Case No. 24-cv-0220-BAS-MSB Litem, KARA GOAN, 12 ORDER GRANTING: Plaintiff, 13 1. PLAINTIFF’S MOTION TO v. SUPPLEMENT THE RECORD 14 (ECF No. 24), AND ALPINE UNION SCHOOL DISTRICT, 15 2. MOTION FOR EXTENSION Defendant. OF TIME (ECF No. 34) 16
17 18 19 This Order addresses two of Plaintiff’s pending motions before the Court: (1) her 20 motion to supplement the record with a partial transcript from the administrative hearing 21 where the Administrative Law Judge (“ALJ”) neglected to turn the official recording back 22 on (ECF No. 24), and (2) her motion to extend the deadline of her response to this Court’s 23 order to show cause as to the foundation for and authenticity of that partial transcript (ECF 24 Nos. 31, 34). Defendant challenges whether Defendant has laid sufficient foundation to 25 authenticate the proposed partial transcript. (ECF Nos. 26, 25, 27.) Upon careful review 26 of the briefing and declarations, the Court GRANTS both motions for the following 27 reasons. 28 1 I. MOTION FOR EXTENSION OF TIME 2 Plaintiff moves for an extension of a deadline after that deadline has passed. Thus, 3 the standard is excusable neglect and not good cause. Fed. R. Civ. P. 6(b)(1)(B); see also 4 Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010) (laying out the 5 four factors for determining excusable neglect as “(1) the danger of prejudice to the 6 opposing party; (2) the length of the delay and its potential impact on the proceedings; 7 (3) the reason for the delay; and (4) whether the movant acted in good faith” (citing Pioneer 8 Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993)). Although Plaintiff 9 cites to the incorrect standard in her motion, her counsel provides enough to establish 10 excusable neglect under Rule 6. 11 The deadline for Plaintiff’s response to this Court’s Order to Show Cause was July 12 13, 2025, and Plaintiff missed that deadline. Plaintiff’s counsel notes that her firm 13 calendared the incorrect deadline for Plaintiff’s response to the Order to Show Cause and 14 that counsel was out of the country with limited internet access from June 21, 2025, through 15 July 13, 2025. (ECF No. 34-1 ¶¶ 11–12.) Such a reason for missing a deadline falls 16 squarely within the bounds of Rule 6 as it appears to be the result of an administrative 17 oversight and not committed in bad faith. Further, Defendant does not note that it is 18 prejudiced by the three-day delay and does not note that this will cause any undue delay in 19 proceedings. (See ECF Nos. 35, 37.) Accordingly, Plaintiff’s Motion to Extend is 20 GRANTED. 21 II. MOTION TO SUPPLEMENT THE RECORD 22 Plaintiff moves to supplement the record with a partial transcript of Plaintiff’s 23 recording of a hearing before the ALJ. (ECF No. 24.) Plaintiff brings this case under the 24 Individuals with Disabilities Education Act. Under this act, the court may permit such 25 supplementation of the record where the record is incomplete due to some mechanical 26 failure. See Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1473 (9th Cir. 1993). To 27 warrant inclusion, such additional evidence must be “relevant, non-cumulative, and 28 1 otherwise admissible.” E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist. Off. of Admin. 2 Hearings, 652 F.3d 999, 1006 (9th Cir. 2011). 3 The Court initially indicated the transcript as submitted was inadmissible due to 4 Plaintiff’s failure to lay foundation for or authenticate it, but was otherwise relevant and 5 non-cumulative. (ECF No. 31.) The Court provided Plaintiff the opportunity to lay the 6 appropriate foundation to authenticate it. (Id.) Plaintiff’s latest submission is her attempt 7 to do so. (ECF No. 35.) Without bringing any evidence of its own or citing any caselaw, 8 Defendant argues that Plaintiff has not authenticated the partial transcript sufficiently to 9 lay a foundation for its admission into evidence. (ECF No. 37 at 1.) The Court finds 10 Plaintiff’s response sufficiently lays foundation for and authenticates the transcript despite 11 Defendant’s protestations. 12 “To satisfy the requirement of authenticating or identifying an item of evidence, the 13 proponent must produce evidence sufficient to support a finding that the item is what the 14 proponent claims it is.” Fed. R. Evid. 901(a). This burden is “not high.” United States v. 15 Recio, 884 F.3d 230, 236 (4th Cir. 2018); see also United States v. Ceballos, 789 F.3d 607, 16 618 (5th Cir. 2015) (characterizing the proponent’s burden as “low”). 17 A document can be authenticated through a witness with personal knowledge— 18 someone who “wrote it, signed it, used it or saw others do so.” Orr v. Bank of Am., NT & 19 SA, 285 F.3d 764, 774 (9th Cir. 2002). A document can also be authenticated by the 20 “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, 21 taken in conjunction with circumstances.” Fed. R. Evid. 901(4). Where evidence that a 22 piece of evidence is what it claims to be is “undisputed,” the court has “sufficient 23 foundation to admit [it].” United States v. Brannon, 616 F.2d 413, 416 (9th Cir. 1980); see 24 also Louis Vuitton S.A. v. Spencer Handbags Corp., 765 F.2d 966, 974 (2d Cir. 1985) 25 (“Where, as here, no well-founded accusation of impropriety or inaccuracy is made, 26 testimony as to authentication is sufficient.”). 27 The Court is satisfied that Plaintiff meets her burden to lay foundation for and 28 authenticate the partial transcript. Plaintiff’s counsel, Meagan Nuñez, attests that she | ||represented Plaintiff at the hearing in question before the Office of Administrative 2 || Hearings and recorded the “totality” of the hearing. (ECF No. 24-4 44 3-4.) She further 3 || attests that on that day, September 6, 2023, the ALJ inadvertently failed to resume audio 4 ||recording the hearing for approximately thirty-five minutes, creating a gap in the official 5 ||transcript. Ud. { 6.) Ms. Nufiez was present at the hearing during this time of the missing 6 || recording and attests that the partial transcript is a true and correct recording of the thirty- 7 || five minutes of dialogue missing from the official transcript. (ECF No. 34-1 9 2,9.) By 8 || this point Ms. Nufiez attests to enough to assure the Court that the partial transcript “is what 9 || the proponent claims it is.” Fed. R. Evid. 901. Nonetheless, Plaintiff's motion is further 10 || bolstered by Defendant’s response. While Defendant’s response challenges Ms. Nufiez’s 11 || lawyering, it does not, in fact, challenge the authenticity of the partial transcript itself. (ECF 12 ||No. 37 at 2.)! Therefore the partial transcript’s authenticity is undisputed, and it is 13 ||admissible. See Brannon, 616 F.2d at 416.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 D. G., by and through her Guardian Ad Case No. 24-cv-0220-BAS-MSB Litem, KARA GOAN, 12 ORDER GRANTING: Plaintiff, 13 1. PLAINTIFF’S MOTION TO v. SUPPLEMENT THE RECORD 14 (ECF No. 24), AND ALPINE UNION SCHOOL DISTRICT, 15 2. MOTION FOR EXTENSION Defendant. OF TIME (ECF No. 34) 16
17 18 19 This Order addresses two of Plaintiff’s pending motions before the Court: (1) her 20 motion to supplement the record with a partial transcript from the administrative hearing 21 where the Administrative Law Judge (“ALJ”) neglected to turn the official recording back 22 on (ECF No. 24), and (2) her motion to extend the deadline of her response to this Court’s 23 order to show cause as to the foundation for and authenticity of that partial transcript (ECF 24 Nos. 31, 34). Defendant challenges whether Defendant has laid sufficient foundation to 25 authenticate the proposed partial transcript. (ECF Nos. 26, 25, 27.) Upon careful review 26 of the briefing and declarations, the Court GRANTS both motions for the following 27 reasons. 28 1 I. MOTION FOR EXTENSION OF TIME 2 Plaintiff moves for an extension of a deadline after that deadline has passed. Thus, 3 the standard is excusable neglect and not good cause. Fed. R. Civ. P. 6(b)(1)(B); see also 4 Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1261 (9th Cir. 2010) (laying out the 5 four factors for determining excusable neglect as “(1) the danger of prejudice to the 6 opposing party; (2) the length of the delay and its potential impact on the proceedings; 7 (3) the reason for the delay; and (4) whether the movant acted in good faith” (citing Pioneer 8 Inv. Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993)). Although Plaintiff 9 cites to the incorrect standard in her motion, her counsel provides enough to establish 10 excusable neglect under Rule 6. 11 The deadline for Plaintiff’s response to this Court’s Order to Show Cause was July 12 13, 2025, and Plaintiff missed that deadline. Plaintiff’s counsel notes that her firm 13 calendared the incorrect deadline for Plaintiff’s response to the Order to Show Cause and 14 that counsel was out of the country with limited internet access from June 21, 2025, through 15 July 13, 2025. (ECF No. 34-1 ¶¶ 11–12.) Such a reason for missing a deadline falls 16 squarely within the bounds of Rule 6 as it appears to be the result of an administrative 17 oversight and not committed in bad faith. Further, Defendant does not note that it is 18 prejudiced by the three-day delay and does not note that this will cause any undue delay in 19 proceedings. (See ECF Nos. 35, 37.) Accordingly, Plaintiff’s Motion to Extend is 20 GRANTED. 21 II. MOTION TO SUPPLEMENT THE RECORD 22 Plaintiff moves to supplement the record with a partial transcript of Plaintiff’s 23 recording of a hearing before the ALJ. (ECF No. 24.) Plaintiff brings this case under the 24 Individuals with Disabilities Education Act. Under this act, the court may permit such 25 supplementation of the record where the record is incomplete due to some mechanical 26 failure. See Ojai Unified Sch. Dist. v. Jackson, 4 F.3d 1467, 1473 (9th Cir. 1993). To 27 warrant inclusion, such additional evidence must be “relevant, non-cumulative, and 28 1 otherwise admissible.” E.M. ex rel. E.M. v. Pajaro Valley Unified Sch. Dist. Off. of Admin. 2 Hearings, 652 F.3d 999, 1006 (9th Cir. 2011). 3 The Court initially indicated the transcript as submitted was inadmissible due to 4 Plaintiff’s failure to lay foundation for or authenticate it, but was otherwise relevant and 5 non-cumulative. (ECF No. 31.) The Court provided Plaintiff the opportunity to lay the 6 appropriate foundation to authenticate it. (Id.) Plaintiff’s latest submission is her attempt 7 to do so. (ECF No. 35.) Without bringing any evidence of its own or citing any caselaw, 8 Defendant argues that Plaintiff has not authenticated the partial transcript sufficiently to 9 lay a foundation for its admission into evidence. (ECF No. 37 at 1.) The Court finds 10 Plaintiff’s response sufficiently lays foundation for and authenticates the transcript despite 11 Defendant’s protestations. 12 “To satisfy the requirement of authenticating or identifying an item of evidence, the 13 proponent must produce evidence sufficient to support a finding that the item is what the 14 proponent claims it is.” Fed. R. Evid. 901(a). This burden is “not high.” United States v. 15 Recio, 884 F.3d 230, 236 (4th Cir. 2018); see also United States v. Ceballos, 789 F.3d 607, 16 618 (5th Cir. 2015) (characterizing the proponent’s burden as “low”). 17 A document can be authenticated through a witness with personal knowledge— 18 someone who “wrote it, signed it, used it or saw others do so.” Orr v. Bank of Am., NT & 19 SA, 285 F.3d 764, 774 (9th Cir. 2002). A document can also be authenticated by the 20 “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, 21 taken in conjunction with circumstances.” Fed. R. Evid. 901(4). Where evidence that a 22 piece of evidence is what it claims to be is “undisputed,” the court has “sufficient 23 foundation to admit [it].” United States v. Brannon, 616 F.2d 413, 416 (9th Cir. 1980); see 24 also Louis Vuitton S.A. v. Spencer Handbags Corp., 765 F.2d 966, 974 (2d Cir. 1985) 25 (“Where, as here, no well-founded accusation of impropriety or inaccuracy is made, 26 testimony as to authentication is sufficient.”). 27 The Court is satisfied that Plaintiff meets her burden to lay foundation for and 28 authenticate the partial transcript. Plaintiff’s counsel, Meagan Nuñez, attests that she | ||represented Plaintiff at the hearing in question before the Office of Administrative 2 || Hearings and recorded the “totality” of the hearing. (ECF No. 24-4 44 3-4.) She further 3 || attests that on that day, September 6, 2023, the ALJ inadvertently failed to resume audio 4 ||recording the hearing for approximately thirty-five minutes, creating a gap in the official 5 ||transcript. Ud. { 6.) Ms. Nufiez was present at the hearing during this time of the missing 6 || recording and attests that the partial transcript is a true and correct recording of the thirty- 7 || five minutes of dialogue missing from the official transcript. (ECF No. 34-1 9 2,9.) By 8 || this point Ms. Nufiez attests to enough to assure the Court that the partial transcript “is what 9 || the proponent claims it is.” Fed. R. Evid. 901. Nonetheless, Plaintiff's motion is further 10 || bolstered by Defendant’s response. While Defendant’s response challenges Ms. Nufiez’s 11 || lawyering, it does not, in fact, challenge the authenticity of the partial transcript itself. (ECF 12 ||No. 37 at 2.)! Therefore the partial transcript’s authenticity is undisputed, and it is 13 ||admissible. See Brannon, 616 F.2d at 416. 14 Accordingly, Plaintiff's Motion to Extend is hereby GRANTED and her Motion to 15 Supplement the Record is hereby GRANTED. 16 IT IS SO ORDERED. 17 18 || DATED: July 25, 2025 i ly A ( Diyphan □ ? 19 Hon. Cynthia Bashant, Chief Judge United States District Court 20 21 22 23 24 ' On this front, the Court directs counsel for Defendant to this Court’s Standing Order for Civil 95 || Cases Section 15, which requires courtesy and respect “at all times, in all settings,” as well as Civil Local Rule 2.1(a), which notes that “[a]lthough adversarial, the experience [of the adversarial system] does not 26 || have to, and should not, be antagonistic or hostile.’ (Compare ECF No. 37 (characterizing □□□□□□□□□□□ counsel’s declaration as a “careful[] attempt[] to skirt around the failure to offer sufficient sworn facts” 27 and as “suspicious,” yet offering no evidence to contradict the authenticity of a transcript for a hearing Defendant’s counsel herself attended and recorded), with CivLR 2.1(a)(3)(a) (“We expect lawyers to 28 address legal arguments with other lawyers professionally, and not personally.”).) A.